United States v. Rosalba Solivan

937 F.2d 1146, 1991 WL 117404
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 6, 1991
Docket90-5500
StatusPublished
Cited by230 cases

This text of 937 F.2d 1146 (United States v. Rosalba Solivan) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Rosalba Solivan, 937 F.2d 1146, 1991 WL 117404 (6th Cir. 1991).

Opinion

KEITH, Circuit Judge.

Defendant-appellant, Rosalba Solivan (“defendant”) appeals from her March 28, 1990, judgment and sentence resulting from the sale of cocaine. For the following reasons, we REVERSE.

I.

A.

Terry and Lorraine Brown (collectively “the Browns”) became Drug Enforcement Administration (“DEA”) informants in July 1988, subsequent to Terry Brown’s arrest for the purchase of one kilogram of cocaine from Pepe (defendant’s former boyfriend) and defendant on March 8, 1988.

On February 13, 1989, while in custody, the Browns began making a series of DEA controlled, tape recorded, telephone calls to defendant. The first call concerned the delivery of three to five kilograms of cocaine to northern Kentucky and the price of the cocaine. During a subsequent telephone conversation, defendant informed the Browns that the price would be $19,500 per kilogram of cocaine. The series of recorded telephone conversations, which took place over the following weeks, detailed defendant’s involvement in the nar *1148 cotics industry, the problems she encountered locating cocaine, and how she planned to fill the Browns’ order for four kilograms of cocaine.

On March 19, 1989, defendant flew to Cincinnati from Miami to complete the transaction. The Browns met her at the airport and transported her to the Holiday Inn in Covington, Kentucky, where they rented a room. Shortly thereafter, Francisco Gomez (“Gomez”) arrived at the hotel. Gomez had driven the cocaine from the New York City area to Covington. Terry Brown, Gomez and defendant went outside to Gomez’ vehicle, retrieved the four kilograms of cocaine, brought it back to the hotel room, and examined it. DEA agents then entered the hotel room and arrested Gomez and defendant.

B.

On April 12, 1989, defendant and Gomez were indicted on seven counts, including conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846; attempt to distribute cocaine, in violation of 21 U.S.C. § 846; interstate travel to facilitate narcotics activity, in violation of 18 U.S.C. § 1952; and use of a telephone to facilitate narcotics activity, in violation of 21 U.S.C. § 843(b). Gomez pled guilty to all charges on September 11, 1989. Defendant pled not guilty. Her trial commenced September 12, 1989, and concluded September 19, 1989.

At trial, during closing argument, the Assistant United States Attorney (“Assistant U.S. Attorney” or the “prosecutor”) made the following remarks:

[Assistant U.S. Attorney]: What you’re listening to is a wholesale distributor of narcotics, cocaine discuss her business affairs and complain about her busy schedule, the lack of good product and the trouble she’s having getting this stuff up here now. And I’d submit to you, folks, that she’s been caught now. And I’m asking you to tell her and all of the other drug dealers like her — (defense counsel’s objection and Court’s response omitted) — [t]hat we don’t want that stuff in Northern Kentucky and that anybody who brings that stuff in Northern Kentucky and ...
The Court: Don’t continue the comment until I rule on it.
[Defense counsel]: Objection.
[Assistant U.S. Attorney]: Oh, okay. I’m sorry.
The Court: Ready to break off?
[Assistant U.S. Attorney]: Just that, ladies and gentlemen....

Transcript at 767-68 (emphasis added). The court did not immediately admonish the jury, but instead declared a recess. Out of the presence of the jury, the court allowed defense counsel to state his objection to the prosecutor’s comment on closing. Defense counsel at that time also moved for a mistrial based on the prosecutor’s highly prejudicial comments. The court sustained the objection but denied the motion for a mistrial. 1 The court stated *1149 that it would admonish the jury when court resumed, which it did, stating:

At the conclusion ... certain remarks were made in the closing argument of the prosecutor to which the Court has sustained an objection and will admonish you not to consider them. Do not consider any urgings by the prosecutor to send messages to anybody. We’re not here to send messages to anybody. We’re here to try this defendant’s case.
It’s our duty to try — try this defendant’s case based on the evidence in this case and the law in this case and not with concern about anybody else. The Court reiterates its instructions that if the evidence establishes beyond a reasonable doubt that the defendant is guilty of the offense as charged or any of them its your duty to convict. If the United States fails to meet that burden, it’s your duty to acquit. Don’t worry about anybody else or send anybody any messages. We’re concerned with this one case to try [defendant] on the evidence in it.

Transcript at 768.

The jury returned a verdict of guilty on all counts. On March 28, 1990, defendant was sentenced to 151-months imprisonment. Defendant filed a timely notice of appeal on March 28, 1990.

II.

On appeal, defendant argues that, during closing argument, the prosecutor made improper and prejudicial statements which deprived her of a fair trial. Defendant contends that the prosecutor’s argument constitutes reversible error because the resulting prejudice was not cured by the district court’s subsequent admonition to the jury. The prosecutor’s remarks, defendant argues, were prejudicial because they improperly appealed to the community conscience and interest of the jurors in ridding society of drug dealers. The prosecutor counters that its comments, if improper, were cured by the district court’s admonition.

We review the district court’s denial of defendant’s motion for a mistrial for abuse of discretion. See Illinois v. Somerville, 410 U.S. 458, 462-64, 93 S.Ct. 1066, 1069- *1150 70, 35 L.Ed.2d 425 (1973); United States v. Cordell, 924 F.2d 614, 617 (6th Cir.1991) (citing United States v. Levy, 904 F.2d 1026, 1030 (6th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 974, 112 L.Ed.2d 1060 (1991)).

In the case before us, the question of whether the district court abused its discretion in turn depends on whether the conduct of the prosecutor constitutes reversible error. Cf. United States v. Alloway, 397 F.2d 105

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Bluebook (online)
937 F.2d 1146, 1991 WL 117404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rosalba-solivan-ca6-1991.