U.S. v. Sullivan

• Decision Date: 05 April 1996
• Docket Number: Nos. 95-1719,95-1760,s. 95-1719
• Citation: 85 F.3d 743
• Parties: UNITED STATES OF America, Appellee, v. Dennis SULLIVAN, Defendant, Appellant. UNITED STATES of America, Appellee, v. Thomas PLATT, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 743

85 F.3d 743

UNITED STATES OF America, Appellee, v. Dennis SULLIVAN, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Thomas PLATT, Defendant, Appellant.

Nos. 95-1719, 95-1760.

United States Court of Appeals, First Circuit.

Heard April 5, 1996.

Decided May 31, 1996.

Judith H. Mizner, Newburyport, MA, for appellant Dennis Sullivan.

Perry O'Brian, Bangor, ME, for appellant Thomas Platt.

Margaret D. McGaughey, Assistant United States Attorney, with whom Jay P. McCloskey, United States Attorney, was on brief, for appellee.

Before SELYA, STAHL and LYNCH, Circuit Judges.

LYNCH, Circuit Judge.

An armed robbery of the Country Hospitality Inn in Bangor, Maine in 1994 that netted the robbers approximately $520 was prosecuted federally. Defendant Dennis Sullivan was sentenced for the crime to spend almost the next thirty years of his life in prison. Defendant Thomas Platt was sentenced to more than thirty years. They appeal, ably arguing that the prosecutor was overly zealous, the evidence insufficient and the instructions deficient. While the prosecutor overstepped in asking one witness to comment on the truthfulness of another's testimony, the misstep was harmless error. The prosecution presented enough evidence to prove its case and the instructions contained no error. We affirm.

I

Two masked men, one with a sawed-off shotgun, robbed the Inn in the early morning of July 28, 1994. The Inn's night manager was faced with the shotgun by a man who jumped over the countertop and told the manager to look straight ahead and not at him. Startled, the manager did not get a full look at the robber. He did get a good enough look to testify that the robber was a man of medium build, between 5'8"' and 5'10"' high, weighing between 140 and 160 pounds and in his early to mid-twenties. The robber wore some sort of ski mask, or combination of masks, and dark clothing. The manager heard, but did not see, a second robber. The robbers took the manager's checkbook, his $160 in cash, and his grocery store and bank cards. The robber with the gun asked the manager where the Inn's money was. The manager told him it was in a drawer. The second robber said that he had gotten the drawer open and the robbers took the $360 inside. The robbers told the manager to lie down on the floor. They taped his eyes and mouth shut with duct tape and fled.

Shortly thereafter, the police stopped a car with four men but released them. In the car were the defendants and two companions, Dale Braley and Timothy Boudreau. Braley and Boudreau eventually became cooperating witnesses.

Meanwhile the investigation proceeded. A police dog followed the robbers' scent across the field around a barn next to an abandoned house. At the house the police observed tire tracks from a car that had rapidly accelerated. Later, a citizen observed a maroon bag on a nearby roadside and told the police about it. The bag contained, among other things, a sawed-off shotgun, a locked box with a shoulder holster inside of it, two masks, dark sweatshirts and camouflage hats. It also contained the rest of the roll of the duct tape used to bind the manager, the manager's checkbook and his bank cards. The bag had a tag bearing the name "Angela Turner." Ms. Turner, it turned out, was Platt's girlfriend.

The scheme unravelled. The police followed leads to Braley and Boudreau, who incriminated Platt and Sullivan while minimizing their own roles in the crime. Hearing the police were looking to question them, Platt and Sullivan disappeared. But when arrest warrants were issued, they surrendered.

Sullivan and Platt were charged with conspiracy to obstruct commerce by robbery in violation of 18 U.S.C. § 1951, obstructing commerce and attempting the same by committing robbery in violation of 18 U.S.C. §§ 1951 and 2, and using or carrying a firearm in relation to a crime of violence, and aiding and abetting the same, in violation of 18 U.S.C. §§ 924(c) and 2. Platt and Sullivan were each charged individually with possession of a firearm not registered to them in the National Firearms Registration and Transfer Record in violation of 26 U.S.C. §§ 5861(d) and 5871. They were also each charged individually with being felons in possession of firearms, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and 924(e)(1). They were convicted on all counts save for Sullivan's acquittal on the two firearm possession counts.

It was clear that the four men were connected with the crime and two had actually committed it. The question was which two. At trial the theory of defense was that Braley and Boudreau had done it and that there was no reliable identification of the defendants. While a footprint was found on the Inn manager's countertop, it did not appear to belong to either Sullivan or Platt and the police did not do the work to identify whose footprint it was.

At trial, Braley testified that the foursome had decided to commit a crime and went riding around in a car. Braley and Boudreau both said that Sullivan, who had worked as a pizza delivery person, mentioned that the Inn would have only one employee there and would be a good target for a robbery. Braley testified that they drove to the abandoned house near the Inn. Sullivan and Platt donned masks and camouflage gear and walked across a field toward the Inn. Later, Sullivan and Platt returned. They "dash[ed]" into the car and told Braley to get out of there because they had seen a cop. In the car, Sullivan said, "I got that guy good." While holding his finger up to the back of Braley's head as if he were pointing a gun, Sullivan said he had jumped over the motel counter and told the night manager to "[g]et right down on the ground." After the group had driven about eight miles, they noticed a police car coming toward them and, afraid they might be stopped, tossed the maroon bag out the window.

The girlfriends of the defendants had implicated them in the crimes, but attempted to recant those statements at trial. Braley and Boudreau acknowledged they had been charged with involvement with the robbery in state court. Another witness, Vaughn Stevenson, testified that Platt wanted to purchase the sawed-off shotgun and that Stevenson, who acted as middleman for the transaction, got the weapon from the seller and put it into Platt's closet. Stevenson's friend, Danny Cray, also testified that Platt said he wanted to purchase the shotgun and that Stevenson had delivered the shotgun to the place where Platt was living.

Sullivan argues that the evidence was insufficient to support his conviction of using or carrying a firearm in connection with a crime of violence, particularly in light of his being acquitted on the charges of possession of an unregistered firearm and being a felon in possession of a firearm. Sullivan also argues the instruction on reasonable doubt was in violation of his due process rights and that several prosecutorial actions, including the prosecutor's asking Sullivan to comment on the veracity of another witness's testimony, violated due process. Finally, under different labels he attempts to mount an ineffective assistance of counsel claim.

Platt argues that the district court erred in permitting the prosecutor to question Sullivan as to whether the other witness lied. In addition, he argues that a statement made by the prosecution in opening argument violated his Fifth Amendment rights and that there were evidentiary errors.

We treat each defendant's claims separately.

II

Sullivan

Sufficiency of the Evidence

In assessing a challenge to the sufficiency of the evidence, we "review the record to determine whether the evidence and reasonable inferences therefrom, taken as a whole and in the light most favorable to the prosecution, would allow a rational jury to determine beyond a reasonable doubt that the defendants were guilty as charged." United States v. Mena-Robles, 4 F.3d 1026, 1031 (1st Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1550, 128 L.Ed.2d 199 (1994).

Sullivan's assertion that there was not enough evidence to show he carried or used the shotgun stresses two points. First, Sullivan says, it is undisputed that the gun belonged to Platt and that the night manager did not see who carried the gun. He claims no other evidence linked him to the gun. Second, he says that the weakness of the evidence is revealed by the jury's acquitting him of being a felon in possession of a firearm and of possessing an unregistered weapon.

As to the latter, " '[v]erdict inconsistency does not indicate that the government necessarily failed to prove an essential element of its case beyond a reasonable doubt.' " United States v. Calderon, 77 F.3d 6, 10 (1st Cir.1996) (quoting United States v. Lopez, 944 F.2d 33, 41 (1st Cir.1991)); see also United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). An inconsistent verdict does not require vacating a criminal conviction as long as the appellate court is satisfied that there was sufficient evidence to sustain the counts of conviction. Calderon, 77 F.3d at 10.

A jury could well have found that Sullivan actually carried or used the gun himself or, at the least, knowingly aided or abetted the carrying or use of the gun. It was clear that at least one of the robbers carried the sawed-off shotgun. The night manager testified that the robber who accosted him brandished a shotgun. That robber "used" the firearm. See Bailey v. United States, --- U.S. ----, ----, 116 S.Ct. 501, 508, 133 L.Ed.2d 472 (1995). A reasonable jury could have found that Sullivan was that robber. Braley testified that after the robbery, in the car, Sullivan put a pretend gun to Braley's head, apparently imitating what he had done to the night manager. And, there was testimony that Sullivan, in advance of the robbery, while at Platt's home, picked up the gun and commented that it would be good to use in a robbery. The evidence showed that the two robbers walked across the field to...