United States v. Glover

• Decision Date: 26 February 2009
• Docket Number: No. 07-1983.,07-1983.
• Parties: UNITED STATES of America, Appellee, v. James GLOVER, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

558 F.3d 71

UNITED STATES of America, Appellee, v. James GLOVER, Defendant, Appellant.

No. 07-1983.

United States Court of Appeals, First Circuit.

Heard April 11, 2008.

Decided February 26, 2009.

Charles W. Rankin, with whom Michelle Menkin and Rankin & Sultan, were on brief, for appellant.

Matthew D. Krueger, Attorney, United States Department of Justice, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before LIPEZ, MERRITT,^* and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

James Glover challenges his conviction for being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), claiming that comments made by the prosecutor during the closing argument at his trial were improper. He also challenges his sentence in two respects: the classification of his prior conviction for assault and battery with a dangerous weapon as a "crime of violence" under U.S.S.G. § 2K2.1(a)(2) and the overall reasonableness of his sentence.

I. Factual Background

In September 2005, Boston Police Officers Joseph Marrero and Manual Blas approached Glover while they were patrolling a housing development. The officers testified that they asked Glover his name and whether he lived in the development. In response, he first reached toward his back pocket, then brought his hands forward before he took off running from the officers. They chased him, with Officer Marrero being the closest in pursuit. Marrero testified that he saw Glover remove a tan object from the right side of his waist area and hold the object in his right hand. Glover then turned a corner, and Marrero lost sight of him for several seconds. When they caught up to and arrested Glover, the officers found a small amount of marijuana in his pocket, but no weapons and no tan object.

Shortly thereafter, a .25 caliber handgun with an ivory handle was recovered from along the path of the chase. The gun was lying in plain view near the corner where Marrero testified that he had lost sight of Glover. Glover was charged with possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1).

At trial, the government argued that Glover had the ivory-handled gun on his person when he fled from the officers, and discarded it while he was briefly out of their sight. Glover, for his part, argued that someone else had placed the gun on the ground where it was recovered, possibly as a "community gun" (a gun that a group of people share and store in a public but concealed location). Glover introduced testimony that a number of community guns had been recovered by the Boston Police Department in that same area. Glover also argued that he would not have been likely to reach for or discard a firearm with his right hand, as he is left-handed; he introduced handwriting evidence to this effect at trial.

Defense counsel objected to several comments in the government's closing argument, to be described in detail later, but the district court overruled those objections. The jury convicted Glover of possessing a firearm after having been convicted of a felony.

Glover objected to the Presentence Report ("PSR") prepared for his sentencing. He disputed the classification of his prior conviction for assault and battery with a dangerous weapon ("ABDW") as a "crime of violence" under U.S.S.G. § 2K2.1(a)(2). Glover also requested either a U.S.S.G. § 4A1.3(b) downward departure based on his criminal history, or a variance based on the sentencing factors set out in 18 U.S.C. § 3553(a). Glover argued specifically that his criminal history points under the Guidelines overstated his actual criminal history, and in light of this, that he should receive a below-Guidelines sentence. More specifically, he argued that he was already effectively serving incarceration time for the instant felon-in-possession offense because the offense was also a violation of supervised release conditions imposed on an earlier charge. He argued that the time served on the supervised release violation should "count" toward his current sentence. He also claimed that a then-proposed amendment to the Guidelines relating to cocaine base (crack cocaine) offenses should result in a reduction of his sentence for the instant offense. Glover also stressed that he had a positive future, because he had achieved steady employment prior to committing the offense.

The district court accepted the PSR's classification of the ABDW conviction, stating, "[B]ased on the charging document itself, I could determine that this is a crime of violence." The court also found, however, that a variance from the Guidelines range of 100-120 months was warranted, and sentenced Glover to 92 months' imprisonment, followed by three years of supervised release. This appeal followed.

II. Closing Argument

Glover argues that his conviction should be set aside because the prosecutor made improper comments in closing argument at trial. We analyze de novo whether the comments were improper. United States v. Balsam, 203 F.3d 72, 87 (1st Cir.2000). If we determine that the comments were improper and the objection was preserved, we review for harmless error under Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). United States v. Wihbey, 75 F.3d 761, 769 (1st Cir.1996). Absent an objection below, however, our review is for plain error only. Id.

Glover argues that four specific comments in the government's closing argument were improper. We set forth the comments in the order in which they were delivered.

After briefly summarizing the evidence, the prosecutor stated ("Comment One"):

So I guess the questions become, well, straightforward: Does it make sense? Or turn the question the other way: Is there anything that doesn't make sense. Well, I submit to you that if you look at it carefully, it makes perfect sense. If you look at it carefully, there's nothing that doesn't make sense.

(emphasis added).

The second comment ("Comment Two") followed a recounting of Officer Marrero's testimony that he had seen a tan object in Glover's hand. The prosecutor asked, "Is there any reason to doubt that testimony?"

The third comment ("Comment Three") concerned evidence that the defendant wrote with his left hand.

Clearly, okay, the defendant writes with his left hand. He may prefer to do some things left-handed. We don't know what those other things are. Officer Blas, for example, he writes left-handed but he shoots right-handed.

(emphasis added).

The final comment ("Comment Four") concerned the government's theory that Glover had dropped the firearm on the ground where it was recovered.

You saw the area, saw the photographs of the undisturbed firearm.... The firearm was out in the open, it was not hidden. What other explanation can there be? ... There was some testimony about community guns, but all that testimony about community guns, about guns stashed somewhere, is that the guns were hidden. You wouldn't put a loaded firearm in the open by a stairwell in the middle of a development. It doesn't make any sense.

(emphasis added).

Immediately after the government closed, defense counsel objected to Comments Three and Four, maintaining that these two comments impermissibly shifted the burden of proof. He argued that the comments called for the defendant to prove that he did other activities left-handed, or to prove that the gun did not belong to him. The district court overruled both objections.

On appeal, Glover argues that these statements, either individually or in combination, shifted the burden of proof and also constituted impermissible comments on his failure to testify, in violation of the Fifth Amendment guarantee against self-incrimination.¹ Glover also argues for the first time that Comments One and Two were improper for the same reasons.

The closing argument is "an especially delicate point in the trial process," and we scrutinize comments that may either shift the burden of proof or are comments on a defendant's failure to testify. See United States v. Taylor, 54 F.3d 967, 977 (1st Cir.1995).

As to comments that shift the burden, we stated in United States v. Diaz-Diaz, 433 F.3d 128, 135 (1st Cir.2005) that "a prosecutor may cross the line [into impermissibility] by arguing to the jury that the defendant is obligated to present evidence of his innocence." The case of United States v. Skandier, 758 F.2d 43 (1st Cir. 1985) is illustrative. There, the prosecutor stated in closing argument, "Now, at this time the defense counsel will address you; ... [then] I will have a chance to speak with you one more time and see if he can explain the story that would be any different with regard to the responsibility of the defendant in this case." Id. at 45 (emphasis added). We held this comment to have impermissibly shifted the burden of proof to the defendant. Id.See also Diaz-Diaz, 433 F.3d at 135 (statement that "[defense] counsel can call this witness, just like the United States," impermissibly shifted the burden of proof).

When assessing whether a prosecutor's comments violate the Fifth Amendment guarantee against self-incrimination, we ask whether "`the language used was manifestly intended or was of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.'" Wilkerson, 411 F.3d at 9 (quoting Wihbey, 75 F.3d at 769). In United States v. Cox, 752 F.2d 741 (1st Cir.1985), we held a prosecutor's repeated statements in closing argument, asking "how does [defendant] explain" certain evidence, to be impermissible and a "severe violation of the Griffin rule." Id. at 745 (discussing Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)); see also Wihbey, 75 F.3d at 770 (prosecutor's statement that, "if [defense counsel] can stand up and explain away that conversation to you, then you should [acquit defendant]," was impermissible comment on defendant's failure to testify); United...