Filed: Jul. 14, 2003
Latest Update: Feb. 22, 2020
Summary: matched Aherns.supplier, James Davis.-6-, fall to the jury, which alone assesses witness credibility.the trial court. United States v. Stokes, 124 F.3d 39, 45 (1st Cir.Wilson stated she previously did not tell investigators about the, money and her conversation with Ahern while driving to Lawrence.
Not for Publication in West’s Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-1391
UNITED STATES OF AMERICA,
Appellee,
v.
SEAN AHERN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Lynch, Circuit Judge,
Coffin and Porfilio,* Senior Circuit Judges.
Robert D. Dimler on the brief for appellant.
Donald A. Feith, Assistant United States Attorney, with whom
Thomas P. Colantuono, United States Attorney, was on the brief for
the United States.
July 10, 2003
*
Of the Tenth Circuit, sitting by designation.
PORFILIO, Senior Circuit Judge. Sean Ahern appeals his
conviction for the armed robbery of the Bank of New Hampshire in
Dover, New Hampshire, for which the court imposed a sentence of 294
months. Principally challenging the sufficiency of the evidence
supporting the jury’s verdict, Ahern also contends objectionable
words from a taped telephone conversation were improperly admitted
into evidence, unfairly prejudicing his defense. Appended to these
issues are six additional claims for which he seeks plain error
review. We affirm the conviction.
When viewed in the light most favorable to the government,
United States v. Collazo-Aponte, 216 F.3d 163, 191 (1st Cir. 2000),
the evidence of the robbery unfolds in two stages. In the first,
on June 9, 2000, Kyle Price drove to the Cabot Street Market in
Portsmouth, New Hampshire, leaving his black 1993 Honda Civic
running while he dashed into the store. When he emerged, Price saw
his car vanishing down the street and noticed the man and woman who
previously had been standing by a pay station were gone.
In the second, on the next morning, a man robbed the Bank of
New Hampshire on Central Avenue in Dover. Bank surveillance
cameras recorded the perpetrator standing at Brenda Bailey’s teller
counter. The man, a medium-build, white male, wore gloves, a dark
knit cap, and black ski mask which was askew, exposing a dark mark
on the side of his neck. He held a small, black handgun and brown
paper bag. Demanding only $50 and $100 bills from both Ms. Bailey
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and Julie Hensen in the next teller window, the robber drove off in
a small black car with over $15,000.
A few blocks away from the bank, Alan Bandouveres, the owner
of Janeto’s Market, noticed a small black car parked behind the
store early that morning. He later discovered the car was still
there, left running with the driver’s window down. Near Janeto’s,
a bystander saw a young man, clutching a paper bag to his chest,
run from behind the market and jump into a red Jeep that had pulled
up. Dover police found the Honda Civic in Janeto’s parking lot.
Two fingerprints, pointed downward on the driver’s side door,
matched Ahern’s.
The government textured these scenes with the testimony of
bank employees and tellers; bystanders at the bank and market; the
Honda owner; store clerks where Ahern later bought merchandise with
cash; two cell mates at the correctional facility where Ahern
awaited trial; police officers and the FBI agent who investigated
the robbery; and, most damning, Jennifer Wilson, Ahern’s
girlfriend.
Wilson, who testified before the grand jury after Ahern’s
first trial was continued, described a three-year relationship in
which the two regularly used heroin, which Ahern got from his drug
supplier, James Davis. When Ahern’s heroin debt to Davis peaked,
Wilson explained Ahern then bought his drugs from sources in
Lawrence, Massachusetts. According to Wilson, while calling from
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a pay phone at the Cabot Street Market to arrange the purchase,
Ahern abruptly hung up, hopped into a car left idling, and drove
off. Wilson testified she was “stunned.” Later, she stated, Ahern
arrived at her apartment with enough heroin to satisfy her daily
20-bag habit.
The following afternoon, her testimony continued, Ahern met
her at a friend’s apartment in Portsmouth, greeting her with
flowers and a ring. Eventually, other friends provided Ahern a
beat-up green truck, and the pair drove to a motel in Lawrence. En
route, Ahern stopped to buy a newspaper. Wilson testified Ahern
asked her if she saw the front page story about a bank robbery.
When she asked if he did it, Ahern grinned, Wilson disclosed, and
told her he gave the money to Davis. Wilson described their two
days in Lawrence, getting high and paying for meals and the hotel
with cash.
On their return to Portsmouth, Wilson testified Ahern detoured
into an apartment area where he said he had to get rid of
something. Ahern then showed her a flat black gun and told her he
wanted to hide it somewhere. When that area proved unsatisfactory,
Ahern drove to a McDonald’s where, he later said, he hid the gun
behind a ceiling tile in the men’s bathroom.
The pair continued to the Portsmouth District Court where
Ahern got out for an appointment with his probation officer.
Before leaving, Ahern handed Wilson shopping bags and a “wad of
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money,” more than she had ever seen him carry. Within an hour,
Portsmouth police summoned Wilson for questioning.
Wilson testified Special Agent Laura Hanlon interrogated her,
and, although she cooperated, she admitted lying initially,
frightened by the combination of her drug history, the robbery, and
gun. She acknowledged her grand jury testimony was offered shortly
after she was released from serving a jail sentence related to her
hospitalization for a heroin overdose during the Lawrence weekend.
I. Sufficiency of the Evidence
Ahern contends “the stack of unreasonable, insupportable,
and/or overly speculative inferences from the circumstantial
evidence” is insufficient to sustain his conviction. In
particular, he underscores that Wilson, the only eyewitness to
testify about his stealing the Honda, never explicitly stated he
admitted robbing the bank, and was a drug addict who lied to
investigators. Similarly deconstructing each witness’s testimony
to reveal the absence of a direct link to his involvement or its
divergence from other evidence, Ahern maintains the sum of the
forensic and testimonial evidence falls short.
We disagree. Although the government must establish each
element of 18 U.S.C. § 2113(a)1 and 18 U.S.C. § 924(c)2 under which
1
18 U.S.C. § 2113(a) provides:
Whoever, by force and violence, or by
intimidation, takes, or attempts to take, from
the person or presence of another, or obtains
(continued...)
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Ahern was charged, in doing so, it need not dispel “every
hypothesis consistent with the defendant’s innocence.” United
States v. Spinney, 65 F.3d 231, 234 (1st Cir. 1995)(citation
omitted). Moreover, given the nature of proof in the criminal law,
the use of indirect, circumstantial evidence, woven together in
“[c]hains of inference,” is permissible and commonplace.
Id.
(citing United States v. O’Brien,
14 F.3d 703, 706 (1st Cir.
1994)). Whatever inferences arise from conflicting testimony then
1
(...continued)
or attempts to obtain by extortion any
property or money or any other thing of value
belonging to, or in the care, custody,
control, management, or possession of, any
bank, credit union, or any savings and loan
association; or ...
Shall be fined under this title or imprisoned
not more than twenty years.
2
18 U.S.C. § 924(c)(1)(A) states:
Except to the extent that a greater minimum
sentence is otherwise provided by this
subsection or by any other provision of law,
any person who, during and in relation to any
crime of violence or drug trafficking crime
(including a crime of violence or drug
trafficking crime that provides for an
enhanced punishment if committed by the use of
a deadly or dangerous weapon or device) for
which the person may be prosecuted in a court
of the United States, uses or carries a
firearm, or who, in furtherance of any such
crime, possesses a firearm, shall, in addition
to the punishment provided for such crime of
violence or drug trafficking crime–
...
(ii) if the firearm is brandished,
be sentenced to a term of
imprisonment of not less than 7
years.
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fall to the jury, which alone assesses witness credibility.
O’Brien, 14 F.3d at 707.
True, no witness positively identified Ahern as the ski-masked
man holding a gun pointed at the teller or driving off in a small
black car whose licence plate was one-digit off that on the stolen
black Honda. However, as set forth above, several witnesses
provided descriptions and details of the robber, weapon, and
sequence of events, which, taken as a whole, point plausibly and
rationally to Ahern’s guilt. Our task, then, as a reviewing court
is not to decide if that same evidence could bear a different
interpretation. Instead, after carefully plumbing the record, we
must ascertain whether the jury’s interpretation of the evidence is
both rational and supported. On this basis, we cannot say no
rational jury could have convicted Ahern. United States v. Julien,
318 F.3d 316, 322 (1st Cir. 2003).
II. Use of Taped Conversation
Ahern contends the court abused its discretion in admitting
over his vigorous objection a taped telephone conversation between
David Prevost, an inmate at Concord Men’s Prison, and James Davis,
his heroin supplier.3 Although the government offered the tape for
3
The taped conversation, a rambling, though guarded banter
between Prevost and Davis, is interrupted twice:
Prevost: “Oh, sounds like you’re chomping.”
Davis: “Counting.”
Prevost laughed and, a few minutes later, in
mid-sentence, declared:
(continued...)
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the jury to hear the background sound of money being counted to
buttress Wilson’s testimony Ahern gave Davis the stolen money to
pay his debt, Ahern maintains the obvious prejudicial effect of
objectionable words that were not redacted “deprived [him] of his
right to a trial free from the damaging taint of inadmissible
evidence.” Ahern contends because his lawyer could not cross-
examine Prevost, the words were left hanging, unfairly prejudicing
his defense.
The government counters with the hypothesis that the words on
the tape were never admitted into evidence. Instead, the tapes
were offered only for the clearly audible noise of riffling bills
(presumably similar to the sound of shuffling a deck of cards) in
the background of the conversation.4 Further, it maintains the
court instructed the jury specifically not to consider the words
but only to listen to the sounds, and the jury never saw a
transcript of the tape. Because jurors are presumed to follow
instructions, United States v. Lee, 317 F.3d 26, 35 (1st Cir.
2003), the government contends the court properly admitted the
evidence after applying Fed. R. Evid. 403.
3
(...continued)
“Jesus you’re peeling off something. (Noise in
the background.).”
Davis: “Um,”
Prevost: (laughing) “You’re working something
(Laughs).”
4
The government also questioned FBI Special Agent Hanlon about
the sound of counting money for the jury to compare the courtroom
demonstration with the tape.
-8-
Although we usually presume that a jury will follow the trial
judge’s specific, “curative instructions” in a criminal case,
United States v. Bradshaw, 281 F.3d 278, 285 (1st Cir. 2002)
(citations omitted), we remain skeptical of the jury’s acuity in
ignoring the spontaneous statements against the basso continuo of
shuffling money. Surely, given the abundance of evidence
connecting the dots to Ahern, the tape appears incidental and
cumulative, at best.
Under the circumstances our review remains limited. “Whether
or not a jury can be expected, under proper instructions, to
disregard particular evidence is a judgment call, and one as to
which appellate courts typically cede a high degree of deference to
the trial court.” Id. at 284 (citations omitted). With that
reflection in mind, we believe the trial court did not abuse its
discretion under Rule 403 in permitting the jury to hear the
evidence.
III. Issues of Plain Error
Quoting United States v. Lopez-Pena, 912 F.2d 1542, 1546 (1st
Cir. 1989), Ahern contends five issues5 merit plain error review,
each one “so shocking that [it] seriously affect[ed] the
fundamental fairness and basic integrity of the proceedings
conducted below.” He maintains the errors, separately and
5
Because a sixth alleged plain error, whether Ahern’s mother
was excluded from the courtroom during voir dire, is not factually
developed for this appeal, we do not address it.
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cumulatively, result in a miscarriage of justice. Ahern
acknowledges his burden: “to establish that the error was ‘clear,’
in the sense that it was ‘obvious,’ that it affected ‘substantial
rights,’ and that failure to vacate [the conviction] would result
in a ‘miscarriage of justice.’” United States v. Crochiere, 129
F.3d 233, 237 (1st Cir. 1997)(citations omitted)(internal
quotations omitted).
A. Display of Teeth and Hands
Ahern deems “clear” and “obvious” the error in the
government’s calling him to display his teeth and hands to the jury
after the last witness testified. The demonstration, he maintains,
while appropriate when a witness has just testified about a
particular fact, was improper because it occurred after the
particular witnesses were questioned and could not be cross-
examined.
Earlier in the government’s case, Ms. Bailey, the bank teller,
and Ms. Aimee Wilson, a bank employee, described Ahern in their
testimony, the former stating the robber’s bottom teeth were
crooked; the latter, observing that he left the bank wearing tight
gloves. Although defense counsel could have more readily cross-
examined these witnesses had Ahern been asked to stand before the
jury right after their direct examination, he was not foreclosed
from recalling the witnesses to question them about their
descriptions of the robber.
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We have acknowledged that asking the defendant to display his
teeth and hands during the trial is permissible. United States v.
Santana, 175 F.3d 57, 64 n.6 (1st Cir. 1999) (citing Holt v. United
States,
218 U.S. 245, 252 (1910)). The government’s timing,
standing alone, does not make this plain error.6 Thus, we fail to
grasp how Ahern’s later demonstration seriously affected his
substantial rights.
B. Superceding Indictment
Ahern raises another timing issue, contending the government
punished him for “derailing” his first trial after the jury was
sworn by filing a superceding indictment and adding the § 924(c)
charge. He maintains the government had evidence of the use of a
gun in the robbery from surveillance tapes, testimony of bank
personnel, and, as early as February 2001, Jennifer Wilson.
Nonetheless, the government filed only the single charge under 18
U.S.C. § 2113(a). Because he exercised his constitutional right
to retain new counsel of his choice, necessitating a continuance of
his first trial date, he contends the government’s filing the
additional charge is the result of a vindictive prosecution. He
asserts the facts will show actual vindictiveness or a sufficient
likelihood of vindictiveness.
6
In contrast, in United States v. Santana, 175 F.3d 57, 67
(1st Cir. 1999), defendant was asked to show his ears in response
to a jury question after the jury began its deliberations. Under
those circumstances, we held the error was not harmless, vacated
the conviction, and remanded for a new trial.
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The government counters that only after Wilson was released
from Strafford County Jail and agreed to testify before the August
2001 grand jury was its proof sufficiently strengthened to charge
Ahern with violation of 18 U.S.C. § 924(c). Wilson’s cooperation,
it states, provided new and corroborating evidence on which to base
the superceding charge.7
Despite Ahern’s characterization, prosecutorial vindictiveness
is not a necessary inference on this record. Ahern’s attempt to
align the circumstances to show a presumption of vindictiveness is
rebutted by the government’s presenting sufficient reasons for
bringing the second charge. United States v. Lanoue, 137 F.3d 656,
665 (1st Cir. 1998). That explanation is both “plausible and
unimpeached.” United States v. Stokes,
124 F.3d 39, 45 (1st Cir.
1997). Plain error does not attach.
C. Three Evidentiary Issues
First, Ahern contends it was plain error for the trial court
to permit Wilson, who had drug charges pending against her in New
Hampshire, to testify when her court-appointed attorney was unable
to be present to instruct her on invoking her Fifth Amendment
privilege. The error, he asserts, infringed his right to a fair
trial free from improper judicial interference.
7
When she testified before the grand jury in August 2001,
Wilson stated she previously did not tell investigators about the
money and her conversation with Ahern while driving to Lawrence.
She also provided descriptions of the gun and its apparent disposal
by Ahern.
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The government explains it informed the trial court about the
absence of Wilson’s attorney, and the court asked her if she would
invoke the privilege. Wilson stated she wanted to testify.
Although Ahern failed to specify the precise harm he suffered,8 the
government suggests the impact on its case had Wilson not testified
remains speculative.
Under the plain error rubric, Ahern’s conclusory allegations
of judicial interference violating his due process rights ring
hollow. The trial court inquired in a hearing to assure Wilson
chose to proceed.
Second, Ahern contends the government’s inclusion of facts not
in evidence in its closing argument – whether the stolen Honda was
driven towards downtown Portsmouth, the owner’s version, or, in the
opposite direction, Wilson’s testimony – was a “deliberate attempt
to mischaracterize the facts” and bolster Wilson’s testimony.
Despite his trial counsel’s failure to object or request a limiting
instruction, he insists this prosecutorial misconduct amounts to
plain error.
The jury heard each version of the Honda’s disappearance, and,
in essence, decided which one it believed. United States v. Lopez-
Lopez, 282 F.3d 1, 17 n.9 (1st Cir. 2002). Again, Ahern’s
contention falls short of establishing a plain error.
8
Indeed, the need to protect Wilson’s Fifth Amendment right as
a rudiment of Ahern’s Due Process right stands unexplained.
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Third, Ahern claims the government’s introduction of a $100
bill found in a dresser in James Ryan’s vacated apartment violated
his Fourth Amendment rights. Ahern maintains his privacy rights
arise from his status as Ryan’s “de facto roommate,” in which he
could come and go to the apartment under “an open agreement with
Ryan to use a window for entry.” Although he concedes Ryan moved
out of the apartment, he argues that his abandonment does not
trigger “consent to a search into the former tenant’s personal
effects.” Thus, having established his standing to raise a Fourth
Amendment challenge, he urges the admission into evidence of the
$100 bill was plain error.
After previously visiting Ryan’s apartment, Detective Thomas
Stinglen returned and with permission from a maintenance worker
entered the apartment. Although no one was living there, some
furniture was left behind. In one of the drawers he opened, he
found the $100 bill.
Not only does Ahern lack a privacy interest in the abandoned
property, United States v. Kelly, 329 F.3d 624 (8th Cir. 2003), but
also he cannot bootstrap any expectation of privacy to an apartment
rented by another who has vacated it. See, e.g., Abel v. United
States,
362 U.S. 217, 241 (1960). His argument is fatuous.
Finally, Ahern maintains the cumulative effect of each of these
errors undermines his due process and necessitates a new trial.
This “kitchen-sink contention that the cumulative effect of the
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putative errors” requires us to assess whether the precise
interaction of errors amounts to an unfair trial. United States v.
Villarman-Oviedo, 325 F.3d 1, 18 (1st Cir. 2003).
Of necessity, claims under the cumulative error doctrine
are sui generis. A reviewing tribunal must consider each
such claim against the background of the case as whole,
paying particular weight to factors such as the nature
and number of errors committed; their interrelationship,
if any, and combined effect; how the district court dealt
with the errors as they arose (including the efficacy--or
lack of efficacy--of any remedial efforts); and the
strength of the government's case.
Id. (quoting United States v. Sepulveda,
15 F.3d 1161, 1196 (1st
Cir.1993)). After such review, we conclude Ahern’s contention is
without merit. AFFIRMED.
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