US v. Lewis
Case Date: 11/14/1994
Court: United States Court of Appeals
Docket No: 93-1819
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UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 93-1819 UNITED STATES, Appellee, v. OTIS DARREN LEWIS, Defendant - Appellant. ____________________ No. 93-1820 UNITED STATES, Appellee, v. MICHAEL STARKS, Defendant - Appellant. ____________________ APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Nathaniel M. Gorton, U.S. District Judge] ___________________ ____________________ Before Torruella, Circuit Judge, _____________ Campbell, Senior Circuit Judge, ____________________ and Boudin, Circuit Judge. _____________ _____________________ William A. Brown, by Appointment of the Court, for appellant ________________ Otis Darren Lewis. James P. Duggan, by Appointment of the Court, for appellant _______________ Michael Starks. Thomas C. Frongillo, Assistant U.S. Attorney, with whom _____________________ Donald K. Stern, United States Attorney, and Michael J. Pelgro, _______________ _________________ Assistant U.S. Attorney, were on brief for appellee. ____________________ November 14, 1994 ____________________ -2- TORRUELLA, Circuit Judge. A federal grand jury ______________ returned a five-count indictment charging Otis Darren Lewis and Michael Starks with (1) being felons-in-possession of firearms, (2) carrying and using firearms during and in relation to a drug trafficking crime, and (3) possession with intent to distribute cocaine base. Following a four day trial, a jury found Lewis and Starks guilty on all counts. The court then sentenced Lewis to serve 322 months in prison. The court sentenced Starks to serve 144 months in prison. Lewis and Starks now appeal their convictions and sentences on various grounds. For the following reasons, we affirm. BACKGROUND BACKGROUND __________ A. Facts A. Facts On Friday, August 14, 1992, a confidential informant telephoned Officer Robert Leedberg of the Brockton Police Department "Gang Unit" on a cellular phone. The informant stated that two men, Otis Darren Lewis ("Lewis") and Michael Starks ("Starks"), were in possession of firearms inside Pete & Mary's Bar, located on the corner of Montello and Franklin Streets in downtown Brockton. Because Officer Leedberg was involved in another case on August 14, 1992, he did not respond to the tip. The confidential informant again telephoned Officer Leedberg on August 15, 1992, at about 11:00 p.m. and then again at 12:20 a.m. on August 16, 1992. The confidential informant told Officer Leedberg that Lewis and Starks were again in - 3 - possession of firearms in Pete & Mary's Bar. He stated that he had seen the firearms and the informant then described to Officer Leedberg how Lewis and Starks were dressed. After obtaining this information, Officer Leedberg and Brockton Police Officers James Smith and Thomas Keating established surveillance in the vicinity of Pete & Mary's Bar. The officers were in an unmarked police cruiser and were dressed in street clothes. During the course of their investigation, Officer Smith left the unmarked police car to conduct surveillance from Montello Auto Sales, a used car lot located directly across the street from the front of Pete & Mary's Bar. Officers Leedberg and Keating remained in the unmarked police cruiser and drove to a surveillance post in a parking lot behind Pete & Mary's Bar. They watched the rear door of the bar from this location. At about 12:35 a.m., the confidential informant arrived in the parking lot behind the bar. Officers Leedberg and Keating met with the informant and observed him enter and later leave the bar. After leaving the bar, the informant conferred with Officer Smith in the used car lot. Officer Smith then called Officers Leedberg and Keating on the radio. After receiving this call, Officers Leedberg and Keating moved their unmarked police cruiser to a position from which they could observe the front of the bar. At about 1:00 a.m., Officer Smith saw Lewis and Starks leave Pete and Mary's Bar, cross Montello Street, and approach a brown Buick parked at the D'Angelo's Sub Shop ("D'Angelo's") parking lot. As Lewis and Starks stood near the brown Buick, - 4 - Officers Leedberg and Keating were rapidly approaching the D'Angelo's parking lot in their unmarked police car. Starks recognized the unmarked police car as a result of a previous encounter with Officers Leedberg and Smith. As Officers Leedberg and Keating advanced, Officer Smith, who was still conducting surveillance from the used car lot adjacent to the D'Angelo's parking lot, observed Starks bend down, place a black object under the Buick, and straighten up. Officer Smith then saw Lewis similarly bend down on the driver's side of the Buick. Officer Leedberg then parked the unmarked police vehicle behind the brown Buick. As Officer Keating exited the car, he saw Starks waiving his hands and approaching the police car. Officer Keating then observed Lewis stand up on the driver's side of the Buick. After exiting the unmarked police car, Officer Leedberg repeatedly shouted, "Police, don't move; keep your hands in sight." Officer Smith then pat-frisked Lewis. Officer Leedberg pat-frisked Starks. Neither officers found any guns or narcotics at this time. On instructions from Officer Smith, Officer Keating then searched the parking lot where the pair had just bent down and stood up. He found a loaded 9 millimeter Beretta pistol and a vial containing 17 pieces of a substance later determined to be "crack cocaine" under the brown Buick. He also found a loaded .45 caliber Star pistol and a vial containing 22 pieces of crack cocaine under a car parked alongside the brown Buick. The police officers then placed Lewis and Starks under arrest. - 5 - B. Procedural History B. Procedural History A federal grand jury returned a five-count indictment charging Lewis and Starks with (1) being felons-in-possession of firearms in violation of 18 U.S.C. 922(g)(1), (2) carrying and using firearms during and in relation to a drug trafficking crime in violation of 18 U.S.C. 924(c); and (3) possession with intent to distribute cocaine base in violation of 21 U.S.C. 841(a)(1). Following the indictment, Lewis and Starks filed a motion to suppress the guns and narcotics which the police had seized on the morning of the arrest as being the fruit of an unlawful search and seizure. The district court denied this motion and admitted the evidence. Following a four day trial, a jury found Lewis and Starks guilty on all counts. The court calculated that, under the sentencing guidelines, the crimes committed by Lewis and Starks amounted to a total offense level of 26. The court determined that Lewis' prior crimes placed him in criminal history category IV and sentenced him to serve 322 months in prison. The court placed Starks in criminal history category III and sentenced him to serve 144 months in prison. Lewis and Starks now appeal various issues connected to their convictions and sentences. DISCUSSION DISCUSSION __________ I. The evidentiary hearing I. The evidentiary hearing Lewis and Starks filed a motion to suppress, contending that the police officers improperly seized the firearms and cocaine. With respect to the motion, Lewis and Starks contend - 6 - that the district court erred by failing to order an evidentiary hearing. As a preliminary matter, we note that the district court is entrusted with deciding whether to hold an evidentiary hearing and we will not overrule the refusal to convene an evidentiary hearing unless the district court is shown to have abused its discretion. United States v. McAndrews, 12 F.3d 273, _____________ _________ 280 (1st Cir. 1993). Lewis and Starks have made no such showing. "[A] criminal defendant has no absolute or presumptive right to insist that the district court take testimony on every motion." United States v. Panitz, 907 F.2d 1267, 1273 (1st Cir. ______________ ______ 1990) (citations omitted). Evidentiary hearings on motions to suppress are required only when a defendant makes a sufficient showing that a warrantless search has occurred. United States v. _____________ Migely, 596 F.2d 511, 513 (1st Cir.), cert. denied, 442 U.S. 943 ______ _____________ (1979). To make this showing "[t]he defendant must allege facts, 'sufficiently definite, specific, detailed, and nonconjectural, to enable the court to conclude that a substantial claim is presented.'" Id. (quoting Cohen v. United States, 378 F.2d 751, __ _____ _____________ 761 (9th Cir.), cert. denied, 389 U.S. 897 (1967). The defendant ____________ must allege facts that, if proven, would entitle him to relief. Migely, 596 F.2d at 513. ______ Lewis and Starks have not shown that they were entitled to an evidentiary hearing. The facts surrounding their arrest were essentially uncontested at the hearing on the motion to suppress. Lewis and Starks were required to allege facts that indicated that the police officer's discovery of the guns and - 7 - cocaine violated the Fourth Amendment. They alleged none. Neither Lewis nor Starks personally swore out any affidavits. The lone affidavit in support of the motion to suppress was prepared by Starks' attorney, who had no first-hand knowledge of the relevant events; it contains only conclusory allegations that the police lacked probable cause or a reasonable articulable suspicion of criminal activity when they arrested Lewis and Starks. In contrast, the government filed detailed affidavits sworn out by Officers Smith and Leedberg in support of its opposition to Lewis' and Starks' motion to suppress. In sum, the affidavit in support of Lewis' and Starks' motion to suppress does not allege facts that are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that a substantial claim is presented. Thus, the district court was completely justified in refusing to hold an evidentiary hearing where the factual matters were essentially uncontested. II. The motion to suppress II. The motion to suppress Lewis and Starks contend that the contraband the police officers confiscated from the parking lot should have been excluded as the fruit of an unlawful, warrantless search. Specifically, Lewis and Starks assert that the police seized them without probable cause immediately after they left Pete & Mary's Bar and that this seizure occurred before the officer allegedly observed them abandon the guns and cocaine. First, we agree with the government that Lewis and - 8 - Starks lacked standing under the Fourth Amendment to challenge the search. Moreover, even assuming arguendo that Lewis and ________ Starks had standing, we find that the search satisfied the requirements of the Fourth Amendment. While we review the district court's findings of fact on a motion to suppress for clear error, we review questions of law de novo. United States v. Zapata, 18 F.3d 971, 975 (1st Cir. _______ _____________ ______ 1994). "This phenomenon sets the stage for a more nuanced statement of appellate practice in Fourth Amendment cases." Id. ___ Though we treat the factual findings with deference, we "[subject] the trial court's ultimate constitutional conclusions to plenary oversight." Id. ___ A. Standing A. Standing The Fourth Amendment's protection against unreasonable searches and seizures extends only to those places and interests in which the defendant has a reasonable expectation of privacy. United States v. Cruz Jim nez, 894 F.2d 1, 5 (1st Cir. 1990) _____________ ____________ (citing Rakas v. Illinois, 439 U.S. 128, 140-50 (1978)). Such an _____ ________ expectation of privacy is a threshold standing requirement that a defendant must establish before a court can proceed with any Fourth Amendment analysis.1 Cruz Jim nez, 894 F.2d at 5 (citing ____________ ____________________ 1 "This inquiry is often referred to as a 'standing' issue, although it is not an inquiry that serves the function of traditional standing doctrine, which is to enable a federal court to determine whether there is such case or controversy that it may take jurisdiction of under Article III." Cruz Jim nez, 894 _____________ F.2d at 5 n.1 (citations omitted). The concept of standing under the Fourth Amendment refers to the defendant's burden of proving a legitimate expectation of privacy as a prerequisite to challenging assertedly unlawful police conduct. United States v. _____________ - 9 - United States v. Salvucci, 448 U.S. 83, 90-91 (1980)). "What the _____________ ________ Fourth Amendment protects is the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile." Hoffa v. United States, 385 U.S. 293, 301 _____ ______________ (1966). "Essentially, . . . to prove a Fourth Amendment violation, [a defendant] must demonstrate not only that he exhibited a subjective expectation of privacy, but also that his expectation was justifiable under the attendant circumstances." Cruz Jim nez, 894 F.2d at 5 (citing United States v. Aguirre, 839 ____________ _____________ _______ F.2d 854, 857 (1st Cir. 1988)). The defendant bears the burden of persuasion on this issue. Cruz Jim nez, 894 F.2d at 5 ____________ (citations omitted). A defendant who fails to demonstrate a sufficiently close connection to the relevant places or objects will not have standing to claim that they were illegally searched or seized. United States v. S nchez, 943 F.2d 110, 113 (1st Cir. 1991); see _____________ _______ ___ also United States v. Pierce, 959 F.2d 1297, 1303 (5th Cir.), ____ _____________ ______ cert. denied, 113 S. Ct. 621 (1992) (holding that a defendant ____________ lacked standing to object to a search because he never at any point during the trial or appeal "attempted to establish, much less prove, any privacy interest in the [contraband]"). Lewis and Starks lacked standing to protest the police officers' search of the parking lot because they failed to assert ____________________ S nchez, 943 F.2d 110, 113 n.1 (1st Cir. 1991). "We therefore _______ use the term 'standing' somewhat imprecisely to refer to this threshold substantive determination." Id. ___ - 10 - any privacy interest in the seized contraband. It may well be that Lewis and Starks had a reasonable expectation of privacy in the contraband, but if so, they failed to assert it in support of their motion to suppress. Neither Lewis nor Starks personally swore out any affidavits with respect to such an expectation. Rather, the lone affidavit in support of their motion to suppress was prepared by Starks' attorney, who had no first-hand knowledge of the relevant events. Moreover, this affidavit contains only conclusory allegations that the police lacked probable cause or a reasonable articulable suspicion of criminal activity when they arrested Lewis and Starks. We appreciate that Lewis and Starks may have feared that any interest they may have claimed in the contraband would be used against them at trial; however, "it has been well settled for over twenty years that testimony given to meet standing requirements cannot be used as direct evidence against the defendant at trial on the question of guilt or innocence." United States v. Garc a-Rosa, 876 F.2d 209, 219 (1st _____________ ___________ Cir. 1989) (citing Simmons v. United States, 390 U.S. 377, 390 _______ _____________ (1968)). Lewis' and Starks' only interest in suppressing the contraband appears to be to avoid its evidentiary force against them; this is not an interest protected by the Fourth Amendment. Although we find that Lewis and Starks lack standing to raise a Fourth Amendment challenge, we note that in any event the search satisfied the Fourth Amendment under the doctrines of abandonment and plain view. - 11 - B. Abandonment B. Abandonment When a defendant abandons property before a "seizure" occurs, the Fourth Amendment is not implicated because the property is not the fruit of an illegal search and seizure. California v. Hodari D., 499 U.S. 621, 629 (1990). An arrest __________ __________ requires "either physical force . . . or, where that is absent, submission to the assertion of authority." Id. at 626 (emphasis ___ in original). The police have made an assertion of authority only if their words and actions would have caused an average citizen to believe he was not free to leave. Id. at 628 (citing ___ United States v. Mendenhall, 446 U.S. 544, 554 (1980)). In ______________ __________ Hodari, a police officer was chasing the defendant and, moments ______ before the officer tackled him, the defendant tossed a rock of cocaine from his person. Id. at 623. The Court held that, ___ "assuming that [the officer's] pursuit . . . constituted a 'show of authority' enjoining [the defendant] to halt, since [he] did not comply with that injunction he was not seized until he was tackled." Id. at 629. Thus, the cocaine abandoned during the ___ course of the chase was not the fruit of a seizure. We follow Hodari and find that, even if the Brockton ______ Police had made a show of force when they approached Lewis and Starks in the D'Angelo's parking lot, Lewis and Starks abandoned the contraband before they submitted to official authority. The district court expressly found that Lewis and Starks bent down and straightened up near the brown Buick before the police announced themselves and then pat-frisked Lewis and Starks. - 12 - Thus, though Lewis and Starks eventually submitted to the police officers, this submission occurred after they had abandoned the contraband. Consequently, the motion to suppress was properly denied under the doctrine of abandonment. - 13 - C. Plain View C. Plain View The "plain view" doctrine allows the police to seize evidence without a warrant so long as (1) the evidence is in "plain view," (2) the police are legitimately on the premises where the evidence is seized, and (3) the evidence is immediately and apparently connected to the criminal activity. Coolidge v. ________ New Hampshire, 443 U.S. 443, 464-73 (1971). _____________ Lewis and Starks do not contest the fact that the guns and cocaine were in plain view and their connection to criminal activity was immediate and apparent when the officers seized them. Rather, Lewis and Starks contend that the police were not legitimately in the parking lot where the evidence was seized. The district court found that the police officers were legitimately in the parking lot and that they had the "reasonable articulable suspicion" necessary to justify an investigatory stop under the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 21 _____ ____ (1968); see also Adams v. Williams, 407 U.S. 143 (1972) (holding ________ _____ ________ that a Terry stop was justified when an informant told a police _____ officer that an individual in a nearby vehicle was carrying drugs and weapons). The record amply supports this conclusion. The district court found that a reliable confidential informant had told the Brockton Police that Lewis and Starks were carrying contraband in Pete & Mary's Bar. Officer Leedberg's affidavit established that the informer had previously provided information that led to the arrest of twelve defendants in seven criminal cases in the Brockton District Court. Further, during the course - 14 - of their surveillance outside Pete & Mary's Bar, the police officers were able to corroborate some portions of the confidential informant's tip. Specifically, the officers were able to verify that the informer had been inside the bar and was thus in a position to see that Lewis and Starks were in possession of firearms. The surveillance also allowed the officers to observe that Lewis and Starks were dressed as the informer had described. Consequently, the informer's tip, coupled with the informer's previous reliability and the corroboration provided by police observations, justified an investigatory stop. Thus, because we agree that the police were legitimately in the parking lot and because the guns and cocaine were in plain view and their connection to criminal activity was apparent, the officers properly seized the evidence. III. The confidential informant's identity III. The confidential informant's identity Lewis and Starks assert that the district court erroneously denied their motion to disclose the identity of the confidential informant. Specifically, they contend that the informant played a material role in their arrest and that his testimony was vital because it pertained to their defense and could "amplify, contradict, or clear up" the Government's evidence. We review the district court's decision not to disclose the identity of a confidential informer under an abuse of discretion standard. See United States v. Jackson, 918 F.2d 236, ___ _____________ _______ 240 (1st Cir. 1990). - 15 - The courts have long recognized that the Government has a "privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law." Roviaro v. United States, 353 _______ _____________ U.S. 53, 59 (1957). "The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation." Id. __ This privilege, however, is not absolute. Id. at 60-61. "Where __ the disclosure of an informer's identity, or the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way." Id. __ The resolution of this issue depends on the particular circumstances of each case. Id. at 62. The trial court must __ balance the public interest in protecting the flow of information against the individual's right to prepare his defense. Id. In __ so doing, it should take into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors. Id. The __ burden is on the defendant to demonstrate that the circumstances demand disclosure; "[mere] speculation . . . is not sufficient to meet the heavy burden which rests on an accused to establish that the identity of a confidential informant is necessary to his - 16 - defense." United States v. Giry, 818 F.2d 120, 130 (1st Cir.), ______________ ____ cert. denied, 484 U.S. 855 (1987) (quoting United States v. _____________ _____________ Skeens, 449 F.2d 1066, 1070 (D.C. Cir. 1971)). Where the ______ informant is a "mere tipster," as opposed to an active participant in the offense charged, disclosure is required only in the exceptional case where it is vital to a fair trial. United States v. Batista-Polanco, 927 F.2d 14, 19 (1st Cir. 1991) _____________ _______________ (citing Giry, 818 F.2d at 130). ____ Lewis and Starks argue that the informant was more than a mere tipster and that his testimony was vital to their defense, in that he provided the police with the information that resulted in their arrest. They imply that the informant may have even "set them up." They list a number of questions that were unanswered due to the district court's refusal to require disclosure of the informant. These include questions concerning the nature of the relationship, if any, between the informer and Lewis and Starks and whether the informer harbored a personal grudge against them. Consequently, they conclude that the informer's absence precluded a fair trial. We disagree. The district court properly refused to order disclosure of the informant's identity. The record indicates that the informant was merely a tipster in the arrest of Lewis and Starks. The informer simply spoke with the police, first by telephone and then in person, to inform them that Lewis and Starks were carrying firearms in Pete & Mary's Bar. The arrest then occurred approximately twenty minutes after the police last spoke with the - 17 - informer. The informer was not present at the scene of the arrest in the parking lot and, thus, was in no position to amplify, contradict, or clear up the testimony of any government witness. Moreover, there is ample evidence to refute any "frame up" theory. Though the informer told the officers that Lewis and Starks would be leaving through the front door of Pete & Mary's Bar, he did not tell them that Lewis and Starks would proceed to the D'Angelo's parking lot. Thus, because he did not tell the police where Lewis and Starks would go upon leaving Pete & Mary's Bar, the informant could not have controlled when or where the arrest would occur. Furthermore, the police officers never saw the informer in the D'Angelo's parking lot. This makes it virtually impossible that the informer planted the contraband, especially in light of the fact that the officers saw Lewis and Starks attempting to hide it. Thus, we find that the district court did not abuse its discretion when it denied the motion to disclose the informer's identity. IV. The missing witness instruction IV. The missing witness instruction Lewis and Starks contend that the district court erred when it refused to issue a missing witness instruction with regard to the confidential informant. Specifically, they argue that the instruction was necessary because the informant was a witness in the government's exclusive control whose testimony would have been relevant and noncumulative. We review the court's refusal to give such an instruction for an abuse of - 18 - discretion. See United States v. St. Michael's Credit Union, 880 ___ _____________ __________________________ F.2d 579, 597 (1st Cir. 1989) (citations omitted). "[T]he failure of a party to produce available evidence that would help decide an issue may justify an inference that the evidence would be unfavorable to the party to whom it is available or [to] whom it would ordinarily be expected to favor." St. Michael's Credit Union, 880 F.2d at 597 (quoting 2 C. Wright, __________________________ Federal Practice and Procedure 489 (1982)). A missing witness _______________________________ instruction is appropriate when its proponent demonstrates that the absent witness would have been (1) "favorably disposed" to testify in the government's behalf, (2) "peculiarly available" to the government, or (3) in the "exclusive control" of the government. United States v. Welch, 15 F.3d 1202, 1214-15 (1st _____________ _____ Cir.), cert. denied, 114 S. Ct. 1863 (1994) (citing St. Michael's ____________ _____________ Credit Union, 880 F.2d at 597). When deciding whether to issue a ____________ missing witness instruction, the judge should consider whether the witness could provide "relevant, noncumulative testimony." See United States v. Ariza-Ibarra, 651 F.2d 2, 16 (1st Cir.), ___ _____________ ____________ cert. denied, 454 U.S. 895 (1981); see also Welch, 15 F.3d 1215 ____________ ________ _____ n.17. In a similar situation, we upheld the district court's refusal to issue a missing witness instruction with regard to an undisclosed confidential informant. United States v. Mart nez, _____________ ________ 922 F.2d 914, 925 (1st Cir. 1991). In Mart nez, the informer had ________ witnessed prior drug transactions in the apartment where the defendants were eventually arrested. However, we found that the - 19 - informer was a mere tipster because he was not present during the drug transaction which constituted the sole basis for the prosecution and thus "was not in a position to amplify, contradict, or clear up any inconsistencies in the government witnesses' testimony . . . ." Id. at 921. We then concluded ___ that a missing witness instruction would have been improper because, as a mere tipster, the informant was unessential to the defendant's right to a fair trial. Id. at 921, 925. ___ Specifically, we held that where "a defendant's right to a fair trial is not jeopardized by the government's refusal to disclose its informant's identity, the exercise of that prerogative can never give rise to a negative inference suggesting that the _____ informant's testimony would have been unfavorable." Id. ___ (emphasis added). We further noted that an adverse inference was especially unjustified when the government's decision not to reveal the identity of its confidential informant was prompted only by its "concern for the informant's safety and anonymity . . . ." Id. ___ We find the reasoning of the Mart nez court to be ________ controlling here. As we concluded above, the informer was a mere tipster whose absence did not jeopardize Lewis' and Starks' right to a fair trial. Per Mart nez, this conclusion renders a missing ________ witness instruction inappropriate. Furthermore, given the violent background of Lewis -- three prior convictions for armed robbery --the government's concern for the informer's safety was justified. Moreover, as in Mart nez, Starks used his summation ________ - 20 - to argue an adverse inference from the absence of the confidential informant. Id. Thus, we find that the district ___ court did not abuse its discretion when it refused to issue the missing witness instruction. V. Cross-examination of Officer Noone V. Cross-examination of Officer Noone Lewis and Starks claim that the district court improperly limited their cross-examination of Officer Noone. As an expert witness for the government, Officer Noone offered testimony regarding the distribution and value of crack cocaine, as well as the use of weapons by alleged dealers of crack cocaine. Lewis and Starks claim that the district court improperly refused to allow them to cross-examine Officer Noone regarding the correct and preferable law-enforcement procedures to be used when investigating and prosecuting a narcotics case. Through this cross-examination, Lewis and Starks were attempting to show that they were the victims of a sloppy and botched investigation. They claim that they were prejudiced by these allegedly improper limits because "the jury was unable to realize the numerous police errors that permeated this case . . . ." We review a district court's limitations on cross- examination for an abuse of discretion. United States v. Twomey, _____________ ______ 806 F.2d 1136, 1139-40 (1st Cir. 1986). "A defendant's right to cross-examine is fundamental and demanding of great respect, Alford v. United States, 282 U.S. 687, 691-92 (1931); however, a ______ _____________ trial judge retains wide latitude to impose reasonable limits in order to avoid prejudice to a party or confusion of the issues." - 21 - Twomey, 806 F.2d at 1139 (citing Delaware v. Van Arsdall, 475 ______ ________ ___________ U.S. 673, 679 (1986)). The district court gave Lewis and Starks wide latitude to impeach Officer Noone's credibility with questions about general investigatory procedures. The court, however, limited Lewis' and Starks' cross-examination when they attempted to elicit testimony on matters that were cumulative, irrelevant, outside the scope of direct, or outside Officer Noone's personal knowledge and expertise. For instance, Officer Noone was not involved in the surveillance and investigation that led to the arrest of Lewis and Starks. Thus, the court was within its discretion when it excluded questions on the actual procedures involved in the present case.2 The court also acted within its discretion when it excluded a question concerning whether it is preferable to use controlled drug buys and electronic surveillance before accusing a defendant of being a drug dealer. Although Officer Noone's knowledge of various police procedures or lack thereof may have been relevant to impeach his credibility as an expert witness, the district court had already given the defendants considerable latitude to accomplish this. Thus, because these procedures were not used in this case, this hypothetical was too far removed from the facts at hand. The court likely decided to cut off this ____________________ 2 These questions included whether the police had made controlled drug buys or had used electronic surveillance during the investigation and how Starks was dressed when he was arrested. - 22 - speculative line of questioning because it was so marginally relevant and because the defense counsel could have proceeded to ask Officer Noone about dozens of procedures that the police could have used in this case, leading to interminable unrelated speculation and confusion. We have carefully reviewed Lewis' and Starks' other specific contentions and find them similarly meritless. - 23 - VI. Prosecutorial misconduct VI. Prosecutorial misconduct A. Comment on the "frame-up" theory A. Comment on the "frame-up" theory Lewis and Starks assert that the government improperly commented on their failure to produce any evidence regarding an alleged "frame up" orchestrated by the confidential informant. Whether the prosecutor's comments were improper is reviewed de novo; whether the misconduct, if any, demands a new trial is reviewed for an abuse of discretion. United States v. Glantz, ______________ ______ 810 F.2d 316, 320 n.2 (1st Cir.), cert. denied, 482 U.S. 929 _____________ (1987). Though it is axiomatic that the government cannot comment on a defendant's failure to take the stand, Griffin v. _______ California, 380 U.S. 609, 615 (1965), "the government is __________ entitled, to some extent, to comment on a defendant's failure to produce evidence supporting the defense theory of the case." Glantz, 810 F.2d at 321 (citing United States v. Savarese, 649 ______ _____________ ________ F.2d 83, 87 (1st Cir. 1981)). In Glantz, the prosecutor remarked ______ that the defendant had failed to produce records supporting its contention that the alleged kickbacks were actually legitimately earned legal fees. Glantz, 810 F.2d at 320-24. We found that ______ the arguments were not such that a jury would naturally and necessarily take them to be comments on the defendant's failure to testify. Rather, the arguments highlighted weaknesses in the defense's theory -- the primary weakness was, in fact, the absence of business records supporting this theory. Id. at 322- ___ 23. Having put forth a theory in defense, a defendant cannot - 24 - expect the government to refrain from commenting on its deficiencies. See id. at 321. ___ ___ Here, Lewis and Starks assert that the government improperly commented on the lack of evidence suggesting that the informer had framed Lewis and Starks by planting the contraband in the parking lot. In closing, the government argued: Now, you heard at the beginning of this case, the very beginning of this case . . . that somebody framed these defendants. That's what was stated to you. Somebody framed the defendants. Now, what are you hearing? You're hearing, well -- first of all, what evidence has there been on that? None. What evidence has come to you wherein you would say, "Yeah, I think they were framed?" Lewis and Starks contend that this was an impermissible comment on their failure to testify. We disagree. Both Lewis and Starks raised the possibility that they had been framed by the confidential informant. Starks raised the "set up" defense in his opening statement. Though Lewis never explicitly asserted it, he insinuated that the confidential informant had indeed planted the contraband.3 Lewis and Starks failed to offer any evidence whatsoever that would even remotely support this theory. Given this, we believe the government's closing statement was a permissible comment on the weakness of the frame-up theory ____________________ 3 This insinuation is most clear in Lewis' cross-examination of Officer Leedberg. When Officer Leedberg stated that he frequently searches informants prior to a "controlled buy," Lewis' counsel asked, "And that's to make sure that the person that you're dealing with [the informant] is not planting contraband on the people you're going to arrest, is that right, sir?" - 25 - alleged by the defense and did not constitute prosecutorial misconduct. - 26 - B. The "paid informant" issue B. The "paid informant" issue Starks contends that the government improperly undermined his counsel's credibility when the government demonstrated at trial that the informant was not a paid informant after the government had previously represented to Starks that he was a paid informant. In a pretrial conference, the government stated that it "believe[d] . . . the Brockton Police do not have the confidential informant signed up as a paid, working informant; that on occasion they give him a few bucks here and there and he provides . . . information to the Brockton Police." Starks asserts that his counsel relied on this statement in preparing his trial strategy. Apparently, Starks intended to demonstrate that the informant had a monetary incentive to "produce" criminals for the police. Starks claims that the government undermined his credibility and, indeed, his entire trial strategy, when it elicited testimony from Brockton Police officers that these officers had never paid the informant and that they were not aware that any other law enforcement personnel had made such payments. As a preliminary matter, we note that Starks failed to raise this objection at trial in a specific and timely manner; he neither objected nor moved for a mistrial or new trial -- rather, he merely raised some vague concerns in a sidebar conference. Consequently, we must review for plain error. Fed. R. Crim. P. 52(b); see also United States v. Romero, 1994 WL 456857, *10 (1st ________ _____________ ______ Cir.). - 27 - We will find plain error only when (1) there is an "error," (2) that is "clear" or "obvious" and (3) that affects "substantial rights." United States v. Olano, 113 S. Ct. 1770, ______________ _____ 1776-77 (1993); United States v. Col n-Pag n, 1 F.3d 80, 81 (1st _____________ ___________ Cir. 1993). In this case, there is no error, much less plain error. Starks fails to express any legal theory which supports his claim that he was denied a fair trial. Consequently, per standard appellate procedure, we are tempted to deem it waived. United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. ______________ _______ _____ denied, 494 U.S. 1082 (1990). As we have previously noted, "[i]t ______ is not enough to mention an argument in the most skeletal way, leaving the court to do the counsel's work, create the ossature for the argument, and put flesh on its bones." Id. Moreover, ___ and more importantly, Starks' argument is factually infirm. While Starks contends that his trial strategy was to discredit the informant by demonstrating that he had a monetary incentive, he neglected to pursue this theory during his cross-examination of all the police officers who took the stand. Not only does this undermine Starks' contention that this was his trial strategy, it also demonstrates that the government's pretrial statements might have been factually accurate. The government stated that Brockton Police occasionally gave the informant "a few bucks here and there." Thus, by failing to explore this line of questioning thoroughly, Starks did not demonstrate that the - 28 - government's pretrial statement was indeed false.4 In sum, we find that Starks has asserted no factual or legal proposition that satisfies the plain error standard. VII. Admission of the photographs VII. Admission of the photographs Lewis and Starks assert that the district court improperly admitted an "unduly suggestive array of photographs." Over objection, the court admitted a folder consisting of Lewis' and Starks' booking photographs stapled alongside photographs of the guns and cocaine discovered near them. Lewis and Starks contend, and with some merit, we think, that the array of photographs was unfairly prejudicial because it suggested an as- yet unproven connection between them and the contraband. That is, the arrays depicted the ultimate legal conclusion, that Lewis and Starks possessed cocaine and firearms, that was the government's burden to prove. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. Relevant evidence is generally admissible. Fed. R. Evid. 402. However, a judge may exclude otherwise relevant evidence if "its probative value is substantially outweighed by the danger of unfair prejudice . . . ." Fed. R. Evid. 403. We review a trial court's ____________________ 4 Moreover, we note that this was merely a statement of belief by the government. Starks never stated that he intended to rely on it; further, he did not attempt to confirm it with pretrial discovery. In short, Starks did very little to shore up what he claims was his primary trial strategy. - 29 - Rule 401/403 balancing test for an abuse of discretion, and only in "extraordinarily compelling circumstances" will we reverse a district court's "on-the-spot judgment" concerning the probative value and unfair effect of the proffered evidence. United States _____________ v. Rodr guez-Estrada, 877 F.2d 153, 155-56 (1st Cir. 1989). _________________ While we are concerned with the government's trial tactic, we find that the error, if any, was harmless in light of the strong case presented by the government.5 United States v. Ruiz- ______________ _____ Batista, 956 F.2d 351, 352-53 & n.2 (1st Cir.), cert. denied, 113 _______ ____________ S. Ct. 105 (1992) (noting that reversal is inappropriate where other evidence of guilt renders an evidentiary error harmless). Here, the photos were relevant. They show the condition of the evidence when it was recovered. However, we do not conclude whether the danger of unfair prejudice presented by the photographic array substantially outweighed its probative value because the error, if any, in admitting the array was ultimately harmless. The array may have prematurely connected Lewis and Starks to the contraband. However, the jury was informed of how the array was compiled. Thus, it could not have concluded that Lewis and Starks possessed the contraband simply because their photographs were stapled alongside photographs of the contraband. Further, the government eventually presented ____________________ 5 We think that prosecutors ought to bear in mind that where, as here, the government has a strong case, such arguably prejudicial tactics do not help the government but do create the risk that sufficiently egregious conduct will constitute grounds for reversal. Conversely, where the case is a close one, error will not be deemed harmless and the conviction will be reversed. - 30 - overwhelming evidence to connect Lewis and Starks to the guns and cocaine depicted in the array. Lewis and Starks were standing alongside the vehicles under which the police found the contraband. Moreover, Officer Smith testified that, moments before the arrest, he saw both Lewis and Starks make furtive movements as if they were attempting to hide something under the vehicles. Consequently, we do not find any reversible error. VIII. Failure to produce exculpatory evidence VIII. Failure to produce exculpatory evidence Lewis and Starks contend that the Brockton Police Department mishandled their case in so severe a fashion that they were denied a fair trial. Specifically, they allege (1) that they were denied access to possibly exculpatory evidence when the Brockton Police erased audio tapes of the |