US v. Manor

Filing 920110125

Opinion

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var WPFootnote1 = ' That statute provides in pertinent part:\
\
              It shall be unlawful . . . for any person . . . who has\
been convicted in any court of, a crime punishable by\
imprisonment for a term exceeding one year . . . to ship\
or transport in interstate or foreign commerce, or\
possess in or affecting commerce, any firearm or\
ammunition; or to receive any firearm or ammunition which\
has been shipped or transported in interstate or foreign\
commerce.\
'

var WPFootnote2 = ' "Your Honor," the prosecutor said, \
\
              on direct Officer Caisey testified that he saw Mr.\
Manor\'s face twice before he left the theater. On cross,\
[defense counsel] asked him if he positively identified\
him in the theater . . . . On redirect I cleared it up: \
"Did you see him twice when he left the theater? Is the\
man who left the theater here today?" He said yes to all\
of those questions. I didn\'t go into detail.\
\
(Emphasis ours.) The government, to its credit, concedes that the\
prosecutor did not ask that last question, though his redirect of\
Caisey did point to the same conclusion: noting that he had seen\
Manor\'s face and clothing in the theater, Caisey confirmed that the\
person arrested on Tamworth after the chase – wearing the same\
clothes – was Manor. \
              Manor never objected to the prosecutor\'s sidebar remark, but\
he plays it up now: convinced that he has shown misconduct as to\
the closing, Manor argues that the prosecutor\'s sidebar misstep\
proves his closing misstatement was not an isolated gaffe and thus\
helps satisfy the prejudice component of the prosecutorial-misconduct equation. See generally United States v. De La Paz-Rentas, 613 F.3d 18, 25 n.2 (1st Cir. 2010) (noting that we will\
find reversible error for preserved objections "only if we find\
that the prosecutor\'s remarks were both inappropriate and harmful,"\
and stressing that harm turns "on the totality of the\
circumstances, including the severity of the misconduct, the\
prosecutor\'s purpose in making the statement (i.e., whether the\
statement was willful or inadvertent), the weight of the evidence\
supporting the verdict, jury instructions, and curative\
instructions") (quotations omitted). We doubt that the\
prosecutor\'s sidebar response somehow affected the verdict,\
particularly since it occurred at sidebar, i.e., outside the jury\'s\
earshot. But because we conclude that the prosecutor\'s closing\
was not improper, we need not wrestle with this or any of his other\
prejudice theories (more on that later).\
'

var WPFootnote3 = ' There is a slight wrinkle that needs some smoothing out. \
The district judge denied Manor\'s new-trial motion without comment,\
which leaves us with two options: remand for an explanation or\
tackle the issue directly "if a reasonable basis supporting the\
order is made manifest on the record." United States v. Podolsky,\
158 F.3d 12, 16 (1st Cir. 1998). We pick option two.\
'

var WPFootnote4 = ' Even if we considered Manor\'s late argument forfeited\
instead of waived, see United States v. Rodriguez, 311 F.3d 435,\
437 (1st Cir. 2002) (noting that forfeited issues are reviewable\
for plain error but waived ones ordinarily are not), we would find\
no plain error because (among other things) we see no error to\
begin with. See generally United States v. McElroy, 587 F.3d 73,\
78 (1st Cir. 2009) (discussing the components of the plain-error\
test). We explain next why we see no error.\
'

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