USCA1 Opinion

July 24, 1996

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-1549

UNITED STATES OF AMERICA,

Appellee,

v.

FRANCIS J. PROCOPIO,

Defendant, Appellant.

____________________

No. 95-1550

UNITED STATES OF AMERICA,

Appellee,

v.

VINCENT A. LATTANZIO,

Defendant, Appellant.

____________________

No. 95-1551

UNITED STATES OF AMERICA,

Appellee,

v.

BERNARD KILEY,

Defendant, Appellant.

____________________

ERRATA SHEET
ERRATA SHEET

The opinion of this

court issued on July

9, 1996, is

amended

follows:

On

page 29,

paragraph 2,

line 8,

words " . . . a fair trial." to read:

insert footnote

3 after

"In light

think

it fair

Attorney

who

of our criticism

to

note

argued

that

this

of the rebuttal

the assistant

case

on

appeal

argument, we

United

was

States

not

prosecutor who presented the rebuttal argument at trial."

the

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-1549
UNITED STATES OF AMERICA,

Appellee,
v.

FRANCIS J. PROCOPIO,
Defendant, Appellant.

____________________
No. 95-1550

UNITED STATES OF AMERICA,

Appellee,

v.
VINCENT A. LATTANZIO,

Defendant, Appellant.
____________________

No. 95-1551
UNITED STATES OF AMERICA,

Appellee,
v.

BERNARD KILEY,
Defendant, Appellant.

____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Frank H. Freedman, Senior U.S. District Judge]
__________________________

____________________
Before

Selya, Cyr and Boudin,

Circuit Judges.
______________

____________________

Richard J. Shea, by
_________________
Francis J. Procopio.

Appointment

of

the Court,

for

appell

Kevin G. Murphy, by
________________

Appointment of

the Court,

Murphy, Fennell, Liquori & Powers was on brief for

__________________________________

with whom Dus

___

appellant Vinc

A. Lattanzio.
Stewart T. Graham, Jr.,
_______________________

by Appointment

of the

Court, with w

Graham & Graham was on brief for appellant Bernard Kiley.

_______________
C. Jeffrey Kinder, Assistant
__________________
Donald K. Stern,
_______________

United States

United States Attorney, was on

States.

____________________

July 9, 1996
____________________

Attorney, with

brief for the Uni

BOUDIN, Circuit Judge.

_____________

On April 9, 1991,

three armed,

masked men stole $1.2 million in cash about to be loaded into

an armored

Inc.

car belonging to Berkshire

("Berkshire").

Massachusetts.

On

The

June 10,

crime

Armored Car Services,

occurred

1993, the

Bernard

J. Kiley,

Vincent A. Lattanzio,

Francis

J. Procopio and Charles

believed that the first three

in

Pittsfield,

government indicted

Donald J.

R. Gattuso.

Abbott,

The government

men had committed the

robbery

and that the other two had aided the venture.

The indictment

interfere with,

charged all five men

with conspiracy to

and interference with, commerce

robbery, 18 U.S.C.

by means of

1951, and with robbery of bank funds, 18

U.S.C.

2113(a).

Kiley and Procopio were also charged with

money

laundering, 18

U.S.C.

1956(a)(1)(B)(i), (ii).

superseding indictment was handed down on September 30, 1993,

adding firearms counts against Lattanzio and Kiley, 18 U.S.C.

922(g)(1) & 924(c)(1), (2), as well as a forfeiture count

against Kiley, 18 U.S.C.

In

entered

Abbott

due course,

into a

982.

Gattuso pled

guilty to

cooperation agreement

was murdered

prior

to trial.

conspiracy and

with the

government.

The district

court

severed the firearms charges from the other counts; the three

remaining defendants

(Kiley,

Lattanzio and

convicted on all other counts after a 14-day

on

October 6,

1994.

second

Procopio)

were

trial beginning

jury convicted

Kiley

and

on December 14,

1994.

All

-3-3-

Lattanzio

on the firearm counts

three

defendants appealed,

praying

for new

trials on

all

counts.

In

briefs and

oral arguments

Lattanzio and Procopio raise

convictions.

First,

by able

counsel, Kiley,

three major challenges to their

claiming

that

various

government

searches violated the Fourth Amendment, they contend that the

district

court

erred

Second, defendants

evidence

of

Finally,

defendants

prosecutors

in

failing

argue that

possible

to

the court erred

preparations

urge

that

constituted misconduct

for

remarks

BACKGROUND
__________

evidence.

in admitting

later

by

warranting a

We affirm.

I.

suppress

robbery.

one

of

the

new trial.

Because there

evidence,

we do not describe

entitled to

favorable

find,

to the

of

defendants'

claims

Facts

which

relevant

viewing the

the

to

at trial

and

to

suppression

to

the light

motions

most

a neutral

illuminate

provide a

claims

the

would have been

Instead, we offer

judge defendants'

to the

adequacy of

evidence in

evidence

of error

to the

what the jury

government.

description

against

is no challenge

of

the

background

prejudice.

are set

forth

separately in the discussion of those issues.

The government's

two Berkshire

case began

guards, Allan

with the testimony

Mongeon and

-4-4-

James Cota.

of the

They

testified

while

that three

they

armored truck

men, armed

were loading

bags

and masked,

of

in Pittsfield on April

money

accosted them

into a

9, 1991.

Berkshire

The

door of

the loading bay was open, in violation of regular procedures,

because the truck inside the bay was loaded with pallets, and

a second truck, which

the guards decided to use,

directly outside the bay.

was parked

Although the guards offered little

of the robbers, they said that

physical description

one of the three men had been

older and shorter than the other two and that he

and-pepper

mustache;

description was

was

able to

false

mustache

later recovered from Kiley's

get a look

robbers' get-away car;

at the

right front

had a salt-

matching

home.

Mongeon

portion of the

he described it at the time

vintage, probably

that

a Plymouth

as a tan

sedan

of late-70s

later

identified as the car he had seen a tan-and-brown 1979

Buick

Regal, which had belonged

to Procopio at

Volare; he

the time of

the robbery.

In addition,

had

Mongeon testified that one

called out "Chuck,

what are

you doing."

of the robbers

None

of the

individuals claimed by the government to have carried out the

robbery--Kiley, Lattanzio, and

Abbott--was named Chuck,

Gattuso was sometimes referred to by that name.

but

However, the

government established that Gattuso was well known to Mongeon

(Gattuso having been

fired by Berkshire two weeks before the

-5-5-

robbery); the point

was to suggest

that Mongeon would

have

recognized Gattuso's voice had he been present.

Gattuso

then

approached him

early in

Gattuso's brother

robbery.

testified.

March

Dino, for

Gattuso

gave

Procopio

agreed

vehicles.

Kiley

a second

Kiley

to

details

provide

told Gattuso

robbery along with two

said

1991, at

that

and

had

of

the Berkshire

join, bringing his close

meeting.

of

Kiley

the suggestion

help in planning

Gattuso later decided to

friend Procopio to

told

He

At

a final

Berkshire's

dispose

that he would

unnamed confederates.

of

meeting,

operations;

the

getaway

carry out

the

Procopio later

Gattuso that one of the participants in the robbery was

named "Vinnie."

Charles Parise, an unindicted co-conspirator

and friend

of Gattuso's, testified that Procopio brought a car--the same

Buick

Regal identified

by Mongeon

as the

get-away car--to

Parise's garage at his home in Pittsfield on the night of the

robbery.

Parise said

that he was

Procopio

threatened him

car--

family--and to

change its

tires, and was later paid $8,000 for his trouble.

This money

he returned to

and his

forced to hide the

the government.

Parise's credibility by

The defense

pointing to

cast doubt

statements by

on

Parise's

girlfriend suggesting that he had received more than $8,000.

The next several days

government's

painstaking

of the trial were devoted

presentation of

-6-6-

evidence

to the

of cash

transactions, totaling nearly $330,000, by the defendants and

their

families

robbery.

in

the

months

immediately

following

the

For example, Kiley and Lattanzio travelled together

to Jamaica, also treating

defendants'

several friends to the trip.

lavish spending

occurred in

spite of

The

the fact

that Kiley had no visible means of support, Procopio had been

insolvent

prior

to the

robbery,

and

Lattanzio had

never

declared over $15,000 of income in any one year.

In addition, the government presented evidence

a state police uniform,

were

handcuffs, and a radio

of guns,

scanner that

seized from Kiley's apartment at 81 Intervale Street at

the time of his arrest in June 1993; there

was evidence that

Lattanzio, whose father owned the building, was also spending

time in the apartment, and that

belonged to Lattanzio.

of telephone

Finally, the government played tapes

conversations

were in custody)

among Kiley

and Procopio

discussed getting "back

two of the guns seized there

and Lattanzio

(out on bail)

into business" and

in which

(who

they

holding "another

party" to which no "children" would be invited.

The

testified

defendants called

to

a total

alternative sources

of five

for

the

witnesses, who

funds that

the

defendants spent following the

Kiley had

funds from prior

robbery.

The defense claimed

crimes; that Procopio

from legitimate and illegitimate

had money

businesses that he had been

hiding from the IRS and his ex-wife; and that John Lattanzio,

-7-7-

Sr., Vincent's father and

the depositor of much of

the cash

in question, had gambling winnings, again not reported to the

IRS.

In addition, the defense tried to establish that Kiley

had been in Florida at the time Gattuso alleged some of their

meetings had taken place.

II.

Defendants

SEARCH AND SEIZURE

__________________

challenge the

several suppression motions

district

before trial.

to a search of his residence (in 1992);

his

residence

papers,

(in 1992

recovered

from

briefcase seized after

joins in the

court's

and 1993)

and

safe

stolen

Procopio

of

objects

Kiley to searches of

a traffic stop (in

challenge to the

denial

to searches

(in

1991)

1992).

and

Lattanzio

admission of evidence

from Kiley's Intervale Street apartment in 1993.

of his

seized

June 1992 search of Kiley's and Procopio's properties.

_______________________________________________________

In June 1992,

Agent Howe of the IRS prepared an affidavit in

support of a warrant to search four Pittsfield properties:

*37 Taubert Ave. (Kiley's residence)

*124 Crane Ave (Gattuso's residence)

*56 South Onota St. (Procopio's residence)

*483 West Housatonic St. (Procopio's garage)

Howe's

affidavit

set out

tips from

four confidential

informants.

A first confidential informant

that

Charles

Kiley,

participated in

and

Dino Gattuso,

the robbery;

CI-1 had the

-8-8-

(CI-1) had said

and

Procopio

had

information from

Armand Bigelow, who

The second

talked about

and had

from CI-2,

a $10,000 trip

said that he still

not "stupid

Charles

tip,

heard it from

enough to

Gattuso

had

was

his friend Dino

that Charles

Gattuso

had

to California with

his family,

had $80,000 in cash

that he was

put in the

buried

Gattuso.

money

bank."

in

CI-3

his

stated that

back yard

and

corroborated the information about the Gattuso family trip to

California.

in which

the

CI-4 said that

he had overheard a

conversation

Kiley's nephews said that Kiley was responsible for

"armored

car

heist"

and

flashed a

large

amount

of

currency to back up the boast.

The Howe affidavit also

by Kiley,

their

Gattuso, and

known legitimate

described a pattern of spending

Procopio that was

income.

Bank

inconsistent with

records showed

Kiley had deposited over $42,000 in Florida banks

months

in

within six

of the robbery; Procopio had spent $36,000 on a house

which Gattuso was residing

The affidavit

was

that

a new garage.

said that Gattuso, a close friend of Procopio,

former

procedures.

and $12,000 on

Berkshire

guard

familiar

with

company

Agent Howe also stated that--based on past cases

involving drug dealers--individuals who have large amounts of

cash from illegal

sources often

and records of their

have contraband,

proceeds,

money-laundering efforts in their homes

and places of business.

Both Kiley and Procopio

moved to suppress evidence from

-9-9-

this search; the motion was denied in a 45-page

16,

1994.

On

appeal, Kiley

and

district

court's determination

provided

probable cause

to

order on May

Procopio argue

that Agent

search was

that the

Howe's affidavit

flawed; Kiley

also

insists that the information was stale.

Under Illinois
________

cause

v. Gates, 462 U.S.

_____

to issue a search

circumstances set forth

fair probability

213 (1983), probable

warrant exists when

in the

affidavit . .

"given all the

. there is

that contraband or evidence of a crime will

be found in a particular place."

magistrate's decision

to issue

"great

the

deference" to

Id. at 238.
___

a warrant, the

magistrate's

In reviewing a

courts grant

evaluation

of

the

supporting affidavit, United States v. Jewell, 60 F.3d 20, 22

_____________
______

(1st Cir. 1993), reversing only

basis

for . . . conclud[ing]'

if there is no "`substantial

that probable cause existed."

Gates, 462 U.S. at 238-39.

_____

Kiley and

Procopio say

was multi-level

that the first

informant's tip

hearsay and that no evidence was provided to

show the veracity of the unidentified informant.

did

not stand alone.

informants

Moreover,

large

to

and Kiley

had

Kiley, Gattuso, and

sums of

Gattuso was

There was information from three other

which tended

that Gattuso

cash

But the tip

in the

corroborate CI-1's

been involved

Procopio each

months

known to be familiar

implication

in the

robbery.

began spending

following the

robbery;

with Berkshire's operating

-10-10-

procedures;

Procopio was

a close

friend of

Gattuso's and,

shortly after the robbery, purchased a house in which Gattuso

was residing.

As

as

to Kiley, two confidential informants identified him

a participant

evidence

in

the robbery,

and

of large cash deposits which

the government

had

appeared to have been

structured

to

avoid

triggering

reporting

requirements.

Procopio's claim is a somewhat closer call, but the fact that

Procopio

had been spending

large amounts of cash--including

payments on a house

in which Gattuso was residing--suggested

that

involved

Procopio

was

at

least

in

laundering

the

proceeds of a crime in which Gattuso had participated.

Kiley makes

that

Agent

qualify him

what ties the

to

two additional

Howe's experience

arguments.

with

to speak about the habits

drug

First,

he says

dealers does

not

of bank robbers.

But

two situations together is the criminal's need

dispose and keep track

Kiley argues that the

stale because the

of large cash

proceeds.

Second,

information supporting the warrant was

crime had

taken place

14 months

before.

Yet, the fact that the robbery had taken place many months in

the

trail

past did

of

not eliminate

financial

records

the likelihood

could

be

that the

found

in

paper

Kiley's

residence.

Procopio argues that the district court erred in denying

him

a hearing under Franks v. Delaware, 438 U.S. 154 (1978).

______
________

-11-11-

Franks provides for

______

such a hearing

where a defendant

makes

"allegations of deliberate falsehood or of reckless disregard

for the truth, .

at 171.

. . accompanied by an offer of proof."

Procopio claimed in the

doubt about the

Id.
___

district court that such a

agent's good faith exists

here because Dino

Gattuso, the alleged source of CI-1's information, later told

the

government

that

he

did

not

recall

discussing

that

information with anyone else.

The district

hearing.

court properly

refused to grant

Dino Gattuso's statement falls

a Franks
______

short of a specific

denial that he ever discussed the matter with Bigelow; nor is

there

any indication

that Agent

Howe was

aware of

Dino's

statement

at the

corroborating

Procopio's

time Howe

information,

unexplained

swore out

the affidavit.

including

expenditures,

the

evidence

remains

The

of

unaffected.

Nothing appears to raise a reasonable suspicion of deliberate

misconduct or

recklessness on the part

of the investigating

agent.

Kiley's papers from his brother's safe.

______________________________________

1991, a safe

that

time,

was stolen from Kiley's brother

an

abandoned

safe

was

found

On November 29,

Donald; around

in

park

in

Pittsfield, with papers inside the open safe and scattered on

the

ground

nearby.

The papers

station and were laid out to

police

were

taken to

the police

dry and to be fingerprinted.

detective noticed that some

of the documents were in

-12-12-

Bernard Kiley's

investigating

name and called

Kiley

and

the

investigating agents reviewed the

obtain

Kiley's bank

records by

an FBI agent he

Berkshire

knew to be

robbery.

The

documents and used them to

grand jury

subpoena; these

records supported the search of 37 Taubert Avenue.

Kiley argues

that the police actions

were improper; he

says that once the police knew whose safe it was and that the

documents came from inside

review

of the

it, they had no need to conduct a

documents.

In

expectation of privacy Kiley

our

view,

any

reasonable

enjoyed in documents secured in

his

brother's safe was destroyed by private action for which

_______

the

government

was

not

responsible.

Jacobsen, 466 U.S. 109, 113 (1984).

________

United States
______________

v.

And once the papers were

left openly available in a public place, their examination by

government

agents

was not

"unreasonable" under

Amendment.

Cf. id. at 115-18.

___ ___

We thus join the Eleventh

the Fourth

Circuit which held there

was

no Fourth Amendment

in

violation in very

similar circumstances

United States v. O'Bryant, 775 F.2d 1528, 1534 (11th Cir.

_____________
________

1985).

(1st

See also United States v. Aguirre,

________ _____________
_______

Cir. 1988).

Because

of

the

way

839 F.2d 854, 857

we

resolve

this

question, we need not reach the district court's holding that

Kiley

lacked

brother's

safe

standing

and, in

to

the

challenge

the

alternative,

search

that the

search did not go beyond a proper inventory search.

-13-13-

of

his

police

Search of Kiley's briefcase following traffic stop.

___________________________________________________

In

November 1992, a Lenox police office tried to pull Kiley over

for driving with a broken headlight.

car, ran into

police.

The

in keeping

briefcase

the woods,

and was eventually

car was impounded and

with

Kiley jumped out of his

department

in the trunk; they

policy.

caught by

the

the contents inventoried

The

police

found

opened the briefcase and found

marijuana and incriminating documents detailing over $100,000

in

expenditures.

The police

informed a federal

agent who

asked that the car be held while he obtained a warrant.

The district

search

of

exceeded

the

exception to

of

the police

Kiley

its own

therefore did

the

court

v.

went

"inevitable discovery" doctrine of

at 444, saved the search.

Kiley

was

already

investigation

so

was

not come within

South Dakota
____________

However,

said

department's

policy covering

the Fourth Amendment.

1 (1990);

(1976).

that

briefcase--which

the bounds

searches, and

U.S.

court held

v. Wells,
_____

Opperman, 428
________

to

inventory

the applicable

Florida
_______

on

locked--

hold

495

U.S.

364

that

the

Nix v. Williams, 467 U.S.

___
________

It reasoned that by November 1992,

implicated

that federal

in

the

agents,

Berkshire

being

robbery

told of

the

briefcase, would surely have sought a warrant to inspect

its

contents.

The

burden

preponderance

is

of

on

the

the

evidence

government

that

the

to

show

evidence

by

would

-14-14-

inevitably have been

U.S.

discovered by lawful

means.

Nix,
___

467

431, 444 (1984); United States v. Infante-Ruiz, 13 F.3d

_____________
____________

498, 503 (1st

fact

Cir. 1994).

finding

only

for

We review

clear

the district

error,

McLaughlin,
__________

957

F.2d

12,

16

(1st

underlying

facts

are

not

in

dispute.

arguendo,
________

favorably to

the

United States
______________

Cir.

defendants,

court's

1992),

We

will

that the

but

v.

the

assume

ultimate

determination (whether discovery here was inevitable) amounts

to

a question of law application that is reviewable de novo.

__ ____

Cf. Ornelas v. United States, 116 S. Ct. 1657 (1996).

___ _______
_____________

Kiley points out that the federal agents only obtained a

warrant

after being

informed that

the

potentially incriminating bank records.

it is speculation

to assume that, absent

briefcase contained

He then argues that

those records, the

police

would have

called

federal agents

agents would have sought a warrant.

police called

what

and that

federal

And in fact, the

the federal authorities

local

only after conducting

we will assume, for purposes of this argument, may have

been an illegal search of the briefcase.

Still, the local

police knew that Kiley was

of a federal robbery investigation.

attempt

to flee

traffic

violation,

briefcase.

local

from the

There

police

is thus

would

have

And Kiley made a blatant

police when

leaving

behind

stopped for

an

-15-15-

a minor

allegedly

little reason to

contacted

the object

federal

locked

doubt that

the

agents,

even

without

the information

briefcase itself.

It is

gleaned

during the

even

more certain

agents, having ample time to do

search of
______

that

the

federal

so, would have then sought a

warrant to search the briefcase.

In the

documents

alternative, Kiley questions whether without the

the government

search the briefcase.

would have

had probable

cause to

The evidence that justified the search

of Kiley's residence would have established probable cause to

believe that

Kiley was involved in the crimes later charged;

and Kiley's sudden flight and the locked briefcase would have

given a magistrate reason

carrying material

to think that Kiley might

pertaining to

the crimes, which

well be

included

money laundering.

and

Search of Kiley's residence at 81 Intervale.

___________________________________________

Both Kiley

Lattanzio

search

Kiley's

challenge

new residence

the

at 81

propriety of

the

Intervale Street

In June

arrest warrants

for Kiley and Lattanzio and a search warrant

Road.

building (containing both

Lattanzio

and IRS

in Brockton,

Massachusetts.

for 79 Intervale

1993, FBI

of

agents obtained

was arrested outside

79 and 81 Intervale).

the

The agents

next

entered 79 Intervale and

were told by

a tenant that a

man resided upstairs; the agents called Kiley's name from the

back

stairs of the building

and received a

third-floor apartment marked 81 Intervale.

building, he was arrested.

-16-16-

response from a

As Kiley left the

IRS

Agent Downes

Crocker--to

telephoned

to

another

ask her to prepare a warrant application for the

new address--81 Intervale.

On June

Her affidavit read in part:

8, 1993,

I talked by

Special Agent Gerard F.

he was at Bernard

Kiley's address at 81 Intervale,

Special Agent Howe

arrival

at the

correct

address

Intervale

Road,

Intervale

Road

telephone with

Downes who advised me that

Brockton, MA., waiting to execute a

. . .

agent--Agent

residence
for

advised me that upon

he discovered

Kiley's

Brockton,
as

search warrant

residence

was

81

rather

than

79

MA.

listed

that the

in

the

original

application and warrant.

An

amended

revealed

warrant

the

cache

introduced at trial.

was

issued,

of

arms

The

and

and

the

other

district

court

ensuing

search

evidence

later

held that

the

warrant should not have issued to search 81 Intervale because

nothing

in

the

affidavit

established

probable

cause

to

believe

that Kiley lived

scene knew

there.

that surveillance

building, knew

In fact,

the agent on the

had shown Kiley

that his mail

lived in

was delivered there,

the

and knew

that Kiley had been in the apartment moments before; but none

of this information was

included in the warrant application.

However, the district court held that the evidence

by

the

"good faith"

exception

to

was saved

the exclusionary

rule.

United States v. Leon, 468 U.S. 897 (1984).

_____________
____

We agree with the

district court that Leon applies,

____

issue we consider de novo.

__ ____

212,

221 (1st Cir. 1996).

an

United States v. Manning, 79 F.3d

_____________
_______

Leon protects
____

reliance on a magistrate search

good faith police

warrant, even if the warrant

-17-17-

later

proves

affidavit

invalid,

unless

inter alia
___________

the

underlying

is "so lacking in indicia of probable cause" as to

make

reliance upon

U.S.

at 923 (quoting Brown v. Illinois, 422 U.S. 590, 610-11

_____
________

(1975)) (Powell,

it "entirely

J., concurring in

unreasonable."

part).

Leon, 468
____

See also United

_________ ______

States v. Ricciardelli.
______
____________

998 F.2d 8, 15 (1st Cir. 1993).

The focus in a warrant application is usually on whether

the

suspect committed a

crime is

crime and

to be found at

whether evidence

his home or business.

makes the address unimportant:

to

is a

long as the

serious matter.

asserts a link

easy to

But so

between the

understand how

That hardly

invade the wrong location

suspect and the

both

of the

the officer

affidavit itself

address, it

applying for

is

the

warrant and the magistrate might overlook a lack of detail on

a point often established

by the telephone book or

the name

on a mailbox.

In this instance, the second affidavit expressly recited

that agent Downes had advised that he was "at Bernard Kiley's

address

at

included

81

the

Intervale .

agent's

assertion

."

that

Thus,

the

the affidavit

address

to

be

searched (81 Intervale) was that of the suspect (Kiley) as to

whom probable cause had been shown; the only omission was the

failure to explain how the agent--who had ample basis for the

contention--knew that

Whether or

not this is

"81 Intervale" was

a defect

-18-18-

"Kiley's address."

in the application,

it is

hardly blatant, nor is

there any suggestion (or basis

suggestion) of actual bad faith.

for a

Thus, we conclude that Leon

____

applies.

Cases

like

Nix
___

and

technicalities that undermine

Others may view them

bound to

Leon
____

may

seem

Fourth Amendment

to

some

like

protections.

as practical accommodations of tensions

arise where highly relevant

with exclusion in order

evidence is threatened

to deter police misconduct.

In all

events, it is our job to apply these

doctrines, as they have

been developed by the Supreme Court,

to the particular facts

of each case.

-19-19-

III.

Kiley

handcuffs, a

scanner

RULE 404(b) EVIDENCE

____________________

and Lattanzio

state police

seized at

81

object to

the admission

uniform and

Intervale.1

badge, and

They have

of guns,

a police

consistently

argued

that the

items are

tendency is to suggest

inadmissible because

their only

that defendants are violent criminals

and the items are character-propensity evidence prohibited by

Fed.

R. Evid 404.

The government counters that the evidence

is relevant to indicate

a criminal association between Kiley

and Lattanzio in 1991; the district

our

decision in United States

_____________

Cir.), cert. denied,

____________

court agreed, relying on

v. Fields, 871
______

493 U.S. 955 (1989),

F.2d 188 (1st

and also declined

to exclude the evidence under Fed. R. Evid. 403.

Rule

wrongs

404

provides

that evidence

of

"other

crimes,

or acts" is not admissible to prove "the character of

a person in

however, such

order to show

evidence is

action in conformity

therewith;"

admissible if offered

for "other

purposes."

946 (1st

Id.
___

See United States v.

___ _____________

Cir.), cert. denied, 114

_____________

evidence "supports

a chain

Moreno, 991 F.2d 943,

______

S. Ct.

457 (1993).

of inference independent

If

of any

____________________

1Procopio
that the

also attempts

to

raise this

admission of this evidence

issue, arguing

prejudiced his defense.

But

"[o]bjections based on Rule 404(b) may be raised only by

the

person

whose

`other

attempted

to be revealed."

722,

(1st Cir.),

736

Procopio asked

crimes,

or

acts'

are

United States v. David, 940 F.2d

_____________
_____

cert. denied, 502

_____________

for and was granted

the effect that the

wrongs,

U.S.

repeated instructions to

81 Intervale evidence did not

him.

-20-20-

989 (1991).

relate to

tendency of the evidence to show

F.2d at 946, it is

bad character," Moreno, 991

______

said to have "special relevance"

and not

barred by Rule 404.

Here, such special relevance

strength and

matter).

significance of

Plainly,

the

is easy to articulate (the

the inference are

seized

materials,

a different

found

in

an

apartment used by both Kiley and Lattanzio, tended to suggest

that in 1993 the two men had a criminal association.

This to

some extent

was

suggested a criminal association

helpful to the government's

collaborated in

the Berkshire

inference

somewhat

goes

in 1991, which

claim that the

robbery in 1991.

beyond the

mere

two men had

Thus,

the

implication that

either man was of bad character.

True, the seized

of the two

been

men.

Or

criminal in

likelihood of

requires, Fed.

F.3d 1,

reasoning

6 (1st

only to one

an association between them

might have

1993

possibilities affect

inference.

items might have belonged

but innocent

only the strength

later

criminal

1991.

of the

association

an earlier one--which is

R. Evid.

in

these

government's

increases

the

all that "relevance"

401; United States

_____________

Cir. 1994)--and

But

v. Tutiven,
_______

numerous cases

40

permit such

from a later event or condition to an earlier one.

E.g., United States v. Andiarena, 823 F.2d 673, 677 (1st Cir.
____ _____________
_________

1987).

In

all events, we agree with the district court that we

-21-21-

crossed this bridge in Fields.

______

There, three defendants were

charged

with conspiracy and bank robbery.

Three years after

the

robberies, two of the defendants were caught in a stolen

car

containing

robbers.

objection

The

various

"tools

evidence

was

based on Rule 404.

of

the

admitted

trade"

at

for

trial

armed

over

an

This court upheld the district

court, holding that the evidence "shed light on the nature of

[the

defendants']

charged."

On

primarily

association at

time

of the

crimes

Fields, 871 F.2d at 198.

______

appeal,

on

the

defendants

ground

pointing toward guilt

the facts.

the

seek

that

to

the

in that case was

distinguish

permissible

inference

somewhat stronger on

This may be so, although we there

similarity between the charged

Fields,
______

noted that the

crime and the subsequent acts

was

"most likely insufficient to show

at 197.

But

it seems to us

relevance' is shown, the

issue

is

then

one

a "`signature.'"

that, so long as some

"special

bar of Rule 404 is crossed

of balancing

probative

Id.
___

and the

value

against

prejudice under Rule 403.

This

the

Rule 403 judgment

present

facts.

merely inferred

The

was undoubtedly a

criminal

(Lattanzio did

close one on

association was

itself

not live permanently

at the

apartment), and the need to reason backward from 1993 to 1991

further weakens the

case with

inference.

Rule 404(b)

evidence,

-22-22-

And here, as

is often

the permissible

the

inference

(criminal association) overlapped with, and went only a small

step beyond, the forbidden one (criminal character).

turn

increases the difficulty for

the jury and

This in

the risk of

prejudice.

On the

confirmed

association

other hand, some

would think that

criminal association

probably

designed

as

to

of

the evidence

1993, indeed,

perpetrate

an

robberies.

Arguably,

the two year

gap was

less important

than usual,

given an admitted association of some kind in 1991 (albeit in

the months after

redundant.2

the robbery).

And

The

the presence

of

evidence was

guns at

the

scarcely

apartment,

while telling, is not such as to overwhelm the emotions of an

ordinary

juror

in

the

manner

of

gruesome

testimony

or

photographs.

In

sum,

the issue

was

at best

close one

reasonable judge might have decided either way.

court

enjoys

great

latitude

balancing judgment under Rule

and we cannot

especially

find any

so in view

in

making

an

which a

The district

on-the-spot

403, Manning, 79 F.3d at

_______

abuse of discretion

of Fields where
______

here.

This

217,

is

similar evidence was

____________________

2As the Advisory Committee Notes to Rule

"[i]n

reaching a

grounds of

decision

whether to

unfair prejudice,

other means of proof may also

this

instance,

prior

403 point out,

exclude evidence

on

[t]he availability

of

be an appropriate factor."

In

. .

association

between

Kiley

Lattanzio was amply proved by other evidence (e.g.,

____
trips)

but

nothing

else

directly

character of the association.

-23-23-

indicated

and

of their

the criminal

upheld by this court.

The truly difficult problem

not the admission of the

for us is

evidence but the use made of

it by

the prosecutor in closing, a subject to which we will shortly

return.

IV.

the

PROSECUTORIAL MISCONDUCT
________________________

All these defendants object

to various comments made by

prosecutor in his rebuttal

argument, and argue that the

trial judge erred in failing to grant a mistrial.

the

comments were

claims

of

error

the subject

are

fully

reviewable for plain error.

761 (1st Cir. 1996).

Several of

of timely objection

preserved;

the

and the

others

are

United States v. Wihbey, 75 F.3d

_____________
______

Comment on Failure to Testify.

_____________________________

the prosecutor

failure

impermissibly

to testify.

in their closing

the

commented on

Counsel for

the

defendants'

Kiley and Lattanzio argued

that the jury could find cause for doubt in

government's

failure to

identify Kiley's

tapes.

The first charge is that

and

ask

Lattanzio's

the

Berkshire guards

voices

from

the

to

prison

In its rebuttal, the government replied:

And why

didn't the

guards and
voices.

Government play tapes

for the

see if they

recognized the defendants'

You heard from

two of the defense counsel

if we had, and if the guards identified the voices.

Is

there

defendants

anybody

here

would have

fessed-up, or

would

that

come in
they have

thinks
the

that

the

courtroom and

just created

more

illusions for argument.

An

objection

impropriety.

was

made,

but

the

district

judge

saw

no

-24-24-

What the prosecutor was

trying to say was

that defense

counsel were making a commotion about a lack of evidence from

the guards but,

if such testimony had

would then have belittled it.

been offered, counsel

The prosecutor's reference was

inartful and could be taken--especially out of context--as an

improper comment.

But it

was certainly not

comment on the failure to testify.

most

glancing

brush

rather

an intentional
___________

And in context, it was at

than

blow

against

the

privilege.

The district judge included in the closing

the standard warning:

not

that defendants have an absolute right

to testify and that no

failure to testify.

comment to

corrected

inference should be drawn from a

If any

juror mistook the

prosecutor's

that suggestion

was squarely

suggest otherwise,

not

completely

outcome, and

long

afterwards

confident that

the

by

the

judge.

comment did

although perhaps technically

harmless beyond

instructions

a reasonable doubt.

We

are

not affect

the

a violation,

was

Chapman v. California,
_______
__________

386 U.S. 18 (1967).

Comment on propensity to violence.

___________________________________

All defendants complain on appeal about the following remarks

by the prosecutor:

These defendants, make no mistake about it, share a

violent and
Intervale
go into

vicious criminality.
and Frank's explicitly

to

Our society
you society

has

doesn't
had

have no other
need

it.

enough of

Procopio, Bernie Kiley, and Vinnie Lattanzio.

-25-25-

at

saying they will

the criminal business again

explanation.
submit

The arsenal

Frank

This comment was improper

for two reasons.

"society doesn't

need it"

than to `inflame

the passions and prejudices

United States v. Machor,

_____________
______

cert. denied,
____________

493 U.S.

precedent).

Second,

comment "served no

First, the

purpose other

of the jury.'"

879 F.2d 945, 956 (1st

1081 (1990)

and more

Cir. 1989),

(quoting in

troubling, the

part prior

prosecutor's

remarks encouraged the jury to conclude from the 81 Intervale

evidence

criminals.

that

defendants

were "violent

This inference--that the defendants

character--was

forbids.

the

precisely

the

inference

that

and

vicious"

were of bad

Rule

404(a)

However, defense

these remarks

counsel failed

by the prosecutor.

to object at

Reviewing

trial to

courts are very

reluctant to reverse for unobjected-to errors that could have

been corrected or ameliorated

Agressot v. United States,

________
_____________

by timely objection.

3 F.3d 525, 528 (1st

Consonantly, under the "plain error"

be obvious

to

reverse

justice.

conviction

United States v.
_____________

must

Cir. 1993).

test, the error has

and affect "substantial rights,"

the

Arrieta________

cause

Olano, 113 S.
_____

to

and the failure

miscarriage

of

Ct. 1770, 1777-79

(1993).

We regard

this set

of

comments as

close call, at

least as

to Lattanzio.

presenting a

very

Against Kiley,

the

direct evidence

identified by

was strong;

but Lattanzio was

anyone, and the government's

not directly

case against him

-26-26-

was

based

on

adequate,

circumstantial evidence.

and

if (which we doubt

If

but

hardly

overwhelming,

Lattanzio had objected at trial

in light of

the final instructions)

the district court had ignored or overruled the objection, it

might

be hard

harmless.

for

the government

United States
_____________

to

show the

error

v. Randazzo, 80 F.3d 623,

________

was

631 (1st

Cir. 1996).

But

improper

here,

it

remarks

is

Lattanzio

likely

who

infected

must show

the

that

jury

the

(affected

"substantial rights" in Olano's words) and mere possibilities

_____

are not enough.

found at

Intervale were

What was added

case

in

something

reasoning.

The assault on the guards

facts permissibly before

was improper

which

the

far

more

and the weaponry

commentary; but this

jury learned

likely

the jury.

of

to infect

is not

inadmissible

fatally

the

events,

jury's

Similarly,

standard, we

under

miscarriage

of

was seriously careless.

court, in

that was merely inadvertent

During

closing instructions

closing

the next

arguments

yesterday,

certain counsel made certain remarks that

heated

depending on

and this

But it is important to note that the

give a pointed warning to the jury:

were

justice

think the prosecutor more culpable here than in

the "fess up" comment;

district

Olano's
_____

and

inflammatory,

how you

certainly emotional.

-27-27-

look at

perhaps
them, and

day, did

ask you to totally disregard what

counsel

may

fashion.
truth

The

have

Your job

said
is to

in

heated

determine the

. . . .

court also firmly

reminded the jury

that the Intervale

evidence was not to be used as propensity evidence.

These are the very curative instructions that would have

been given

if a timely

objection had been

made.

The fact

that the defense did not object also may suggest that, in the

conditions of

by as mere

the courtroom, the passage

rhetoric.

In

all events, we

in question passed

are not

persuaded

under Olano that this misstep, taken in light of the curative

_____

instructions,

probably

altered

the

result or

produced

fundamentally unfair trial.

Implication of threats.
________________________

arguments, attempted to

Defendants,

cast doubt on

during

closing

Gattuso's reliability

by referring to the fact that the government had paid him and

reduced the charges against him.

Mr.

The government responded:

Graham objected, apparently a moral objection,

because the Government spent $10,000 on subsistence

expenses for Charlie Gattuso before
witness

protection

program.

program,

I'm sure that

as

he entered the
part

of

Mr. Graham and

that

the other

defendants would have preferred he not be here, and

he

not testify, and I

want to apologize on behalf

of the government for protecting his life.

Defendants argue

that the comment unfairly

implied that the

defendants would prefer to see Gattuso dead and in fact posed

a threat to him.

They

had its doubts aroused

also suggest that the jury could have

by Abbott's absence, but in

fact any

-28-28-

hint that he had been murdered was scrupulously excluded from

the trial.

The

jury already

protection

knew that

program,

presumably

obviously the

defendants would

not testify.

The implication

life

indirect,

utterly

unsupported,

legitimate

attempt

to

the

criticized

is more

explain

his

that the

Gattuso's

impeachment) why the money

for

protection,

troubling,

and

(in

witness

but

occurred

response

We

although over

it

during

to

and

Gattuso

defendants posed

had been spent.

comment,

in a

have preferred that

threat to

that

Gattuso was

was

defense

do not think

the

line

of

propriety, affected the defendants' substantial rights.

Disparagement of counsel.
________________________

that defense arguments were

The prosecutor told the jury

"illusions . . . a

smoke screen

aimed at creating that, an illusion to . . . deflect you from

the single

evidence

isn't

news

truth

in the case."

a game . . .

for

either."

he

thread of

the

Then

the

defense

that

. .

unifies all

the government

the

stated, "This

robbery wasn't a game, and I've got

counsel,

this trial

isn't

game

Only Lattanzio objected to this statement at trial;

asked for

a curative

instruction which

was given.

No

further objection was raised.

"The

directly or

role

prosecutor is expected

by implication, the

of defense counsel."

to refrain from impugning,

integrity or

institutional

United States v. Bennett, 75 F.3d

_____________
_______

-29-29-

40, 46 (1st

Cir. 1996),

1996) (No. 95-9237).

petition for cert. filed (June

_________________________

5,

The prosecutor's remarks, although more

wind than rain, were arguably excessive disparagement.

But a

corrective

it is

unrealistic

instruction was

to

suggest

asked for and

that such

empty

given, and

cliches seriously

affected the jury's deliberations.

Defendants said

at oral

argument that

the prosecution

had attempted in these appeals to defend its improper remarks

piecemeal,

glossing over the

cumulative impact.

Cumulative

impact is a legitimate concern, cf. United States v. Manning,

___ _____________
_______

23 F.3d

570, 575 (1st Cir.

1994), but the only

remark that

raised serious risk of prejudice was the "vicious and violent

criminality" comment.

pattern that

Nor

did

the other

would tend to reinforce

there encouraged.

We are

comments form

the improper inference

thus satisfied that

the improper

arguments, even taken as a whole, do not merit reversal.

They

do

merit

Contrary to the

but

pattern

supervision.

20

some

criticism

of

epigram, a fault is not

of

faults

does

the

prosecution.

worse than a crime;

suggest

failure

in

The government should not have to devote almost

pages of its brief

to explaining away

problems with its

arguments

to

the

prosecution has done

jury.

It

is

happenstance

more damage to its

-30-30-

to the defendants' right to a fair trial.3

that

the

own reputation than

V.

Defendants

their briefs.

CONCLUSION
__________

have

raised

Among

others,

some additional

arguments

in

that he

was

Procopio claims

affected by the Intervale evidence and also that it was error

for the district

and

Lattanzio

recordings

States,
______

court to deny his

object

on hearsay

391

U.S.

to

motion to sever.

the

admission

of

grounds

and under

Bruton v.
______

United
______

objects

to the

123 (1968).

Lattanzio

certain

Kiley

tape

admission of a photograph of cash in a clothes drier and also

argues that the

district court erred by failing

to instruct

the jury on the meaning of reasonable doubt.

We

these and

have carefully

on a few

considered defendants'

additional points, primarily

arguments on

related to

the

instructions

and

additional

improper argumentation by

of

the prosecutor.

these points presents a

even

course

defense counsel

of their thorough

of

allegedly

In our view, none

strong claim of

if error, involves any

was fair for

instances

error and none,

serious risk of

prejudice.

It

to raise these

issues in

the

and extensive briefs,

but they do

not require further discussion by us.

Affirmed.
_________

____________________

In light

we think it
Attorney

of our criticism of the

fair to
who

argued

note that the

this

case

rebuttal argument,

assistant United
on

appeal

was

States
not

prosecutor who presented the rebuttal argument at trial.

-31-

the

-31-