Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit
9-6-1995
United States v Bethancourt Precedential or Non-Precedential:
Docket 94-5670
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Recommended Citation "United States v Bethancourt" (1995). 1995 Decisions. Paper 244. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/244
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
NO. 94-5670 ____________
UNITED STATES OF AMERICA
v.
RODOLFO BETHANCOURT, Appellant ____________
Appeal from the United States District Court for the District of New Jersey D.C. No. 94-cr-25-1
Argued June 16, 1995
Before STAPLETON, MCKEE, and ROSENN, Circuit Judges
Opinion Filed September 6, 1995
JEROME A. BALLAROTTO, ESQUIRE (Argued) BRUCE L. THROCKMORTON, ESQUIRE 143 White Horse Avenue Trenton, NJ 08610 Attorneys for Appellant
FAITH S. HOCHBERG United States Attorney KEVIN MCNULTY, ESQUIRE ALLAN TANANBAUM (Argued) Assistant U.S. Attorney 970 Broad Street Newark, NJ 07102 Attorneys for Appellee
1 ____________
OPINION OF THE COURT
2 ROSENN, Circuit Judge.
A federal grand jury indicted Rodolfo Bethancourt
("Bethancourt") and Reginaldo Haynes ("Haynes")1 for conspiracy
to import more than 500 grams of cocaine into the United States.
After a pretrial hearing, the United States District Court for
the District of New Jersey found that Bethancourt had knowingly
and voluntarily waived his Fifth Amendment rights and concluded
that a confession signed by Bethancourt would be admissible at
trial. The court also concluded that the discovery by the Drug
Enforcement Agency ("DEA") of $18,000 in cash at Bethancourt's
residence would be admissible at trial.
After trial, the jury found the defendant guilty. The
district court then sentenced Bethancourt to 121 months
imprisonment, five years supervised release and a $12,500 fine
pursuant to a total offense level of 32 under the United States
Sentencing Guidelines ("U.S.S.G."). Bethancourt timely appealed,
raising a number of issues relating to his trial and sentencing.2
1 Haynes was found incompetent to stand trial and ordered to undergo psychiatric evaluation. 2 He claims that:
1. The district court abused its discretion by admitting his confession into evidence. 2. The district court abused its discretion by admitting into evidence the fact that the DEA found $18,000 at his residence. 3. The prosecution engaged in misconduct during closing arguments by vouching for government witnesses. 4. The district court erred in enhancing his sentence under U.S.S.G. section D1.1(b)(2) for use of a non-commercial air carrier. 5. The district court erred in enhancing his sentence under U.S.S.G. section 3B1.1(c) for being a leader, organizer, manager, or supervisor.
3 We affirm.
I.
The Government charged Bethancourt and Haynes with
conspiracy to import cocaine into the United States. Because of
his United States military service, Haynes had access to military
aircraft and he and Bethancourt planned that Haynes would obtain
a military flight to Panama. There, Haynes would pick up a kilo
of cocaine from a contact arranged by Bethancourt, return to the
United States, and deliver the cocaine to Bethancourt.
Accordingly, Haynes flew to Panama and obtained the kilogram of
cocaine. He then attempted to board a military aircraft for the
return flight to the United States, but was arrested before
departing.
After his arrest, Haynes cooperated with the
authorities. The DEA flew Haynes back to the United States and
he attempted to set up a meeting with Bethancourt. Initially, he
was unsuccessful, but after several attempts and one aborted
meeting, Haynes met with Bethancourt and delivered a package
containing fake cocaine. The DEA arrested Bethancourt
immediately thereafter. Following his arrest, the DEA advised
Bethancourt of his rights and had him sign a form in which he
consented to the search of his residence and automobile. When
the DEA searched his residence, they found $18,000 in cash under
his bed. None of this is disputed.
6. The district court erred in enhancing his sentence under U.S.S.G. section 3C1.1 for obstructing justice. 7. His conviction violates double jeopardy.
4 The DEA then interrogated Bethancourt. He initially
denied any involvement in the cocaine conspiracy, but eventually
admitted his involvement. After six hours of interrogation, he
signed a typewritten confession detailing the conspiracy. The
district court admitted Bethancourt's confession and the
discovery by the DEA of the $18,000 in cash in his house as
evidence at trial.
Bethancourt appeals the admission of the confession,
evidence of the discovery of $18,000 in cash under his bed, and
the district court's enhancement of his base offense level from
26 to 32. On appeal, he also argues that the prosecution's
rebuttal summation denied him due process and that in face of the
Government's seizure of the $18,000 in cash, this conviction
constitutes double jeopardy.
II.
Bethancourt initially argues that the trial court erred
by determining that he gave his confession voluntarily. This
court applies plenary review to a district court's determination
whether a confession was given voluntarily. Miller v. Fenton, 474
U.S. 104, 115-17 (1985); United States v. Harris, 44 F.3d 1206 (3d Cir.), cert. denied, 63 USLW 3772 (1995). "In determining
whether a confession was voluntary, we must satisfy ourselves
that the confession was the product of an essentially free and
unconstrained choice by its maker, that it was the product of a
rational intellect and a free will, and that the appellant's will
was not overborne." United States v. Swint, 15 F.3d 286, 289 (3d Cir. 1994) (citation omitted). The central question is whether
5 the authorities coerced the defendant's confession; if not, then
the confession is voluntary. Id.
Bethancourt argues that his confession is clearly
involuntary. He contends primarily that he did not actually
"sign" his confession because he affixed a distorted "signature"
to the confession. He maintains that the distorted and false
"signature" demonstrated government coercion. He also asserts
that "[l]ogically, the only conclusion for this distorted
signature is that [he] did not want to voluntarily sign his name
to the document." He contends that "[i]f he openly refused to
sign the statement, the agents would have kept `working' on [him]
in an attempt to obtain the statement that they wanted." His
decision to distort his signature on the confession does not show
DEA coercion; on the contrary, it suggests that Bethancourt
already was planning to circumvent the consequences of his
confession.
Bethancourt testified at trial that he was handcuffed
during the interrogation and that the DEA agents' manner was
threatening. Conversely, the DEA agents who took the confession
testified that Bethancourt was not handcuffed, that they did not
threaten him, and that they gave him a meal during the
interrogation. The trial court concluded that the DEA agents
testified truthfully and that Bethancourt did not. Therefore,
the court adopted the DEA agents' version of the interrogation
and confession. We must do likewise because we will not review a
district court's credibility determination. Government of Virgin Islands v. Gereau, 502 F.2d 914, 921 (3d Cir. 1974), cert.
6 denied, 420 U.S. 909 (1975). In face of the DEA agents' credited
testimony, Bethancourt's distorted signature does not warrant
reversal of the district court's finding that the DEA agents did
not coerce the confession.
The appellant also argues that his confession was
coerced because he did not sign it until nearly six hours after
his interrogation began. However, the DEA agents testified that
Bethancourt confessed to his involvement in the conspiracy after
about two hours of interrogation; typing and verifying the
content of the confession consumed the remainder of the time
before he signed it. The agents further testified that
Bethancourt reviewed the confession and that he made some changes
to it before signing it. Thus, the implication raised by the
defense that Bethancourt signed a government-produced confession
after six hours of badgering is disingenuous. The testimony
credited by the district court showed that the appellant actively
participated in the drafting and correction of his confession. He
admits that he initialed every paragraph and signed each page of
the confession after it was completed; he neither requested the
assistance of an attorney nor complained that he was being
coerced. Except for his testimony on his distorted signature,
Bethancourt does not point to any evidence showing that the DEA
agents forced him to sign an incorrect or coerced confession. We
therefore see no error in the trial court's admission of the
Appellant next argues that the district court abused
its discretion by allowing the Government to testify that it
7 found $18,000 in cash at his home. This court reviews a district
court's admission of evidence for abuse of discretion. United
States v. Pelullo, 964 F.2d 193, 199 (3d Cir. 1992); United
States v. Furst, 886 F.2d 558, 571 (3d Cir. 1989), cert. denied,
493 U.S. 1062 (1990).
Bethancourt contends that reference to the $18,000
found in his home was inadmissible because the Government did not
connect it with the charged offense. Therefore, he argues that
the money was irrelevant in this case. The district court found
that the $18,000 in cash hidden under Bethancourt's bed was
"clearly relevant concerning knowledge, intent and ability to
engage in narcotics transaction." The court also concluded that
"it's axiomatic that evidence concerning the possession or
expenditure of large amounts of currency is admissible where the
defendant is charged with a crime in which pecuniary gains [sic]
is the basic motive."
This court will only find an abuse of discretion "when
the action of the trial judge is clearly contrary to reason and
not justified by the evidence." Vizzini v. Ford Motor Co., 569
F.2d 754, 760 (3d Cir. 1977) (citations omitted). Here, the
trial court held a hearing regarding the admissibility of this
evidence, weighed the contrary arguments and concluded that
testimony concerning the discovery of $18,000 in cash under
Bethancourt's bed was relevant in supporting the Government's
charge. The trial judge's ruling is not "clearly contrary to
reason" and the appellant's argument has no merit.
8 On a more serious note, Bethancourt contends that the
Government "tainted the fairness of the proceedings by vouching
for government witnesses in this case" and thus that his
conviction must be reversed. In considering this issue, we note
that it arises because the defense counsel initially qustioned
the credibility of the government witnesses in his summation to
the jury. Specifically, he challenged the truthfulness of
Special Agent Wagner's testimony relating to the taking of
Bethancourt's toll records and all the other information secured
from his residence. Defense counsel also argued that the
government agents typed up the confession and "they put stuff in
there that [Bethancourt] was never gonna agree to;" and that
faking his signature to the confession "tells you [the jury] that
in no way are they the statements, are they the words, are they
the concepts, or is that the confession of Rodolfo Bethancourt.
It's theirs and they tried to make it his."
Such an argument and direct challenge to the conduct of
the government agents required an appropriate response. The
defense on appeal strenuously argues that the response went far
beyond permissible legal parameters. The prosecution responded
that there was no basis to the defendant's argument, pointing out
the improbability of misbehavior by the government witness. The
prosecution reasoned: "For what, ladies and gentleman? He's
gonna risk his career? He's gonna risk his job? He's gonna risk
going to jail? For what? To lie to you on the stand, ladies and
gentleman? I submit not, ladies and gentleman." The prosecution
also argued that its witnesses "don't make up lies. And they
9 didn't lie here and they're not lying to you, ladies and
gentlemen, when they tell you what they did. And they're not
lying to you when they tell you that defendant, Rodolfo
Bethancourt, talked to them about the statement." The Government
acknowledges that these remarks may have been "ill-advised," but
contends that they were not prejudicial.
Defense counsel made no objection. Therefore, an
appellate court reviews the record for plain error. In order to
be plain error, an error must not only be "obvious," it must also
"have affected the outcome of the District Court proceeding."
United States v. Olano, 113 S. Ct. 1770, 1778-79 (1993). United
States v. Pungitore, 910 F.2d 1084, 1125-26 (3d Cir. 1990), cert.
denied, 500 U.S. 915 (1991). "[W]e may only reverse if we find
an error in the prosecutor's comments so serious as to `undermine
the fundamental fairness of the trial and contribute to a
miscarriage of justice.'" Pungitore, 910 F.2d at 1126.
We do not believe that the prosecution's rebuttal
constituted plain error. Defense counsel, who represented the
defendant at trial and on appeal, impressed us as articulate and
experienced. Yet, at the time of the prosecution's remarks, he
heard nothing in the Government's response warranting any
objection whatsoever. The prosecutor's isolated and marginal
comments in the course of a short rebuttal summation, which
followed an untainted closing summation, did not "undermine the
fundamental fairness of the trial and contribute to a miscarriage
of justice." At most, they were harmless error. Moreover, the
district court gave clear instructions to the jury. The court
10 specifically directed the jury's attention to the testimony of
the law enforcement officers, their credibility, and the weight
to be given it. The court instructed the jurors that they alone
should decide whether witnesses were credible and that the
testimony of a witness is not more or less believable because the
witness is an official.3
We have carefully reviewed the summations of counsel.
In light of the overwhelming evidence against the defendant and
3 The judge charged as follows:
You, the jurors, are the sole judges of the credibility of all witnesses and weight and effect of all evidence.
. . .
It is for you to say whether a witnesses [sic] testimony at this trial is truthful in whole or in part in light of the demeanor, explanations, and all the evidence in the case.
Now, you've heard the testimony of law enforcement officers. The fact that a witness may be employed by the federal government as a law enforcement officer does not mean that his testimony is necessarily deserving of more or less consideration or greater or lesser weight than that of it's ordinary witness. At the same time its quite legitimate for defense counsel to try to attack the credibility of a law enforcement witness on the grounds that his testimony may be colored by a personal or professional interest in the outcome of the case. It is your decision after reviewing all of the evidence whether to accept the testimony of a law enforcement witness and to give that testimony whatever weight, if any, you find it deserves.
11 the instructions of the trial judge to the jurors that they were
the sole judges of the credibility of all witnesses and that the
government witnesses' testimony was not entitled to any greater
consideration because of their federal employment, the
prosecutor's two isolated comments were harmless and did not
contribute to a miscarriage of justice.
Bethancourt next disputes the two point enhancement to
his base offense level under U.S.S.G. section D1.1(b)(2). This
section provides that a court can enhance a defendant's
sentencing level: "If the defendant unlawfully imported or
exported a controlled substance under circumstances in which (A)
an aircraft other than a regularly scheduled commercial air
carrier was used to import or export the controlled substance."
This court reviews a district court's finding of fact
supporting an upward adjustment to a sentencing level for clear
error, but applies plenary review to a district court's
construction of the U.S.S.G. United States v. Hillstrom, 988 F.2d
448, 450 (3d Cir. 1993); United States v. Dixon, 982 F.2d 116,
119 (3d Cir. 1992), cert. denied, 113 S.Ct. 2371 (1993); United States v. Badaracco, 954 F.2d 928, 933 (3d Cir. 1992).
The appellant contends first that the language "[i]f
the defendant unlawfully imported or exported" in section
D1.1(b)(2) shows that this section only applies to the person
actually transporting the drugs into this country and not to a
recipient of the drugs. The accuracy of this reading is
irrelevant, however, because the jury convicted the defendant of
conspiracy to import cocaine and he is liable for all the
12 foreseeable acts of his co-conspirator in furtherance of the
conspiracy. United States v. Price, 13 F.3d 711, 732 (3d Cir.),
cert. denied, 114 S. Ct. 1863 (1994); United States v. Collado,
975 F.2d 985, 997-98 (3d Cir. 1992); United States v. Carter, 576
F.2d 1061, 1064 (3d Cir. 1978).
Furthermore, Bethancourt argues that U.S.S.G. section
D1.1(b)(2) does not apply to him in this case, even if the
relevant conduct of a co-conspirator can trigger it, because
Haynes' use of a military aircraft was not foreseeable or in
furtherance of the conspiracy.
He cannot show, however, that Haynes' use of a military
aircraft was unforeseeable or that it was outside the scope of
his agreement with the conspiracy. Bethancourt knew that Haynes
was going to Panama on a military aircraft; it was certainly
foreseeable that Haynes would return on one as well.
Additionally, Haynes' use of a military aircraft is clearly in
furtherance of the cocaine conspiracy because it was an integral
part of the plan to import cocaine into the United States.
Therefore, the district court did not err when it enhanced
appellant's sentence under U.S.S.G. section D1.1(b)(2).
his base offense level under U.S.S.G. section 3B1.1(c). This
section provides that: "Based upon the defendant's role in the
offense, increase the offense level as follows: . . . (c) If the
defendant was a leader, organizer, manager, or supervisor in any
criminal activity . . . increase by 2 levels."
13 Bethancourt correctly notes that a 3B1.1(c) enhancement
is only appropriate if the defendant directed and controlled at
least one individual. United States v. King, 21 F.3d 1302, 1305
(3d Cir. 1994); United States v. Katora, 981 F.2d 1398, 1402 (3d
Cir. 1992). He argues that he exercised no control over Haynes,
that in fact Haynes controlled him and that "there is simply no
evidence to support the argument that [he] had control over
anyone."
The Government responds with a long list of evidence
contravening this contention. First, the telephone conversations
between Haynes and Bethancourt concerned only Haynes delivering
the cocaine to Bethancourt; it did not involve splitting profits
derived from the cocaine sale or selling the cocaine jointly.
Second, Bethancourt arranged for his contacts in Panama to supply
Haynes with a kilo of cocaine. Finally, Haynes testified that
Bethancourt was to pay him $500 for his services as a courier.
The court found Haynes' statement to be credible.4
These facts provide the preponderance of the evidence
necessary to justify an upward enhancement in appellant's
sentencing level as a "leader, organizer, manager, or
supervisor." See Badaracco, 954 F.2d at 935. We reject
Bethancourt's argument that the district court improperly
enhanced his sentence under U.S.S.G. section 3B1.1(c).
4 Determining the credibility of witnesses is uniquely within the province of the trial court and this court will not review this determination. Gereau, 502 F.2d at 921.
14 Next, appellant attacks the two point enhancement of
his sentence under U.S.S.G. section 3C1.1. This section provides
that: "If the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice
during the investigation, prosecution, or sentencing of the
instant offense, increase the offense level by 2 levels."
Bethancourt correctly notes that the defendant must
"wilfully" attempt to obstruct justice before the two point
enhancement applies. United States v. Shirk, 981 F.2d 1382, 1397
(3d Cir. 1992); United States v. Belletiere, 971 F.2d 961, 965
(3d Cir. 1992). He does not, however, even attempt to show that
the district court erred when it found that he intentionally gave
materially false testimony. The court concluded that Bethancourt
intentionally lied in an attempt to exclude a valid confession
and that this was an attempt to obstruct justice. The court
properly held that offering perjured testimony is an attempt to
obstruct justice. See U.S.S.G. section 3C1.1 Application Note
3(b). Therefore, Bethancourt's contention that the trial court
improperly enhanced his sentence for obstruction of justice has
no merit.
Finally, Bethancourt argues that his criminal
conviction violates double jeopardy because the Government seized
the $18,000 which it found under his bed. This issue is raised
for the first time on appeal and therefore has been waived.
United States v. Becker, 892 F.2d 265, 267-68 (3d Cir. 1989). In any case, the double jeopardy argument is meritless.
The Government notes that the $18,000 was not seized through a
15 court proceeding, but rather administratively by the DEA.
Therefore, the seizure of the $18,000 is not relevant to the
criminal sentence before this court because the seizure was not
the result of any judicial direction or proceeding.
III.
In summary, we perceive no error in any of the district
court's evidentiary rulings or any denial of due process by the
prosecution's closing rebuttal summation. Moreover, the
appellant has not drawn our attention to any judicial proceeding
forfeiting the $18,000 discovered at his home. Thus, there is no
basis for his double jeopardy argument. Finally, we see no error
in the court's sentencing decisions.
Accordingly, the judgment of conviction and sentence of
the district court will be affirmed.
16 United States of America v. Rodolfo Bethancourt NO. 94-5670
McKEE, Circuit Judge, concurring in part and dissenting in part.
I concur with the majority opinion except insofar as
the majority concludes that the prosecutor's remarks do not
constitute prejudicial plain error.
As my colleagues point out, the government concedes
that the challenged portion of the prosecution's rebuttal
summation was "ill-advised." Indeed, it was more. It was
unethical, unnecessary, and I believe it raises doubts about the
very verdict it sought to compel.
Failure to object to improprieties in a closing
argument precludes appellate review in all cases except where
`plain error' is established. United States v. Lawson, 337 F.2d
800, 807 (3d Cir. 1964), cert. denied, 380 U.S. 919 (1965). We
must "correct a plain forfeited error affecting substantial
rights, if the error `seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings.'" United States v. Olano, 113 S. Ct. 1770, 1779 (1993) (quoting United States v.
Atikinson, 297 U.S. 157, 160 (1936)). See FED. R. CRIM. P. 52(b).
The error here affects all three.
During his rebuttal address to the jury, Assistant
United States Attorney John P. Suarez, the prosecutor here,
responded to an attack upon a government agent's credibility by
arguing as follows to the jury: "[f]or what, ladies and
gentlemen? He's gonna risk his career? He's gonna risk his job?
17 He's gonna risk going to jail? For what? To lie to you on the
stand, ladies and gentlemen? I submit not, ladies and
gentlemen." That argument was forceful, responsive, and
absolutely proper. Mr. Suarez was asking the jury to reach a
common sense conclusion that the agent had too much to lose to
commit perjury merely to convict this defendant. It was the kind
of effective and logical response to an attack on an agent's
credibility that has been made in countless numbers of closing
arguments, and will be made in countless more.
However, Mr. Suarez was not content to let well enough
alone. He insisted upon gilding the lily. Having made his point,
he marched forward and assured the jury that government witnesses
"don't make up lies. And they didn't lie here and they're not
lying to you . . . when they tell you what they did. And they're
not lying to you when they tell you that defendant, Rudolfo [sic]
Bethancourt, talked to them about that statement." That argument
contains two serious improprieties. First, the prosecutor is, in
no uncertain terms, telling the jury as a matter of fact that the
particular witness didn't lie. Second, and I think even worse, he
is telling the jury that government witnesses don't lie as a
matter of policy.
In his opening statement, the defense counsel attacked
the credibility of government witnesses as follows: You're going to hear the evidence and you're going to decide whether or not what they say happened happened . . . . But I ask you, as the evidence comes in, listen very carefully and determine whether or not you accept what's on these transcripts
18 as being the evidence in this case because only you can make that determination. . . . Listen to the evidence. All right? Just listen to the evidence. Don't jump to any conclusions here . . . .
Supp. App. at 58-63. Obviously, if the defendant was going to
put on a defense, the defense attorney had to attack the
credibility of the agent who took the defendant's statement. In
his closing, defense counsel attempted to raise a reasonable
doubt about the authenticity of the defendant's statement: Is it reasonable for you to believe that because his signature that was contained on that statement was not his real signature but it was a fake, it was a disguise, what do you think happened? I'm gonna suggest to you what you know from your common sense happened here. They typed this stuff up, they put stuff in there that he was never gonna agree to and they wouldn't leave him alone. He was there for six hours. It's now midnight. How did he get out of that room with these agents and get to go to jail which was probably a better place than sitting with them in that room even though he got a chicken sandwich? You know what he did, yeah, okay. And he forged his signature. He faked it. What does that tell you? That tells you that in no way are they the statements, are they the words, are they the concepts, or is that the confession of Rudolfo [sic] Bethancourt. It's theirs and they tried to make it his. This is not a strange concept in the world. This kind of attempts to put one thing on paper and get somebody else to agree with it by signing their name too it. This is an old story. That's how he got out of that room. And that's why Gus Lesnevich is so clear to you that if Bethancourt wrote that on there it's an intentional disguise. You take it from there.
Supp. App. at 497-98 (emphasis added).
19 The defense counsel sought to have the jury draw
certain conclusions from the testimony, and their own common
sense. That was entirely proper. Yet, even if the defense
attorney's argument had been improper, it does not justify the
kind of response that occurred here. The defense attack on the
credibility of the government agent called for an appropriate and
reasoned response. Mr. Suarez's rebuttal was neither. Over thirty
years ago this court stated: A United States attorney in a criminal case has an even greater responsibility than counsel for an individual client. For the purpose of the individual case he represents the great authority of the United States and he must exercise that responsibility with the circumspection and dignity the occasion calls for. His case must rest on evidence, not epithet. If his case is a sound one his evidence is enough; if it is not sound, he should not resort to epithet to give it a false appearance of strength.
United States v. Kravitz, 281 F.2d 581, 587 (3d Cir. 1960), cert.
denied, 364 U.S. 941 (1961) (emphasis added).
When Mr. Suarez assured the jury that government agents
"don't make up lies," and that they were not lying when they testified in this case, there is no doubt that he was asserting
his personal opinion to the jury and, even worse, guaranteeing
that the United States does not allow its witnesses to lie. My
colleagues state: We do not believe that the prosecution's rebuttal constituted plain error. Defense counsel, who represented the defendant at trial and on appeal, impressed us as articulate and experienced. Yet, at the time of the prosecution's remarks, he heard nothing in the Government's response warranting any objection whatsoever. The
20 prosecutor's isolated and marginal comments in the course of a short rebuttal summation, which followed an untainted closing summation, did not 'undermine the fundamental fairness of the trial and contribute to a miscarriage of justice.' At most they were harmless error.
Majority opinion at 9-10 (footnote omitted).
Over twenty years ago we addressed the problem of
prosecutorial indiscretion in closing statements. We were
obliged to "consider such errors because of their recurrence in
criminal trials and the consequent importance of emphasizing the
impropriety of such practices by prosecuting officers. " United States v. LeFevre, 483 F.2d 477, 478 (3d Cir. 1973) (Seitz, J.).
We explained that "[w]e recognize the line between permissible
and impermissible comment is a thin one, and precision of
expression can be difficult. Nevertheless, we strongly
disapprove expressions of personal opinion by prosecutors on
credibility and guilt." Id. Although we did not find the
comments at issue in LeFevre to be sufficiently prejudicial to
constitute reversible error, we were careful to "emphasize that
the trial judge should be alert to each of these deviations from
professional norms. Since such comments have the clear potential
of adversely affecting the defendant's right to a fair trial, the
judge should take prompt action to correct them without relying
upon defense counsel to object." Id. at 480. Soon thereafter in
United States v. Homer, 545 F.2d 864 (3d Cir. 1976) (per curiam),
cert. denied, 431 U.S. 954 (1977), we deemed it necessary to
again comment upon the "rash and inappropriate" remarks of
21 prosecutors during closing arguments. In Homer, the court issued
the following scolding: "[i]n recent years we have had the
occasion to admonish counsel for thoughtless and inappropriate
remarks made in the course of heated and vigorously contested
trials. . . . [T]he comments are so grossly improper as to
prejudice a defendant and deny him a fair trial." Id. at 867.
We have repeatedly had to address this problem. See
United States v. Reilly, 33 F.3d 1396, 1421-23 (3d Cir. 1994);
United States v. DiLoreto, 888 F.2d 996, 999-1000 (3d Cir. 1989);
Government of the Virgin Islands v. Joseph, 770 F.2d 343, 348-51
(3d Cir. 1985); United States v. DiPasquale, 740 F.2d 1282, 1296-
97 (3d Cir. 1984); United States v. Scarfo, 685 F.2d 842, 848-49
(3d Cir. 1982); United States v. Gallagher, 576 F.2d 1028, 1041-
43 (3d Cir. 1978); United States v. Homer, 545 F.2d 864, 867-68
(3d Cir. 1976); United States v. Somers, 496 F.2d 723, 739-41 (3d
Cir. 1974); United States v. Schartner, 426 F.2d 470, 477-80
(1970). Even though we held in each of these cases except
Schartner that the particular statement did not constitute
reversible error, this history demonstrates that our oft repeated
refrain as to the impropriety and danger of such argument is
falling upon deaf ears.
Moreover, we recently addressed a rebuttal that was
nearly identical to the one before us here. In United States v. DiLoreto, 888 F.2d 996 (3d Cir. 1989), the prosecutor told a
jury, "[w]e don't take liars. We don't put liars on the stand. We don't do that." Id. at 999 (emphasis in original). We
22 analyzed the likely effect of such a statement upon the jury's
deliberations as follows: The remarks are better understood as meaning that the government, as a matter of policy in the prosecution of its cases, does not use liars as witnesses. No explanation was given, however, of how the government ascertains the honesty or veracity of its witnesses. Indeed, we have found nothing in the record upon which the prosecutor could have grounded his statement. . . . What the jury was lead to do instead was merely to infer that other information existed which the government used to verify the credibility of its witnesses prior to introducing their testimonies at trial. . . .
The possibility that the jury engaged in such deductive reasoning, prompted by the government's vouching of its witnesses, especially in light of the crucial nature of the witnesses' credibility here, clearly jeopardized the defendants' right to be tried solely on the basis of the evidence presented at trial.
Id. at 999-1000. Although this court subsequently decided that
the per se reversal rule of DiLoreto could not stand under United
States v. Young, 470 U.S. 1, 11-12 (1985), the analysis of the
impact of the closing remains valid.5
Furthermore, our sister courts of appeals have also met
with difficulty in stopping such abuse. In United States v.
Maccini, 721 F.2d 840, 846 (1st Cir. 1983), the court stated:
That despite our consistent warnings to the Government we should still be called upon to admonish against such conduct is reprehensible per se because it constitutes a
5 See United States v. Zehrbach, 47 F.3d 1252 (3d Cir.) cert. denied, 115 S. Ct. 1699 (1995).
23 disregard to our directives. But additionally it is particularly pernicious because it results in an unnecessary waste of judicial resources, both at the trial and appellate level, by diversion and attention to review of what by now should be understood to be totally unacceptable conduct by those who lay claim to representing the Government of the United States.
Similarly, the Court of Appeals for the Second Circuit has noted:
"[a] few injudicious words uttered in the heat of battle by an
Assistant United States Attorney may undo months of preparation
by police, prosecutorial, and judicial officers." United States
v. White, 486 F.2d 204, 204 (2d Cir. 1973). See also United
States v. Modica, 663 F.2d 1173, 1182-83 (2d Cir. 1981) ("This
Court, in particular, has repeatedly expressed frustration at the
regular appearance on its docket of cases in which prosecutors
have delivered improper summations."); United States v. Drummond,
481 F.2d 62, 64 (2d Cir. 1973) (reversing conviction following
the third appeal involving improper summations by the same
prosecutor).
Here, given the effect that the rebuttal may well have
had upon the jury's deliberations, see DiLoreto, supra, and the
serious and repeated nature of this type of transgression, I do
not believe that the error was harmless, even despite the defense
attorney's failure to object, and the curative instruction given
by the attentive trial judge. See Fed R. Crim. P. 52(a). ("Any
error, defect, irregularity or variance which does not affect
substantial rights shall be disregarded.")
24 As noted above, I find our analysis of the nearly
identical statements in DiLoreto compelling insofar as we there
discussed the probable effect of such an argument upon the jury's
deliberations. When Mr. Suarez here vouched for the government
agents, (indeed all government witnesses) his comments were not
only prejudicial to Bethancourt, they also undermined the
fairness and integrity of the judicial proceedings. I do not see
how those remarks could have done anything other than corrupt the
deliberations to the point that this defendant could not have
received a fair trial. Moreover, since the prosecutor apparently
felt that the strength of his case required poisoning the
deliberative process, I can not say that the evidence against
this defendant was so "overwhelming" that the remarks were
irrelevant to the determination of guilt. Had the prosecutor
felt that the evidence was so compelling I assume he would not
have felt it necessary to resort to such an improper argument.
The reliability of the outcome of this trial, as well
as the public perception of fairness dictate that we conclude
that this error was not harmless and that it requires a new
trial. The essence of the Government's case was the testimony of
the agents who took the statement from the defendant. Under
those circumstances, the prosecutor's rebuttal can not be
dismissed as harmless error.
Although I continue to believe that Young clearly
prohibits a per se rule of reversal in cases such as this and
DiLoreto, this case would present a strong argument for just such a rule if we were free to establish one. Despite our best
25 efforts, some prosecutors continue to engage in behavior that can
only corrupt the judicial process and undermine the very
investigative and prosecutorial resources they seek to serve.
They apparently do so with little or no concern for the effect of
their actions upon the quality of justice, their positions as
officers of the court, or the real possibility of causing an
erroneous conviction. Yet, we continue to oblige their nonchalant
approach to justice by finding their transgressions to be
harmless.
Because such transgressions poison the deliberative
process, I must respectfully dissent from the reasoning of my
colleagues.