US v. Palmer, 99-1260

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBefore Boudin, Circuit Judge, Bownes, Senior Circuit Judge, and Lipez; Bownes; Posner
Citation203 F.3d 55
Docket NumberNo. 99-1260,99-1260
Decision Date03 November 1999

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE. Hon. Joseph A. DiClerico, Jr., U.S. District Judge. [Copyrighted Material Omitted] Sven D. Wiberg, with whom Wiberg & Wiberg were on brief for appellant.

Jean B. Weld, Assistant United States Attorney, with whom Paul M. Gagnon, United States Attorney, Peter E. Papps, First Assistant United States Attorney, Mark E. Howard, Assistant United States Attorney, and Frank Lopez, Assistant United States Attorney, were on brief for appellee.

Before Boudin, Circuit Judge, Bownes, Senior Circuit Judge, and Lipez, Circuit Judge

Bownes, Senior Circuit Judge

Defendant Charles Palmer was convicted by a jury on three counts of robbery and four counts of conspiracy to commit robbery under 18 U.S.C. § 1951 (1948).1 Four issues are before us, which we list in the order presented in defendant-appellant's brief: (1) Did some of the prosecutor's remarks made during final argument violate defendant's due process rights and deprive him of a fair trial? (2) Did the district court err in not suppressing defendant's confession to the police? (3) Was there sufficient evidence to sustain the conspiracy counts? (4) Were the district court's instructions to the jury erroneous in light of the fact that defendant was charged as a principal in the indictment but the evidence showed that he was an aider and abettor? We affirm the conviction.

The background facts are as follows. At the beginning of February 1998, defendant and a friend, Talbot Curtin, decided to rob convenience stores to get money to feed their drug habits. Defendant was addicted to heroin and Curtin was hooked on crack cocaine. According to defendant's statement to the police, Curtin wanted the robberies limited to stores in which a woman was the sole employee on the premises and there were not many customers.

The three robbery convictions were of stores in southern New Hampshire which fit this requirement. The conspiracy convictions involved other convenience stores in the same area, but at the time they were "cased," they did not meet the "woman only" standard and/or had too many customers. Defendant did not testify.

Additional facts will be stated in our discussion of the issues, which follows.


Palmer claims that his rights to due process, confrontation, and a fair trial by an impartial jury were violated when the prosecutor, during closing argument, made reference to his own personal beliefs and appealed to those of the jury to explain the witness's decision to record Palmer's confession but not the entire custodial interrogation. Palmer also claims that the subsequent jury instruction was neither sufficiently contemporaneous nor strong enough to overcome the prejudice caused.

The remarks made by the prosecutor and the colloquy involved were as follows:

MR. HOWARD: Now, defense made much in his opening and attempted to make much on his cross-examination of Detective Sprankle about the period of time when the defendant gets to the police station and before he's put on tape. Couldn't you just have recorded the whole darn thing? We know exactly what went on. Answer, No, I can't do that. Why? Because if I bring a defendant or a witness or anybody else into the room, and I sit him down and say, Okay, we're going to talk about robbery, and press the button to the taperecorder, the first thing that happens, they are going to shut up and not going to talk. You do it. I do it. The presence of the tape -

MR. WIBERG: Objection.

THE COURT: Overruled. Sit down. You can put it on the record later.

MR. HOWARD: It's just common sense, that you are not going to intimidate somebody with a taperecorder right up front. The confession comess [sic] out, and Detective Sprankle now asks. "Will you now put it on the tape?" And he voluntarily chooses to do it. Incidentally, there's no request for a lawyer. Detective Sprankle said that just never happened, and it did not happen.

It is clear that the prosecutor's statement (in support of a government witness) that he would have acted similarly was improper: it was a statement of how the prosecutor himself would have acted on a similar occasion and was, at least, indirectly, a form of vouching for the witness. But the requisite analysis does not end with a finding of prosecutorial misconduct. There are other factors in the equation:

(1) whether the prosecutor's misconduct was isolated and/or deliberate; (2) whether the trial court gave a strong and explicit cautionary instruction; and (3) whether any prejudice surviving the court's instruction likely could have affected the outcome of the case.

United States v. Auch, 187 F.3d 125, 129 (1st Cir. 1999); see also United States v. Manning, 23 F.3d 570, 574 (1st Cir. 1994) (adopting similar factors). We address these factors in the context of this case.

As a one-time misstatement at the end of a four-day trial, the prosecution's comment was neither so egregious nor so pervasive as to poison the well. Cf. Manning, 23 F.3d at 575 (several episodes of prosecutorial overreaching were impermissibly pervasive); see also United States v. Capone, 683 F.2d 582, 585-86 (1st Cir. 1982) (prosecutor's statement that victim, seated in the audience, awaits the "truth" and the jury verdict, did not call for a new trial).

Here, the comment occurred during the middle of the government's closing argument, not during rebuttal. See Auch, 187 F.3d at 132 (improper comments made during close of rebuttal have "great potential to cause prejudice"). As an ill-conceived illustration to support witness testimony, the remark was peripheral to the government's case and theme. See United States v. Young, 470 U.S. 1, 12 (1985).

Palmer argues that the judge's curative instruction, sandwiched between the government's and defendant's closing arguments, was insufficient because it did not immediately follow the misconduct. Though delivered several minutes after the objection, the judge's thorough comments pointedly addressed the prosecution's improper remark as well as every other objection raised by the defense during the sidebar conference. Defense counsel also objected to the prosecution's characterization of the elements of conspiracy, the judge's demand that the defense counsel sit down after making the objection, and the prosecution's characterization of the evidence.

The criticized instruction stated:

THE COURT: Members of the jury, I have some interim instructions. Remember, it's my obligation to rule on objections, and you are not to take my ruling on any objection or the manner on which I rule on objections as any comment about an attorney's conduct or case. That's strictly a function for me to perform, and you are not to concern yourselves with that.

During the course of Mr. Howard's final argument, he made reference to the use of a tape or a recorder whether it was used or not used and that he said something to the effect that, You or I wouldn't do that. Remember, you decide the case based on evidence in the case, not on a prosecutor's opinion, and a prosecutor can't vouch for any particular opinion or what have you. A prosecutor can argue the case, but to the extent he indicated he might have done it the same way, that's not relevant to your consideration; and indeed, to say that you or I would have done it that way is irrelevant.

You have to examine all of the facts that you heard in this case and determine it based on facts, the law and common sense, how you are going to come down on an issue.

Also remember that the attorneys make final arguments to you. They are making an effort to be accurate about the facts, the evidence as they recall the facts. To the extent, however, that you find anything an attorney says to you about the facts may differ from your own recollection of the facts, then you should take your own recollection on facts to the extent that anything--occasionally during the final arguments, an attorney might make reference to the law. To the extent that an attorney tells you what he thinks the law is may be different from what I'm going to tell you what the law is, and you take the law from the Court and not from the attorney.

We find these instructions curatively sufficient and timely given. The district court has considerable leeway as to the phrasing and timing of a curative instruction. See United States v. Moreno, 991 F.2d 943, 948 (1st Cir. 1993) (oblique, but lengthy, curative instruction sufficient to communicate message that jury is to ignore recent prosecutor comments).

"Finally in appraising possible prejudice we do not ignore the fact that the case against Moreno was ample." Id. at 948. So here, any lingering prejudicial effect from the misconduct pales in comparison to the government's evidence implicating Palmer's involvement in the crimes: a taped confession, supported by independent corroborating evidence from an eyewitness and a video surveillance camera.


On March 20, 1998, the defendant was arrested at his home by members of the Nashua Police Department, including Detective Richard Sprankle, pursuant to an arrest warrant for robbery. En route to the police station, Palmer, who had not been given notice of his Miranda rights, emphatically and loudly denied any involvement in the robberies and accused the detectives of lacking any evidence to demonstrate otherwise. In response Sprankle repeatedly told the defendant to shut up, and indicated that the police had an incriminating confession from Talbot "Timmy" Curtin implicating Palmer in the robberies. The detective also stated, at some point and at least once, that Curtin - who...

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