United States v. Smith

89 F. App'x 494
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 30, 2004
DocketNo. 02-2293
StatusPublished
Cited by2 cases

This text of 89 F. App'x 494 (United States v. Smith) 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. Smith, 89 F. App'x 494 (6th Cir. 2004).

Opinion

ROGERS, Circuit Judge.

Danell Smith appeals his conviction of conspiracy to possess with intent to distribute and to distribute crack cocaine in violation of 21 U.S.C. §§ 841(a) and 846, [496]*496contending that he was denied a fair trial when the prosecutor made an improper closing argument. Smith also appeals his sentence, arguing that his counsel was ineffective for failing to move to adjourn his sentencing until a beneficial guideline amendment went into effect. Because the prosecutor’s argument did not deny Smith a fair trial, we affirm his conviction. We decline to consider Smith’s claim of ineffective assistance of counsel on direct review, as the record has not been sufficiently developed to permit its resolution, and we therefore affirm his sentence.

I. Background

On January 14, 2001, Smith, along with numerous co-defendants, was indicted for conspiring to possess with intent to distribute and to distribute drugs in violation of 21 U.S.C. §§ 841(a) and 846.1 All of Smith’s co-defendants entered guilty pleas, but Smith pled not guilty. Smith’s jury trial commenced on March 27, 2002, and ended on March 29, 2002, when the jury returned a guilty verdict. On October 22, 2002. Smith was sentenced to 188 months’ imprisonment, the bottom of his 188-235 month guideline range. Smith filed a timely notice of appeal.

Smith raises two arguments on appeal. First, Smith claims that he was denied a fair trial when the prosecutor made an improper closing argument, in that the prosecutor allegedly vouched for a witness, implied facts not in evidence, and appealed to jury sympathy. Second, Smith claims that his attorney was ineffective because he failed to ask the court to adjourn sentencing until new sentencing guidelines— under which Smith’s guideline range would be only 97-121 months — came into effect on November 1, 2002.

II. Analysis

A. The prosecutor’s closing argument did not deprive Smith of a fair trial.

Smith’s contention that he was denied a fair trial by statements made by the prosecutor during closing arguments is without merit because the statements complained of were proper. Claims of prosecutorial misconduct are mixed questions of law and fact, which we review de novo. United States v. Tarwater, 308 F.3d 494, 511 (6th Cir.2002). However, because Smith failed to make contemporaneous objections to the allegedly improper arguments. Smith must demonstrate plain error. United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir.1998). To establish plain error, Smith must show (1) there was an error under current law; (2) the error was plain, i.e., clear or obvious; (3) the error affected substantial rights, i.e., it must be prejudicial; and (4) the case warrants the exercise of discretion to correct a plain forfeited error affecting substantial rights if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Rogers, 118 F.3d 466, 471-73 (6th Cir.1997) (citations and quotations omitted).

The Sixth Circuit employs a two-step inquiry in determining whether prosecutorial misconduct warrants a new trial. First, the court considers whether the prosecutor’s remarks were improper. If the remarks were improper, the court must decide whether the impropriety was so flagrant as to warrant reversal. In determining if reversal is warranted, the court must consider “1) whether the statements tended to mislead the jury or prejudice the defendant; 2) whether the state[497]*497ments were isolated or among a series of improper statements; 3) whether the statements were deliberately or accidentally before the jury; and 4) the total strength of the evidence against the accused.” United States v. Green, 305 F.3d 422, 429-30 (6th Cir.2002) (quoting United States v. Francis, 170 F.3d 546, 549-50 (6th Cir.1999).

Smith alleges that three of the prosecutor’s statements relating to the testimony of Willie Robinson, who testified that he had purchased crack cocaine from Smith, were improper. First, Smith contends that the prosecutor improperly suggested that the fact that Robinson was reluctant to testify made his testimony more credible. Second, Smith argues that the prosecutor’s comment about how difficult it was to find crack addicts who had bought drugs from a particular dealer and successfully obtain testimony from them at trial was a reference to facts not in evidence, an improper appeal for sympathy, or both. Finally, Smith contends that the prosecutor’s statement. “That man [Robinson] knew what he was talking about,” was an improper attempt to vouch for Robinson, because the statement suggested that the prosecutor had other evidence bolstering Robinson’s testimony.

First, the prosecutor’s suggestion that the jury should consider Robinson’s reluctance to testify was not improper.2 The trial court properly instructed the jury that, in evaluating each witness’s testimony, the jury could consider whether

the witness had any relationship to either side of the case or anything to gain or lose that might influence the witness’ testimony. Ask yourself if the witness had any biases or prejudice or reason for testifying that might cause the witness to lie or to slant testimony in favor of one side or another.

J.A. at 334.3

Robinson testified that he did not want to testify, that he was only testifying because the government subpoenaed him, that he liked Smith, and that Smith had never tried to cheat him when he bought drugs from Smith. It was not improper for the prosecutor to suggest that the jury consider those facts in evaluating Robinson’s credibility.

Nor were the prosecutor’s comments about the difficulty in obtaining testimony from a crack dealer’s customers improper, because the prosecutor simply asked jurors to use common sense. On rebuttal — in response to defense counsel’s statement taking the government to task for producing only a single witness who allegedly bought crack cocaine from Smith — the prosecutor argued

Do you know how hard it is to find a crack addict on the street who is the customer of a person you have on trial, who you’re able to find and actually get into court by subpoena or otherwise, and then- — and then get them to go up there and admit a crime — you know it’s a crime to be taking crack — without preserving their Fifth Amendment or saying I want a lawyer or anything else? What’s the odds of that?

J.A. at 255. That statement, Smith argues, relied on facts not in evidence and [498]

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Cite This Page — Counsel Stack

Bluebook (online)
89 F. App'x 494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-smith-ca6-2004.