U.S. v. Manor

• Decision Date: 25 January 2011
• Docket Number: No. 09–2133.,09–2133.
• Citation: 633 F.3d 11
• Parties: UNITED STATES of America, Appellee,v.Darius MANOR, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

633 F.3d 11

UNITED STATES of America, Appellee,

v.Darius MANOR, Defendant, Appellant.

No. 09–2133.

United States Court of Appeals, First Circuit.

Heard Sept. 14, 2010.Decided Jan. 25, 2011.

James H. Budreau for appellant.Theodore B. Heinrich, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.Before LIPEZ, SELYA, and THOMPSON, Circuit Judges.THOMPSON, Circuit Judge.

A melee at the movies led to Darius Manor's conviction for being a felon in possession of a firearm and ammunition. See 18 U.S.C. § 922(g)(1). ¹ Manor appeals, claiming insufficiency of evidence and prosecutorial misconduct. Detecting no error, we affirm.

BACKGROUND

We recount the key facts in the light most compatible with the verdict, see, e.g., United States v. Troy, 618 F.3d 27, 29 (1st Cir.2010), adding further facts as we discuss particular issues.

The Chase

Catching a late-night movie at a Loews theater in downtown Boston, Gregoire Adrien heard two men arguing behind him. Tensions mounted, and one of the men asked the other if he wanted to “take it outside.” Adrien intervened, and one of the arguers—who turned out to be Manor—pointed a silver handgun at him. “Why the hell would you pull a gun on me?” Adrien said as he rushed the gun-wielding Manor, pushing him through the theater doors and into the lobby. Manor took off. But Adrien stayed with him, pointing him out to Boston police officer Troy Caisey, who was in the theater's third-floor lobby.

Telling Adrien to stay put, Caisey radioed dispatch with the particulars and ran after Manor. Caisey ordered Manor to stop. But Manor kept on going, racing down two escalators in the wrong direction. Importantly, Manor turned and looked back at Caisey once at the bottom of the second-floor escalator and again as he ran out of the building onto Tremont Street.

Caisey chased Manor down Tremont, radioing dispatch with the new details. Manor turned onto Boylston Street. Caisey was close, only fifteen yards behind him. He lost sight of him for a second or two and then spotted him on Tamworth Street, just off of Boylston. They were the only two there—but not for long.

Emerson College security officer Joseph Linscott heard Caisey's radio broadcast, headed to Tamworth, and saw Manor racing toward him. Linscott could not see Manor's face clearly (though he did catch a glimpse of it), but he could see Manor's stainless-steel gun plain as day. Drawing his revolver, Linscott ordered Manor to the ground. Manor refused, choosing instead to duck between two cars in a nearby parking lot—something Linscott and Caisey both saw. Linscott dropped down and noticed some movement underneath the cars. Both he and Caisey then saw Manor run out to the middle of Tamworth. Unwilling to go to the ground, Manor headed toward Linscott, screaming profanities. Linscott thought a fight might ensue. He was right. It was “one of the most aggressive fights I've been in,” Linscott later said. Linscott, Caisey, and others eventually cuffed and arrested the rampaging Manor. And Linscott found a loaded stainless-steel gun underneath a car that Manor had hidden behind, a gun Adrien later said looked like the one displayed in the theater.

The Trial

Indicted under the felon-in-possession statute, Manor stipulated that he was a convicted felon and that the gun and ammunition found had moved through interstate commerce—which meant the only issue in play was whether he had knowingly possessed these items. See generally United States v. Scott, 564 F.3d 34, 39 (1st Cir.2009) (discussing the elements of 18 U.S.C. § 922(g)(1)). Adrien, Caisey, and Linscott all testified. Manor did not and called no witnesses.

As indicated by defense counsel's cross-examination and summation tactics, Manor's main theory was that he had the bad luck of being in the parking lot at the wrong time. Saying the witnesses gave differing accounts of the gunman's attire and lost sight of the suspect during the chase, Manor insisted that the prosecution had not proved beyond a reasonable doubt that he was the person who had flashed a gun at Adrien in the theater and had dashed down Tamworth. But the jury did not buy Manor's mistaken-identity argument and so found him guilty. The district judge sentenced him to 92 months in prison, and this appeal followed.

ANALYSIS

Sufficient Evidence?—Yes

As he did below, Manor contends that the prosecution failed to prove beyond a reasonable doubt that he possessed the loaded gun recovered on Tamworth. But he faces obstacles that are too high to surmount. For starters, we review his claim de novo, surveying the evidence—direct and circumstantial—in the light most flattering to the prosecution's theory of the case. See, e.g., United States v. Guerra–Garcia, 336 F.3d 19, 22 (1st Cir.2003). Resolving any credibility disputes against him, we must affirm if the record, so viewed, could have permitted a rational jury to find guilt beyond a reasonable doubt. See, e.g., United States v. Castro–Davis, 612 F.3d 53, 60 (1st Cir.2010). Also, it matters not whether he can raise a plausible theory of innocence: if the record as a whole justifies a “judgment of conviction, it need not rule out other hypotheses more congenial to a finding of innocence.” United States v. Gifford, 17 F.3d 462, 467 (1st Cir.1994).

With the proper standards in mind, we recap the volume of evidence against him. Caisey identified Manor as the person Adrien said had drawn a gun on him. Caisey also identified Manor as the person he had tracked from the theater and nabbed on Tamworth. Equally devastating to Manor, Linscott identified him as the gun-carrying malefactor he had seen on Tamworth. And all of this sinks Manor's claim that no one identified him as the man who had fled the movies and raced to Tamworth.

Manor makes much of the fact that Caisey lost sight of the suspect on Boylston. Manor's counsel emphasized this to the jury, too. But Caisey testified that he only lost the suspect briefly, spotting him again seconds later on Tamworth. And, Caisey stressed, the person arrested on Tamworth had on the same clothes as the person chased from the theater. Linscott backed up Caisey's account, testifying that he had run into a person on Tamworth who fit the gunman's description to a T. Searching for a way around this, Manor essentially asks us to re-weigh the evidence and second-guess the jury's credibility decisions, but we can do neither. See, e.g., Castro–Davis, 612 F.3d at 60; United States v. Garcia–Pastrana, 584 F.3d 351, 367 (1st Cir.2009).

Undeterred, Manor advances a similar argument when it comes to Linscott, suggesting that Linscott saw two people—one person (not Manor) tearing down Tamworth with a gun and another (Manor) popping up from between the two cars without a gun. But Linscott's testimony cuts the ground out from under Manor's claim. Telling the jury that he saw a man on Tamworth dressed as Caisey had described over the radio, Linscott then delivered a blow-by-blow account of what happened next: “I double-checked” to ensure that this was “the suspect,” Linscott said. “I continued to look at him” and saw a gun in “his” hand. “As he was running,” Linscott added, “[h]e was looking to the left where there was a parking lot filled with cars. And he cut in between a couple of cars.” Then the “ suspect emerged from between the vehicles with his hands in the air.” There is no way to read this testimony as saying Linscott saw two different people. Clinching matters, Linscott made clear during cross-examination that the man he saw scurry onto the lot with a gun and then reappear without one was Manor. Given this body of evidence, Manor's two-person theory is unpersuasive.

Manor also insists that certain inconsistencies in the witnesses' descriptions of the suspect's attire ruined the identification. Not so. Adrien, Caisey, and Linscott gave essentially the same description. Adrien described the gunman as wearing a “scully” hat, a puffy gray coat, a white shirt, and blue jeans. Caisey described him as wearing a three-quarter length brown jacket, a white t-shirt, and blue jeans. And Linscott described him as wearing a three-quarter length dark jacket, a white t-shirt, and jeans. Caisey's account jibes perfectly with Linscott's, and Caisey's and Linscott's jibe nicely with Adrien's, too. The only difference is Adrien mentioned a hat and called the coat gray and puffy. No matter: neither Caisey nor Linscott said the suspect was hatless, and, most critically, the evidence confirms that Caisey tailed the very person Adrien had identified as the gunman. The nits Manor picks work best (if at all) before juries (his counsel argued these points to the jury, to no avail). But they hold no sway here. See, e.g., Garcia–Pastrana, 584 F.3d at 367; United States v. Thomas, 467 F.3d 49, 55 (1st Cir.2006).

Finally, Manor contends that “uncontradicted evidence” in the form of a “booking” photo and sheet showed that he had on a blue t-shirt, jeans, and no coat—not the white t-shirt, jeans, and brown jacket ensemble that Caisey had described. Manor's lawyer asked Caisey about this on cross, handing him what counsel said was a booking photo and sheet. Caisey agreed that the photo showed Manor with a blue t-shirt and that the sheet did not mention a brown jacket. But he stressed that he was not there for Manor's booking. Manor's lawyer never had Caisey confirm that the photo and sheet were what the defense claimed they were, and he never offered them into evidence at any other point—which hardly makes these items the stuff from which to craft a winning sufficiency argument. Cf. generally Troy, 618 F.3d at 31 (stressing that a reviewing court's goal “is to ascertain whether the record evidence permitted a reasonable juror to find that each element of the crime charged was proven beyond a reasonable doubt”) (emphasis added). In any event, after pondering Caisey's testimony, evaluating his credibility, and drawing...