USCA1 Opinion
United States Court of Appeals
For the First Circuit
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No. 95-1719
UNITED STATES OF AMERICA,
Appellee,
v.
DENNIS SULLIVAN,
Defendant, Appellant.
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No. 95-1760
UNITED STATES OF AMERICA,
Appellee,
v.
THOMAS PLATT,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
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Before
Selya, Stahl and Lynch, Circuit Judges.
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Judith H. Mizner for appellant Dennis Sullivan.
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Perry O'Brian for appellant Thomas Platt.
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Margaret D. McGaughey, Assistant United States Attorney, with
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whom Jay P. McCloskey, United States Attorney, was on brief, for
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appellee.
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May 31, 1996
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LYNCH, Circuit Judge. An armed robbery of the
LYNCH, Circuit Judge.
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Country Hospitality Inn in Bangor, Maine in 1994 that netted
the robbers approximately $520 was prosecuted federally.
Defendant Dennis Sullivan was sentenced for the crime to
spend almost the next thirty years of his life in prison.
Defendant Thomas Platt was sentenced to more than thirty
years. They appeal, ably arguing that the prosecutor was
overly zealous, the evidence insufficient and the
instructions deficient. While the prosecutor overstepped in
asking one witness to comment on the truthfulness of
another's testimony, the misstep was harmless error. The
prosecution presented enough evidence to prove its case and
the instructions contained no error. We affirm.
I
Two masked men, one with a sawed-off shotgun,
robbed the Inn in the early morning of July 28, 1994. The
Inn's night manager was faced with the shotgun by a man who
jumped over the countertop and told the manager to look
straight ahead and not at him. Startled, the manager did not
get a full look at the robber. He did get a good enough look
to testify that the robber was a man of medium build, between
5'8" and 5'10" high, weighing between 140 and 160 pounds and
in his early to mid-twenties. The robber wore some sort of
ski mask, or combination of masks, and dark clothing. The
manager heard, but did not see, a second robber. The robbers
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took the manager's checkbook, his $160 in cash, and his
grocery store and bank cards. The robber with the gun asked
the manager where the Inn's money was. The manager told him
it was in a drawer. The second robber said that he had
gotten the drawer open and the robbers took the $360 inside.
The robbers told the manager to lie down on the floor. They
taped his eyes and mouth shut with duct tape and fled.
Shortly thereafter, the police stopped a car with
four men but released them. In the car were the defendants
and two companions, Dale Braley and Timothy Boudreau. Braley
and Boudreau eventually became cooperating witnesses.
Meanwhile the investigation proceeded. A police
dog followed the robbers' scent across the field around a
barn next to an abandoned house. At the house the police
observed tire tracks from a car that had rapidly accelerated.
Later, a citizen observed a maroon bag on a nearby roadside
and told the police about it. The bag contained, among other
things, a sawed-off shotgun, a locked box with a shoulder
holster inside of it, two masks, dark sweatshirts and
camouflage hats. It also contained the rest of the roll of
the duct tape used to bind the manager, the manager's
checkbook and his bank cards. The bag had a tag bearing the
name "Angela Turner." Ms. Turner, it turned out, was Platt's
girlfriend.
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The scheme unravelled. The police followed leads
to Braley and Boudreau, who incriminated Platt and Sullivan
while minimizing their own roles in the crime. Hearing the
police were looking to question them, Platt and Sullivan
disappeared. But when arrest warrants were issued, they
surrendered.
Sullivan and Platt were charged with conspiracy to
obstruct commerce by robbery in violation of 18 U.S.C.
1951, obstructing commerce and attempting the same by
committing robbery in violation of 18 U.S.C. 1951 and 2,
and using or carrying a firearm in relation to a crime of
violence, and aiding and abetting the same, in violation of
18 U.S.C. 924(c) and 2. Platt and Sullivan were each
charged individually with possession of a firearm not
registered to them in the National Firearms Registration and
Transfer Record in violation of 26 U.S.C. 5861(d) and
5871. They were also each charged individually with being
felons in possession of firearms, in violation of 18 U.S.C.
922(g)(1), 924(a)(2) and 924(e)(1). They were convicted
on all counts save for Sullivan's acquittal on the two
firearm possession counts.
It was clear that the four men were connected with
the crime and two had actually committed it. The question
was which two. At trial the theory of defense was that
Braley and Boudreau had done it and that there was no
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reliable identification of the defendants. While a footprint
was found on the Inn manager's countertop, it did not appear
to belong to either Sullivan or Platt and the police did not
do the work to identify whose footprint it was.
At trial, Braley testified that the foursome had
decided to commit a crime and went riding around in a car.
Braley and Boudreau both said that Sullivan, who had worked
as a pizza delivery person, mentioned that the Inn would have
only one employee there and would be a good target for a
robbery. Braley testified that they drove to the abandoned
house near the Inn. Sullivan and Platt donned masks and
camouflage gear and walked across a field toward the Inn.
Later, Sullivan and Platt returned. They "dash[ed]" into the
car and told Braley to get out of there because they had seen
a cop. In the car, Sullivan said, "I got that guy good."
While holding his finger up to the back of Braley's head as
if he were pointing a gun, Sullivan said he had jumped over
the motel counter and told the night manager to "[g]et right
down on the ground." After the group had driven about eight
miles, they noticed a police car coming toward them and,
afraid they might be stopped, tossed the maroon bag out the
window.
The girlfriends of the defendants implicated them
in the crimes, but attempted to recant those statements at
trial. Braley and Boudreau acknowledged they had been
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charged with involvement with the robbery in state court.
Another witness, Vaughn Stevenson, testified that Platt
wanted to purchase the sawed-off shotgun and that Stevenson,
who acted as middleman for the transaction, got the weapon
from the seller and put it into Platt's closet. Stevenson's
friend, Danny Cray, also testified that Platt said he wanted
to purchase the shotgun and that Stevenson had delivered the
shotgun to the place where Platt was living.
Sullivan argues that the evidence was insufficient
to support his conviction of using or carrying a firearm in
connection with a crime of violence, particularly in light of
his being acquitted on the charges of possession of an
unregistered firearm and being a felon in possession of a
firearm. Sullivan also argues the instruction on reasonable
doubt was in violation of his due process rights and that
several prosecutorial actions, including the prosecutor's
asking Sullivan to comment on the veracity of another
witness's testimony, violated due process. Finally, under
different labels he attempts to mount an ineffective
assistance of counsel claim.
Platt argues that the district court erred in
permitting the prosecutor to question Sullivan as to whether
the other witness lied. In addition, he argues that a
statement made by the prosecution in opening argument
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violated his Fifth Amendment rights and that there were
evidentiary errors.
We treat each defendant's claims separately.
II
Sullivan
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Sufficiency of the Evidence
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In assessing a challenge to the sufficiency of the
evidence, we "review the record to determine whether the
evidence and reasonable inferences therefrom, taken as a
whole and in the light most favorable to the prosecution,
would allow a rational jury to determine beyond a reasonable
doubt that the defendants were guilty as charged." United
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States v. Mena-Robles, 4 F.3d 1026, 1031 (1st Cir. 1993),
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cert. denied, 114 S. Ct. 1550 (1994).
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Sullivan's assertion that there was not enough
evidence to show he carried or used the shotgun stresses two
points. First, Sullivan says, it is undisputed that the gun
belonged to Platt and that the night manager did not see who
carried the gun. He claims no other evidence linked him to
the gun. Second, he says that the weakness of the evidence
is revealed by the jury's acquitting him of being a felon in
possession of a firearm and of possessing an unregistered
weapon.
As to the latter, "'[v]erdict inconsistency does
not indicate that the government necessarily failed to prove
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an essential element of its case beyond a reasonable doubt.'"
United States v. Calderon, 77 F.3d 6, 10 (1st Cir. 1996)
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(quoting United States v. Lopez, 944 F.2d 33, 41 (1st Cir.
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1991)); see also United States v. Powell, 469 U.S. 57 (1984).
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An inconsistent verdict does not require vacating a criminal
conviction as long as the appellate court is satisfied that
there was sufficient evidence to sustain the counts of
conviction. See Calderon, 77 F.3d at 10.
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A jury could well have found that Sullivan actually
carried or used the gun himself or, at the least, knowingly
aided or abetted the carrying or use of the gun. It was
clear that at least one of the robbers carried the sawed-off
shotgun. The night manager testified that the robber who
accosted him brandished a shotgun. That robber "used" the
firearm. See Bailey v. United States, 116 S. Ct. 501, 508
___ ______ ______________
(1995). A reasonable jury could have found that Sullivan was
that robber. Braley testified that after the robbery, in the
car, Sullivan put a pretend gun to Braley's head, apparently
imitating what he had done to the night manager. And, there
was testimony that Sullivan, in advance of the robbery, while
at Platt's home, picked up the gun and commented that it
would be good to use in a robbery. The evidence showed that
the two robbers walked across the field to the Inn. It is
reasonable to infer that the gun was brought to the Inn by
one or both and that the two robbers were each aware of the
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shotgun and its intended use. A sawed-off shotgun is hardly
inconspicuous.1 The gun was brought back from the robbery
and put in the bag later abandoned by the four men in the
car. In the bag were the masks and camouflage garments also
used in the robbery. The evidence was sufficient to show
that Sullivan knew the shotgun would be used or carried
during the robbery and that he took some action intending to
cause the gun to be used or carried. See United States v.
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Luciano-Mosquera, 63 F.3d 1142, 1150 (1st Cir. 1995),
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petition for cert. filed, 64 U.S.L.W. 3765 (U.S. Apr. 26,
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1996) (No. 95-1775); see also United States v. Price, 76 F.3d
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526, 529-30 (3d Cir. 1996) (The "[accomplice without the gun]
probably knew in advance, and most certainly knew at the
time, what [the one with the gun] was doing."); United States
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v. DeMasi, 40 F.3d 1306, 1316 (1st Cir. 1994) (one can be
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held liable under aiding and abetting theory if he knew that
weapons would be used during the robbery), cert. denied, 115
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S. Ct. 947 (1995). The jury could have found actual
knowledge and thus could easily have found that Sullivan knew
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1. United States v. Spinney, 65 F.3d 231, 238-39 (1st Cir.
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1995), which vacated the firearms conviction of an
accomplice, is, on its facts, inapposite. The firearm in
Spinney was a handgun that was not visible when the robber
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entered the bank and the accomplice charged with aiding and
abetting remained outside of the bank. Moreover, in Spinney,
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the use of the gun was not contemplated at the planning
stages, while here the jury could infer that it was.
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to a "practical certainty" that the gun would be used. See
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United States v. Spinney, 65 F.3d 231, 238 (1st Cir. 1995).
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Reasonable Doubt Instruction
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Although he did not object to the reasonable doubt
instruction at trial, Sullivan attempts to attack the
instruction on appeal. As a result, he must meet the
strictures of plain error review. See Fed. R. Crim. P.
___
52(b); Luciano-Mosquera, 63 F.3d at 1156. In this instance
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the standard of review does not alter the outcome because
there was no error in the instruction.
The judge instructed the jury as follows:
Now, as I have indicated to you, the
government has the burden of proving the
defendants guilty beyond a reasonable
doubt. Some of you may have served as
jurors in civil cases and when you were
told that it is only necessary to prove
that a fact is more likely true than not
true, in a civil case, that's the burden.
In criminal cases, the government's proof
is subject to a higher standard. It must
be beyond a reasonable doubt.
Now, there's been several
suggestions made to you during the course
of argument with regard to reasonable
doubt. And I point out to you that the
lawyers have the right, indeed the
responsibility, to point out to you those
facts or that evidence or those
interpretations of legal principles that
is more persuasive to their side of the
case. I instruct you that, if what I am
telling you about the law differs in any
way with what the lawyers have told you
about the law, I'm instructing you to
follow the law as I give it to you and
not as the lawyers suggest[] it may be if
there is a difference.
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"Reasonable doubt" has now been
defined for you in several different ways
by counsel, and I instruct you that
reasonable doubt defines itself -- a
doubt that is reasonable. It has a plain
meaning, and you as jurors can consider
the plain meaning of reasonable doubt
with what the words say.
The only caveat that you must be
clear about as it relates to reasonable
doubt is that the government must prove
the guilt of each of the defendants for
the crimes involved beyond a reasonable
doubt as you interpret that term.
The judge thus left the fine tuning of the meaning of
"reasonable doubt" to the jurors, as is appropriate under our
precedent. See United States v. Cassiere, 4 F.3d 1006, 1024
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(1st Cir. 1993).
Sullivan says that by referring to the definitions
given by counsel, the judge incorporated erroneous
definitions. The argument suffers from three flaws. First,
that is not a fair reading of the instruction, which told the
jurors what the judge's instructions were. Second, the
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reference to counsel's definitions was followed immediately
by a statement that the judge's instructions on the law were
to be followed, and, if there were differences, not the
lawyers'. Third, to the extent that Sullivan's argument
rests on the premise that his own counsel gave an erroneous
definition of reasonable doubt, we will not entertain such an
argument. Cf. United States v. Munson, 819 F.2d 337, 342
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(1st Cir. 1987) (no plain error in admitting certain
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testimony when, among other problems, the testimony was
elicited by defense counsel on cross-examination).
Ineffective Assistance and Due Process Claims
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Sullivan combines three arguments, tied together by
the common theme that his counsel at trial was ineffective.
For several reasons, ineffective assistance claims are not
usually heard on direct appeal. See United States v. Diaz-
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Martinez, 71 F.3d 946, 953 (1st Cir. 1995); United States v.
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Collins, 60 F.3d 4, 7 n.1 (1st Cir. 1995). There is no
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reason here to depart from that rule.
To the extent he makes claims independent of the
ineffective assistance of counsel claim, they fail on their
own. Sullivan complains that, despite Platt's objection
which resulted in excluding the evidence, the evidence should
have been admitted that Platt and Braley committed a robbery
of the Econolodge the week before the robbery of the Inn.
Sullivan urges that the evidence would have been useful to
impeach Braley. Failing that, he says, severance was
warranted.
His initial hurdle is that he never sought to
cross-examine Braley about the Econolodge matter, and he
objected to the government's request to present such
evidence. Moreover, he never asked for a severance. At
best, review of his contentions is for plain error. In a
strange twist, the parties now reverse the positions they
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held in the trial court with the government saying the
evidence was cumulative and Sullivan saying it should have
been admitted. Switching of position aside, this was a
matter of discretion for the trial judge and the decision
hardly requires reversal as plain error. See United States
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v. Innamorati, 996 F.2d 456, 478 (1st Cir.), cert. denied,
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114 S. Ct. 409 (1993). The same is true for the alleged
error in failing to sever the trials. Cf. United States v.
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Edgar, No. 95-1190, slip op. at 8 (1st Cir. Apr. 19, 1996)
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(failure to sever reviewed for abuse of discretion); United
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States v. Nason, 9 F.3d 155, 158 (1st Cir. 1993), cert.
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denied, 114 S. Ct. 1331 (1994) (same). There was strong
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evidence of guilt in this case. Sullivan's convictions do
not rise to a "miscarriage of justice." See Edgar, No. 95-
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1190, slip op. at 27 n.16.
Sullivan's second argument of trial error is also
raised by Platt. Through a series of questions, reproduced
in the margin,2 the prosecutor asked Sullivan whether
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2. Q: So, I take it you would deny that you ever stated
to Vaughn Stevenson that you wished you didn't have
so many people involved in the robbery?
A: You take it I deny that?
Q: Yes.
A: I certainly do, yes.
Q: I take it that, when Vaughn testified to that, you
would say he was lying?
A: I'd say --
[Defense counsel]: Objection, your Honor.
. . . .
The Court: Objection's overruled. He can answer. It's
cross-
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another witness, Vaughn Stevenson, had lied when Stevenson
said that Sullivan complained that he wished he didn't have
so many people involved in the robbery. This court stated in
United States v. Akitoye, 923 F.2d 221, 224 (1st Cir. 1991),
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that this type of questioning was improper. Other courts
have said the same. See United States v. Boyd, 54 F.3d 868,
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871 (D.C. Cir. 1995); United States v. Scanio, 900 F.2d 485,
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492-93 (2d Cir. 1990), overruled on other grounds, Ratzlaf v.
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United States, 510 U.S. 135 (1994). If there was any
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ambiguity left after Akitoye, we state the rule now
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emphatically: counsel should not ask one witness to comment
on the veracity of the testimony of another witness. As was
explained in Akitoye:
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It is not the place of one witness to
draw conclusions about, or cast
aspersions upon another witness'
veracity. The "was-the-witness-lying"
question framed by the prosecutor in this
case was of that stripe. It should never
have been posed . . . .
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examination.
A: Could I have the question again?
Q: Vaughn Stevenson testified that you told him, while
you were riding in his car shortly after the
robbery, that you told him that you wished you
hadn't had so many people involved in the robbery.
A: Uh-huh. And you want my opinion as to whether he
lied?
Q: And you're saying -- I take it you would say that
that was a lie, that you never said anything like
that.
A: You take that correctly, yes.
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923 F.2d at 224 (citations omitted). We expect that the
office of the United States Attorney3 and other counsel will
abide by the rule.
The prosecution next misreads a line of cases
primarily from the Second Circuit and suggests that this non-
comment rule applies differently depending on whether the
other witness is a police officer or a lay witness. Compare
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Boyd, 54 F.3d at 871 ("It is . . . error for a prosecutor to
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induce a witness to testify that another witness, and in
particular a government agent, has lied on the stand.") and
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United States v. Richter, 826 F.2d 206, 208 (2d Cir. 1987)
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("Prosecutorial cross-examination which compels a defendant
to state that law enforcement officers lied in their
testimony is improper.") with United States v. Gaind, 31 F.3d
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73, 77 (2d Cir. 1994) ("[T]he opposing witnesses in this case
were former [employees of defendant's business], not
government agents.") and Scanio, 900 F.2d at 493 ("While the
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rule barring this type of cross-examination is not limited to
situations where the defendant is asked to comment on the
testimony of government agents, . . . we have shown special
concern with prosecutors utilizing what some persons perceive
as the heightened credibility of government agents . . . ."
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3. Appellate counsel for the United States assured the court
at oral argument that attorneys in the Office of the United
States Attorney in Maine would promptly be instructed that
such questions are improper.
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(internal citations omitted)). The rule only applies, the
prosecution says, when the other witness is a police witness,
not a lay witness. We make no such distinction, nor does the
Second Circuit.4 That erroneous reading misunderstands the
purpose of the rule. The rule reserves to the jury questions
of credibility and thus makes it improper to induce a witness
to say another witness lied on the stand. See Boyd, 54 F.3d
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at 871.
That this rule was violated by the prosecution is
not the end of the analysis. The question is whether the
violation of the rule was harmless. In context, it certainly
was. While evidence of guilt is only one factor to be
considered, such evidence was very strong. See generally
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Harry T. Edwards, To Err Is Human, But Not Always Harmless:
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When Should Legal Error Be Tolerated?, 70 N.Y.U. L. Rev. 1167
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(1995). Two witnesses testified that Platt and Sullivan
committed the robbery and four witnesses tied Platt to the
shotgun. Moreover, the error was on a minor point: whether
Sullivan in his testimony would say another witness was lying
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4. The distinction the Second Circuit draws is in evaluating
whether the error is harmless once the rule is violated.
Whether a witness is a government agent may be relevant in
determining whether there is prejudice or a miscarriage of
justice. See Gaind, 31 F.3d at 77 (in reviewing for
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"miscarriage of justice," court believed that questions did
not alter the outcome of the trial); Scanio, 900 F.2d at 493
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("[T]he government's attempt to compel [defendant] to comment
on [witness's] veracity was improper; however, we believe any
error was harmless.").
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when the witness said Sullivan had complained about too many
people being involved in the robbery. The other witness
testified to Sullivan's complaint; Sullivan denied making it.
The damage to Sullivan's defense came from Stevenson's direct
testimony. That there was a contradiction between that
testimony and Sullivan's was obvious. Pointing out the
obvious most likely scored the government, at most,
rhetorical points. We cannot say that these few largely
rhetorical questions from the prosecutor affected at all the
outcome of the trial. Cf. United States v. Wihbey, 75 F.3d
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761, 771 (1st Cir. 1996) (improper conduct on part of
prosecutor not implicating a constitutional right does not
require reversal unless it affected the outcome of the
trial).
Sullivan also argues that some of the comments made
by the prosecution in its closing argument were improper
vouching for the credibility of certain witnesses. The
prosecutor argued:
The government would suggest that,
again, Tim Boudreau, if you assess his
believability on the witness stand, he
came off pretty believable. But you have
to make that judgment, ladies and
gentlemen.
. . . The government suggests to
you [Cray] couldn't have lied about
anything up on the witness stand. He
couldn't -- if he was lying, he couldn't
even remember his own name.
And on rebuttal, the prosecutor argued:
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The government suggests . . . that they
were up there telling the truth.
. . . .
. . . [Braley] told you the
truth. . . .
. . . .
. . . The government suggests that
. . . Braley, . . . Stevenson, and . . .
Boudreau . . . are telling the truth in
this case.
As there was no objection, we review for plain error. See
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United States v. Cruz-Kuilan, 75 F.3d 59, 62 (1st Cir. 1996).
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While some of the statements may have been an
appropriate response to the defendants' attack on the
government witnesses' credibility, see id., others may have
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crossed the line into improper vouching. See Wihbey, 75 F.3d
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at 771-73 (comment that "what they have done is testified
. . . truthfully about what they knew" was improper
vouching); United States v. Manning, 23 F.3d 570, 572 (1st
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Cir. 1994) (improper witness vouching for prosecutor to
argue: "If [police witness] is going to come in and lie to
you he could have done that very, very easily. There's a
million little ways they could have given it to the
Defendant. But they cannot. The prosecution witnesses
cannot engage in that kind of conduct. They're bound by the
truth. . . . They're bound by their oath and limits of
honesty."). Nevertheless, no miscarriage of justice resulted
and the comments did not impact the fairness, integrity or
public reputation of the judicial proceedings and so should
not be noticed as plain error. See Collins, 60 F.3d at 7.
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III
Platt
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Prosecutor's Opening Statements
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Platt argues that the prosecutor's statement in
opening that the jury would "meet" the two defendants was an
improper comment on whether the defendants would testify.
Sullivan objected to the comment and at the end of the
opening, Platt moved for a mistrial. The district court
denied the motion, but offered to give a cautionary
instruction. Apparently for strategic reasons, the
defendants rejected the offer.
Whether the prosecutor's argument violated the
Fifth Amendment privilege against self-incrimination is
reviewed de novo. United States v. Hardy, 37 F.3d 753, 756
_______ _____________ _____
(1st Cir. 1994). We review the denial of the motion for
mistrial for abuse of discretion. See Wihbey, 75 F.3d at
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773. There was no violation of the Fifth Amendment here.
"A prosecutor's comment is improper where, under
the circumstances of the case, the language used was
manifestly intended or was of such character that the jury
would naturally and necessarily take it to be a comment on
the failure of the accused to testify." Hardy, 37 F.3d at
_____
757 (internal quotations omitted). Sullivan's counsel agreed
that the choice of words was not deliberate: the prosecutor
meant to say that the defendants would be introduced to the
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jury. And in fact, the defendants' lawyers did introduce the
defendants to the jury after the prosecutor made the
allegedly offending remark. In context, the prosecutor's
word choice did not "naturally and necessarily" comment on
the defendants' privilege against self-incrimination. Cf.
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Hardy, 37 F.3d at 757-58 (holding that prosecutor's statement
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that defendants, who were sitting in the courtroom but did
not testify, were "still running and hiding today" violated
the Fifth Amendment (emphasis removed)). Thus, there was no
prosecutorial misconduct that would warrant considering
mistrial.
Sufficiency of the Evidence
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Platt also makes a claim that the evidence was
insufficient to support his conviction. Platt argues that
the evidence implicating him as one of the two robbers came
principally from Braley and Boudreau. Those two, Platt
argues, should not have been believed because they were
cooperating witnesses who gave inconsistent versions of the
events that transpired on July 28, 1994. However,
"'[c]redibility determinations are uniquely within the jury's
province, and we defer to the jury's verdict if the evidence
can support varying inferences.'" United States v. Calderon,
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77 F.3d 6, 10 (1st Cir. 1996) (quoting Cruz-Kuilan, 75 F.3d
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at 62). As the recital of the facts shows, there was ample
evidence to convict Platt on all counts.
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Other Evidentiary Issues
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Platt argues that the district court erred in
excluding the prior misdemeanor and juvenile convictions of
certain government witnesses and that the district court
abused its discretion by allowing cross-examination of
Sullivan on a prior robbery conviction. We have considered
Platt's arguments and find no abuse of discretion.5
Finally, Platt argues that evidence that Boudreau
had no prior criminal convictions should not have been
admitted. Platt argues that the evidence was admitted in
violation of Fed. R. Evid. 608 to show Boudreau's good
character. Cf. Government of Virgin Islands v. Grant, 775
___ _____________________________ _____
F.2d 508, 510-12 (3d Cir. 1985) (such evidence inadmissible
under Rules 404 and 405 to prove character of accused). The
record shows that it was admitted to further develop
Boudreau's background and it was thus within the discretion
of the district court. Cf. United States v. Blackwell, 853
___ _____________ _________
____________________
5. Platt seeks a stricter standard of review for the
district court's exclusion of one witness's misdemeanor
conviction for theft by arguing that it "involved dishonesty"
and thus should have been admitted under Fed. R. Evid.
609(a). See United States v. Tracy, 36 F.3d 187, 192 (1st
___ _____________ _____
Cir. 1994) (district court does not have discretion to
exclude prior convictions involving dishonesty for
impeachment purposes), cert. denied, 115 S. Ct. (1995).
_____ ______
Theft, on particular facts, could conceivably be a crime of
dishonesty, if it involves some element of deceit,
untruthfulness, or falsification. See id.; United States v.
___ ___ _____________
Mejia-Alarcon, 995 F.2d 982, 989 n.7 (10th Cir.), cert.
_____________ _____
denied, 114 S. Ct. 334 (1993). But Platt points to nothing
______
in the record to support his assertion that the theft here
was a crime of dishonesty.
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-22-
F.2d 86, 88 (2d Cir. 1988) (error to strike background
evidence that defendant had no prior arrests); Grant, 775
_____
F.2d at 513 (trial court has wide discretion as to admission
of background evidence). There was no abuse of discretion
here.
Affirmed.
_________
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