Jоhn Pánico, the defendant-appellant in this case, was tried in the district court on charges of conspiracy to collect debts by extortionate means, 18 U.S.C. § 894 (2000), collecting a debt by such means, id, and using a firearm in aid of a crime of violence, id § 924(c). He was convicted on the first two counts, acquitted on the third, and sentenced to 57 months of imprisonment.
Key evidence at the trial included FBI tape recordings of calls made by or to the victim of the threats, Thomas Andrews. ' In one set, threats were made to Andrews by a man known to Andrews as “Tony G.”; in the others, one Joe Auciello, a friend of Andrews who was the intermediary between Andrews and Tony G., relayed threats purportedly on behalf of Tony G. The government argued thаt “Tony G.” was in fact John Pánico.
Initially, the recordings were offered during the testimony of an FBI agent who identified two of the voices as those of Andrews and Auciellо; but the agent could not identify the third voice. The tapes were admitted subject to later connection, and in due course, two state policemеn identified the third voice as Panico’s; one of the officers had known Pánico from childhood and the other had heard him speak five or six times in the periоd preceding the trial.
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Pánico, who did not object to the authentication of the tapes at trial, argues on appeal that their admission was plаin error. He argues that during the investigation, the FBI asked the two state troopers to identify the third voice as that of Pani-co-rather than, say, merely to identify thе voice.
1
There is no suggestion that the FBI asked the troopers to lie-merely that the FBI’s procedure impermissibly suggested the desired answer and so tainted thе later courtroom identification under
Manson v. Brathwaite,
The admission of the evidence was not error at all, let alone plain error under the
Olano
standard.
United States v. Olano,
Lay witness identification, based on the witness’ prior familiarity with a voice, is a commonplace way in which voices are idеntified. See Fed.R.Evid. 901(b)(5); 5 Wein-stein’s Federal Evidence § 901.06[1] (2005). In this case, both troopers had heard Panico’s voice before; one of them had known him since childhood. There is no indication that either trooper had any incentive to misrepresent; indeed, they were not even responsible for the investigation. And, of course, there were two witnesses — оne bolstering the other.
The more neutral the protocol, the more weight the identification may carry with the jury. But the party seeking to discredit evidence is free to bring out anything that may lessen the weight to be accorded,
Manson,
As it happens, at trial Auciello also identified the third voice as that of Pánico and testified that he (Auciello) was physiсally present with Pánico during one of the recorded calls between Andrews and Tony G. We mention this point last only to emphasize that the troopers’ evidence was independently admissible regardless of Auciel-lo’s independent corroboration, and that there was no error at all under the Manson line of decisions.
Next, Pánico argues that the prosecutor made false and misleading statements to the jury during closing argument, entitling Pánico to a new trial. No objection was made at the time, so the review is for plain error.
United States v. Medina,
The evidence in this case points in one direction. It points in the direction of this man here, the defendant, John Pani- *50 co. And the evidence shows beyond any reasonable doubt that [he’s] guilty as he’s charged.
In particular, I want to talk to you about three different witnesses who have testified during the course of this trial. Because those three witnesses all tell you the same three things. And those three things all show that the defendant is guilty of each of the three charges against him.
So, who were the witnesses? What are the three things they tell you? And what are the three counts that those three things prove?
The three witnesses are Tom Andrews, Joey Auciello and the defendant himself, John Pánico. The three things they tell you-that Tom Andrews owed a gambling dеbt to Joey Auciello and John Pánico. And he didn’t pay that debt. When he didn’t pay that debt, they also tell you that Joey Auciello and John Pánico, together and seрarately, threatened Tom Andrews. And the third [thing] they tell you is that when the threats didn’t work, John Pánico used a gun to try to collect that gambling debt.
Pánico asserts that the description of him as a “witness” was improper both because it was inaccurate — Pánico did not testify at all at the trial — and because it highlighted Panico’s decision not to testify, thereby amounting to a forbidden comment by the prosecutor “on the accused’s silence.”
Griffin v. California,
The prosecutor’s statement was assuredly a rhetorical device, possibly ill-chosen, designed to stress that Panico’s tape-recorded threats were evidence against him and in his own voice — even though not uttered as a trial witness. Certainly, in this short trial, there is no likelihood that the jury would have thought that Pánico had in fact testified as a witness and so been mislеd into thinking that the metaphorical phrasing was literal truth. Thus, the “inaccuracy” charge has little bite.
Paradoxically, Panico’s alternative claim under
Griffin
rests upon an opposite reading,
ie.,
that the reference to Pánico as a “witness” was not а literal inaccuracy, but instead an ironic comment on Panico’s
failure
to testify as a witness. “A prosecutor’s remarks violate a defendant’s Fifth Amendment guarаntee against self-incrimination if ‘in the circumstances of the particular case, the language used was manifestly intended or was of such a charaсter that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.’ ”
United States v. Wilkerson,
The prosecutor here made nо direct reference to Panico’s failure to testify, nor is the “ironic” meaning self-evident; this was not language that a jury would “naturally and necessarily” take to be a forbidden comment. Nothing indicates that the prosecutor “manifestly intended” his closing as a comment on Panico’s failure to testify — an intention that would obviously be improper under Griffin (as well as foolish, since the jury usually notices whether or not the defendant testifies).
If Panico’s counsel had objected, thеre is a reasonable likelihood that the judge would have cautioned the jury, which is one reason why contemporaneous objections are rеquired. That counsel did not object is some indication that neither of the two newly suggested flawed meanings was readily apparent. In all events, the closing — if еrror at all — was a minor slip that was neither “plain” error nor capable of altering the result in the teeth of very strong evidence against Pánico provided *51 by the tapes backed by three voice identifications.
Finally, Pánico says that the case should be remanded for resentencing in light of
United States v. Booker,
The conviction is affirmed, the sentence is vacated and the matter is remanded to the district court for resentencing.
It is so ordered.
Notes
. Just how the identifications were elicited by the FBI during the investigation is not crystal clear. At trial, when asked if he knew he was going in to identify Panico’s voice, the lead trooper replied, "At some point, I guess I did. Yes.”