United States Court of Appeals

For the First Circuit

No. 02-1035

UNITED STATES OF AMERICA,

Appellee,

v.

LISA A. BOULERICE,

Defendant, Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

 Selya, Circuit Judge, 

Stahl, Senior Circuit Judge,

and Lipez, Circuit Judge.

Lori H. Levinson, with whom Cain Hibbard Myers & Cook, P.C.

was on brief, for appellant.

Thomas J. O'Connor, Assistant United States Attorney, with

whom Michael J. Sullivan, United States Attorney, was on brief, for

appellee. 

April 14, 2003
1 For convenience, we refer to Lisa Boulerice as "Lisa" or

"Boulerice," and Ronald Boulerice as "Ronald."

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LIPEZ, Circuit Judge. Defendant-appellant Lisa A.

Boulerice appeals from a judgment of conviction following a jury

trial in which she was found guilty of having filed false income

tax returns for 1993 and 1994 in violation of 26 U.S.C. § 7206(1).

On appeal Boulerice claims that there was insufficient evidence to

support the findings of guilt, and that the district court

therefore erred in denying her Rule 29 motion for judgment of

acquittal. See Fed. R. Crim. P. 29. She also claims that the

district court improperly admitted evidence of prior bad acts, and

that the court abused its discretion when it declined to grant a

request from the jury to read back testimony. Finally, Boulerice

argues that the prosecutor's closing argument impermissibly shifted

the burden of proof to her, thereby violating her due process

rights. Discerning no reversible error in any of these claims, we

affirm.

I. Background

This case arose out of an investigation by the Internal

Revenue Service ("IRS") and the United States Postal Inspection

Service ("USPIS") into the suspected criminal activities of

American Inventor's Corporation ("AIC") and Massachusetts Patent

Services ("MPS"), entities owned and controlled by Lisa Boulerice's

father, Ronald Boulerice.1 AIC and MPS were ostensibly in the
2 Ronald Boulerice pleaded guilty to one count of mail fraud,

one count of conspiracy to commit mail fraud, two counts of money

laundering, and one count of filing a false tax return.

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business of helping inventors secure patents for their inventions,

when in fact the companies did little more than bilk the inventors

out of their money. In 1995, acting on the complaints of numerous

AIC and MPS clients, the USPIS launched an inquiry into the

activities of AIC and MPS. This investigation ultimately led to

the execution of search warrants in October 1995 at the companies'

places of business in Westfield, Massachusetts, and the subsequent

indictment of Ronald and eight other individuals for numerous

offenses, including mail fraud, conspiracy to commit mail fraud,

money laundering, conspiracy to commit money laundering, filing

false income tax returns, and conspiracy to defraud the United

States. Ronald ultimately pleaded guilty to several of the

charges2 and was sentenced to ninety-six months' imprisonment. He

was also ordered to pay $2.2 million in restitution and $7.3

million in fines.

The government's investigation into Ronald also unearthed

evidence of wrongdoing on the part of his daughter Lisa, the

appellant in this case. The government discovered that Lisa had

been on the payroll of MPS and AIC for several years. During that

time, she accepted and cashed paychecks from AIC and MPS, claiming

these proceeds as "wages" on her 1991–1994 tax returns — even

though she had done no work for the two companies. Indeed, during
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the period at issue, Lisa was pursuing her own career as a fashion

designer in New York City, living in an expensive apartment on the

city's Upper East Side. AIC paid for this apartment, deducting the

cost as a business expense on its income tax returns. The

government also uncovered evidence that, in response to a 1992 IRS

audit of AIC, Lisa had backdated two job description forms, falsely

detailing her supposed duties as an AIC employee.

On April 15, 1999, a grand jury sitting in Springfield,

Massachusetts, returned a four-count indictment against Lisa,

charging her with one count of conspiracy to defraud the United

States, in violation of 18 U.S.C. § 371, and three counts of filing

false income tax returns for 1992, 1993, and 1994, in violation of

26 U.S.C. § 7206(1). On August 1, 2001, the district court

commenced a jury trial, and on August 10, 2001, the jury found

Boulerice guilty of filing false income tax returns for 1993 and

1994, but acquitted her of the other two counts (conspiracy and

filing a false tax return for 1992). The district court sentenced

Boulerice to a term of two years' probation. This appeal ensued.

II. The Rule 29 Motion

Boulerice argues that the evidence at trial "fell far

short of proving that when she submitted IRS Form 1040s for 1993

and 1994, she willfully made false statements with the intent of

violating her duty under the tax laws." Thus, she claims, the

district court erred in denying her Rule 29 motion for judgment of
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acquittal. See Fed. R. Crim. P. 29(a) (indicating that court must

enter judgment of acquittal "if the evidence is insufficient to

sustain a conviction of such offense or offenses"). Our review of

the district court's ruling is de novo. United States v. Carroll,

105 F.3d 740, 742 (1st Cir. 1997). We will affirm the conviction

if, "after assaying all the evidence in the light most amiable to

the government, and taking all reasonable inferences in its favor,

a rational factfinder could find, beyond a reasonable doubt, that

the prosecution successfully proved the essential elements of the

crime." United States v. O'Brien, 14 F.3d 703, 706 (1st Cir.

1994). We need not be convinced that the government succeeded in

"eliminating every possible theory consistent with the defendant's

innocence." United States v. Moran, 312 F.3d 480, 487 (1st Cir.

2002). Rather, we simply consider "all the evidence, direct and

circumstantial, and resolve all evidentiary conflicts in favor of

the verdict." United States v. Hernandez, 146 F.3d 30, 32 (1st

Cir. 1998). We will affirm if "any rational trier of fact could

have found the essential elements of the crime beyond a reasonable

doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979).

The jury found Boulerice guilty of two counts of

violating 26 U.S.C. § 7206, which provides:

Any person who — 

(1) Declaration under penalties of perjury. —

Willfully makes and subscribes any return,

statement, or other document, which contains

or is verified by a written declaration that
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it is made under the penalties of perjury, and

which he does not believe to be true and

correct as to every material matter

. . . .

shall be guilty of a felony and, upon

conviction thereof, shall be fined not more

than $100,000 ($500,000 in the case of a

corporation), or imprisoned not more than 3

years, or both, together with the costs of

prosecution.

As the verdict forms make clear, the jury found Boulerice "guilty

of willfully filing a false 1993 tax return" and "guilty of

willfully filing a false 1994 tax return."

We take this opportunity to clarify the government's

burden under 26 U.S.C. § 7206(1). The elements of an offense under

26 U.S.C. § 7206(1) are

(1) that the defendant made or caused to be

made, a federal income tax return for the year

in question which he verified to be true; (2)

that the tax return was false as to a material

matter; (3) that the defendant signed the

return willfully and knowing it was false; and

(4) that the return contained a written

declaration that it was made under the penalty

of perjury.

United States v. LaSpina, 299 F.3d 165, 179 (2d Cir. 2002) (quoting

United States v. Pirro, 212 F.3d 86, 89 (2d Cir. 2000) (quoting

United States v. Peters, 153 F.3d 445, 461 (7th Cir. 1998))); see

also United States v. Scholl, 166 F.3d 964, 979 (9th Cir. 1999).

Boulerice concedes that she filed the returns, and she does not

challenge the materiality of the false statements. She also does

not contend that the tax returns failed to include the required
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declaration. Boulerice does maintain, however, that the government

failed to demonstrate that she willfully violated the statute. She

also asserts that the government failed to demonstrate that she had

actual knowledge of the returns' material falsity. We address

these two contentions in turn.

A. Willfulness

Boulerice insists that the government "failed to

establish beyond a reasonable doubt that [she] acted willfully when

she filed her income tax returns for 1993 and 1994." At trial,

Boulerice took the stand in her own defense, testifying that she

held an honest belief that she was required by law to file an

income tax return for money that she had received from her father's

corporation. She maintained that she was only doing what her

accountant told her to do — file tax returns which reflected the

"wages" she received from AIC and MPS. Therefore, the argument

goes, the government failed to demonstrate willfulness as required

by the statute. See 26 U.S.C. § 7206(1) ("Any person who willfully

. . . .") (emphasis added).

We have previously indicated that "willfully," as that

word is used in 26 U.S.C. §§ 7201–7207, means "a voluntary,

intentional violation of a known legal duty." United States v.

Monteiro, 871 F.2d 204, 209 (1st Cir. 1989) (citing Drape, 668 F.2d

at 26). The government need not present direct evidence of

willfulness; rather, circumstantial evidence of willfulness can be
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sufficient to sustain a conviction. Id. at 211; see also United

States v. Olbres, 61 F.3d 967, 971 (1st Cir. 1995) ("[I]n proving

tax evasion, 'the government does not need to show direct evidence

of tax motivation' so long as the jury has a sufficient

circumstantial basis for inferring willfulness.") (quoting United

States v. Hurley, 957 F.2d 1, 4 (1st Cir. 1992)).

Our decision in Olbres is illuminating. Having been

convicted of tax evasion under 26 U.S.C. § 7201, the defendants

maintained on appeal that the government had not presented

sufficient evidence of willfulness to sustain the verdict. They

asserted that blind reliance on their accountant, and not

willfulness or criminal intent, caused an underreporting of income.

Olbres, 61 F.3d at 970. In rejecting their argument, we indicated

that "the critical datum is not whether the defendants ordered the

accountant to falsify the return, but, rather, whether the

defendants knew when they signed the return that it understated

their income." Id. at 970–71. Moreover, "[a] jury may permissibly

infer that a taxpayer read his return and knew its contents from

the bare fact that he signed it." Id. at 971; see also Drape, 668

F.2d at 26 (holding that defendant's signature on tax return

sufficed to establish knowledge of incorrect contents); United

States v. Romanow, 509 F.2d 26, 27 (1st Cir. 1975) (holding that

"jury could conclude from nothing more than the presence of

[defendant's] uncontested signature" that violation was willful).
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Hence, in Boulerice's case, the government need only have presented

sufficient evidence for the jury to conclude that when Boulerice

signed her tax returns, those returns were not "true and correct as

to every material matter." 26 U.S.C. § 7206(1). The jury was then

permitted (though by no means required) to infer willfulness.

At trial, however, the government elicited significantly

more evidence of willfulness than Boulerice's signature on two

false returns. Under cross-examination, Boulerice admitted that

she knew that "wages" means income one earns by working, and she

also admitted that she had never worked at AIC or MPS.

Nevertheless, on her tax returns she claimed as "wages" the money

she received from AIC and MPS. Moreover, Marvin Kennedy, AIC's

former accountant, testified for the government that in 1992

Boulerice had voiced concerns about the propriety of receiving

payroll checks from the companies when she was not actually working

for them. Because of her unease, she wanted to know how she could

"eradicate" [sic] herself from the situation. When Kennedy

responded that her only option would be to forego further

disbursements, Boulerice decided to remain on the payroll.

The government also produced evidence that, in response

to an IRS audit of AIC, Boulerice signed and backdated phony job

descriptions that falsely held her out as an employee of AIC. In

June 1992, the IRS auditor asked AIC to produce more information

about Boulerice's employment duties and the rent payments for her
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New York City apartment, which AIC had been deducting as a business

expense. Laurie O'Brien, a vice-president of AIC, testified that

she sent Boulerice two job description forms falsely detailing

Boulerice's duties as an employee with the company. Each form was

accompanied by a note: One was dated "7/10/92" and instructed

Boulerice to "sign and date using date of 6/2/88," and the other

was dated "7/11/92" and informed Boulerice that she should sign

using the "date of 5/23/90. This is for audit." Boulerice signed

the forms as requested and returned them to O'Brien.

Boulerice's misrepresentations did not end there. Postal

Inspector Gerry Carmody testified that Boulerice continued to hold

herself out as an employee of AIC as late as 1996. In May of that

year, as a result of the criminal investigations into AIC and MPS,

Carmody interviewed Boulerice concerning her relationship with the

companies. When he asked her if she was an employee of AIC, she

responded in a "curt" and "annoyed" manner that she was. After

answering that question, Boulerice terminated the interview,

telling Carmody that she wanted to speak to her father before

answering any more questions.

Finally, while Boulerice insists that she had only

"rudimentary" knowledge of her obligations under the tax code, the

government produced evidence that Boulerice was not altogether

unsophisticated. For example, in 1991 Boulerice provided her tax

preparer with check stubs documenting income from her freelance
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work, together with a note revealing that she understood that those

payments had to be included in her returns. This, when combined

with Boulerice's testimony that she understood that "wages" meant

money actually earned from working, supports an inference that

Boulerice knew that the line "wages, salaries, tips, etc." on her

tax returns did not merely mean the dollar amounts contained in Box

#1 of her W-2 forms, but that it meant income actually earned from

work.

In light of the foregoing, we conclude that there was

ample evidence to support the jury's finding that Boulerice

willfully filed tax returns that she knew to be false. The jury

reasonably could have found that Boulerice knew of her obligation

to accurately report her income, she knew that the money she was

receiving from AIC and MPS was not "wages," and she repeatedly

attempted to cover up the truth about her relationship with AIC and

MPS. She nevertheless reported as "wages" on her tax returns the

money she received from AIC and MPS. We will not disturb the

jury's verdict.

B. Actual Knowledge of Material Falsity

In her opening brief, Boulerice also claims that the

district court erred in denying her Rule 29 motion because there

was "no evidence that Boulerice 'actually knew' the return[s]

[were] materially false" when she filed them. She asserts that the

government was required to prove that she knew her father was
3 A "material" matter is one that is likely to affect the

calculation of tax due and payable, or to affect or influence the

IRS in carrying out the functions committed to it by law, such as

monitoring and verifying tax liability. See DiRico, 78 F.3d at

735–36. As indicated previously, Boulerice does not challenge on

appeal the materiality of the false statements.

4 At one point in the instructions, the district court

instructed the jurors that the government had to prove that

"Boulerice herself actually knew the return was materially false."

This, as explained in the text, overstates the government's burden.

Elsewhere in its instructions, however, the court more accurately

instructed that "the defendant must be proved to have known that

material statements in the return were false" and that she "in fact

did not believe the return was true and correct in every material

matter." We do not believe that, taken as a whole, these

instructions confused or misled the jury. See United States v.

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deducting her "wages" as a business expense on his corporate income

tax returns. Since the government did not do so, she maintains,

she is entitled to judgment of acquittal.

This assignment of error has no basis in law. Although

the government had to prove to the jury the materiality of

Boulerice's false statements, the government did not have to prove

her knowledge of the materiality.3 See LaSpina, 299 F.3d at 179;

Drape, 668 F.2d at 25–26; cf. United States v. Notarantonio, 758

F.2d 777, 785 n.4 (1st Cir. 1985) (holding that in prosecution

under 18 U.S.C. § 1001, "knowledge" is assessed "with respect to

the defendant's knowledge of the falsity of the statements rather

than with respect to the defendant's knowledge of the statement's

materiality to the federal agency involved"). Hence, whether

Boulerice actually knew of the false statements' materiality to the

government does not enter the calculus of proof.4
Smith, 278 F.3d 33, 38 (1st Cir. 2002).

5 "Extrinsic evidence" is evidence of specific instances of

conduct "not relevant in the litigation to establish a fact of

consequence," i.e., evidence of a "collateral matter." United

States v. Andujar, 49 F.3d 16, 26 (1st Cir. 1995). Testimony

elicited under cross-examination, however, is not actually

"extrinsic." See 4 Jack B. Weinstein & Margaret A. Berger,

Weinstein's Federal Evidence, § 608.20[1] (Joseph M. McLaughlin,

ed., Matthew Bender 2d ed. (2003))("Evidence is 'extrinsic' if

offered through documents or other witnesses, rather than through

cross-examination of the witness himself or herself.").

6 Rule 404(b) provides, in pertinent part:

Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to

show action in conformity therewith. It may, however, be

admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident, provided

that upon request by the accused, the prosecution in a

criminal case shall provide reasonable notice in advance

of trial . . . of the general nature of any such evidence

it intends to introduce at trial.

Fed. R. Evid. 404(b). Under Rule 403, relevant evidence may be

excluded "if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, waste of time, or

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III. The Admission of Evidence of Unreported 

Freelance Income as "Other Bad Act" Evidence

At trial, the government, without objection, crossexamined Boulerice concerning her failure to report freelance

income to the IRS after 1992. Boulerice now claims that this

"extrinsic evidence," as she describes it,5 was highly prejudicial

"other bad act" evidence offered to show criminal propensity

without serving another legitimate purpose, in violation of Federal

Rules of Evidence 404(b) and 403.6
needless presentation of cumulative evidence." Fed. R. Evid. 403.

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The government responds with a number of theories of

admissibility. We need not dwell at length on any of them,

however, for two reasons. First, since Boulerice failed to object

below, we review only for plain error. United States v. Olano, 507

U.S. 725, 733 (1993); United States v. Baldyga, 233 F.3d 674, 684

n.11 (1st Cir. 2000). Under this standard, we will disregard the

purported error unless "a miscarriage of justice would otherwise

result," or if the error "seriously affects the fairness, integrity

or public reputation of [the] judicial proceedings." Olano, 507

U.S. at 736. Second, the government had already introduced

evidence of Boulerice's unreported freelance income, without

objection, during its case-in-chief, precluding any argument that

this cross-examination affected Boulerice's substantial rights.

See Fed. R. Crim. P. 52(a).

Among the witnesses called by the government was Marvin

Kennedy, the AIC accountant who assisted with the preparation of

Boulerice's 1991 and 1992 tax returns and who testified that

Boulerice had provided him with receipts for freelance income which

he included on her returns for those years. Thereafter, the

government elicited testimony from Michael Barret, the AIC

accountant who assisted with the preparation of Boulerice's 1993

and 1994 tax returns, that Boulerice did not claim any freelance

income during those two years. When the government asked Barret if
7 The district court, overruling Boulerice's "speculation"

objection, nevertheless sua sponte raised the issue of other bad

act evidence, expressing a concern that the government was perhaps

trying to elicit inadmissible "propensity evidence." The

government responded that the evidence went to Boulerice's intent,

particularly her knowledge of her responsibilities under the tax

laws. Boulerice essentially repeated her speculation objection.

The court then indicated that, "to the extent this is evidence of

some sort of bad act, I think it is relevant on the issue of intent

and I don't think that its probative value is outweighed by any

prejudicial value."

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he would have included freelance income had Boulerice provided

documentation of any, Boulerice objected to the question as "calls

for speculation."7 The objection was overruled. Subsequently, the

government — without objection from Boulerice — introduced evidence

of paid freelance work performed by Boulerice in 1993 and 1994

through, among other things, the testimony of Boulerice's

employers.

When Boulerice took the stand, the government first

cross-examined her about her knowledge of her responsibilities

under the tax code:

Q: And you know what wages are, for

example? You know what that is, don't

you?

A: What you make.

Q: And it's what you make when you work,

correct?

A: Correct.

Q: And you knew that wages have to be

reported accurately to the Internal

Revenue Service, isn't that correct?

A: Yes.

. . . .

Q: You knew you had to report the figure

on the income tax return accurately and
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truthfully and correctly, isn't that

correct?

A: Yes.

Boulerice then testified that she had assisted her accountant in

the preparation of her tax returns:

Q: And you recall that you would send him

information to assist him in reporting

accurately all your income; do you

recall doing that?

A: I believe I did.

At this point the government began to cross-examine Boulerice about

her various freelance jobs, the income she received from those

jobs, and her failure to report that income on her tax returns.

Under this questioning, Boulerice admitted to having failed to

report significant freelance income on her tax returns.

Boulerice contests on appeal only this cross-examination

and not the evidence of her unreported freelance income admitted

during the government's case-in-chief. Hence we need not address

the government's theories regarding the propriety of the crossexamination. Since the jury had already heard evidence of

Boulerice's unreported freelance income without objection,

Boulerice cannot be heard to complain that her cross-examination

regarding the same was unfairly prejudicial. See United States v.

Perrotta, 289 F.3d 155, 165 (1st Cir. 2002); Doty v. Sewall, 908

F.2d 1053, 1057 (1st Cir. 1990); Lacy v. Gardino, 791 F.2d 980, 986

(1st Cir. 1986). Thus, we conclude that the district court did not

plainly err in indulging the cross-examination. 
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IV. The Failure to Read Back Testimony

At the start of its second day of deliberations, the jury

submitted a note to the court stating that the jury "would like to

listen to the testimony of Marvin Kennedy." Assuming that the jury

was asking the court to read back the testimony of Kennedy in its

entirety, the court (outside the presence of the jury) informed

counsel: "I don't do that. I've never done it before." The court

continued:

I'll certainly hear you before I make

my final decision but it's been my practice in

the past not to do that for two reasons.

First, I don't think we have a transcript of

the testimony of Marvin Kennedy. We have the

notes. We have the stenographic notes from

which a transcript could be prepared, but I

don't believe that we have a transcript of Mr.

Kennedy's testimony.

. . . .

Even if we did, I would hesitate to

read it to them. It would tend to put, I

believe, or at least would have the potential

for putting undue emphasis on Mr. Kennedy's

testimony in contrast to the testimony of Mr.

Barrett or the testimony of the defendant or

whatever. And so if I was going to do it, I

would probably have to consider doing all the

witnesses' testimony as well so there won't be

any imbalance.

I'm sure it's frustrating to the jury

to be told that they're not going to get what

they're asking for, but this is what I've done

in the past and this is what I am inclined to

do in this case.

Before I make my final decision, I'd be

happy to hear from counsel.
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Counsel for Boulerice then stated:

Well, I do know that from some past

experience in other courts, the court reporter

has read from the stenographic notes the

testimony of the witness. Short of that, I

would have no other possible suggestions, Your

Honor.

The court then reiterated its concern that, even assuming an

accurate transcript could be quickly assembled, there would still

be the risk of inappropriately highlighting the testimony of

Kennedy. After hearing from the prosecutor, who voiced his

opposition to any read back, the court indicated that it would not

read back the testimony.

Boulerice now assigns error to this decision. A district

court's decision not to read back testimony is reviewed only for

abuse of discretion. United States v. Akitoye, 923 F.2d 221, 226

(1st Cir. 1991). We find no abuse of discretion here. 

Before the district court, Boulerice's counsel offered

only one justification for reading back the testimony: other

courts in which she has appeared have read back testimony. She

failed, however, to respond to the two concerns articulated by the

district court, both of which we have held to be valid

considerations. See United States v. Aubin, 961 F.2d 980, 983 (1st

Cir. 1992) (indicating that "risk of confusion" and "difficulty in

compliance" are proper considerations in ruling on request for read

back of testimony).
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Belatedly, Boulerice now maintains that of all the

witnesses, Kennedy was "the crucial one," that Kennedy's testimony

was short and consisted of "only" seventy pages of trial

transcript, and that the court reporter was capable of accurately

reading back from her stenographic notes. Whatever the merits of

any of these arguments, they do not alter our conclusion that the

district court acted well within its discretion in denying the read

back.

Boulerice also complains that the district court did not

actually exercise any discretion in deciding not to read back the

testimony. She claims that the district court, in a "knee-jerk

reaction," summarily dismissed the jury's request, without engaging

in the thoughtful balancing of interests which normally goes into

the exercise of a court's sound discretion. We disagree. While

the district court did initially indicate its reluctance to read

back the testimony ("I don't do that. I've never done that

before."), it subsequently explained why it was inclined to deny

the jury's request. The court then gave counsel the opportunity to

be heard and to present any counter-arguments before making a final

decision. Only then did the district court render its final

decision. We therefore reject Boulerice's claim that the district

court failed to engage in the proper analysis.
8 The jury acquitted Boulerice of the conspiracy count.

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V. The Prosecutor's Closing Argument

Boulerice's final claim of error concerns three

statements made by the prosecutor during closing argument — only

one of which elicited an objection from Boulerice. Boulerice

claims that these statements "improperly shifted the burden of

proof to the defendant." We disagree.

Part of Boulerice's defense theory hinged on her

relationship with her father. In an effort to defeat the

government's conspiracy charge, Boulerice claimed that she had an

abusive relationship with her father and that she was in such fear

of him that there was no way she could turn down the money that he

sent her through MPS and AIC. She unquestioningly accepted the

payments from him because she was afraid to inquire about their

source and thereby risk incurring his wrath. Thus, she argued,

there was no conspiracy to defraud the United States.8

The only witness to testify to this allegedly difficult

father-daughter relationship was Lisa Boulerice herself. In

closing argument, the prosecutor commented on this fact:

And one of the things about intent that

you can do is you can consider the credibility

of that person because there's really no other

evidence that the defense has presented, other

than this person, the defendant who has the

most to lose, and if you don't think that

she's credible, that means you can consider

that as evidence of guilt.
9 Other than Boulerice, the defense called only one other

witness at trial — a character witness who did not corroborate

Boulerice's story regarding her relationship with her father.

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Later, the prosecutor continued:

We will never know what the true

relationship between her and this defendant

was. We do know that they haven't put a shred

of evidence on from anyone else as to the true

nature of the relationship.

Boulerice interposed an objection after this comment. She did not

indicate a basis for her objection. The court responded: "I'm

going to overrule it. The jury may consider the evidence for what

it's worth." The prosecutor then immediately picked up where he

left off:

Calling not just the defendant but

another witness as well,9 and yet you're

supposed to believe the uncorroborated

testimony of this one person alone.

Boulerice claims that these statements impermissibly shifted the

burden of proof in the jury's eyes from the government to her.

Boulerice cites no authority in support of her position,

nor can we find any. Indeed, the case law makes clear that when a

defendant puts her credibility at issue by testifying, the

prosecution can comment on the implausibility of her testimony or

its lack of an evidentiary foundation. See, e.g., United States v.

Roberts, 119 F.3d 1006, 1014 (1st Cir. 1997) ("When a defendant

advances a theory of the case, [] this opens the door to an

appropriate response by the prosecution, commenting on the quality
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of his witnesses or attacking the weak evidentiary foundation on

which the defendant's theory of the case rested.") (ellipses and

quotation marks omitted); United States v. Kubitsky, 469 F.2d 1253,

1255 (1st Cir. 1972) (noting that prosecutor may "comment upon the

absence of witnesses other than the defendant, such as alibi

witnesses, that might have been logically expected"). 

As for the particular comments at issue here, we were

faced with a similar situation in United States v. Savarese, 649

F.2d 83 (1st Cir. 1981). In that case, the defendant did not

choose to take the stand. He did, however, offer alibi testimony

from his mother. During closing argument, the government

highlighted the fact that the only alibi presented was from a

highly biased witness, and that there were no other witnesses to

corroborate this alibi. We held that the prosecutor's argument was

not improper. 

To be sure, the statements were, to some

degree, a comment on defendant's failure to

produce evidence, which, of course, defendant

had no obligation to do. However, defendant

chose to call witnesses and put forth an

alibi. Having done so, he had no right to

expect the government to refrain from

commenting on the quality of his alibi

witnesses or from attacking the weak

evidentiary foundation on which the alibi

rested.

Id. at 87. While it is axiomatic that the prosecutor cannot

comment on a defendant's failure to testify, see Griffin v.

California, 380 U.S. 609, 615 (1965), once a defendant has taken
10 Since we have concluded that the statements were not

improper, we need not determine whether any objection to them was

properly preserved.

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the stand in her own defense, the prosecutor is not precluded from

impugning the defendant's credibility by commenting on her failure

to produce any corroborating evidence. Other courts have come to

the same conclusion. See United States v. Cabrera, 201 F.3d 1243,

1250 (9th Cir. 2000); United States v. Bautista, 23 F.3d 726, 733

(2d Cir. 1994); United States v. Dahdah, 864 F.2d 55, 59 (7th Cir.

1988); see also 75A Am. Jur. 2d Trial § 605 (2002) ("[A] prosecutor

may properly comment on the defendant's failure to present

exculpatory evidence which would substantiate defendant's story as

long as it does not constitute a comment on a defendant's

silence."). In light of these ample precedents, there was nothing

improper about the prosecutor's comments here.10

Affirmed.