# United Stat es Court of Appeals For the First C ircuit

No. 02-1318 UNITED STATES OF AMERICA, Appellee,

v. DENNIS J. MOONEY, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE [Hon. George Z. Singal, U.S. District Judge ]

Before Lynch, Circuit Judge , Bownes, Senior Circuit Judge , and Lipez, Circuit Judge . Jeffrey Silverstein , with whom Billings & Silverstein , was on brief for appellant. Margaret D. McGaughey , Assistant United States Attorney, with whom Paula D. Silsby , United States Attorney, was on brief for appellee.

December 30, 2002-2- BOWNES, Senior Circuit Judge . Defendant-appellant Dennis Mooney was prosecute d fe derally and convicted of conspiracy to obstruct commerce by robbery in violation of 18 U.S.C. § 1951, and using or carrying a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c). Mooney challenges his conviction

on the grounds that (1) the prosecutor made improper remarks in her opening statement that deniedhima fair trial; (2) the trial judge erredin allowing the government's handwriting expert to opine that the defendant was the author of letters implicating his participation in the robbery; and (3) he was unduly prejudiced by the government 's d elayed disclosure of evidence. Finding no reversible error, we affirm the conviction. I. FACTS We recite the facts in the light most favorable to the verdict. See United States v. Wihbey , 75 F.3d 761, 764 (1st Cir. 1996). Additional facts are outlined in our analysis that follows.

In the early morning hours of November 27, 2000, Matthew Sliker ("Sliker"), the overnight clerk of the Budget Host Motel in Wat erville, Maine had just completed his duties. Sliker was playing a copy of the video game "Syphonfilter 2," which had been rented from a store called "Movie Gallery," on a Sony Playstation in the lobby when the defendant, Dennis Mooney ("Mooney") and his brother, David Mooney ("David"), enteredand inquired about a room.-3-

After asking about the price, Mooney told Sliker they needed to get money and both men left the hotel. Sliker followed them outside to smoke a cigarette and watched the two men approach other men standing next to a dark gray Volkswagen Jetta.

After Sliker returned to the lobby, Davidand Mooney came back into the motel. David asked to play the video game, and Sliker began filling out a registration form with Mooney. Marquis Craig ("Craig") then entered the lobby and approached the registration desk. Wearing a blue bandana over his face, Craig pulledout a sawed-off pump shotgun with a scope, pointed it toward the ceiling, loaded a round into the chamber, and then put the gun

on the counter. The defendant ordered Sliker to r aise his hands andnot to set off any alarms. Craig demanded money, and after Sliker unlocked the cash drawer, the defendant took $195. David then used a telephone cord to tie Sliker's ankles to his wrists. Pointing the gun in Sliker 's f ace, Craig warned him that if he waitedless than two hours to call the police, he would be killed. One of the robbers grabbed the Sony Playstation, and they fled in the Jetta. In the car, Mooney divided the money among the robbers andhis other co-conspirators, Nathan D 'A mico ("D'Amico") and Manuel Roderick ("Roderick").

E ventually, Sliker's hands became untied and he ca lle d the police. He described the defend ant as a white male, 18-21 years old, with thin sideburns and a red tinted jaw-line goatee,-4-

wearing a dark blue or black bandana and a black or tan jacket with the word "American" across the back. The police intercepted the robbers on the highway as they headed toward Portland. The defendant, David, D'Amico and Roderick were arrested at the scene andbrought to the Portland police station. Craig exited the vehicle andfled into the woods, but was later found and arrested. In the car, the police found a Sony Playstation, a Syphonfilter 2 video game from Movie Gallery, two dark blue bandanas, and a sawedoff pump shotgun with a scope.

Later that night, on the way to the Portlandpolic e station, Sliker and two detectives stopped to inspect the dark gray Jetta that the police had pulled over earlier. Sliker recognized it as the car used in the robbery. He also identified the shotgun. Once Sliker arrived at the station, he identified one of the robbers, David, in a photographic lineup.

Sliker then waited in the lobby. In an attempt to isolate him from the suspects in cust ody, a member of the police dep artment who was not involved in the robbery investigati o n brought Sliker to the back of the station. Duri ng t he escort, Sliker pas sed th e defendant, who was in handcuffs. Sliker recognized him right away and told one officer that the defendant was the robber who took the money out of the cash register.

At the trial, cooperating witnesses Craig, David, an d D'Amico identified the defendant as one of the three men who-5-

committedthe robbery. They also testified that the defendant had suggestedrobbing the Budget Host Motel. Sliker corroborated their testimony by identifying the defendant as one of the robbers. In ad diti on, the defendant's former girlfriend and the government's handwriting expert testified that Mooney authored letters in which he admitted his participation in the robbery.

After deliberating for two hours, the jury found Mooney guilty of the robbery conspiracy andusing or carrying a firearm in the commission of a violent crime. The defendant was sentenced to

a term of twenty-seven years andsix months. This appeal followed.

II. IMPROPER ARGUMENTS BY THE PROSECUTOR Mooney claims that improper comments made by the prosecutor during her opening argument undermined the fairness of his trial and warrant reversal of his convic tion. Specifically, the defendant challenges the prosecutor's opening statement on two different grounds. First, he argues that the prosecutor improperly appealedto the jury's emotions when she began her opening with the following remarks:

We are fortunate in the state of Main e , particularly in the part of Maine that most of us come from, to liv e lives that are relatively free from random acts of violence. We don't have bars o n our windows. We don't fear walking at night. And as a rule, our homes and our workplaces are safe havens from random crime. This case involves a painful exception to that rule, a random act of violence th at has-6- forever changed the way that one person looks at the world, and in some respects has rocked the sense of s ecurit y of an entire Maine community. In addition, while describing the nature of the burglary to the jury, she commented: " after the drawer was empty and the phone cords had all been cut, thank God, the three of themleft the hotel lobby." The defe ndant asserts that these comments created an alliance between the Government and the jurors, impli ed that the defendant had corruptedthe community, andresulted in an improper appeal to the jurors' passions and prejudices.

Second, the defendant argues that the prosecutor impermissibly commented on his failure to testify, in violation of his Fifth Amendment privilege against self-incrimination. In her opening, the prosecutor told the jury:

Finally, as you assess the codefendants' credibility, consider how their testimony fits with the defendant's o wn words. You see, after the defendant was arrested on these charges, he chose not to speak to the police, andthat was certainly his right. He did give a false name. The defendant argues that this comment impermissibly suggested that the defendant's silence was evidence of guilt and therefore requires a new trial.

At sidebar after the prosecutor's opening statement, the defendant immediately objected to these comments and move d for a mistrial. The district judge denied his motion on the basis that-7-

just prior to hearing the remarks, the jury had been instructed that opening statements were not evidence in the case. He then promptly delivered an explicit curative inst ruct ion to the jury. The judge reminded the jury that the defendant was presumed innocent and that the government carried the burden of proving he

was guilty beyond a reasonable doubt. He also reiterated that the jury could only use the evidence, not their personal feelings, biases or opinions to determine the defendant's guilt or innocence. Further, he delivered the following instruction:

Let me just el abor ate on that for a little bit. Number one, everybody who's arrested has a right to remain silent, and you are not permitted to use the fact that someone did or didnot remain silent as any element of guilt. You a re not to use that . . . to fin d an y issue of guilt in this case, and I instruct you in that regard. Any finding of guilt must be based solely upon the evidence in this case and not that factor. Number two, you are not to use as an element in determining guilt or innocence in this case whether or not we're fortunate in Maine to be safe or not . . . and whether you or Maine or any community is safer or less safe depending upon whether you find the defendant guilty or not guilty. That simply is not an appropriate issue. You're only to use the issue of whether or not the government has proved beyond a reasonable doubt sufficient facts to show that the defendant beyond a reasonable doubt has committed those acts necessary to constitute these crimes. The defendant alleges that the district judge err ed i n denying a mistrial because taken together the prosecutor's improper-8-

remarks had a cumulative prejudicial effect on the jury that could not be cur ed by a cautionary instruction. In response to this appeal, the government does not defend the prosecutor's opening remarks, but instead argues that a mistrial was unwarrantedbecause the improper remarks were brief and isolated; were promptly cured by limiting instructions; and were completely inco nsequential in li ght of the overwhelming evidence against the defendant. We review the district judge's denial of the motion for a mistrial for manifest abuse of discretion. See United States v. RodriguesDeJesus , 202 F.3d 482, 485 (1st Cir. 2000).

A. Improper Appeals to the Jury's Passions and Prejudices We agree with the defendant that the prosecutor's remarks contrasting the jurors ' sens e of community safety with the armed robbery of the hotel crossed the bounds of p ermiss ible argument. The se comments interjected issues having no bearing on t h e defendant's guilt or innocence andimproperly appealed to the jury to act in ways other than as dispassionate arbiters of the facts. See United States v. Cartagena-Carrasquillo , 70 F.3d706, 713 (1st Cir. 1995) (prosecutor's use of the term "we" impermissibly suggestedan alliance between the government and a church to which many of the jurors, but not the defendant, belonged); United States

v. Arrieta-Agressot , 3 F.3d 525, 527 (1st Cir. 1993) (government's closing which urged the jury to consider case as a battle in the

war against drugs with the defendants as enemy soldiers corrupting-9-

"our society" was inflammatory and impermissible); United States v. Moreno , 991 F.2d 943, 947 (1st Cir. 1993) (opening sta tem ent referencing a community plagued by shooting and killings improperly playedupon the jury's emotional reaction to neighborhood violence). This finding, however, does not end our analysis. These improper remarks are grounds for reversal only if they "so poisoned the well" as to have likely affected the t ria l's outcome. Cartagena-Carrasquillo , 70 F.3d at 713 (quoting Unit ed States v. Hodge-Balwing , 952 F.2d 607, 610 (1st Cir. 1991)). In making that assessment, we weigh several factors, including: the severity of the misconduct; whether it was del iber ate or accidental; the context in which it occurred; whether the judge gave any curative instructions and their likely effect ; and the strength of the eviden ce aga inst the defendant. See United States v. TorresGalindo , 206 F.3d 136, 142 (1st Cir. 2000); United States v. Manning , 23 F.3d. 570, 574 (1st Cir. 1994); see also United States

v. Auch , 187 F.3d 125, 129 (1st Cir. 1999) (adopting similar factors). Our review of the record reveals that the prosecutor's improper appeal to the jurors' passions, on balance, was not severe. Admittedly, the remarks appear to be intentional because they were part of her opening statement and likely scripted in advance. See Wihbey , 75 F.3d at 772. The comments, however, were-10-

brief and isolated. After the defendant objected to them, the prosecutor never again suggested that the defendant corrupted the general safety of the community of Maine, no r did she make other im proper appeals to the jurors' emotions during the remainder of the four-day trial. Cf. Manning , 23 F.3d at 575 (prosecutorial misconduct was "pervasive"); Auch , 187 F.3d at 128 (prosecution made "repeated" improper references).

The context of the pro secut or's comments also weighs against finding that they likely affected the outcome of the trial. The comments occurred during opening arguments, not during summation where the last words the jury hears have significant potential to cause prejudice. See Auch , 187 F.3d at 132. In addition, the remarks were prefaced by the judge's standard instructions informing the jury that neither opening statements nor

sum mations may be considered as evidence in the case. We ha v e found that these standard instructions alone are sometimes enough to neutralize any prejudice from improper remarks. See United States v. Mejia-Lozano , 829 F.2d 268, 274 (1st Cir. 1987).

In the instant case, the judge did not exclusively rely on these standard instructions. He promptly delivered a forceful andspecific limiting instruction, andwe generally presume that a jury wil l fo llow such instruction. See Wihbey , 75 F.3d at 773 (citing Greer v. Miller , 483 U.S. 756, 766 n.8 (1987)). Given the decisive nature of his instruction, we believe it cured any-11-

prejudice. Moreover, we note that any lingering prejudicial effect fromthe remarks pales in comparison with the overwhelming strength of the government's evidence against the defendant. All three of Mooney's accomplices testified that he suggested that they rob the motel, took the money from the cash register, and then divided the proceeds. The victim independently identified Mooney as the robber who re moved the money from the cash drawer. In addition, after intercepting the defendant and his accomplices on the highway, the police found in the Jetta the gun, bandanas and the Sony Playstation and video game stolen from the motel. Finally, Mooney's girlfriend and a handwriting expe rt testified that he authoredletters admitting his role in the robbery. Taking a balanced view of this evidence, see Auch , 187 F.3d at 130 n.8, we are confident that the prosecutor's improper appeal to the jury's emotions did not affect the outcome of the trial.

B. Comment on the Defendant's Failure to Testify While the prosecutor's improper inflammatory remarks are reversible error only if they likely affected the trial's outcome, the prosecutor's comment on the defendant's failure to testify requires reversal unless the government can prove the error harmless beyond a reasonable doubt. See Chapman v. California , 386 U.S. 18, 23-24 (1967); see also Wihbey , 75 F.3d at 769, 772 n.6.1 We must acknowledge our di smay that any prosecutor in this

circuit could apprise a jury in an opening statement that a defendant had chosen not to talk to the police. It is difficult to imagine a more fundamental error. We hope that we will not see this error again by any prosecutors in our circuit. -12- We believe the government met that burden. 1

As we already described, th e evidence against the def endant was overwhelming. In addition, the judge's ju r y instructions strongly emphasized the presumption of the defendant's innocence and the government's burden to prove his guilt beyond a reasonable doubt. The prosecutor's comments on the defendant's post-arrest silence were sandwiched between t he judge's opening charge that the jury must not consider opening arguments as evidence and his forceful cu rati ve instructions after the prosecutor made the remark. In his closing charge to the jury, the judge also explained the def enda nt's constitutional right not to testify and the government's burden of proof beyon d a re asonable doubt sixteen times. Accordingly, even taking the prosecutor's statement into account, it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict in this case. See United States v. Hastings , 461 U.S. 499, 510-11 (1982).

C. Motion for a Mistrial We acknowledge that several incidents of prosecutorial misco nduct, none of which individually would require reversal, taken together may have a cumulative effect that warrants a-13-

mistrial. See Wihbey , 75 F.3d at 773. Nevertheless, "[t]he remedy of a new trial is rarely used; it is warranted only where there

wou ld be a miscarriage of justice or where the evidence preponderates heavily against the verdict." Rodrigues-DeJesus , 202 F.3dat 486. Moreover, we review the denial of a motion for a new trial for manifest abuse of discretion. Id. at 485. Given the recordin this case, the judge exercised sou nd discretion in denying the defendant's motion. III. EXPERT TESTIMONY The defendant also argues that the dis trict court misappliedFederal Rule of Evidence 702 by allowing the government's proffered handwriting expert to test if y that the defendant was the author of several letters that acknowledged his involvement in the burglary. The defendant does not contend that the ex per t's testimony should have been struck in its entirety. Instead, he makes the more narrow argument that, al though the

re liability of the expert's methodology suffices to suppo r t testimony regarding the similarity and differences between the handwriting on the letters and that of the defendant, the expert's reliability cannot sustain the admission of his ultimate opinion as to whether the defendant authored the letters. The district court dis agreed, and we fail to see how the district court ab used it s discretion in reaching its conclusion.

Under Rule 702, a qualified expert witness may testify-14-

"in the form of an opinion, or otherwise, if (1) the testimony is basedupon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has appliedthe principles and methods reliably to the facts of the case." Fed. R. Evid. 70 2. The Supreme Court has held that this rule imposes a gate-keeping function on the trial judge to ensure that an expert's testimony "both rests on a reliable foundation and is relevant to the task at hand." Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 597 (1993); se e also Kumho Tire Co. v. Carmichael , 526 U.S. 137, 147-49 (1999) (holding that Daubert applies not only to scientific testimony but also to technical and other specialized expert testimony).

In Daubert , th e Co urt identified four factors that may assist a trial court in determining the admissibility of an expert's testimony: (1) whether the theory or technique can be and has been tested; (2) whether the technique has been subject to peer review and publication; (3) the technique's known or potential rate of error; and (4) the level of the theory or technique's acceptance within the relevant discipline. 509 U.S. at 593-94. These factors, however, are not definitive or exhaustive, and the trial judge enjoys broad latitude to use other fa ctors to evaluate reliability. See Kumho Tire , 526 U.S. at 153. Further, a trial judge's de cision to admit or exclude expert testimony will be reversedonly for abuse of discretion. See United States v. Diaz ,-15-

300 F.3d 66, 74 (1st Cir. 2002) (citing Gen. Elec. v. Joiner , 522 U.S. 136, 138-39 (1997)).

Areview of the district court's v oire d ire hearing on th e ad missibility of the handwriting expert's proposed testimony reveals that the judge d id no t abuse his discretion. The expert testifiedthat he and other forensic document examiners employ the

same methodology to analyze and compare a kn own individual's handwriting samples to the handw riting on the document at issue. This methodology has been subject to general pee r revi ew through publishedjournals in the field. In addition, its accuracy has been teste d, w ith one study concluding that certified document examiners had a potential rate of error of 6.5%. The proffered expert indicated that he was certified by the American Board of Forensic Document Examiners to ap ply this methodology. He also testifiedthat he submitted to proficiency tests twice a year, and that all of his work is reviewed and confirmed by at least one other document examiner.

At the close of the hearing, the district judge concluded that the handwriting expert's proposed testimony should be admitted in its entirety because it was reliable and based upon valid technical and specialized knowledge. Finding the Daubert factors relevant to his evaluation of the reliab ility of the expert's testimony, the judge noted that all the f actors were met in this

case. The judge also found persuasive the historical acceptance of-16-

hand writing testimony, noting that the Federal Rules of Evidence specifically allow expert witnesses to authenticate questioned documents by comparing the h andw riting on them to previously authenticated specimens. See Fed. R. Evid. 901(b)(3).

The defendant argues that the district court erred in admitting the expert's opinion that the defendant was the author of th e incriminating letters. He contends that the field o f handwriting analysis lacks sufficient standards an d tes ting to verify that analysts can accurately and definitively identify the author of a questioned document. Specifically, he asserts that the discipline lacks a set standard regarding the number of handwriting similarities required to make a "ma tch," and that the studies regarding its accuracy have been subject to criticism. The defendant, however, misunderstands Daubert to demand unassailable expert testimony. As we previously have explained,

Daubert does not require that the party who proffers expert testimony carry the burden of proving to the judge that the expert's assessment of the situation is correct. . . .It demands only that the proponent of the evidence show that the expert's conclusion has been arrived at in a scientifically sound and methodologically reliable fashion. Ruiz-Troche v. Pepsi Cola of P.R. B ottling Co . , 161 F.3d 77, 85 (1st Cir. 1998).

We disagree with the defendant that another trial court's decision regarding a different expert, United States v. Hines , 55-17-

F. Supp.2d 62 (D. Mass. 1999), compels us to find that the district judge in this matter abused his discretion. The Hines opinion, of course, has no binding effect. We are not faced here with the question of whether the district co urt abused its discretion by excluding, as in Hines , opinion testimony by a handwriting expert. Nor do we know if the "particular facts and ci rcums tances of the particular case," Kumho Tire , 526 U.S. at 158, distinguish Hines . Moreover, the district jud ge i n this case specifically justified his decision not to apply the Hines approach. H e exp lained that the reliability of the handwriting comparison testimony and the expert's u ltima te opinion on authorship were inevitably linked because they were based on the same methodology. We find no abuse of discretion in that ruling.

We also note that Rule 702 specifically allows qualified experts to offer their opinions, a testimonial latitude generally unavailabl e to other witnesses. See Kumho Tire , 526 U.S. at 148 (citing Daubert , 509 U.S. at 592). The rule affords experts this leeway on the "assumption that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline." Id. Accordingly, once a trial judge determines the reliability of the proffered expert's methodology and the validit y of his reasoning, the expert should be permitted to testify as to the inferences and conclusions he draws from it, and any flaws in his opinion may be exposed through cross-exam in ation or competing-18-

expert testimony. See Ruize-Troche , 161 F.3d at 85 (citing Daubert , 509 U.S. at 590, 596). The district judge did not abuse his discretion in admitting the expert's ultimate opinion on authorship. IV. DELAYED DISCLOSURE OF EVIDENCE

The defendant claims that he was denied a fair trial because of the government's delayed disclosure of Sliker's accidental out-of-court identification o f Mo oney. The defendant also claims he was denied a fair trial because the government delayedin disclosing the ex ist ence of a transcript of an investigator's interview with co-conspirator Craig. To succeed on these claims, the defendant must show "a plausible strategic option which the delay foreclosed." United States v. Devin , 918 F.2d 280, 290 (1st Cir. 1990); see also United States v. Lemmerer , 277 F.3d 579, 588 (1st Cir. 2002) (stating that full application of the standardarticulated in Brady v. Maryland , 373 U.S. 83 (1963), was not necessary in delayed disclosure cases "unless the defendant first can show that defense counsel was 'prevented by the delay fromusing the disclosed material effectively in preparing and presenting the defendant's case.'") (citation omitted)). We review a district court's delayed disclosure determinations for abuse of discretion. See United States v. Joselyn , 99 F.3d 1182, 1996 (1st Cir. 1996). We believe the defen dant failed to show that the government's delay foreclosed a strategic option.-19- We tur n f irst to the defendant's claims regarding Sliker's identification. During his cross-examination of Sliker, the defendant learned for the first time that Sliker observed the defendant in handcuffs in the Portland police station. The defendant then challenge d th e admissibility of Sliker's in-court identification on the basis that it was tainted by an impermissibly sugg esti ve pretrial identification procedure, and he asked for a mistrial. After a full vo ire d ire hearing, the court ruled that the pretrial identification was in adve rtent and was not so impermissibly suggestive that it created a s ubst antial risk of misidentification. In addition, the court held that even if the pretrial identification was suggestive, the in-court identification was otherwise reliable because of Sliker's "clear memory from the time of the crime" of the defendant's eyes and facial features.

On appeal, Moone y claims that he was prejudiced by the delayeddisclosure of the pretr ial identification because this information could have been used to impeach Sliker's in-court identification testimony. This argument is without merit. After learning about the out-of-court encounter, the defendant could have usedthis information to cast doubt on the reliability of Sliker's in-court identification, but he chose not to pursue this strategy. See United States v. Smith , 292 F.3d 90, 103 (1st Cir. 2002). Accordingly, the defendant has not established that the delayed disclosure prevented him from pursuing a strategic option.-20- Equally unavailing is the defendant's claim that he was unduly prejudiced by t he del ayed disclosure of the transcript of cooperating witness Craig's statement to the police. Prior to his cross-examination of Craig, the de fendant only had the investigator's report su mmar izing Craig's statement, and not the actual transcript. While the report asserted that Craig said that the defendant pressured him to commit the robbery, the transcript revealedthat Craig never made such a statement. Believing that the report was accurate, the defendant used it to impeach Craig's testimony denying that he had told an investigator that the defendant pressured him to commit the offense.

At trial and again on appeal, the defendant argued that he would ha ve c onducted his cross-examination differently had he known about the transcript. "We have held that 'some showing of prejudice [is] required beyond mere assertions that the defendant would have conducted cross-examination differently.'" See Smith , F.3dat 103 (quoting UnitedStates v. Walsh , 75 F.3d 1, 8 (1st Cir. 1996)). Moreover, the defendant was able to impeach Craig using various other pieces of evidence; therefore the delay did not foreclose a strategic option. See id. at 104. Finally, the judge eliminated any prejudice from the defendant's line of questioning with his limiting instruction. He told the jury:

You will recall that during Mr. Silverstein's cross-examination, he inquired about alleged inconsistencies between what . . . this-21- witness supposedly told the Portland police andwhat Mr. [McSweyn] indicated was said . . . Mr. Silverstein at the time of that questioning by him had not been provided with a transcript of that interview. The government inadvertently failed to turn it over to him as the government was required to do. With that transcript in hand, Mr. Silverstein may or maynot have inquired about cont r adictions, but the fact that he did so was in no way hi s fault. The issue of inconsistencies between various statements by this witness, if y ou f ind any to exist, or inconsistencies of any other witnesses is entirely for you, as jurors, to decide.

In sum, we conclude that the defendant failed to make the requisite showing of prejudice to warrant a new trial.

We affirm.