U.S. v. Mooney, 02-1318.

• Decision Date: 30 December 2002
• Docket Number: No. 02-1318.,02-1318.
• Citation: 315 F.3d 54
• Parties: UNITED STATES of America, Appellee, v. Dennis J. MOONEY, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

315 F.3d 54

UNITED STATES of America, Appellee, v. Dennis J. MOONEY, Defendant, Appellant.

No. 02-1318.

United States Court of Appeals, First Circuit.

Heard October 10, 2002.

Decided December 30, 2002.

COPYRIGHT MATERIAL OMITTED

Jeffrey Silverstein, with whom Billings & Silverstein, was on brief for appellant.

Margaret D. McGaughey, Assistant United States Attorney, with whom Paula D. Silsby, United States Attorney, was on brief for appellee.

Before LYNCH, Circuit Judge, BOWNES, Senior Circuit Judge, and LIPEZ, Circuit Judge.

BOWNES, Senior Circuit Judge.

Defendant-appellant Dennis Mooney was prosecuted federally and convicted of conspiracy to obstruct commerce by robbery in violation of 18 U.S.C. § 1951, and using or carrying a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c). Mooney challenges his conviction on the grounds that (1) the prosecutor made improper remarks in her opening statement that denied him a fair trial; (2) the trial judge erred in allowing the government's handwriting expert to opine that the defendant was the author of letters implicating his participation in the robbery; and (3) he was unduly prejudiced by the government's delayed disclosure of evidence. Finding no reversible error, we affirm the conviction.

I. FACTS

We recite the facts in the light most favorable to the verdict. See United States v. Wihbey, 75 F.3d 761, 764 (1st Cir.1996). Additional facts are outlined in our analysis that follows.

In the early morning hours of November 27, 2000, Matthew Sliker ("Sliker"), the overnight clerk of the Budget Host Motel in Waterville, Maine had just completed his duties. Sliker was playing a copy of the video game "Syphonfilter 2," which had been rented from a store called "Movie Gallery," on a Sony Playstation in the lobby when the defendant, Dennis Mooney ("Mooney") and his brother, David Mooney ("David"), entered and inquired about a room. After asking about the price, Mooney told Sliker they needed to get money and both men left the hotel. Sliker followed them outside to smoke a cigarette and watched the two men approach other men standing next to a dark gray Volkswagen Jetta.

After Sliker returned to the lobby, David and Mooney came back into the motel. David asked to play the video game, and Sliker began filling out a registration form with Mooney. Marquis Craig ("Craig") then entered the lobby and approached the registration desk. Wearing a blue bandana over his face, Craig pulled out a sawed-off pump shotgun with a scope, pointed it toward the ceiling, loaded a round into the chamber, and then put the gun on the counter. The defendant ordered Sliker to raise his hands and not to set off any alarms. Craig demanded money, and after Sliker unlocked the cash drawer, the defendant took $195. David then used a telephone cord to tie Sliker's ankles to his wrists. Pointing the gun in Sliker's face, Craig warned him that if he waited less than two hours to call the police, he would be killed. One of the robbers grabbed the Sony Playstation, and they fled in the Jetta. In the car, Mooney divided the money among the robbers and his other co-conspirators, Nathan D'Amico ("D'Amico") and Manuel Roderick ("Roderick").

Eventually, Sliker's hands became untied and he called the police. He described the defendant as a white male, 18-21 years old, with thin sideburns and a red tinted jaw-line goatee, wearing a dark blue or black bandana and a black or tan jacket with the word "American" across the back. The police intercepted the robbers on the highway as they headed toward Portland. The defendant, David, D'Amico and Roderick were arrested at the scene and brought to the Portland police station. Craig exited the vehicle and fled into the woods, but was later found and arrested. In the car, the police found a Sony Playstation, a Syphonfilter 2 video game from Movie Gallery two dark blue bandanas, and a sawed-off pump shotgun with a scope.

Later that night, on the way to the Portland police station, Sliker and two detectives stopped to inspect the dark gray Jetta that the police had pulled over earlier. Sliker recognized it as the car used in the robbery. He also identified the shotgun. Once Sliker arrived at the station, he identified one of the robbers, David, in a photographic lineup.

Sliker then waited in the lobby. In an attempt to isolate him from the suspects in custody, a member of the police department who was not involved in the robbery investigation brought Sliker to the back of the station. During the escort, Sliker passed the defendant, who was in handcuffs. Sliker recognized him right away and told one officer that the defendant was the robber who took the money out of the cash register.

At the trial, cooperating witnesses Craig, David, and D'Amico identified the defendant as one of the three men who committed the robbery. They also testified that the defendant had suggested robbing the Budget Host Motel. Sliker corroborated their testimony by identifying the defendant as one of the robbers. In addition, the defendant's former girlfriend and the government's handwriting expert testified that Mooney authored letters in which he admitted his participation in the robbery.

After deliberating for two hours, the jury found Mooney guilty of the robbery conspiracy and using or carrying a firearm in the commission of a violent crime. The defendant was sentenced to a term of twenty-seven years and six months. This appeal followed.

II. IMPROPER ARGUMENTS BY THE PROSECUTOR

Mooney claims that improper comments made by the prosecutor during her opening argument undermined the fairness of his trial and warrant reversal of his conviction. Specifically, the defendant challenges the prosecutor's opening statement on two different grounds. First, he argues that the prosecutor improperly appealed to the jury's emotions when she began her opening with the following remarks:

We are fortunate in the state of Maine, particularly in the part of Maine that most of us come from, to live lives that are relatively free from random acts of violence. We don't have bars on our windows. We don't fear walking at night. And as a rule, our homes and our workplaces are safe havens from random crime.

This case involves a painful exception to that rule, a random act of violence that has forever changed the way that one person looks at the world, and in some respects has rocked the sense of security of an entire Maine community.

In addition, while describing the nature of the burglary to the jury, she commented: "after the drawer was empty and the phone cords had all been cut, thank God, the three of them left the hotel lobby." The defendant asserts that these comments created an alliance between the Government and the jurors, implied that the defendant had corrupted the community, and resulted in an improper appeal to the jurors' passions and prejudices.

Second, the defendant argues that the prosecutor impermissibly commented on his failure to testify, in violation of his Fifth Amendment privilege against self-incrimination. In her opening, the prosecutor told the jury:

Finally, as you assess the codefendants' credibility, consider how their testimony fits with the defendant's own words. You see, after the defendant was arrested on these charges, he chose not to speak to the police, and that was certainly his right. He did give a false name.

The defendant argues that this comment impermissibly suggested that the defendant's silence was evidence of guilt and therefore requires a new trial.

At sidebar after the prosecutor's opening statement, the defendant immediately objected to these comments and moved for a mistrial. The district judge denied his motion on the basis that just prior to hearing the remarks, the jury had been instructed that opening statements were not evidence in the case. He then promptly delivered an explicit curative instruction to the jury. The judge reminded the jury that the defendant was presumed innocent and that the government carried the burden of proving he was guilty beyond a reasonable doubt. He also reiterated that the jury could only use the evidence, not their personal feelings, biases or opinions to determine the defendant's guilt or innocence. Further, he delivered the following instruction:

Let me just elaborate on that for a little bit. Number one, everybody who's arrested has a right to remain silent, and you are not permitted to use the fact that someone did or did not remain silent as any element of guilt. You are not to use that ... to find any issue of guilt in this case, and I instruct you in that regard. Any finding of guilt must be based solely upon the evidence in this case and not that factor.

Number two, you are not to use as an element in determining guilt or innocence in this case whether or not we're fortunate in Maine to be safe or not ... and whether you or Maine or any community is safer or less safe depending upon whether you find the defendant guilty or not guilty. That simply is not an appropriate issue. You're only to use the issue of whether or not the government has proved beyond a reasonable doubt sufficient facts to show that the defendant beyond a reasonable doubt has committed those acts necessary to constitute these crimes.

The defendant alleges that the district judge erred in denying a mistrial because taken together the prosecutor's improper remarks had a cumulative prejudicial effect on the jury that could not be cured by a cautionary instruction. In response to this appeal, the government does not defend the prosecutor's opening remarks, but instead argues that a mistrial was unwarranted because the improper remarks were brief and isolated; were promptly cured by limiting instructions; and were completely inconsequential in light of the overwhelming evidence against the defendant. We review the district judge's denial of the motion for a mistrial for manifest abuse of discretion. See United...