United States v. Shawn Joaquin Smith, AKA "S-Man"

962 F.2d 923, 92 Daily Journal DAR 5520, 92 Cal. Daily Op. Serv. 3500, 1992 U.S. App. LEXIS 7645, 1992 WL 80958
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 24, 1992
Docket89-10649
StatusPublished
Cited by140 cases

This text of 962 F.2d 923 (United States v. Shawn Joaquin Smith, AKA "S-Man") is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Shawn Joaquin Smith, AKA "S-Man", 962 F.2d 923, 92 Daily Journal DAR 5520, 92 Cal. Daily Op. Serv. 3500, 1992 U.S. App. LEXIS 7645, 1992 WL 80958 (9th Cir. 1992).

Opinions

REINHARDT, Circuit Judge:

Shawn Joaquin Smith appeals his conviction for attempted possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and use of a firearm in a drug traffick[926]*926ing crime, in violation of 18 U.S.C. § 924(c)(1). Smith contends, inter alia, that the prosecutor’s improper vouching during closing argument constituted plain error and warrants reversal of his conviction notwithstanding his failure to raise a contemporaneous objection. We agree.

I

In 1988, United States Customs agents together with the Las Vegas Metropolitan Police Department began a sting operation designed to attract prospective buyers of large quantities of narcotics. On December 3, 1988, one of the agents was contacted by Leonard Erivin, who negotiated a preliminary deal for five kilos of cocaine at $14,500 per kilo on behalf of his associates and then gave the agent a telephone number for George Brown. Another member of the undercover team, Detective Davis, contacted Brown and arranged a preliminary meeting at Carrows Restaurant. At the restaurant, Brown informed Davis that he represented another person, whom he identified as his “main man” or “money man”.

On December 5, after obtaining a sample of the cocaine from Davis and Detective Orduno, who posed as the supplier, Brown drove to Lisbon Hall’s house. When Brown arrived at the house, nobody was there. The officer who had followed Brown from the meeting with Davis and Orduno saw Brown drive to a nearby store and place a call. Shortly thereafter, Hall arrived at the house with appellant Smith, and the three men entered the house together. Brown subsequently called Davis and arranged to conduct the cocaine transaction at Carrows Restaurant. The surveillance officer observed Hall and Brown leave the house in Brown’s car with two satchels, later found to contain $71,500. Slightly later, Smith emerged from the house and drove off in the car in which he and Hall had arrived.

When the two vehicles arrived at the restaurant, Smith circled the parking lot two times before parking in a spot halfway between Orduno’s car and the car driven by Hall and Brown. Hall and Brown entered the restaurant, where Brown met with Davis and Orduno. The four men then returned to the parking lot to conduct the transaction. When Hall and Brown handed over the money, Orduno gave a prearranged arrest signal by depressing the brake pedal three times, and surveillance officers placed Brown and Hall under arrest. Simultaneously, other officers arrested Smith. When the officers approached Smith’s vehicle, they observed that he was holding a shotgun across his lap with the muzzle pointed toward the front of the door on the driver’s side. The gun was later found to be loaded.

A grand jury returned a three-count indictment charging Hall, Brown, and Smith with conspiracy to possess a controlled substance with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count I); attempt to possess a controlled substance with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count II); and use of a firearm in a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count III). Brown entered a guilty plea to Counts I and II of the indictment and agreed to testify against Hall and Smith in exchange for a grant of immunity as to Count III.

At trial, Brown testified that when he arrived at Hall's house and found nobody there, he placed a call to Hall’s car phone. Hal] informed Brown that he was on his way to the house and that Smith was with him. During the rendezvous at Hall’s house immediately prior to the final meeting at Carrows, Hall and Brown discussed the upcoming drug transaction and Smith participated in the conversation. At the end of the discussion, according to Brown, Hall told Smith to take the second car to the restaurant and to act as “the heavy in the background” during the transaction. Brown further testified that the shotgun that Smith was holding when he was arrested was taken from Hall’s residence; however, Brown was unclear as to who had removed the shotgun from the house and placed it in the car. Brown also stated that he was not sure whether Smith had any monetary interest in the transaction.

[927]*927During his closing argument, Smith’s counsel attempted to discredit Brown’s testimony by suggesting that Brown had a strong motive for testifying in a way that would help the prosecution:

[L]et me tell you some of the instances where he tried to mislead you. Not the prosecutor. He’s got a job to do. It’s his job to ask the questions. It’s [Brown’s] job to answer them truthfully and he didn’t.
You know nobody made George Brown plead guilty and they didn’t. But I think George Brown came to the realization that he was the guy that made all the deals, that he was an absolute dead, stin-kin’ fish and he knew it.
And I think that you are entitled to assume that his lawyer told him that the only way you’re not going to get the most serious penalty that the law allows is if you plead guilty. Because if you plead guilty then there are certain other benefits you may be entitled to under the new sentencing guidelines, benefits which can drastically and dramatically reduce a sentence. George Brown knew about those things when he came in here to testify.
Now, he also knew that if he got on the witness stand here and he said, no, I don’t know Lisbon Hall. He wasn’t in the restaurant to do any dope deal with me, he was just in there having a sandwich, and he had already as part of his guilty plea pled guilty to this offense, that the United States Government had the option of prosecuting him for perjury. They might have a little more incentive to prosecute him for perjury, mightn’t they, if he fouled up their case on them. Do you think that might be some incentive for him to tell it the way he believes the government wants to hear it? I think so.
But you see there’s been not one scintilla of evidence ... that anyone called Shawn Smith at any time from any telephone.
And what actually — what actually did [Brown] say? First of all we have to recognize that the questions he was asked were propounded by ... the government prosecutor. And it’s the government prosecutor’s and the government’s responsibility to prove the guilt of Shawn Smith beyond a reasonable doubt. And if he’s not satisfied, meaning the prosecutor, if he’s not satisfied with the answer he gets, he can ask other questions to give you more illumination to what the witness has testified.

Smith’s counsel then went on to sum up the evidence for and against Smith.

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962 F.2d 923, 92 Daily Journal DAR 5520, 92 Cal. Daily Op. Serv. 3500, 1992 U.S. App. LEXIS 7645, 1992 WL 80958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-shawn-joaquin-smith-aka-s-man-ca9-1992.