United States Court of Appeals

For the First Circuit

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
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BOWNES, Senior Circuit Judge. Defendant-appellant Dennis

Mooney was prosecuted federally 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 denied him a fair trial; (2) the trial judge

erred in 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 delayed 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

Waterville, 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"), entered and inquired about a room.
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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, David and 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

pulled out 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 raise his hands

and not 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 face, Craig warned him that if he

waited less 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

and his other co-conspirators, Nathan D'Amico ("D'Amico") and

Manuel Roderick ("Roderick").

Eventually, Sliker's hands became untied and he called

the police. He described the defendant as a white male, 18-21

years old, with thin sideburns and a red tinted jaw-line goatee,
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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

and brought to the Portland police station. Craig exited the

vehicle and fled 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 Portland police

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 custody, a member of the police

department who was not involved in the robbery investigation

brought Sliker to the back of the station. During the escort,

Sliker passed the 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, and

D'Amico identified the defendant as one of the three men who
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committed the robbery. They also testified that the defendant had

suggested robbing the Budget Host Motel. Sliker corroborated their

testimony by identifying the defendant as one of the robbers. In

addition, 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 and using or carrying a firearm in

the commission of a violent crime. The defendant was sentenced to

a term of twenty-seven years and six 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 conviction. Specifically,

the defendant challenges the prosecutor's opening statement on two

different grounds. First, he argues that the prosecutor improperly

appealed to the jury's emotions when she began her opening with the

following remarks: 

We are fortunate in the state of Maine,

particularly in the part of Maine that most of

us come from, to live lives that are

relatively free from random acts of violence.

We don't have bars on 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 that has
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forever changed the way that one person looks

at the world, and in some respects has rocked

the sense of security 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 them left the hotel

lobby." The defendant asserts that these comments created an

alliance between the Government and the jurors, implied that the

defendant had corrupted the community, and resulted 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 own words. You see,

after the defendant was arrested on these

charges, he chose not to speak to the police,

and that 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 moved for a

mistrial. The district judge denied his motion on the basis that
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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 instruction 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 elaborate 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

did not remain silent as any element of guilt.

You are not to use that . . . to find any

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 erred in

denying a mistrial because taken together the prosecutor's improper
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remarks had a cumulative prejudicial effect on the jury that could

not be cured 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 unwarranted because

the improper remarks were brief and isolated; were promptly cured

by limiting instructions; and were completely inconsequential in

light 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' sense of community safety with the armed

robbery of the hotel crossed the bounds of permissible argument.

These comments interjected issues having no bearing on the

defendant's guilt or innocence and improperly appealed to the jury

to act in ways other than as dispassionate arbiters of the facts.

See United States v. Cartagena-Carrasquillo, 70 F.3d 706, 713 (1st

Cir. 1995) (prosecutor's use of the term "we" impermissibly

suggested an 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
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"our society" was inflammatory and impermissible); United States v.

Moreno, 991 F.2d 943, 947 (1st Cir. 1993) (opening statement

referencing a community plagued by shooting and killings improperly

played upon 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 trial's outcome.

Cartagena-Carrasquillo, 70 F.3d at 713 (quoting United 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 deliberate or accidental; the

context in which it occurred; whether the judge gave any curative

instructions and their likely effect; and the strength of the

evidence against 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
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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, nor did she make other

improper 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 prosecutor'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

summations may be considered as evidence in the case. We have

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

and specific limiting instruction, and we generally presume that a

jury will follow 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
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prejudice.

Moreover, we note that any lingering prejudicial effect

from the 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 removed 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 expert testified that he

authored letters 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 dismay 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. 

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We believe the government met that burden.1

As we already described, the evidence against the

defendant was overwhelming. In addition, the judge's jury

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 the judge's opening

charge that the jury must not consider opening arguments as

evidence and his forceful curative instructions after the

prosecutor made the remark. In his closing charge to the jury, the

judge also explained the defendant's constitutional right not to

testify and the government's burden of proof beyond a reasonable

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

misconduct, none of which individually would require reversal,

taken together may have a cumulative effect that warrants a
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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

would be a miscarriage of justice or where the evidence

preponderates heavily against the verdict." Rodrigues-DeJesus, 202

F.3d at 486. Moreover, we review the denial of a motion for a new

trial for manifest abuse of discretion. Id. at 485. Given the

record in this case, the judge exercised sound discretion in

denying the defendant's motion.

III. EXPERT TESTIMONY

The defendant also argues that the district court

misapplied Federal Rule of Evidence 702 by allowing the

government's proffered handwriting expert to testify that the

defendant was the author of several letters that acknowledged his

involvement in the burglary. The defendant does not contend that

the expert's testimony should have been struck in its entirety.

Instead, he makes the more narrow argument that, although the

reliability of the expert's methodology suffices to support

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

disagreed, and we fail to see how the district court abused its

discretion in reaching its conclusion.

Under Rule 702, a qualified expert witness may testify
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"in the form of an opinion, or otherwise, if (1) the testimony is

based upon sufficient facts or data, (2) the testimony is the

product of reliable principles and methods, and (3) the witness has

applied the principles and methods reliably to the facts of the

case." Fed. R. Evid. 702. 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); see 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, the Court 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 factors to evaluate

reliability. See Kumho Tire, 526 U.S. at 153. Further, a trial

judge's decision to admit or exclude expert testimony will be

reversed only for abuse of discretion. See United States v. Diaz,
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300 F.3d 66, 74 (1st Cir. 2002) (citing Gen. Elec. v. Joiner, 522

U.S. 136, 138-39 (1997)).

A review of the district court's voire dire hearing on

the admissibility of the handwriting expert's proposed testimony

reveals that the judge did not abuse his discretion. The expert

testified that he and other forensic document examiners employ the

same methodology to analyze and compare a known individual's

handwriting samples to the handwriting on the document at issue.

This methodology has been subject to general peer review through

published journals in the field. In addition, its accuracy has

been tested, with 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 apply this methodology. He also

testified that 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 reliability of the expert's

testimony, the judge noted that all the factors were met in this

case. The judge also found persuasive the historical acceptance of
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handwriting testimony, noting that the Federal Rules of Evidence

specifically allow expert witnesses to authenticate questioned

documents by comparing the handwriting 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

the incriminating letters. He contends that the field of

handwriting analysis lacks sufficient standards and testing 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 "match," 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. Bottling 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
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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 court abused its discretion by

excluding, as in Hines, opinion testimony by a handwriting expert.

Nor do we know if the "particular facts and circumstances of the

particular case," Kumho Tire, 526 U.S. at 158, distinguish Hines.

Moreover, the district judge in this case specifically justified

his decision not to apply the Hines approach. He explained that

the reliability of the handwriting comparison testimony and the

expert's ultimate 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

unavailable 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 validity 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-examination or competing
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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 of Mooney. The defendant

also claims he was denied a fair trial because the government

delayed in disclosing the existence 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

standard articulated 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

from using 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 defendant failed to show that the

government's delay foreclosed a strategic option.
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We turn first 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 challenged the admissibility of Sliker's in-court

identification on the basis that it was tainted by an impermissibly

suggestive pretrial identification procedure, and he asked for a

mistrial. After a full voire dire hearing, the court ruled that

the pretrial identification was inadvertent and was not so

impermissibly suggestive that it created a substantial 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, Mooney claims that he was prejudiced by the

delayed disclosure of the pretrial 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

used this 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. 
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Equally unavailing is the defendant's claim that he was

unduly prejudiced by the delayed disclosure of the transcript of

cooperating witness Craig's statement to the police. Prior to his

cross-examination of Craig, the defendant only had the

investigator's report summarizing 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

revealed that 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 have conducted 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.3d at 103 (quoting United States 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
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witness supposedly told the Portland police

and what 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 may not have inquired about

contradictions, but the fact that he did so

was in no way his fault. The issue of

inconsistencies between various statements by

this witness, if you find 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.