U.S. v. Roberts
| Decision Date | 05 June 1997 |
| Docket Number | No. 96-1933,96-1933 |
| Citation | 119 F.3d 1006 |
| Parties | UNITED STATES, Appellee, v. Daniel P. ROBERTS, Defendant-Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
William Maselli, with whom Law Offices of William Maselli, Auburn, ME, was on brief, for appellant.
F. Mark Terison, Assistant United States Attorney, Portland, ME, with whom Jay P. McCloskey, United States Attorney, Bangor, ME, and Jonathan A. Toof, Assistant United States Attorney, Portland, ME, were on brief, for appellee.
Before SELYA, Circuit Judge, CYR, Senior Circuit Judge, and KEETON, * District Judge.
A jury convicted defendant-appellant Daniel Roberts on charges of conspiracy to possess anabolic steroids with intent to distribute, and possession of anabolic steroids with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), and 846. Defendant contends on appeal that (1) four incidents of prosecutorial misconduct during the closing and rebuttal arguments deprived him of a fair trial; (2) the district judge's failure to instruct the jury on the requested defense theory of possession constitutes reversible error; and (3) the district judge's instructions and re-instructions on permissible inferences from possession in quantity were unfairly prejudicial. Concluding that the egregiousness of the prosecutorial misconduct alone deprived Roberts of a fair trial, we vacate the convictions and remand for a new trial.
Since we are concerned with the claim of prosecutorial misconduct and not with a claim of insufficient evidence, our description of the facts is not limited to evidence and inferences most generous to the government. Rather, we state a balanced description of the evidence in the record before us, to aid in focusing on whether the impermissible comments of the prosecutor tainted the proceedings materially. See Arrieta-Agressot v. United States, 3 F.3d 525, 528 (1st Cir.1993) ().
An investigation that led to this prosecution commenced when a young boy's mother told local police that Robert Tibbetts had sold steroids to her teenage son. The ensuing investigation and eventual detention of Tibbetts led, in turn, to defendant Roberts, as explained more fully below.
At trial Robert Tibbetts, appearing as a witness called by the government, pursuant to a cooperation agreement, testified to the events summarized here.
Tibbetts purchased anabolic steroids from Dr. Patterson, a veterinary doctor in Maine, representing their intended use to be for draft horses. After Tibbetts had purchased During this time, Daniel Roberts began buying steroids from Tibbetts. Roberts worked as a personal trainer at different gyms in the Lewiston-Auburn area. He was certified to advise clients about nutrition and fitness and was himself a member of a team of weightlifters. Those of Roberts' clients who testified said they had no knowledge of Roberts' selling steroids, nor did they have knowledge of his encouraging the use of steroids. Both Roberts' girlfriend, Michelle Saba, and Tibbetts testified that Roberts owned no large animals to whom the steroids could have been administered legally.
steroids two or three times each week during 1995, Dr. Patterson cut off Tibbetts' supply because he was concerned about potentially illicit use. Tibbetts then began obtaining steroids from a different source--a Dr. Hussey of North Conway, New Hampshire--from whom he also purchased oil-based testosterone every week.
When Roberts became concerned because a large part of an order was missing from a North Conway shipment, Roberts and Tibbetts met to discuss the possibility that Roberts would make the necessary trips to New Hampshire instead of Tibbetts. Up until this point, Roberts had been providing between $1000 and $1500 in cash for the drugs for each trip Tibbetts made. In addition, Dr. Hussey had begun to express his concern over the quantity of steroids Tibbetts purchased on such a regular basis. Tibbetts then told Roberts he would not make any more trips to North Conway. Instead, Tibbetts suggested that Roberts make the trips and use Tibbetts' name. Both Dr. Hussey and his secretary confirmed that someone other than Tibbetts began picking up and paying for the steroids during the fall of 1995.
Tibbetts having been turned in by a concerned mother, as stated above, because he allegedly sold steroids to her teenage son, the investigation of Tibbetts led to the delivery and sale of steroids from Dr. Hussey's office. Agent Bals of the United States Drug Enforcement Administration arranged to monitor a transaction and to detain a person involved, who turned out to be Roberts on his way home from Dr. Hussey's office in New Hampshire. Roberts' car was stopped in Maine by Maine law enforcement authorities. Roberts handed over a large box of steroids, telling the Maine law enforcement officers that the steroids were for Roberts' own personal use.
At trial, Michelle Saba, Roberts' girlfriend and a reluctant witness, indicated that the defendant was obsessed with weight lifting and with increasing his weight. He had grown from 130 pounds, when she met him several years ago, to well over 200 pounds. Saba further testified that Roberts used steroids daily, sometimes twice a day, and that their desperate financial situation was due to his addiction.
Russell Barlow, a high school teacher and friend of Roberts, testified that becoming larger and stronger was an obsession for Roberts and that Roberts took steroids for that reason. Barlow further testified that he (Barlow) operated a personal training business, and it was his experience that abusers of steroids would often hoard the drug in anticipation of a time when it would be unavailable. Apparently, weight lifters were able to procure steroids from the black market and from veterinarians, but since black market steroids were frequently impure, weight lifters preferred drugs provided by a veterinarian.
Agent Bals testified that a lively market for steroids existed in the gyms and among participants in various sports. Barlow stated that selling steroids could be very profitable, especially since the shelf life of many steroids was as long as five years.
The only evidence linking Roberts to the sale of steroids, however, other than his being in possession of large quantities, was the testimony at trial of Tibbetts, who said that Roberts had once stated that he had lost money selling steroids in Massachusetts. Telephone records in evidence show that Roberts made frequent calls to telephones located in Massachusetts.
In a two-count indictment returned on February 15, 1996, Roberts was charged with (1) conspiracy to possess with intent to distribute On April 25, 1996, the jury trial began in the United States District Court for the District of Maine. On April 26, 1996, the jury returned verdicts of guilty on both counts.
anabolic steroids and (2) possession with intent to distribute anabolic steroids in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D) and 846.
The district judge sentenced Roberts to concurrent sentences of sixteen months in prison for each of the two counts, to be followed by two concurrent three-year terms of supervised release. Following imposition of sentence, Roberts filed this timely appeal.
We recite verbatim substantial parts of the 22-minute summation and 10-minute rebuttal of the prosecutor.
MR. TOOF: (10:18 AM) Ladies and gentlemen of the jury, after I get done arguing, Mr. Maselli will have an opportunity to address you and I will then have a brief opportunity, when he is done, for rebuttal.
...
As I go through my review of the evidence I will point out several areas in which you could be misled from your oath and obligation as jurors in this case. I want to remind you, and I remind you again and again and again that this is not a popularity contest, this is not [a] what should be done contest, this is a trial that defines justice based on your objective evaluation of the facts in this case. In other words, what has been shown to you, what has not been shown to you and what you reasonably infer from the evidence that has been brought before you.
...
The defense counsel spent a great deal of time attempting to show you that Mr. Tibbetts is not the kind of man the federal government wants you to believe.
[A q]uestion was asked relative to his suggest[ed] sexual inclinations, that he used young boys not only for business purposes but to assist him in the distribution of anabolic steroids and what have you.
There is not a fact, there is not one fact that has been established in this case that Mr. Tibbetts did any of these things.
However, if you accept the questions as facts you could conclude what is the government doing dealing with him, a guy like this. Let me tell you that every day, every courtroom in this country the federal government, the state government, uses people like Robert Tibbetts and the reason for it is because Tibbetts elected to plead guilty, and was testifying yesterday to save his hide.
As Mr. Maselli suggests, either Tibbetts was a trained monkey doing whatever he could do to satisfy the government masters or he was telling the truth.
Do you think this is the first time anything like this happened? Of course not, that is why we have things like plea agreements. If you want to go home tonight in time to watch the early news, in time for dinner, you can decide this case very quickly but if you do you will not have considered all of the evidence. I ask you that you consider the Tibbetts testimony in view of the agreement. These are the terms and conditions which control the government's entire relationship with...
To continue reading
Request your trial
-
State v. Lemon
...127 F.3d 1314, 1338 (11th Cir. 1997), cert. denied, 523 U.S. 1033, 118 S. Ct. 1328, 140 L. Ed. 2d 490 (1998); United States v. Roberts, 119 F.3d 1006, 1015 (1st Cir. 1997); United States v. Catlett, 97 F.3d 565, 573 (D.C. Cir. 1996); United States v. Atcheson, 94 F.3d 1237, 1246 (9th Cir. 1......
-
Simon v. Silva
..."the rule against [a prosecutor] telling the jury that the defendant has a burden of proving his innocence." United States v. Roberts , 119 F.3d 1006, 1015 (1st Cir. 1997) ; United States v. Diaz-Diaz , 433 F.3d 128, 135 (1st Cir. 2005). The SJC did not hold otherwise. Instead, the Supreme ......
-
Smith v. State
...was of such character that the jury would naturally and necessarily take it to be such a comment. See e.g., United States v. Roberts, 119 F.3d 1006, 1015 (1st Cir.1997); United States v. Pitre, 960 F.2d 1112, 1124 (2nd Cir.1992); Lesko v. Lehman, 925 F.2d 1527, 1544 (3rd Cir. 1991), cert. d......
-
Atkins v. Hooper
...Rules in the Federal Court of Appeals , 16 J. APP. PRACTICE & PROCESS 281 (2015). Most punchy is "raise-or-lose." United States v. Roberts , 119 F.3d 1006, 1013 (1st Cir. 1997) ; Tory A. Weigand, Raise or Lose: Appellate Discretion and Principled Decision-Making , 17 SUFFOLK J. TRIAL & APP.......
-
Trials
...was harmless error because judge issued clarifying instruction and statement did not prejudice outcome). But see, e.g. , U.S. v. Roberts, 119 F.3d 1006, 1015 (1st Cir. 1997) (prosecutor’s comment on defendant’s failure to testify not harmless error because not obscure reference and no curat......