Comments on Current Events In Criminal Law from the Federal Criminal Courts in Texas

May 05, 2008

PROSECUTORIAL MISCONDUCT

Houston Criminal Defense Attorney, John Floyd, Discusses Fifth Circuit Court of Appeals Decision Finding Reversible Plain Error in Improper Statements of Prosecutor.

Prosecutor’s should not make statements of their personal beliefs as to the truth or falsity of testimony, evidence or guilt of the defendant.

More than seven decades ago the United States Supreme Court held that the primary responsibility of a prosecutor in a criminal case is to seek justice. See: Berger v. United States, 295 U.S. 78 (1935). While a prosecutor has a duty to “prosecute with earnestness and vigor,” the Supreme Court instructed that he may not engage in “improper methods calculated to produce a wrongful conviction.” Id., at 88. The test is whether a prosecutor’s methods “so [infects] the trial with unfairness as to make the resulting conviction a denial of due process.” See: Darden v. Wainwright, 477 U.S. 168, 181 (1986). See also: Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) [Darden test first stated]. In applying this due process test, the Supreme Court has said a prosecutor’s comments alone should be viewed in context of the entire trial to determine whether they undermined the fairness of the proceedings, indicating a reluctance to lightly overturn criminal convictions. See: United States v. Young, 470 U.S. 1, 11-12 (1985).

It was against this backdrop that the Fifth Circuit Court of Appeals recently found that government prosecutors in the Southern District of Texas engaged in misconduct to secure the conviction of Apolinar Gracia. See: United States v. Gracia, 2008 U.S. App. LEXIS 6836 (5th Cir. March 31, 2008). More astonishing is the fact that the appeals court reached its determination through the “plain error” rule. Id., at LEXIS 1-2.

In December 2005 Gracia was a passenger in a vehicle driven by Oralia Valenzuela-Montoya that crossed the Brownsville and Matamoros International Bridge from Mexico into Texas. Hidden in a well-concealed compartment in the floor of the gold Chevrolet Impala were 44 packages of cocaine, a total of 50 kilograms, with an estimated street value of $500,000. The Treasury Enforcement Communication System (“TECS”) triggered a “hit” on the vehicle’s license plate number, alerting border patrol agents that car might be carrying illegal narcotics. Agents automatically ushered the vehicle to a “secondary inspection area” where a drug detection dog signaled the presence of narcotics. Id., LEXIS at 2. The Fifth Circuit explained what transpired next:

“Gracia and Valenzuela-Montoya were escorted to separate interview rooms in which they were detained by agents. Some time later, the pair was formally placed under arrest after the discovery of the cocaine. Thereafter, at approximately 3:30 a.m., Agent Richard Perez began questioning Gracia following his waiver of his Miranda rights. At trial, Agent Perez testified that, from the beginning, Gracia agreed to provide the agents with a statement. Although Gracia had continued to deny that he knew the quantity or type of drugs contained in the Impala, he acknowledged he had been stopped and detained on this occasion because of a problem with either cocaine or marijuana in the Impala, and that he was to have received $1,000 for accompanying Valenzuela-Montoya in the Impala when it crossed the B&M Bridge.

“Despite these disclosures by Gracia, Agent Perez believed that Gracia was ‘not being entirely truthful,’ so he had Valenzuela-Montoya brought into Gracia’s interview room. According to Agent Perez, Valenzuela-Montoya urged Gracia ‘to tell the whole truth, so the agents could help him.’ Gracia contends that Valenzuela-Montoya also communicated a message to him through head nods and eye signals, although the agents who were present dispute this account. Valenzuela-Montoya was then removed from Gracia’s interview room.

“According to the agents, Gracia was noticeably moved by Valenzuela-Montoya’s visit, and volunteered that a man named Gerardo or Geraldo had made an arrangement with Gracia to transport the cocaine-laden Impala to Houston once it had cleared the border. Gracia provided details to Agent Perez about the history and method of the smuggling operation in which he had participated. The agents neither obtained a written statement from Gracia nor recorded his utterances. They did seize $1,000 but from Valenzuela-Montoya, not Gracia.” Id., LEXIS at 2-4.

In early 2006 Gracia was indicted in the Southern District of Texas on four counts relating to the cocaine drug smuggling incident: 1) conspiracy to possess with intent to distribute more than 5 kilograms of cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A); 2) possession with intent to distribute more than 5 kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1); 3) conspiracy to import more than 5 kilograms of cocaine in violation of 21 U.S.C. §§ 963, 952(a), and 960(b)(1); and 4) importation of more than 5 kilograms of cocaine in violation of 21 U.S.C. §§ 952(a) and 960(b)(1). Id., LEXIS at 4.

The government put Gracia to trial in March 2006 and he was found guilty on all four counts. The district court sentenced him one year later to concurrent 168-month terms on each of the four counts and concurrent five-year terms of supervised release on each term. Id., LEXIS at 5. Gracia appealed to the Fifth Circuit, basing his appeal on the following three instances of prosecutorial misconduct:

The prosecutor’s references to Valenzuela-Montoya’s guilt.
The prosecutor’s comments on Garcia’s silence in custody and decision not to testify.
The prosecutor’s bolstering of the agents’ testimony during closing argument.

The Fifth Circuit elected to decide only the issue of the prosecutor’s bolstering the agents’ testimony, and to review it so under the plain error rule. The appeals court was forced into the plain error review because Gracia’s defense counsel did not properly object to the error. Counsel raised an objection but not to the witness bolstering issue. The court pointed out that counsel’s “sole objection was thus completely non-topical, viz., unrelated to improper witness bolstering and non-contemporaneous with all but one of the government’s allegedly improper statements.” Id., LEXIS at 6 n.1. See also: United States v. Gallardo-Trapero, 185 F.3d 307, 322 n.7 (5th Cir. 1999) [plain error review applied where defense counsel’s objection was on issue unrelated to matter on appeal].

The Fifth Circuit in certain cases will apply the plain error review to alleged improper prosecutorial comments when there was no trial objection. To obtain such a review the defendant must show the following:

There is an error
It is plain
It affected defendant’s substantial rights

Even after meeting that initial burden, the Fifth Circuit will not reverse a criminal conviction “unless the plain error seriously affected the fairness, integrity, or public reputation of the judicial proceeding.” Id., LEXIS at 6. See also: United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005); United States v. Cotton, 535 U.S. 625, 631 (2002).

In his appeal, Gracia pointed to the following four comments by the prosecutor that bolstered the credibility of the agents who interviewed him:

“The prosecutor expressed his opinion to the jury that the agents were ‘very, very credible’ witnesses.”
“The prosecutor asked the jurors rhetorically whether they thought an agent ‘who has worked as a law enforcement agent for many years, that is his career, that is his chosen life, a man from this area, a man with a family, do you think he would throw all that away by taking this stand and taking an oath and lying to you to get Mr. Gracia’ and whether the agents ‘would put their careers and criminal prosecution on the line for committing the offense of aggravated perjury.’”
“The prosecutor told the jury: ‘I’m going to ask you to respect their efforts as law enforcement officials and to believe the testimony that they offered.’”
“The prosecutor admonished the jurors that, to acquit Gracia, they would have to believe that the agents ‘got out of bed’ on the day they arrested Gracia and decided that this was ‘the day that [they] were going to start [a] conspiracy to wrongfully convict Mr. Gracia.’”

Id., LEXIS at 8.

The first issue the Fifth Circuit had to decide was whether the prosecutor’s comments were an improper “deviation from a legal rule.” Id., LEXIS at 9. Beyond the Supreme Court’s longstanding rule in Berger that a prosecutor should not make a personal assertion about a witness’s credibility, the American Bar Association has cautioned that a “prosecutor should not express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.” See: ABA Criminal Justice Section Standards, Argument to the Jury, Standards 3-5.8; 295 U.S. at 88. See also: United States v. Brown, 451 F.2d 1231, 1236 (5th Cir. 1971) [conviction reversed because prosecutor improperly remarked in closing argument that he thought agent/witness did “a real good job” and “was doing his duty to this country”].

The government conceded its comments cited in 1 and 3 above may have been improper, but, if so, they were “harmless errors.” The Fifth Circuit was not persuaded by this specious argument: “Although the government does not concede that Statements Two and Four were errors, we cannot meaningfully distinguish the prosecutor’s admittedly improper remarks and those that the government does not concede were errors. All four statements urge conviction based not only the objective evidence before the jury or its independent judgment of the witnesses’ credibility, but on something uniquely within the prosecutor’s knowledge.” Id., LEXIS at 11.

Having established that all four comments by the prosecutor constituted errors, the court turned its attention to whether the errors were plain. The government attempted to deflect the court’s attention from examination by arguing the comments should be put in the context of defense counsel’s previous “innuendo” that the agents were less than forthcoming. Id., LEXIS at 12. Acknowledging that the prosecutor’s comments should not be examined in a vacuum and that defense counsel had implied that the agents’ testimony might not have been completely truthful, the appeals court nevertheless concluded:

“ … the context in which each of the prosecutor's improper remarks must be tested is also shaped by his other three improper remarks. Just as we must evaluate the prosecutor's statements in the context of Gracia's earlier attempts to suggest that the agents could be prevaricating, we cannot separately consider each of the prosecutor's erroneous remarks in a framework that excludes his other near-simultaneous, similar attempts to bolster the credibility of the agents. Although we recognize that, ‘in assessing prejudice, occurrences of prosecutorial misconduct ordinarily must be viewed individually,’ the four remarks about which Gracia cries foul occurred within minutes of each other during the prosecutor's rebuttal closing argument. In this instance, the cumulative effect of these proximate comments was greater than the sum of its parts. The prejudicial effect of the prosecutor's statements thus must be weighed in pari materiae. Our analysis would be deficient if we were simply to assess the isolated prejudice resulting from each error standing alone, without temporally and substantively connecting each remark to the prosecutor's witness-bolstering efforts in his rebuttal closing argument.” Id., LEXIS at 16-17.

The final issue the Fifth Circuit had to resolve – whether the prosecutor’s comments affected substantial rights of Garcia – was the most difficult. The government pressed its “harmless error” argument strongly, saying that while the prosecutor’s comments may have been improper and erroneous, they did not so impact Gracia’s substantial rights as to rise to a “reversible plain error.” Id., LEXIS at 18. The appeals court had to carefully weigh through a number of significant factors before reaching the conclusion that there had indeed been a reversible plain error:

“To determine whether the prosecutor's errors affected Gracia's substantial rights, we first examine the effect of the court's cautionary instructions. The district court did help to mitigate the prejudicial effect of the prosecutor's violations somewhat by generically instructing the jury that it was their ‘duty to base [their] verdict solely upon the evidence without sympathy or prejudice,’ that they ‘must consider only the evidence presented during the trial,’ to ‘[r]emember that any statements, objections or arguments made by the lawyers are not evidence . . . ,’ and to remember that ‘[w]hat the lawyers say is not binding . . . .’ ‘We presume that such instructions are followed unless there is an overwhelming probability that the jury will be unable to follow the instruction and there is a strong probability that the effect of the improper statement is devastating.’ Gracia is correct, of course, that the court could have crafted more subjectively detailed instructions geared toward mitigating the prejudicial effect of these particular erroneous remarks, but we do not agree that it is invariably impossible to purge the taint of a prosecutor's prejudicial comments with merely generic cautionary instructions. The generalized instructions the court gave to the jury did serve, if only moderately, to reduce the degree of prejudice of the tainted remarks.

“This brings us to the next element of our consideration, i.e., the strength or weakness of the government's case against the defendant. Even crediting the district court's cautionary instructions, we are convinced that the prosecutor's statements, considered as a whole, prejudicially affected Gracia's substantial rights when viewed in comparison to the dearth of other evidence of Gracia's guilt. Simply put, other than the agents' testimony, there is none. Gracia's alleged confession was neither recorded nor transcribed. The sophisticated hidden compartment containing the drugs beneath the floor of the car would not have been apparent to an unknowing passenger. The $ 1,000 seized by the agents was taken from Valenzuela-Montoya, not from Gracia. Gracia's purported contact in Houston (Gerardo or Geraldo) was never located. Although Gracia did try to make himself gag by putting his fingers down his throat during the early stages of his detention at the B&M Bridge, guilty knowledge cannot be presumed, as the government urges, from such a tertiary circumstantial fact, especially given the fact of Gracia's serious health problems which require frequent dialysis treatments. Neither can guilty knowledge be inferred from the fact that Gracia did not appear surprised or upset when the agents told him that they had discovered drugs in the Impala. Indeed, if Gracia had appeared upset or surprised, the government would likely have urged us to infer guilty knowledge from that, too. The simple reality of this case is that Gracia's conviction turned entirely on the jury's evaluation of the credibility of the agents who interviewed him at the B&M Bridge. Plainly put, absent the jury's crediting of the agents' testimony, Gracia could not have been found guilty beyond a reasonable doubt on the paucity of other evidence.” Id., LEXIS at 19-21 [footnote citations omitted].

The prosecutor’s comments were, to say the least, “imprudent” as stated by the Fifth Circuit. Those comments effectively put the government’s prestige on the line in support of its witnesses. The appeals court stressed that the prosecutor’s four comments were made in “quick succession” and, therefore, had a cumulatively prejudicial impact so much so that they “seriously affected the fairness, integrity, and public reputation of Gracia’s judicial proceeding.” Id., LEXIS at 22.

In reaching its “reversible plain error” conclusion, the Fifth Circuit emphasized that the jury guilt determination made by Gracia’s jury was based exclusively on the jurors’ belief that Gracia had knowledge of the cocaine hidden in the Impala because of the credibility they attached to the agents’ testimony. The government had no other evidence to connect Gracia to the cocaine. For that reason, the Fifth Circuit said “we cannot permit the prosecutor’s remarks to be swept under the rug by the broom of the harmless error doctrine.” Id., LEXIS at 28.

There are several lessons to be drawn from the Gracia decision. First, prosecutors would be served by heeding what the Fifth Circuit called the “ageless wisdom” of Berger:

“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Id., 295 U.S. at 88.

Second, defense attorneys must not only recognize the need to timely object to trial errors but to properly object to them as well. Gracia’s defense was rescued by the Fifth Circuit’s finding that there had been a “reversible plain error.” That finding is the exception rather than the rule. Defense attorneys cannot expect a reviewing court to bail them out with the plain error rule when they fail to adhere to strict rules of evidence.

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