938 F.

2d 1482
33 Fed. R. Evid. Serv. 790

UNITED STATES of America, Appellee,

v.
Kenneth Michael BROWN, Defendant, Appellant.
No. 90-2179.

United States Court of Appeals,

First Circuit.
Heard April 1, 1991.
Decided July 24, 1991.

Douglas J. Miller, by appointment of the Court, with whom Hall, Morse,

Anderson, Bauer & Miller, P.C., was on brief, Concord, N.H., for
defendant, appellant.
Peter E. Papps, First Asst. U.S. Atty., with whom Jeffrey R. Howard, U.S.
Atty., was on brief, Concord, N.H., for appellee.
Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge, and
TORRUELLA, Circuit Judge.
TORRUELLA, Circuit Judge.

On the afternoon of February 21, 1990, defendant, Kenneth Michael Brown,

and an accomplice, David Scott Butler, entered Mamos Market in Concord,
New Hampshire, where they attempted to purchase cigarettes with two "raised"
bills. 1 The store clerk did not notice any irregularity when she first accepted
what she believed to be a twenty dollar bill from defendant. Upon tender of a
second twenty dollar bill by Butler, however, she noticed that defendant's bill
had a picture of George Washington on it. She returned both bills, defendant
returned his cigarettes and change, and the two perpetrators departed without
further incident. The clerk then called the police.

Before the police arrived, Butler proceeded to the Bank of New Hampshire
where he exchanged three torn twenty dollar bills for three new ones. The bills

exchanged had their right sides torn off. The new bills were given to defendant.
3

Shortly thereafter, defendant and Butler were arrested and taken to the local
county jail. During a search for contraband and weapons, a jail officer
discovered two torn twenty dollar bills secreted in defendant's rectal cavity. The
bills had their left sides torn off.

Defendant and Butler were originally charged with state law violations;
however, state proceedings were dismissed against defendant as the result of a
defective complaint. Defendant was then charged under federal law. Counts I
and II alleged violations of 18 U.S.C. Sec. 484 (connecting parts of different
notes), and Count III alleged a violation of 18 U.S.C. Sec. 472 (uttering and
passing an altered note). Defendant was convicted by a jury on Counts II and
III and was subsequently sentenced to time served plus a one year term of
supervised release with the special condition that he participate in a substance
abuse program.

Defendant moved for judgment of acquittal or, in the alternative, for new trial.
Both were denied by the district court. Defendant now appeals. The following
issues have been raised before this court: (a) failure by the district court to
conduct voir dire on the subject of racial prejudice; (b) failure by the district
court to give an accomplice instruction to the jury; (c) improper restriction by
the district court of cross-examination on the issue of whether Butler struck a
deal with the government and improper exclusion of certain court records
offered to prove the same; (d) improper reference to a violent crime during the
government's closing argument; and (e) insufficiency of the evidence. We do
not find any of defendant's arguments persuasive.

VOIR DIRE
6

Defendant maintains that he was denied the opportunity of a fair trial because,
during jury selection, the district court refused to conduct voir dire on the issue
of racial prejudice.2 Defendant contends that race was relevant in his case
because he is a young black male whereas all of the government's witnesses and
all of the jurors were white. Under such circumstances, we recognize that voir
dire on the issue of race may be advisable.3 See Ristaino v. Ross, 424 U.S. 589,
597 n. 9, 96 S.Ct. 1017, 1022 n. 9, 47 L.Ed.2d 258 (1976) ("the wiser course
generally is to propound appropriate questions designed to identify racial
prejudice if requested by the defendant"). We do not, however, find that it is
required in this particular case.

Federal Rule of Criminal Procedure 24(a) grants trial judges the authority to

Federal Rule of Criminal Procedure 24(a) grants trial judges the authority to
conduct voir dire. Because voir dire determinations "rely largely on ...
immediate perceptions, federal judges have been accorded ample discretion in
determining how best to conduct the voir dire." Rosales-Lopez v. United States,
451 U.S. 182, 189, 101 S.Ct. 1629, 1634, 68 L.Ed.2d 22 (1981). Generally, a
trial judge need not pursue any specific line of questioning; any method is
sufficient provided it is probative on the issue of impartiality. Ristaino, 424
U.S. at 598, 96 S.Ct. at 1022.

The possibility of racial prejudice, however, raises special concerns. The

Supreme Court has determined that under certain limited circumstances special
voir dire questioning is constitutionally mandated. See Ham v. South Carolina,
409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973) (involving a black civil rights
activist whose defense to a marijuana possession charge was that he had been
framed by local white police); Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683,
90 L.Ed.2d 27 (1986) (involving sentencing of a black defendant who had been
convicted of a capital offense). Ordinarily, however, voir dire need not include
questions regarding racial prejudice. The mere fact that a defendant is black
does not alone trigger the special questioning requirement found in Ham and
Turner. "There is no constitutional presumption of juror bias for or against
members of any particular racial or ethnic groups." Rosales-Lopez, 451 U.S. at
190, 101 S.Ct. at 1635. "Only when there are more substantial indications of
the likelihood of racial or ethnic prejudice" is a trial court required to probe the
issue of racial bias. Id.

We do not find any special circumstances surrounding defendant's case which

indicate that racial prejudice was a motivating factor behind the jury's decision
to convict. Race was not an issue "inextricably bound up with the conduct of
[defendant's] trial" as it was in Ham. Ristaino, 424 U.S. at 597, 96 S.Ct. at
1021. Jury deliberations did not require any unique or highly subjective
determinations as they did in Turner. Turner, 476 U.S. at 33, 106 S.Ct. at 1686.
And interracial violence was not an issue. See Ristaino, 424 U.S. at 598 n. 10,
96 S.Ct. at 1022 n. 10 (noting that the Supreme Court did require, under its
supervisory power, special voir dire questioning in Aldridge v. United States,
283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931), a case involving murder of a
white police officer by a black defendant). In fact, the jury saw fit to acquit
defendant on Count I of the three-count indictment.

10

Absent the need for specific questioning as to racial bias, we find that the voir
dire conducted in this case was sufficient. On the issue of impartiality, Judge
Devine queried: "Do you know of any reason why you may be prejudiced for or
against the Government or the defendant because of the nature of the charges or
otherwise?" Transcript at 1-12. No further questioning was required, although

we reiterate that giving the defendant's requested instruction would have been
more prudent.
ACCOMPLICE INSTRUCTION
11

Defendant's cohort, David Butler, was the government's chief witness and the
only witness who claimed that both "raised" bills were defendant's and that
defendant knew they were altered at the time of the offense. Butler also
claimed that the three genuine but torn bills he exchanged at the bank were
defendant's.

12

"The usual test for determining if a witness is an accomplice for the [purpose of
a cautionary instruction] is whether he is concerned in the commission of the
specific crime with which the Defendant is charged ... or could be indicted or
convicted of the identical offense for which the Defendant is being
prosecuted." United States v. Fortes, 619 F.2d 108, 124 n. 7 (1st Cir.1980)
(quoting United States v. DeCicco, 424 F.2d 531, 532 (5th Cir.1970)). Both
Butler and defendant had been arrested for the same crime and charged with
identical offenses in the state court. As a result, defendant correctly
characterizes Butler as an accomplice whose testimony "ought to [have been]
received with suspicion, and with the very greatest care and caution, and ought
not to [have been] passed upon by the jury under the same rules governing
other and apparently credible witnesses." Crawford v. United States, 212 U.S.
183, 204, 29 S.Ct. 260, 268, 53 L.Ed. 465 (1909).

13

The district court admonished the jury in the following manner regarding
Butler's testimony:

14 have heard ... the testimony of ... David Scott Butler.... The Government is
You
sometimes required to rely on the testimony of those who consort with parties
accused of crime, and witnesses who testified under such circumstances are not
incompetent as witnesses, but their testimony may be received into evidence,
considered by the jury, and given just such weight that the jury feels that the
testimony should receive. The testimony of any witness may be discredited or
impeached by showing that the witness previously made statements which are
inconsistent with the trial testimony of the witness. If a witness is shown to have
testified falsely concerning any material matter, the jury has a right to distrust the
testimony. It is for the jury to give the testimony of any witness just such weight and
credibility as that testimony deserves.
15

Record at 2-46. The court refused, however, over defendant's objection, to

include the phrase "with caution and great care" generally embodied in standard

accomplice instructions. Defendant claims the omission constituted error.

16

This court has repeatedly held that a cautionary instruction is advisable when
the government presents the testimony of an accomplice,4 but the absence
thereof is not ground for automatic reversal. United States v. Olmstead, 832
F.2d 642, 647 (1st Cir.1987), cert. denied, 486 U.S. 1009, 108 S.Ct. 1739, 100
L.Ed.2d 202 (1988); see also United States v. Wright, 573 F.2d 681, 685 (1st
Cir.1977), cert. denied, 436 U.S. 949, 98 S.Ct. 2857, 56 L.Ed.2d 792 (1978);
United States v. House, 471 F.2d 886, 888 (1st Cir.1973). This is especially
true when the testimony in question is generally consistent and credible and is
substantiated by abundant tangible evidence. Wright, 573 F.2d at 685; United
States v. Skandier, 758 F.2d 43, 46 (1st Cir.1985); House, 471 F.2d at 889.
Such was the case at hand. Butler's testimony was short, concise and free of
internal inconsistencies. The story he told did not appear to be incredible.
Moreover, it was corroborated by tangible evidence. Defendant was the first of
the two accomplices to attempt to pass an altered bill at Mamos Market. In
addition, after his arrest, defendant was found with two torn twenty dollar bills
secreted in his rectal cavity. Any error which might have occurred as a result of
the district court's refusal to administer the standard accomplice instruction was
therefore rendered harmless. See, e.g., Olmstead, 832 F.2d at 647.

CROSS-EXAMINATION/EXCLUSION OF EVIDENCE
17

Throughout the trial, defendant sought to portray Butler as a biased witness by

demonstrating that Butler was receiving preferential treatment from the
government. At the time of the Mamos Market incident, Butler had just been
released on probation after having served 120 days for prior unrelated criminal
activity. When defense counsel learned that Butler's probation and release had
not been affected by his actions at Mamos Market (in addition to the fact that he
had not been charged federally for those actions) counsel asked whether Butler
attributed such treatment to the fact that he was testifying for the government
against defendant. Butler responded in the negative. Defense counsel then
tendered the following question, which was not allowed by the district court: "It
didn't hurt any, did it, in your opinion?" Record 1-76.

18

Arresting officer Smith was thereafter called to the stand and questioned
regarding whether Butler had been informed of the possibility of federal felony
charges and the potentially greater sentence attached thereto. Smith responded
in the affirmative;5 however, Smith denied that any deal had been struck
between the government and Butler. Defense counsel then queried: "It became
clear to--in any event to Mr. Butler at that time that if he was charged federally,
he would be facing far more time than if he was faced with a misdemeanor in

state court; correct?" Record at 1-84. The district court did not allow the
question.
19

The day after Butler testified at defendant's trial, state court proceedings against
him were dropped. Defendant offered into evidence certified court records
establishing that fact. By the admission of said records, defendant sought to
show that despite denials by both Butler and Smith of any deal between Butler
and the government, Butler had in fact received a "reward" for his testimony.
The district court rejected the evidence as speculative and irrelevant.

20

Defendant maintains that the district court committed material error on all three
occasions. While we agree that exposure of bias is "always relevant as
discrediting the witness and affecting the weight of his testimony," Delaware v.
Van Arsdall, 475 U.S. 673, 677, 106 S.Ct. 1431, 1434, 89 L.Ed.2d 674 (1986)
(quoting Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d
347 (1974)), we do not agree that the restrictions imposed by the district court
were prejudicial. We address each of defendant's contentions in turn.

Cross-Examination
21

The district court "is given wide discretion in controlling the scope of crossexamination." United States v. Keithan, 751 F.2d 9, 11 (1st Cir.1984).
Reasonable limits may be placed on the method and extent thereof. See Van
Arsdall, 475 U.S. at 679, 106 S.Ct. at 1435. Moreover, even when there has
been an improper denial of cross-examination, reversal is only appropriate "if
the denial appears to have been harmful." United States v. Brown, 603 F.2d
1022, 1026 (1st Cir.1979) (quoting United States v. Honneus, 508 F.2d 566,
572 (1st Cir.1974), cert. denied, 421 U.S. 948, 95 S.Ct. 1677, 44 L.Ed.2d 101
(1975)); see also Crane v. Kentucky, 476 U.S. 683, 691, 106 S.Ct. 2142, 2147,
90 L.Ed.2d 636 (1986) (erroneous trial court rulings on evidentiary matters are
subject to harmless error analysis); Van Arsdall, 475 U.S. at 681, 106 S.Ct. at
1436 ("the Constitution entitles a criminal defendant to a fair trial, not a perfect
one").

22

The question posed to Butler was not improper. See United States v. Towne,
870 F.2d 880, 886 (2d Cir.), cert. denied, 490 U.S. 1101, 109 S.Ct. 2456, 104
L.Ed.2d 1010 (1989) (the mere hope of some future benefit may evidence bias).
Nevertheless, when it became evident that Butler remained resolute in his
denial of any deal with the government, curtailment of defense counsel's
continued questioning on the matter fell within the district court's discretion.
See United States v. Brown, 603 F.2d 1022, 1027 (1st Cir.1979). Even
assuming that the district court erroneously restricted cross-examination, the

error was rendered harmless because defendant's theory regarding a deal

between Butler and the government was manifested to the jury through the
testimony which was allowed. See United States v. Fortes, 619 F.2d 108, 118
(1st Cir.1980) ("The court need not permit unending excursions into each and
every matter touching upon veracity if a reasonably complete picture has
already been developed."). The defense, therefore, cannot show the necessary
prejudice. See Keithan, 751 F.2d at 11.
23

Smith, on the other hand, was not an appropriate witness for the question asked.
Testimony regarding the inchoate state of mind of a defendant does not fall
within the category of allowable opinion testimony by lay witnesses. See
Fed.R.Evid. 701 (the witness' opinion must be based on something the witness
has actually perceived). Thus the district court correctly disallowed that
particular line of questioning.

Exclusion of Evidence
24

Admissibility of evidence falls within the sound discretion of the district court.
Conway v. Electro Switch Corp., 825 F.2d 593, 597 (1st Cir.1987). That
discretion is not unfettered, however. In this particular case, we do not accept
the district court's characterization of the court records as irrelevant. They
clearly went to the issue of bias and tended "to make the existence of [that] fact
... more probable ... than it would [have] been without" it. Fed.R.Evid. 401.
Nevertheless, we do not find that the exclusion of the evidence constituted
reversible error.

25

For the following reasons, we "can say 'with fair assurance ... that the judgment
was not substantially swayed by the error.' " Lataille v. Ponte, 754 F.2d 33, 37
(1st Cir.1985) (quoting United States v. Pisari, 636 F.2d 855, 859 (1st
Cir.1981) (quoting Kotteakos v. United States, 328 U.S. 750, 756, 66 S.Ct.
1239, 1243, 90 L.Ed. 1557 (1946))). First, the jury was well apprised of
defendant's theory regarding a deal between Butler and the government. See
Record at 1-75 and 1-84. Second, although Butler's testimony was important to
the government's case, it was not crucial. The tangible evidence sufficiently
bespoke guilt for defendant to have been convicted on it alone. See infra pp.
1489-90. The error was therefore harmless. Lataille, 754 F.2d at 37.

CLOSING ARGUMENT
26

At trial, defendant maintained his innocence based in part on the fact that, when
approached by the police, he surrendered several of the twenty dollar bills in
his possession and was polite. During closing argument, in an attempt to portray

that defense as absurd, the prosecutor likened it to a child who is found with his
hands in the cookie jar. In addition, he related the following:
27
That's
the reaction that you would expect in these circumstances. Reminds you of
the tale of the man sharpening his knife on the street corner and the policeman says:
What happened here? And he says: Well, I was sharpening my knife and this man
came around the corner and ran into me twelve times.
28

Record at 2-34. Such commentary was allowed by the district court over
defendant's objection. On appeal, defendant maintains that a new trial is
warranted because this "tale" improperly raised the issue of violence with
respect to a non-violent crime, thereby inflaming the jury and robbing him of a
fair trial.

29

The government accepts that the prosecutor's comments were not appropriate in
this particular case. A new trial is not necessary, however. This court has stated,
and the Supreme Court has affirmed, that the harmless error rule applies to
prosecutorial misconduct during closing argument. See United States v.
Hasting, 461 U.S. 499, 506, 103 S.Ct. 1974, 1979, 76 L.Ed.2d 96 (1983);
United States v. Maccini, 721 F.2d 840, 846 (1st Cir.1983). "In deciding
whether a new trial is required--either because prosecutorial misconduct likely
affected a trial's outcome or to deter such misconduct in the future--we consider
'the severity of the misconduct, whether it was deliberate or accidental, the
likely effect of the curative instruction, and the strength of the evidence against
appellant[ ].' " United States v. Cox, 752 F.2d 741, 745 (1st Cir.1985) (quoting
United States v. Capone, 683 F.2d 582, 586 (1st Cir.1982)).

30

We begin by noting that the severity of the misconduct in this case does not rise
to the level of misconduct in previous cases in which the error was found to be
harmless. See United States v. Doe, 860 F.2d 488, 492 (1st Cir.1988)
(prosecutor improperly referred to defendants as "four innocent bastards"), cert.
denied sub nom. Crespo-Herrera v. United States, 490 U.S. 1049, 109 S.Ct.
1961, 104 L.Ed.2d 430 (1989), and cert. denied sub nom. Andrades-Salinas v.
United States, 490 U.S. 1049, 109 S.Ct. 1961, 104 L.Ed.2d 430 (1989); Cox,
752 F.2d at 745 (prosecutor improperly referred to defendants' failure to
testify); United States v. Farnkoff, 535 F.2d 661, 668 (1st Cir.1976) (prosecutor
improperly stated his own opinion concerning defendant's guilt). We next
recognize that violence was not "a continuing theme upon which the prosecutor
played," Capone, 683 F.2d at 586; rather, the improper commentary was an
isolated incident seemingly without malicious intent. Moreover, the jury
received the following instruction: "The opening statements and the closing
arguments which have here been made by the attorney for the Government and

the attorney for the defendant are not evidence." Record at 2-43. That the jury
saw fit to acquit on Count 1 indicates it heeded this instruction and was indeed
"able to separate the wheat of the government's case from the chaff of the
prosecutor's closing arguments." Doe, 860 F.2d at 495. Finally, the hard
evidence against defendant was compelling. See infra pp. 1489-90. Clearly a
new trial is not justified.
SUFFICIENCY OF THE EVIDENCE
31

Defendant maintains that the evidence introduced at trial was insufficient to

prove either that he knew the bill passed at Mamos Market had been altered or
that he was the individual responsible for its alteration. He argues that it is just
as likely the bill was obtained from Butler or from some independent third
party. The facts of the case, however, do not support defendant's argument.

32

We must affirm defendant's conviction "unless the evidence, viewed in the light
most favorable to the government, could not have persuaded any rational trier
of fact of the defendant's guilt beyond a reasonable doubt." United States v.
Gibson, 726 F.2d 869, 872 (1st Cir.), cert. denied, 466 U.S. 960, 104 S.Ct.
2174, 80 L.Ed.2d 557 (1984). "[T]he evidence need not preclude every
reasonable hypothesis inconsistent with guilt.... It is enough that ... a rational
jury could look objectively at the proof and supportably conclude beyond
reasonable doubt that the defendant's guilt ha[s] been established." United
States v. Ingraham, 832 F.2d 229, 239-40 (1st Cir.1987) (citations omitted),
cert. denied, 486 U.S. 1009, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988).

33

Even discounting Butler's controverted testimony, the proof against defendant

was ample. The hard evidence showed that defendant attempted to pass one of
the "raised" notes at Mamos Market and that, after his arrest, he concealed two
torn twenty dollar bills in a highly incriminating manner. From this evidence
alone a reasonable jury could easily have concluded that the torn twenties were
used to create the "raised" bill and therefore that defendant was aware the bill
was altered when he attempted to pass it. See United States v. Santiago, 828
F.2d 866, 870 (1st Cir.1987), cert. denied, 485 U.S. 969, 108 S.Ct. 1244, 99
L.Ed.2d 442 (1988) (it is the role of the jury, having seen and heard the
witnesses, "to determine which of the various proffered interpretations of the
evidence is credible"). Butler's testimony merely strengthened the case against
defendant.

CONCLUSION
34

For the reasons stated herein, the conviction of Kenneth Michael Brown and

the district court order denying his motion for acquittal, or in the alternative
new trial, are affirmed.

The "raised" bills were created by attaching the corners of a genuine twenty
dollar bill to a genuine one dollar bill

Defendant had proposed the following questions to the district court:

Do you feel that you should give the statements of a white man any more
consideration than the statements of a black man or woman?

Do you understand that every individual is entitled to a fair trial and the equal
protection of the laws regardless of that individual's race, social background or
economic status?

Is there anything about Mr. Brown, including his race, that would prevent or
impair your considering his case fairly and impartially?

At oral argument, the government conceded this point

The Supreme Court is likewise of the opinion that it is "the better practice for
courts to caution juries against too much reliance upon the testimony of
accomplices." Holmgren v. United States, 217 U.S. 509, 524-25, 30 S.Ct. 588,
592, 54 L.Ed. 861 (1910)

When asked the same question earlier, Butler had denied having been
instructed on the possibility of federal felony charges