U.S. v. Moreno, No. 92-2018

• Decision Date: 03 February 1993
• Docket Number: No. 92-2018
• Citation: 991 F.2d 943
• Parties: 37 Fed. R. Evid. Serv. 672 UNITED STATES, Appellee, v. Raymond MORENO, Jr., Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 943

991 F.2d 943

37 Fed. R. Evid. Serv. 672

UNITED STATES, Appellee, v. Raymond MORENO, Jr., Defendant, Appellant.

No. 92-2018.

United States Court of Appeals, First Circuit.

Heard Feb. 3, 1993.

Decided May 6, 1993.

Lawrence P. Murray with whom Henry F. Owens, III and Owens & Associates, Boston, MA, were on brief, for appellant.

Ralph F. Boyd, Jr., Asst. U.S. Atty., with whom A. John Pappalardo, U.S. Atty., and Michael J. Pelgro, Asst. U.S. Atty., Boston, MA, were on brief, for appellee.

Before BREYER, Chief Judge, TORRUELLA and BOUDIN, Circuit Judges.

BOUDIN, Circuit Judge.

Defendant Raymond Moreno, Jr., appeals his conviction in the district court for possession of an unregistered firearm, 26 U.S.C. § 5861(d), and of ammunition by a convicted felon, 18 U.S.C. § 922(g)(1). Moreno argues that evidence was lacking to support the verdict; that the court erred in admitting what he characterizes as evidence of "prior bad acts;" and that comments by the prosecutors to the jury deprived him of a fair trial. For the reasons that follow, we affirm Moreno's convictions.

I.

Moreno first argues that the evidence introduced at trial was insufficient. Our inquiry is a limited one: to decide whether there was evidence from which a rational trier of fact could have concluded beyond a reasonable doubt that Moreno possessed the firearm and the ammunition. Legitimate inferences must be drawn, and credibility determinations resolved, in favor of the verdict. See United States v. Angiulo, 897 F.2d 1169, 1197 (1st Cir.), cert. denied, 498 U.S. 845, 111 S.Ct. 130, 112 L.Ed.2d 98 (1990).

From the government's evidence at trial (Moreno presented no evidence of his own) a reasonable jury could have found the following. On the evening of April 18, 1991, a group of five law enforcement officers, while on foot patrol in the Lenox Street Housing Development in Boston, Massachusetts, heard a series of gunshots coming from another area within the development. Three of the officers, Officers Garvey, Perkins and Devane, ran in the direction of the shots; the other two, Officer Murphy and Trooper Drummy, returned to their parked cruisers.

As the three officers were running down Hammond Street in the direction of the shots, they observed three black males, all wearing black hooded sweatshirts or jackets, emerge from a courtyard in the direction of the gunshots, run across Hammond Street and disappear near a cluster of buildings across the street. One of the officers described the three men as running in a line in a "hunched over" manner. There was only the briefest interval when the defendants together disappeared from view. Almost at once, two of the three officers, joined by Officer Murphy (who had left his cruiser to assist in the foot pursuit), saw the same three men running through a parking lot behind the cluster of buildings, and gave chase.

The officers then saw one of the three men veer off from the other two and run in a separate direction. The second and third men were then seen by the officers to come together briefly and appeared to pass an object between them. Officer Murphy, who was closest to the two individuals, described the item being exchanged as a dark object about one to one-and-a-half feet long. The individual who took this object then ran off through a grass courtyard. The individual who passed on the object immediately stopped, raised his arms and surrendered. That individual was later identified as the defendant, Raymond Moreno, Jr.

Officer Garvey, in order to cut off any escape route, had circled around to the opposite end of the grass courtyard. Officer Garvey soon saw a black male wearing a black hooded sweatshirt enter the courtyard from the area in which Moreno had just been arrested. After telling the man several times to stop, Officer Garvey saw the man make a gesture as if to throw an object aside, and then heard a soft thud on the ground nearby. The man was arrested and identified as Frederick Hardy, who was tried and convicted along with Moreno but is not a party to this appeal. A search of the area revealed a .32 caliber pistol about five to eight feet from where Hardy stopped and made the throwing gesture.

When arrested, Hardy was not in possession of the foot-long object that the officers had seen him receive from Moreno. The officers then searched the path between the area of Moreno's arrest and the spot at which Officer Garvey first observed Hardy. Hidden in bushes along that direct route, the officers found a double-barrelled sawed-off shotgun with a 12 1/2 inch barrel, fully loaded with ammunition. This is the firearm and ammunition which Moreno is charged in this case with having possessed.

While Moreno and Hardy were being arrested, Officer Devane was in search of the first of the three runners, who had gone off in a separate direction. Officer Devane discovered a black male, sweating and out of breath and wearing a black hooded sweatshirt, hiding in some bushes. After arresting the individual and placing him in a cruiser, Officer Devane found a semi-automatic pistol on the ground near where the individual had been hiding. The pistol was in the lock-back position, smelled of gunpowder, and was out of ammunition, indicating that it recently had been discharged. The arrested individual was identified as Steven Fernandes.

Several officers then went back to a central courtyard in the middle of the Lenox Housing Development. This courtyard was in the general area of the gunshots, and it was immediately accessible from the spot where the three arrested men were first observed by the officers. In the courtyard, the officers found discharged cartridge casings. These spent casings were matched by a ballistics expert to the pistol that was found next to Stephen Fernandes.

At the police station after his arrest, Moreno, after receiving his Miranda warning, denied knowing either Hardy or Fernandes. He claimed that he had been standing alone in the housing development when he heard shots and started running. At trial, however, a resident of the housing development testified that he had seen Moreno together with Hardy and Fernandes a number of times over the prior year. In addition, Officer Dreary of the Boston Police testified that in March 1991 he stopped a red Isuzu Trooper; Hardy was the driver and Moreno was a passenger in the front seat.

We think a reasonable jury could conclude beyond a reasonable doubt from this evidence that Moreno possessed the sawed-off shotgun and its ammunition. Officer Perkins testified that he "saw [the two men] meet and ... could see them having some kind of exchange," but he was not close enough to describe the object. Officer Murphy, who was closer to the men, did observe the object--which he described as "about a foot and a half [long]" and "dark in color." It was found directly in the path Hardy took after the exchange with Moreno, prior to his apprehension by Officer Garvey. Once the police testimony is credited, Moreno is effectively tied to the loaded shotgun.

The direct evidence as to the shotgun was reinforced by other evidence. First, Moreno and the individuals seen running away were fleeing from an area in which shots had been fired--shots that the jury could infer had been fired by one of the group, since a pistol belonging to one of the three matched shell casings found in the area of the gunshots. Second, Moreno's false denial after his arrest of a prior relationship with Hardy and Fernandes suggests a guilty mind and helps rebut any inference that he was merely in the wrong place at wrong time. The direct evidence, bolstered by these secondary inferences, was more than enough to support the jury's verdict.

II.

Next, Moreno argues that the trial court committed error by allowing the government to introduce evidence of the gunshots heard by the officers prior to Moreno's arrest, the semi-automatic pistol found with Fernandes and the spent shell casings matching that pistol. Describing the evidence as proof of "other crimes" under Fed.R.Evid. 404(b), Moreno argues that this evidence related only to his character or propensity to commit crime rather than to any legitimate issue in the case. Rule 404(b) provides that evidence of "other crimes, wrongs or acts" is not admissible to prove "the character of a person in order to show action in conformity therewith." Such evidence is not prohibited, however, if offered for "other purposes." Fed.R.Evid. 404(b). See United States v. Rodriguez-Estrada, 877 F.2d 153 (1st Cir.1989).

In this case, the government's evidence of the gunshots, Fernandes' pistol, the matching spent ammunition, and Hardy's weapon supports a chain of inferences independent of any tendency of the evidence to show bad character. The evidence permits the inference that Fernandes, with Hardy and Moreno in attendance, was the individual who discharged the gunshots, and that the three men were running together from the scene of that discharge when first observed by the officers. In turn, the facts that Fernandes and Hardy were armed and that the three men were fleeing together after Fernandes had discharged three rounds of ammunition made it somewhat more likely that the object Moreno was seen to pass along to Hardy was indeed the shotgun later found nearby. See, e.g., United States v. Currier, 821 F.2d 52, 55 (1st Cir.1987) (the proffered evidence of other bad acts was "closely intertwined with the charged offense of possession, providing both significant contextual material and proof that the defendant possessed the gun").

An example may be of help in understanding the inference. If a defendant were charged with shooting a guard in the course of a bank robbery, it would surely be permissible to show that he was caught fleeing from the scene of a just-robbed bank with two other persons who both possessed weapons. The defendant could certainly argue to the jury that he was an innocent bystander who was fleeing from a dangerous...