USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
Nos. 92-1210
93-2050
UNITED STATES,
Appellee,
v.
FREDERICK HARDY,
Defendant - Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
___________________
____________________
Before
Torruella and Stahl, Circuit Judges,
______________
Carter,* District Judge.
______________
_____________________
Owen S. Walker, Federal Defender Office, for appellant.

______________
Michael J. Pelgro, Assistant United States Attorney, with
__________________
whom Donald K. Stern, United States Attorney, and Ralph F. Boyd,
_______________
______________
Jr., Assistant United States
Attorney, were on brief for
___
appellee.

____________________
October 12, 1994
____________________
____________________
*

Of the District of Maine, sitting by designation.

TORRUELLA,
five- count

Circuit Judge.
_____________

A grand

indictment alleging various firearm

against defendant/appellant Frederick

Raymond Moreno, Jr.

A trial

guilty

conviction

in a separate appeal.

114

(1st Cir.)

S. Ct. 457

government

on

made

all

related charges

counts.

the jury found

Moreno

United States
_____________

several

In

this appeal, Hardy

impermissible

both

challenged

his

v. Moreno, 991
______

(Torruella, J., dissenting),

(1993).

Hardy and his co-defendant

was held and

defendants

F.2d 943

jury returned

cert. denied,
____________

claims that the

arguments

at

trial,

including

improperly

decision

not

government's

to

commenting

testify

comment on

at

in

its

trial.

closing
We

Hardy's silence

on

believe

at trial

Hardy's
that

the

violated the

Fifth Amendment, and that this error, coupled with other improper
arguments, deprived Hardy of

a fair trial.

We

therefore vacate

Hardy's convictions and order a new trial.

I.
I.
A.
A.

BACKGROUND
BACKGROUND
__________

Facts
Facts

We are concerned here not

evidence, but

with a case in

which we find that

improperly commented

on Hardy's

other

remarks during

inappropriate

Accordingly,

with a claim of insufficient

right not
the

the government

to testify
course

of the

and made

trial.

our description of the facts is not limited in this

case to evidence and inferences most favorable to the government,

but rather it is

designed to provide a

evidence appropriate

for

balanced picture of

determining whether

remarks were harmless or prejudicial.

-2-

the comments

the

and

Arrieta-Agressot v. United
________________
______

States, 3 F.3d 525, 528 (1st Cir. 1993).1

______
On

the evening of April 18, 1991,

enforcement officers,
Housing Development

while on foot

patrol in the

in Boston, Massachusetts, heard

gunshots coming from another area within the

of

a group of five law

Lenox Street

a series of

development.

Three

the officers, Officers Garvey, Perkins and Devane, ran in the

direction of the shots; the other two, Officer Murphy and Trooper
Drummy, returned to a parked cruiser.
As Officers

Garvey, Perkins,

and Devane

were running

down Hammond Street, they observed three black males emerge

a

from

courtyard in the direction of the gunshots, run across Hammond

Street,

and disappear

street.

"hunched over" manner.

Almost at once,

Officer Murphy
pursuit),

a cluster

One of the officers described

in a line in a
from view.

near

of buildings

across the

the three men as running

The men

then disappeared

two of the three officers, joined by

(who had left his

cruiser to assist in

the foot

saw three men running through a parking lot behind the

cluster of buildings, and gave chase.

The officers saw one of the three men veer off from the
other two

and run in a separate direction.

men were then seen by the

The second and third

officers to come together briefly

appeared to pass an object between them.

and

Officer Murphy, who was

____________________
1

We have

previously stated the relevant facts in United States

_____________
v. Moreno, 991 F.2d 943 (1st Cir.), cert. denied, 114 S. Ct. 457
______
____________
(1993). In light of the fact that we do not view the evidence in
the light most favorable to the verdicts in this case, as we did

in

Moreno, the two recitations of facts differ in some respects.

______
Id. at 944-46.
__
-3-

closest

to

the

two

individuals,

described

the

item

being

exchanged as a dark object about one to one-and-a-half feet long.

The individual who took this object then ran
courtyard.
Moreno,

The
Jr.,

individual who
immediately

passed on

stopped,

off through a grass

the

raised

object, Raymond
his

arms

and

surrendered.
Another
pursuit.
Moreno

Upon

police officer,

arriving at

in custody,

direction

where the

object, had run.

Paul MacIsaac,

the scene, Officer

directed

Officer MacIsaac

other man,

to whom

aided

in the

Murphy, who

had

to

the

head in

Moreno had

passed the

Officer MacIsaac followed these directions, and

came across two black males at a nearby intersection, standing on

a sidewalk,
questioned

looking into
the two men,

the two men

took

them to

released.

an adjacent

field.

conducted a pat-frisk,

in the back of his cruiser.

the station

for questioning

Officer

MacIsaac

and then placed

The officer eventually

and they

were later

Officer Garvey testified

escape route that the
around

to

that in order to

cut off any

fleeing suspect might use, he

had circled

the opposite

end of

the

grass courtyard.

Officer

Garvey soon saw a black male, wearing dark clothes, who was later
identified as Frederick Hardy, enter the courtyard.
testified

that he

possession.
Garvey

never

After telling

testified

right, then his

that as

saw

Hardy

with

any

The Officer

weapon

in

Hardy several times to stop,

Hardy raised

left -- over his

his

arms --

head, he heard a

his

Officer

first his

soft thud on

-4-

the
from

ground nearby.

Despite being only

feet away

Hardy, however, Officer Garvey did not see any object leave

Hardy's hands.

Hardy was

any firearms when

he was

Hardy to a police cruiser,

the

two to three

then arrested.
arrested.

After

Hardy did not

Officer Garvey

he returned to the area.

area revealed a .32 caliber

possess

took

A search of

pistol about five to eight feet

from where Hardy had stopped.

The
Moreno's

officers searched

arrest

observed Hardy.

and the

spot

the
at

The officers found

path between
which Officer

the area
Garvey

of

first

a double-barreled sawed-off

shotgun

with a 12 1/2 inch barrel, fully loaded with ammunition,

hidden in bushes along that route.

While Moreno

and Hardy

being arrested,

Officer

Devane was in search of

the first of the three runners,

who had

gone

direction.

off in a separate

were

Officer

black male, Steven Fern ndes, sweating and

in some bushes.
cruiser,

Devane discovered a

out of breath, hiding

After arresting Fern ndes and placing him in the

Officer Devane

found

a semi-automatic

pistol on

the

ground near where Fern ndes had been hiding.

After receiving
station,

Hardy said

himself to
denied

that

Miranda
_______

he had

visit his niece and

knowing

resident of

his

Moreno

or

been

warning
at the

at

the housing development

police

development

ran when he heard

Fern ndes.

the

At trial,

shots.

Hardy

however,

testified that he

by

had seen

Hardy together with Moreno and Fern ndes a number of times during
the prior

year.

Additionally,

Officer

Dreary of

the

Boston

-5-

Police

Department testified that in March 1991, he had stopped a

red Isuzu Trooper, and that Hardy was the driver and Moreno was a
passenger in the front seat.

B.
B.

Proceedings Below
Proceedings Below

The grand jury returned a five-count indictment against

Hardy and Moreno on June 25,

1991.

Count One charged Hardy with

being a felon-in-possession of a firearm,

Hardy

with being

and Count Four charged

a felon-in-possession

of ammunition,

both of

which were in violation of 18 U.S.C.

922(g).

Hardy

short-barreled Stevens

with possessing

gauge,

double

5861(d).

barrel

firearm, a

shotgun,

Count Two charged

in violation

of

26

12

U.S.C.

Counts Three and Five charged Moreno with possession of

the same short-barreled

shotgun and being

a felon-in-possession

of ammunition.
The

trial took

place over

1991 to November 14, 1991.

ten days from

October 28,

The jury returned guilty verdicts on

all five counts.

The

court

incarceration.

then

Hardy

appealed

sentence, and

on November 5,

jurisdiction,

remanded

respect

to

reaffirmed

the

some sentencing
Hardy's

United States v.
_____________

sentenced

Hardy

both his

to

conviction

1992, this Court,

case

to the

issues.

sentence, and

district
again

Hardy, 829 F. Supp. 478 (D.

_____

months'
and

court

STANDARD OF REVIEW
STANDARD OF REVIEW
__________________
-6-

with

court then

appealed.

See
___

Mass. 1993).

This

second appeal was then consolidated with the first appeal.

II.
II.

his

while retaining

district

The

Hardy

262

Hardy argues that

on

his

failure

to testify

constituted a violation of

the prosecutor improperly

at

trial,

and

commented

that this

comment

his Fifth Amendment privilege against

self-incrimination, which unduly prejudiced his ability to obtain

a fair

trial.

We will utilize a

legal question of

whether the prosecutor's

constitutional error.
n.2

(1st Cir.),

review

cert. denied,
____________

482 U.S.

the trial court's decision

of discretion.

prosecutor

failure to

testify

929 (1987).

to deny Hardy's

We

motion for a

Id.
__

(finding that

district court abused

a new trial where the

improperly
or produce

commented
documents

on

court believed
the

at trial);

defendant's
see
___

United States v. Turner, 892 F.2d 11, 12-13 (1st Cir. 1989).
_____________
______
III.
III.

will

alleged constitutional violation, for an

its discretion by ordering

that the

argument constituted

United States v. Glantz, 810 F.2d 316, 320

_____________
______

mistrial, based on this

abuse

de novo standard to review the

__ ____

THE PROSECUTOR'S COMMENT ON THE DEFENDANTS' SILENCE

THE PROSECUTOR'S COMMENT ON THE DEFENDANTS' SILENCE
___________________________________________________

also
____

A.
A.

Did the Prosecutor's Comment Violate the Fifth Amendment?

Did the Prosecutor's Comment Violate the Fifth Amendment?
The

most serious

argument that

Hardy raises

in this

appeal concerns the prosecutor's closing argument at trial.2

Griffin
_______
States

v. California,
__________
Supreme

Court

incrimination clause
an

accused's

trial.

380

U.S. 609,

615

(1964), the

held

that the

Fifth

failure to

prosecutor's

take the

stand

comment is

United

Amendment's

forbids the prosecution from

self-

commenting on

and testify

improper

In

during a

where, under

the

____________________
2 Defendant Moreno
in his appeal.

did not raise this Fifth

Amendment argument

-7-

circumstances

of the

intended or was of
and necessarily
accused
omitted).

to

case,

"the language

used was

such character that the jury

take it to

testify."
A prosecutor's

be a comment

Glantz,
______

810

manifestly

would naturally

on the failure

F.2d

at

322

of the

(citations

comment does not therefore need

to be

direct; rather, a prosecutor may run afoul of the rule in Griffin

_______
by making such comments

inferentially.

See Glantz, 810

F.2d at

___ ______
322; see, e.g.,
___ ____
Cir.

1985)

United States v. Skandier, 758 F.2d

_____________
________

(prosecutor's

question

43, 45 (1st

during closing

as

to

how

defense counsel would explain certain events which occurred, in a

case

where the defendant had not taken the stand, was improper);

United States v.
______________
(prosecutor's
uncontradicted,

Flannery, 451
________

comment
when

that

F.2d 880,

certain

contradiction

882 (1st

government
would

have

Cir. 1971)

evidence

was

required

the

defendant to take the stand, was improper).

We believe that here,

the prosecutor improperly called

attention

to the failure of Hardy

at trial.

The prosecutor stated:

to take the stand and testify

Ladies and gentlemen, the evidence here,

the only reasonable conclusion that can
come from this evidence is that Mr. Hardy
possessed that .32 caliber pistol loaded,
Mr.
Moreno
possessed the
sawed-off
shotgun loaded, and that
during the
course of the chase, Mr. Moreno passed it
off to Mr. Hardy so that he could get rid
of
it. What the evidence shows is that
these two defendants that night were
running and hiding. They'd been involved
in that
incident and then they
unfortunately
had the
misfortune of
running right into the police who just
happened to be in the area, and they were
running and hiding, running from the
-8-

police and hiding the evidence from the

police. They're still running and hiding
________________________________
today.
The time has come for them to
_________________________________________
stop running and stop hiding.
The time
_____________________________
has come for them to be held accountable
for the wrongful acts that they committed
on the night of April 18th, 1991 in
Boston.
That time is now and only you
can hold them accountable.
Thank you.
(emphasis added).
Defense counsel objected
The

district

instruction
not

have

court

was

and requested
initially

might hurt rather than

construed

defendants' silence.

the

a limiting
concerned

instruction.
that

such

help, because the jury might

prosecutor's remark

as

comment on

The court then asked the government:

Tell me this:
In what other sense can
the
Government
argue
that
[the
defendants] are running and hiding even
at this time?
The government replied:
Because, your Honor, I'm just drawing an
analogy between their running and hiding
on that night and the Government's burden
of proving guilt beyond a reasonable
doubt.
The court stated:
I'm
going
instruction.

an

to
give
the
limiting
It doesn't satisfy me.

The court then gave the following instruction to the jury:

Members of the jury, I
sustain the
objection to the argument . . . that even
today the defendants are running and
hiding. You will disregard that argument
and not consider it in any respect in
your consideration of the evidence in

this case.
The court

then asked defense

instructions,

counsel if they

and they replied no.

requested further

The defendants

moved for a

-9-

mistrial, and the court denied these motions.3

The prosecutor's
analogy
night

comment during his closing

between what the defendants were

of

the

crime --

running

and

prosecutor believed they were doing

and hiding.
from

allegedly doing on the

hiding

-- and

what

during the trial --

the

running

Of course, the defendants were not literally running

the trial

or hiding during

the trial.

both in custody and were sitting

proceeding.

Rather, they were

silently during each day of the

Neither defendant testified on his own behalf.

natural and necessary implication

therefore

set up an

that the

defendants

of the prosecutor's remark was

were running

from the

presented against them, and hiding behind their right

during the

trial.

The

The prosecutor's comment

evidence

to silence

therefore violated

the Fifth Amendment.

B.
B.

Is a New Trial Required?

Is a New Trial Required?

Where

it

appears

that

the prosecutor

has

made

an

improper argument

to the

jury, this Circuit

has established

standard to evaluate whether a new trial is required.

Although we have used slightly varying
terminology in describing [the relevant]
factors, the common denominators are (1)
the severity of the misconduct; (2) the
context in which it occurred; (3) whether
the judge gave any curative instructions
and
the
likely
effect
of
such
instructions; and (4) the strength of the
____________________

3 In its charge to the jury, the trial court did state generally
that the government had the burden of proof, that the defendants'
had a constitutional right not to testify, and that the jury
should not draw any negative inferences from the exercise of that
right. These comments, however, in no way specifically addressed
the prosecutor's improper remark.
-10-

evidence against the defendant.

United States v.
______________
(citations

Manning,
_______

omitted).

We

23 F.3d
treat

570,
these

574 (1st
factors

Cir.

1994)

in order,

to

determine if the prosecutor's comment was harmless.

First,
prosecutor's
rule.

as

we discussed

argument

Additionally,

sense, deliberate.

above,

constituted a
we believe

we

believe that

violation

that the

of the

Griffin
_______

comments were,

In his closing argument, the

the

in a

prosecutor had

constructed

an

analogy based

certain

rhetoric

planned.

We do

on the

facts

significantly repeated,
not believe

that the

of the

which appeared

that our belief

however, that
the

is not misplaced.

when preparing or reviewing

prosecutor

should

have

known

to be

prosecutor intentionally

intended to influence the jury by commenting on

and we hope

case, with

that

Hardy's silence,
We do

believe,

his proposed closing,

such

comment

was

improper.

Second, we point out that this comment was made against

a

backdrop where the possibility that Hardy would receive a fair

trial

was already in danger -- that is, the prosecutor's closing

was not an isolated instance of misconduct.

Capone, 683 F.2d
______
at

582, 586 (1st Cir. 1982).

947-51, we addressed several

See United States v.

___ _____________

In Moreno, 991 F.2d

______

arguments, (two in the majority

opinion, two more in the dissent) which Hardy has also raised
this

appeal,

relating

government during trial.

to

improper

arguments

Our conclusions in Moreno

______

applicable to this case.

-11-

made

by

in

the

are equally

remarks,

In Moreno,
______

we noted

that in the

he stated,

"the evidence

prosecutor's opening

will show

that [the

police

officers] were doing their jobs protecting the community that has
been

plagued

by

violence,

killings.

That's

today."

Moreno, 991
______

and

prosecutor to
the jury's

violence, shootings

why they were there and that's

there was no evidence

"shootings

senseless

F.2d at 947.

that because

in the case about "senseless

violence" or

killings,"

it

was patently

make those remarks.

Id.
__

only

for

to neighborhood violence

were equally disturbed by a

not

improper

reiterated

the

The remarks played upon

outside the bounds of legitimate argument.

prosecutor which

why we're here

We concluded

emotional reaction

We

and

and was

Id.
__

second argument by the

the

senseless

violence

theme, but also established a second departure from the "straight

and narrow."
that

the

shotgun

concealed,
Hooker

Id. at 948.
__
was not

and continued:

[who lived

The prosecutor
just

tossed

argued in his closing

away but

deliberately

"Forget about the fact that maybe Mr.

nearby] or his

wife or his

three kids might

come out and

look at the gun and get their heads blown off.

I'm sure Mr.

Hardy had other

there, like getting

things on his

away from the cops."

both of these arguments

through

Although we found that

were improper, we found that

were harmless as they related to Moreno.4

____________________

mind going

But

the errors

4 We stated that the prosecutor's comments about the danger to

Mr. Hooker and his family, although improper, were harmless when
considered against Moreno, in part, because the objectionable
remarks did not directly relate to Moreno. Moreno, 991 F.2d at
______
948. The improper remarks, however, did have a greater effect on
-12-

The
prosecutors

dissent
to be

found

two

troublesome.

government witness, intimating

information

beyond

the

(Torruella,

J., dissenting).

more arguments
The prosecutor

made

by

vouched for

that that witness possessed

evidence

presented.

The prosecutor

the

Id.
__
also

at

some

951

improperly

disparaged defense counsel, by stating that they were paid to see

things in a

different way,

defense counsel was

both sides of his mouth, and

talking out

of

that one defense argument was meant

to divert the jury's attention.

Id.; see, e.g., United States v.

__
___ ____ _____________

Boldt,
_____

Cir.

929 F.2d

35,

40

prosecutor's statement
try

to

get you

which

that "it's

to focus

especially in light

(1st

on

1991)

(finding

a favorite defense

unnecessary facts"

of the institutional

that

the

tactic to

was improper,

nature of the

comment

cast suspicion on the role of defense counsel in general).

The

jury

was therefore

prejudicial

arguments

exposed to
which

number of

potentially

emotional and

interfered

with

its

ability to appraise the evidence objectively and dispassionately.

Third,

while

the

trial

instruction,

and

instruction,

we do not believe

judge's

Hardy's counsel

instruction

negated

constitutional indiscretion.

did

court
not

gave

limiting

request a

stronger

that the curative

the effects

of

effect of the

the

Whether a curative

prosecutor's

instruction is

sufficient to avoid prejudice depends on the impact of the remark

____________________
Hardy's ability to get a fair trial,
relate directly to his alleged actions.

because the

remarks did

-13-

taken in the context of the whole of the evidence, including

other aggravating remarks or
risk

that

the

improper comment

case.

circumstances that may increase the

improper remark

did

affect

that may seem insignificant

is overwhelming can

assume a

any

the

outcome.

An

where the evidence

very different aspect

in a

close

This is such a close case.

Finally, the strength of the evidence proffered against

Hardy was not overwhelming.

Hardy

largely

Therefore,

rested

if

the jury

Officer Garvey's
have

on

the credibility
disbelieved,

testimony, we do

been convicted.

heard a

of

Officer

not believe that

the pistol

Garvey testified that

soft thud as Hardy

Garvey.

had questions

or the

about,

Hardy would

was required to

order to convict Hardy.

Hardy possess either

While Officer

or

Second, the jury

number of inferences in
saw

First, the government's case against

draw a

No officer ever

sawed-off shotgun.

after he stopped

raised his arms, Garvey

Hardy, he

never saw a

gun in Hardy's hand, or fall from his hand, despite the fact that
he

was only

officers
stopped.
in

two to

found the

three feet

away from

pistol later,

in the

had seemingly passed

saw Hardy dispose of the weapon there.

stopped in the area
We

clearly established

the shotgun hidden

through, but nobody

who could have somehow been

-14-

responsible for

circumstantial evidence,

part rested on Officer

Hardy's guilt.

Hardy was

There were also other men

do not believe that this

which for the most

Rather, the

area where

Additionally, other officers found

an area that Hardy

the guns.

Hardy.

Garvey's credibility,

Moreover, in

light of

the

prosecution's

comment, the

jury

may very

well have

wondered,

either consciously or subconsciously, what Hardy had to say about

the

extent of his involvement,

and concluded that

he must have

had something to hide because of his failure to testify.

The
factors
in

Hardy moved

its

did

not evaluate

on the record to determine

light of

favor of

district court

the

the government's

it denied Hardy's

presented, we

other

believe that

motion.

improper comments
this

For

the

foregoing

convictions and order a new trial.

_________________________________

The government

to testify, and in light

and the

constituted reversible

See, e.g., United States v. Barton, 731 F.2d

___ ____ _____________
______
1984).

when

that the district court abused

improperly commented on Hardy's failure

of

closing argument,

Because all of these factors cut in

a new trial, we believe

discretion when

relevant

if a new trial was warranted

prosecutor's improper

for a mistrial.

these

reasons,

evidence

error.

669, 675 (10th Cir.

we
vacate
Hardy's
_____________________

-15-