U.S. v. Kirvan, s. 92-2069

• Decision Date: 06 April 1993
• Docket Number: 92-2289,Nos. 92-2069,s. 92-2069
• Parties: UNITED STATES, Plaintiff-Appellant, v. Paul J. KIRVAN, Defendant-Appellee. UNITED STATES, Appellee, v. Paul J. KIRVAN, Defendant-Appellant. First Circuit. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 963

997 F.2d 963

UNITED STATES, Plaintiff-Appellant, v. Paul J. KIRVAN, Defendant-Appellee.

UNITED STATES, Appellee, v. Paul J. KIRVAN, Defendant-Appellant.

Nos. 92-2069, 92-2289.

United States Court of Appeals,First Circuit.

Heard April 6, 1993.

Decided June 29, 1993.

Rehearing Denied Aug. 6, 1993.

Richard Abbott, Brookline, MA, for Paul J. Kirvan.

Timothy Q. Feeley, Asst. U.S. Atty., with whom A. John Pappalardo, U.S. Atty., Boston, MA, was on brief, for U.S.

Before CYR and BOUDIN, Circuit Judges, and BURNS, ^* Senior District Judge.

BOUDIN, Circuit Judge.

Paul Kirvan appeals from a jury verdict finding him guilty on one count of armed bank robbery, in violation of 18 U.S.C. § 2113(d). The jury also convicted Kirvan of carrying a firearm during the commission of a crime of violence, in violation of 18 U.S.C. § 924(c), but the district court set that conviction aside. On cross-appeal, the government argues that the trial judge erred in granting a judgment of acquittal on this second count. We affirm the bank robbery conviction, reinstate the firearm conviction and remand for resentencing.

The facts, limited to those pertinent to the issues on appeal, can be briefly stated. A lone masked robber held up a savings bank in Lowell, Massachusetts, at 3:25 p.m. on August 20, 1991. The surveillance photographs taken by a bank camera showed the robber wearing a distinctive rain hat and holding what appeared to be a large handgun. Several persons in the bank saw the same robber and the gun. At one point the gun fell to the floor with a loud thump as the robber climbed over a counter. The robber collected cash from several drawers, stuffed the money into a bag and fled from the bank with the cash and his gun.

At about 3 p.m., before the robbery, an FBI special agent named Gerald Mohan happened to be driving out of a parking lot not far from the bank. For plausible reasons, unrelated to the bank robbery, Mohan began to follow an Oldsmobile that turned out to be registered to Kirvan. Soon, the Oldsmobile stopped, and a passenger wearing a rain hat left the car, transferred to a Chevrolet, and both cars were driven back toward the bank. Mohan briefly lost contact with the cars and then located the Chevrolet leaving the bank parking lot. As Mohan's car passed the Chevrolet going in the opposite direction, he saw in the driver's seat a man wearing a rain hat.

Mohan later selected Kirvan's photograph from an array as the man whom Mohan had seen in the Chevrolet leaving the bank. Through other witnesses, there was evidence that the driver and another man had abandoned the Chevrolet (which was stolen) around 3:30 p.m. and switched to another car; one young witness to the switch of cars testified that one of the individuals who left the Chevrolet looked "Portuguese." The police later discovered a bag and a police-band radio scanner in Kirvan's Oldsmobile.

On October 3, 1991, the grand jury handed down an indictment charging Kirvan with armed bank robbery and using or carrying a firearm during a crime of violence. After a six-day trial, the jury returned guilty verdicts on both counts. Pursuant to Fed.R.Crim.P. 29(c), Kirvan filed a motion for judgment of acquittal. The district court judge denied the motion as to the bank robbery count but granted a judgment of acquittal on the firearms count. On the latter count, the trial judge ruled that there was insufficient evidence for a jury to conclude that a genuine firearm was carried during the robbery.

Kirvan's first argument on appeal is that a statement made by the prosecutor during summation was improper. The statement concerned Mohan's ability to identify the driver of the oncoming Chevrolet where the distance between Mohan's car and the other car was approximately 3 to 4 feet and both cars were travelling in opposite directions between 30 and 35 miles per hour. The prosecutor said to the jury, "I'm not going to talk in terms of feet or seconds or milliseconds. I want you to put yourselves in the place that [Mohan] was in." As defense counsel did not object to this statement during trial, the question is whether allowing it to stand was plain error. United States v. Mateos-Sanchez, 864 F.2d 232, 240-41 (1st Cir.1988).

Kirvan's brief relies primarily on cases that forbid so-called "golden rule" arguments in which plaintiffs or prosecutors ask the jury to put itself in the place of the victim. E.g., Forrestal v. Magendantz, 848 F.2d 303, 309 (1st Cir.1988). But "golden rule" cases do not apply where, as here, the jury is asked to put itself in the place of an eyewitness. In this situation, the invitation is not an improper appeal to the jury to base its decision on sympathy for the victim but rather a means of asking the jury to reconstruct the situation in order to decide whether a witness' testimony is plausible.

Kirvan also asserts that the prosecutor engaged in impermissible vouching for the credibility of Mohan. Mohan had been attacked vigorously on cross-examination with questions designed to suggest that his reasons for following the Oldsmobile were fictitious, that he had not had time to see Kirvan's face, and that in other respects he lacked credibility. In summation, the prosecutor spoke favorably of Mohan, saying to the jury:

"... It tells you something about his professional instincts; they turned out to be right. Tells you something about his sense of duty. It tells you he cared, that he gave a damn, that he got himself involved.

He didn't wait or let someone else worry about it. You saw him on the stand cross-examined for how many hours. You saw the attempt to condemn him, to criticize him, to embarrass him, to humiliate him, to imply incompetency, to imply deceit.

I suggest to you that Gerry Mohan should not be condemned; he should be commended. That he shouldn't be criticized; he should be applauded. And he shouldn't be embarrassed or humiliated. He should be proud, and you should be proud of him."

This argument does not constitute improper vouching; the prosecutor did not assert his own opinion of Mohan's veracity as a witness. If any criticism could be made, it is that the "let someone else worry" and "commended ... applauded" commentary by the prosecutor is inappropriate cheerleading; but this is hardly plain error, and, given the assault on Mohan's integrity, the remarks may be fair comment. ¹ As for the prosecutor's argument that events proved Mohan's instincts to be sound, it may well be false logic from a philosopher's standpoint but it is perfectly good folk wisdom and is neither an appeal to emotion nor personal vouching.

Finally, Kirvan argues that the prosecutor engaged in impermissible conduct in recounting testimony. As already noted, a young witness, actually one called by the defense, described the driver of the Chevrolet as appearing "Portuguese." During closing argument, the prosecutor told the jury:

"[The witness] also said that the man, to him, looked like his ancestry was Portuguese. I ask you to look at Paul Kirvan. Imagine him with his hair a little longer like it is in the photos. Imagine him with his skin a little more tanned like it is in this photo. Imagine him with a mustache, and imagine him with a beard that you can see from your jury box. Imagine him with a growth of a day or so of beard and ask yourselves whether [the witness'] characterization--although it may not have been technically accurate, ask yourselves whether it was descriptively accurate."

No objection to these comments was made at trial. On appeal, Kirvan does not claim that allowing the witness' response was error. However, Kirvan contends that prosecutor's statement (quoted above) during closing argument either invited the jury to speculate about identity based on a vague criterion or was racially inflammatory and deprived the defendant of a fair trial in violation of the United States Constitution.

There may be some force to the notion that "look[ing] ... Portuguese" is not much of a criterion for identification, although the description came from a defense witness. But defense counsel had ample opportunity in closing argument to point out this weakness to the jury. The defense brief on appeal imaginatively refers us to cases that preclude a jury from viewing an infant to determine paternity; but that rule is not followed everywhere and rests in part on considerations of policy. In any event, counsel did not object to the prosecutor's statement at the time it was made, and the statement is not so vague or misleading as to constitute plain error.

The claim that the statement was a racial slur is more serious in that the "[r]acial fairness of the trial is an indispensable ingredient of due process and racial equality a hallmark of justice." United States v. Doe, 903 F.2d 16, 25 (D.C.Cir.1990). However, the prosecutor's statement was not in...