IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________________________________
No. 92-1260 __________________________________________
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
ROBERT LYNN CASEL, a/k/a "POLO", BENNIE JAY JACKSON, GLORIA REED, a/k/a LULA MAE REED, HERBERT D. JOHNSON, JR., and SHARON WILLIAMS, Defendants-Appellants. _____________________________________________
Appeals from the United States District Court for the Northern District of Texas ______________________________________________
(July 13, 1993)
Before GOLDBERG, GARWOOD, and WIENER, Circuit Judges.
GOLDBERG, Circuit Judge:
This appeal arises in the aftermath of a month-long trial
involving eight defendants charged with twenty-nine counts of
drug-related offenses. Five of the eight defendants appeal their
convictions, raising myriad issues. Although we have considered
all of the contested issues, we find that only five merit
discussion. Finding no error, we affirm the convictions and
sentences of the appealing defendants. We dismiss appellants'
claims of ineffective assistance of counsel, without prejudice to
those claims later being raised in a habeas corpus proceeding.
FACTS
All five appellants were convicted of possession and
1 distribution of cocaine. Only Reed and Williams were convicted
of conspiracy. Williams allegedly was the supplier of the
cocaine, selling it to Reed who, with the help of the other
appellants, resold it. The government presented documentary
evidence and nine witnesses to support its case against
appellants. The government relied most heavily on the testimony
of a man named Sammy Scott, Jr. ("Scott"), a member of the drug
ring who received a lenient plea agreement in exchange for his
testimony. Scott's testimony was internally inconsistent and, it
now appears, inaccurate in certain respects, though not
necessarily mendacious. Scott's testimony was the sole evidence
used to convict Casel on count twenty-eight (distribution of
cocaine), and Reed on count four (sale of cocaine to a minor).
We will address the facts pertaining to each individual appellant
in turn, beginning with appellant Williams.
Scott testified that Williams was one of the primary
suppliers of the drug ring, selling Reed between one-quarter
kilogram and two kilograms of the drug on four occasions. Scott
testified that on one or two occasions, he did not actually see
Williams in possession of the cocaine Reed allegedly obtained
from Williams. However, Scott testified that on other occasions
(including one occasion when two kilograms were obtained by
Reed), Williams made a point of showing Scott the cocaine.
Scott also testified that Williams was aware of the drug ring's
operations.
Scott testified that during his involvement with Reed, the
2 leader of the drug ring, he bought cocaine from Reed, saw Reed
cooking and refining cocaine, helped Reed sell cocaine to adults
and to at least one minor, shared the profits from their cocaine
sales, and traveled with Reed to destinations at which Reed
obtained cocaine from suppliers like Williams.
Scott testified that Reed went to California to buy a
kilogram of cocaine for defendant Johnson, and that when she
returned she announced her intention to sell it to Johnson.
Later she gave Scott $2,000 as his share of the sale. This
transaction formed the basis for count seven. Scott's mother
corroborated Scott's testimony that when Reed arrived back in
Amarillo from her trip to California, Reed stated she had a
kilogram of cocaine in her girdle. The government also
introduced documentary evidence showing that Reed had made a trip
to California on or around the date which Scott and his mother
claimed she had. There was additional evidence that Reed had
participated in a "controlled buy."
Scott testified that he was present when Reed and Johnson
negotiated the sale of five ounces of cocaine to a minor. Scott
watched Reed, Johnson and the minor go to Johnson's home. When
Reed returned, Reed told Scott she had just taken care of some
business and gave him $2,500, which he presumed was his share of
the sale. This sale formed the basis of count four of the
indictment.
The government introduced documentary evidence establishing
that telephone calls were made to Scott's mother and to appellant
3 Williams from pay phones near the hotel at which Scott claimed
that he and Reed stayed during one of their trips to Houston to
buy drugs from Williams. Scott's mother corroborated his
testimony when she stated that she had personal knowledge of the
fact that her son and Reed were involved in drug dealing. Other
witnesses testified that Reed had sold cocaine to them or to
people they knew. Still others testified that Reed had borrowed
money from them in order to purchase cocaine from her sources.
Scott agreed to cooperate with the government prior to the
time at which Reed was indicted. During this period, some of
Scott's conversations with Reed were audiotaped, including some
in which Reed discussed the drug ring's operations and her
ability to recognize cocaine of various qualities. These
audiotapes were later played for the jury.
Scott also testified against Johnson. As noted above, Scott
testified that Johnson assisted Reed in the sale of cocaine to a
minor, and on at least one occasion delivered cocaine to Scott's
mother's store. The government introduced evidence of many
purchases and sales of cocaine by Johnson during the period 1986-
90,1 evidence of Johnson's state court conviction for possession
of cocaine in 1987, and cocaine seized from Johnson's home with a
search warrant.
Several witnesses testified to Jackson's role in buying and
1 Three witnesses, Gilbert Salinas, Homer Perkins and Mrs. Scott (Sammy Scott, Jr.'s mother) testified that they had all bought cocaine from Johnson during the period 1986-90.
4 selling drugs for the drug ring. Evidence was produced to show
that Jackson had sold cocaine to an undercover government agent.
A witness named Teresa Watts testified that she sold cocaine for
Jackson. Watts claimed that Jackson tried to cajole (if not
coerce) her into testifying that she did not sell drugs for him.
While she admitted Jackson did not harm her or explicitly
threaten her physically, she testified that he doggedly pursued
her to various places she frequented in order to encourage her to
lie to the police.
Scott claimed that Casel sold cocaine to a group of five
people in January, 1991. Then he changed his story and said the
date of the sale was January, 1990. Scott named the five alleged
buyers; when two of the alleged buyers were called as defense
witnesses, they denied purchasing cocaine from Casel. The other
three alleged buyers were not called as witnesses by either the
government or the defense. It was later discovered that one of
these alleged buyers had been incarcerated at the time of the
alleged sale. Additional testimony regarding Casel's involvement
in the drug ring included two witnesses' testimony that they had
purchased cocaine from Casel on numerous occasions, and Mrs.
Scott's testimony that one of the cocaine orders she placed with
Johnson was actually filled by Casel, who brought the cocaine to
the liquor store operated by Mrs. Scott.
After a month-long jury trial, Casel was acquitted of one
count of conspiracy, but was found guilty of one count of
distribution of cocaine. Johnson was acquitted on one count of
5 conspiracy, and found guilty on two counts of possession of
cocaine with intent to distribute, two counts of distribution of
cocaine (including one count for distribution of cocaine to a
minor), one count of continuing criminal enterprise (drug
trafficking), and five counts of money laundering. Jackson was
acquitted on one count of conspiracy and one count of using a
firearm during a drug trafficking crime, but was found guilty of
three counts involving distribution of cocaine, one count of
continuing criminal enterprise (drug trafficking), and one count
involving obstruction of justice. Reed was acquitted on one
count of distribution of cocaine and another count of possession
of cocaine with intent to distribute, but was found guilty of one
count of conspiracy to distribute and conspiracy to possess
cocaine with intent to distribute, one count of distribution of
cocaine to a minor, one count of distribution of cocaine (to an
adult), and four counts of distribution and possession of cocaine
with intent to distribute. Williams was convicted on one count
of conspiracy and two counts of distribution and possession with
intent to distribute cocaine.
ANALYSIS
1. Whether the evidence was sufficient to support the convictions of Casel, Reed, Williams and Jackson?
An appellate court reviews the evidence if possible in a
manner consistent with the verdict. Glasser v. United States, 315
U.S. 60, 80 (1942) ("The verdict of the jury must be sustained if
there is substantial evidence, taking the view most favorable to
the Government, to support it") (citations omitted); United
6 States v. Fortna, 796 F.2d 724, 740 (5th Cir.) ("[W]e must
examine all the evidence and reasonable inferences in the light
most favorable to the government and determine whether a
reasonable trier of fact could find that the evidence establishes
guilt beyond a reasonable doubt") (citations omitted), cert.
denied, 479 U.S. 950 (1986); United States v. Bell, 678 F.2d 547,
549 (5th Cir.) ("It is not necessary that the evidence exclude
every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except guilt....A jury is free
to choose among reasonable constructions of the evidence"),
aff'd, 462 U.S. 356 (1983). The appellate court's role does not
extend to weighing the evidence or assessing the credibility of
witnesses. Bell, 678 F.2d at 549; United States v. Martin, 790
F.2d 1215, 1219 (5th Cir.), cert. denied, 479 U.S. 868 (1986);
United States v. Varca, 896 F.2d 900, 905 (5th Cir.), cert.
denied, 498 U.S. 878 (1990); United States v. Espinoza-Franco,
668 F.2d 848, 851 (5th Cir. 1982). If a rational trier of fact
could have found the defendant guilty beyond a reasonable doubt
of the essential elements of the offense, then the conviction
must be upheld. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas
review of state court conviction); United States v. Straach, 987
F.2d 232, 237 (5th Cir. 1993). A review of the evidence against
Casel, Reed, Williams and Jackson reveals that it was sufficient
to support their convictions.2
2 Defendant Johnson does not contend that the evidence was insufficient to support his conviction.
7 CASEL:
Casel was convicted of selling cocaine (and of no other
offense) solely on the basis of Scott's testimony. A conviction
may be based solely on the uncorroborated testimony of an
accomplice, as long as the testimony is not insubstantial on its
face. See, e.g., United States v. Carrasco, 830 F.2d 41, 44 (5th
Cir. 1987). However, Casel argues (along with his co-defendants)
that Scott's testimony was not credible because he changed his
story at least three times during the trial.3 Although it
appears that Scott's testimony was indeed inaccurate in certain
respects, it was not so inaccurate or inconsistent as to make it
incredible as a matter of law.
Scott testified that on January 3, 1990, he witnessed Casel
selling cocaine to a group of five people, including one person
who was incarcerated on that date. Casel's trial attorney did
not object to the testimony or attempt to present evidence that
the buyer was incarcerated on January 3, 1990, because he did not
learn about that fact until after the trial was concluded (but
before sentencing had taken place).
The indictment's language ("on or about January 3, 1990")
saves the indictment from having to be perfectly specific about
3 In addition to Scott's clearly having been wrong about the presence of the incarcerated buyer during the drug deal, there is also the fact that Scott originally stated that the transaction took place in January, 1991 (not January 1990), and that Scott initially stated that Casel had sold cocaine to a group of two people, not a group of five people.
8 the date in question. See United States v. Hernandez, 962 F.2d
1152, 1157 (5th Cir. 1992). Furthermore, Scott's testimony is
not "incredible" merely because he misremembered the exact date
of the transaction, or the number and identity of the buyers.
The jury could have found that Scott inaccurately remembered the
identity of one of the five buyers, while believing Scott's
testimony that the sale of cocaine to a group of people by Casel
occurred. Alternatively, it is possible that the jury decided
that Scott misremembered the exact date of the transaction
(because he expressed some uncertainty about it), but correctly
remembered the identity of all five purchasers. (The alleged
buyer who was incarcerated on January 3, 1990, was a free man
only a week before that date.4) The jury could have chosen to
disbelieve the testimony of two of the alleged purchasers, who
when called as witnesses for the defense claimed they had never
purchased cocaine from Casel.
The test for "incredibility" of a witness is an extremely
stringent one, because an appellate court does not weigh the
credibility of witnesses. To be found "incredible" as a matter
of law, the witness' testimony must be factually impossible. See
United States v. Lindell, 881 F.2d 1313, 1322 (5th Cir. 1989)
(Because the jury is "the ultimate arbiter of the credibility of
a witness....Only when testimony is so unbelievable on its face
that it defies physical laws should the court intervene and
4 The alleged buyer was incarcerated from December 28, 1989 until sometime in March, 1990.
9 declare it incredible as a matter of law"), cert. denied, 496
U.S. 926 (1990); United States v. Silva, 748 F.2d 262, 266 (5th
Cir. 1984) ("[A] conviction may be based solely upon the
uncorroborated testimony of an accomplice if the testimony is not
incredible or otherwise insubstantial on its face") (citation
omitted). The mere fact that the witness' memory is later shown
to be somewhat flawed will not suffice to demonstrate that the
witness' entire testimony is "incredible."
In Lindell, this court was confronted with a claim that
defendant's conviction for possession with intent to distribute
marijuana was reversible because it was based upon the testimony
of a witness who initially failed to mention the defendant's role
in the crime and only did so after further questioning by the
prosecutor. The witness' implication of the defendant only after
continued questioning by the prosecutor did not make the witness'
testimony "unbelievable," 881 F.2d at 1322, for "[o]nly when
testimony is so unbelievable on its face that it defies physical
laws should the court intervene and declare it incredible as a
matter of law." Id. (citing United States v. Carrasco, 830 F.2d
41, 44 (5th Cir. 1987); United States v. Palacios, 612 F.2d 972,
973 (5th Cir. 1980)). See also United States v. Espinoza-Franco,
668 F.2d 848, 851 (5th Cir. 1982). Under this standard, we are
forced to conclude that Scott's testimony was sufficiently
credible that a jury could choose to rely upon it.
REED:
Reed was convicted on one count of conspiracy, one count of
10 distribution of cocaine to a minor, and three counts of
distribution and possession of cocaine with intent to distribute.
The government's case against Reed for distributing cocaine to a
minor was supported solely by Scott's testimony. Scott testified
that he saw Johnson and Reed negotiate a sale to a minor, and
that he saw all of them go to Johnson's house. When Reed
returned, she allegedly said she had just taken care of some
business and gave Scott $2,500, which Scott said he presumed was
his share of the sale that had just occurred. As a co-defendant,
Johnson could not be called to testify. The minor testified that
he had never met Reed. Reed claims that Scott changed his
testimony repeatedly and therefore was not a credible witness on
whose testimony a reasonable jury could convict her. However, we
conclude that a reasonable jury could have disbelieved the minor
and credited Scott's testimony, which was not "so unbelievable on
its face that it def[ied] physical laws." Lindell, 881 F.2d at
1322.
The evidence supporting Reed's convictions for possession
with intent to distribute one kilogram of cocaine, and sale of
one kilogram of cocaine, is also sufficient. Scott testified that
Reed went to California to purchase a kilogram of cocaine for
resale in Amarillo. When Reed returned, she came to the liquor
store operated by Mrs. Scott (Sammy Scott's mother). Mrs. Scott
testified that Reed said she had just returned from California
with a kilogram of cocaine in her girdle. The government also
introduced documentary evidence and testimony of additional
11 witnesses to support its contention that Reed was the leader of a
drug ring, purchased cocaine and processed it for resale, and
sold cocaine on many occasions.
WILLIAMS:
Williams was convicted of one count of conspiracy and two
counts of distribution and possession with intent to distribute
cocaine. We find that there was sufficient evidence on which the
jury could have based convictions on all three counts.
The evidence supporting Williams' conviction for
distribution of cocaine includes Scott's testimony that he and
Reed travelled to Houston on four separate occasions to purchase
(from Williams) between one-quarter kilogram and two kilograms of
cocaine. Scott claims that Williams showed him the cocaine on
two of these occasions; the other two times, Reed showed him the
cocaine after meeting with Williams. The government also
introduced certain documentary evidence of the connection between
Reed and Williams: telephone records indicating calls from Reed
to Williams on the dates, and from the locations, that Scott
claimed the calls were made.
Williams claims that the evidence supporting the conviction
for conspiracy is insufficient, because even if the evidence
reveals that she sold cocaine to Reed, it does not show that she
knew about or assisted in the business of the drug ring led by
Reed. The evidence presented by the government indicates
otherwise. Williams was Reed's primary supplier, repeatedly
selling Reed quantities of cocaine so large that they could not
12 possibly have been intended for personal use. While the amount
of drugs bought or sold does not by itself suffice to establish
participation in a conspiracy, see United States v. Baker, 905
F.2d 1100, 1106 (7th Cir.), cert. denied, 498 U.S. 876 (1990),
evidence "that the defendant knew of the existence and scope of
the conspiracy and sought to promote its success," is sufficient.
Id. Scott testified that Williams sold Reed large amounts of
powder cocaine on four occasions (at least once on partial
credit), and was aware of Reed's intention to process and sell
it.
Williams contends that the only member of the drug ring with
whom she was acquainted was Reed, and that therefore she simply
had a buyer-seller relationship to Reed. While "it takes two to
conspire...the government doesn't have to prove with whom a
defendant conspired; it need only prove that the defendant joined
the agreement alleged; not the group." United States v.
Townsend, 924 F.2d 1385, 1389 (7th Cir. 1991). See also United
States v. Michelena-Orovio, 719 F.2d 738, 746 (5th Cir. 1983) (en
banc) ("Conspiracies to distribute narcotics have generally been
considered to be prime examples of chain, or interconnected,
conspiracies, in which a participant in a segment of the
conspiracy may be convicted of participating in the whole"),
cert. denied, 465 U.S. 1104 (1984); United States v. Martino,
664 F.2d 860, 876 (2d Cir. 1981), ("[I]n many narcotics
distribution networks the ultimate retailers may not know the
identities of those who supply their wholesaler, and the
13 retailers' identities may be unknown to those suppliers; but all
are well aware that they are participating in a collective
venture"), cert. denied, Miller v. United States, 458 U.S. 1110
(1982).
While it is true that "evidence of a buyer-seller
relationship, standing alone, is insufficient to support a
conspiracy conviction," Townsend, 924 F.2d at 1394, evidence
indicating that both parties knew that the drug purchases were
meant for resale is "sufficient to establish a distribution
conspiracy between them," id. at 1415, especially when each party
has a stake in the success of the other's business, suggesting "a
substantial degree of cooperation and partnership rather than a
series of isolated and sporadic transactions," id. at 1406. It
is especially significant that not only did each party know that
"the other had a network of drug associates, but also...each was
committed to maintaining their successful business relationship."
Id. at 1406. Williams was Reed's primary supplier. On at least
one occasion, Williams sold Reed cocaine on partial credit, with
the understanding that Reed would make up the amount owing at a
later date, possibly at the time of the next purchase.
Presumably, therefore, Williams considered it to be in her own
long-term interests to cooperate with Reed and to help Reed
succeed in reselling the cocaine Williams supplied her.
There was evidence that Reed's distribution of powder and
crack cocaine was reasonably foreseeable to Williams, that
Williams agreed to further Reed's criminal enterprise, and in
14 fact assisted it. See United States v. Elam, 678 F.2d 1234 (5th
Cir. 1982); United States v. Devine, 934 F.2d 1325 (5th Cir.
1991), cert. denied, Barker v. United States, 112 S.Ct. 349
(1991). The jury was entitled to credit Scott's testimony and
the government's documentary evidence in convicting Williams on
all three counts charged in the indictment.
JACKSON:
Defendant Jackson was convicted of obstructing justice in
violation of 18 U.S.C. § 1503, based upon his having attempted to
influence a witness using intimidation, threats and deception.
He contends that his conviction under § 1503 was not supported by
the evidence because no judicial proceeding had yet taken place
at the time he attempted to influence the witness. While it is
true that § 1503 can only support a conviction for interference
with a pending judicial proceeding, as opposed to a police or
agency investigation,5 at the time Jackson approached the witness
and endeavored to intimidate her into lying for him, the
superseding indictment had already been returned. Since this
clearly indicates that a judicial proceeding was "pending,"
Jackson's conviction under § 1503 was not legally or factually
insufficient.
2. Whether it was an abuse of discretion for the court to deny Casel's motion for a new trial based on newly discovered evidence?
5 See United States v. Brown, 688 F.2d 596 (9th Cir. 1982); United States v. Wood, 958 F.2d 963 (10th Cir. 1992).
15 An appellate court reviews the denial of a new trial based
on the alleged existence of new evidence for abuse of discretion.
United States v. Miliet, 804 F.2d 853, 859 (5th Cir. 1986). In
Miliet, this court laid out five elements, each of which must be
present to justify a finding that the trial court's ruling was
"so clearly erroneous as to amount to an abuse of discretion":
(1) the evidence must be discovered following trial, (2) the movant must show due diligence to discover the evidence, (3) the evidence must not be merely cumulative or impeaching, (4) the evidence must be material to the issues before the court, and (5) the evidence must be of such a nature that a new trial would probably produce a new result.
804 F.2d at 859 (citing United States v. Fowler, 735 F.2d 823,
830 (5th Cir. 1984)). Casel has not met this test.
Prior to sentencing, Casel's attorney submitted an affidavit
to the court containing the "newly discovered evidence" that one
of the five alleged buyers of cocaine had been incarcerated on
the date Scott alleged the sale took place. Not only has Casel
failed to establish "due diligence" in attempting to locate this
"new" evidence, but he failed to show that a new trial would
probably produce a new result. Moreover, because Casel had
introduced the testimony of two of the five alleged buyers, and
these two persons had denied purchasing cocaine from him, the new
evidence would be "merely cumulative or impeaching" under Miliet.
3. Whether Casel and Jackson were denied effective assistance of counsel?
Casel claims that his trial attorney gave him ineffective
assistance by failing to investigate the whereabouts of the man
who was incarcerated at the time that Casel is alleged to have
16 sold him cocaine, and as a result of being the law partner of the
spouse of one of the prosecutors in this case. Jackson claims his
counsel gave him ineffective assistance by failing to challenge
the jury venire prior to voir dire (for alleged
underrepresentation of Hispanics), and by failing to introduce
the testimony of certain witnesses who allegedly might have
impeached Scott. Jackson also claims he received ineffective
assistance of counsel because his attorney failed to introduce
character evidence at the sentencing phase.
None of these claimed deficiencies were brought to the
attention of the district court prior to being argued on appeal.
Generally, "a claim of ineffective assistance of counsel cannot
be resolved on direct appeal unless it has been first raised
before the district court." United States v. Bounds, 943 F.2d
541, 544 (5th Cir. 1991). Exceptions to this general rule are
made "only when the record has provided substantial details about
the attorney's conduct." Id. See also United States v.
Blankenship, 923 F.2d 1110, 1118 (5th Cir. 1991), cert. denied,
111 S.Ct. 2262 (1991). We decline to consider the issue of
ineffective assistance of counsel because we consider the record
insufficient. We dismiss this portion of the appellants' appeals
without prejudice to appellants' right to raise the issue of
ineffective assistance of counsel in a habeas corpus proceeding.
See Bounds, 943 F.2d at 543; United States v. Ugalde, 861 F.2d
802, 804 (5th Cir. 1988), cert. denied, 490 U.S. 1097 (1989); 28
U.S.C. § 2255 (1988).
17 4. Whether the court erred in conducting a James hearing in the presence of the jury?
A James hearing is held to determine whether an out-of-court
statement of an alleged co-conspirator should be admitted into
evidence. To admit an out-of-court statement of an alleged co-
conspirator requires a showing of a conspiracy and of the
connection of the declarant and the defendant with the
conspiracy, as well as a showing that the statement was made
during the course of the conspiracy and in furtherance of the
conspiracy. United States v. James, 590 F.2d 575 (5th Cir.
1979), cert. denied, 442 U.S. 917 (1979). The government is
correct in stating that there is no authority for appellant
Casel's argument that such a hearing must be held outside the
presence of the jury. See United States v. Fragoso, 978 F.2d
896, 899 (5th Cir. 1992), cert. denied, 113 S.Ct. 1664 (1993).
5. Whether various statements by the prosecutor were improper and so infected the proceedings that the appellants should be given a new trial?
Appellants argue that several comments by the prosecutor
were improper and so infected the proceedings as to deprive the
appellants of a fair trial. Appellants objected to all but one
of these comments when made. Although at least one of
prosecutor's comments was improper, we find that the error was
harmless.6 Reversal based on improper argument by the prosecutor
6 Even if a prosecutor's statement constitutes error, the error is harmless if examination of the entire record suggests that the defendant was not substantially prejudiced by the prosecutor's statement. United States v. Morris, 568 F.2d 396, 402 (5th Cir. 1978).
18 is not called for when there has not been a strong showing of a
deleterious effect upon the right to a fair trial. See, e.g.,
United States v. Iredia, 866 F.2d 114, 117 (5th Cir. 1989), cert.
denied, 492 U.S. 921 (1989); United States v. Lowenberg, 853 F.2d
295, 301 (5th Cir. 1988), cert. denied, 489 U.S. 1032 (1989);
United States v. Diaz-Carreon, 915 F.2d 951, 956 (5th Cir. 1990);
United States v. Young, 470 U.S. 1, 11 (1985).
If the defendant did not object to the prosecutor's comment
when made, we review for plain error, that is, error which is
"obvious, substantial, and so basic and prejudicial that the
resulting trial lacks the fundamental elements of justice."
United States v. Valdiosera-Godinez, 932 F.2d 1093, 1097 (5th
Cir. 1991) (quoting United States v. Birdsell, 775 F.2d 645, 653
(5th Cir. 1985), cert. denied, 476 U.S. 1119 (1986)). However,
if the defendant did object to the prosecutor's comments when
made, there are three factors for the appeals court to consider
in deciding whether to reverse the defendant's conviction due to
improper prosecutorial argument. These factors are: (1) "the
magnitude of the prejudicial effect" of the prosecutor's remarks,
(2) the efficacy of any cautionary instruction by the judge, and
(3) the strength of the evidence supporting the conviction.
Diaz-Carreon, 915 F.2d at 956. If the evidence to support a
conviction is strong, then it is unlikely that the defendant was
prejudiced by improper arguments of the prosecutor and reversal
is not required. Id. The magnitude of the prejudicial effect is
tested in part by looking at the prosecutor's remarks in context,
19 and attempting to elucidate their intended effect. See, e.g.,
United States v. Bright, 630 F.2d 804, 825 (5th Cir. 1980);
United States v. Forrest, 620 F.2d 446, 455 (5th Cir. 1980).
Having laid out the applicable legal standard, we now review the
allegedly improper prosecutorial arguments in turn.
First, appellant Johnson objected at trial that the
prosecutor implied that appellant Johnson had failed to introduce
evidence of his innocence; specifically, that the prosecutor
asked rhetorically "why credit card receipts had not been
produced, why was the method of payment for car repairs not
produced, and why testimony has not been given to support the
defendant's claim of innocence." In fact, the prosecutor was only
asking questions of a defense witness whose testimony was offered
to support a particular defense asserted by defendant. The
prosecutor asked the witness, "Why can't we see the cancelled
check that [you] paid for [your] car repair with? How about the
receipts, some credit card receipts?"7 The record clearly shows
that the prosecutor was merely commenting on the paucity of
evidence for a particular defense that defendant Johnson sought
to advance. Since the prosecutor's comments were intended as a
statement that the defense had failed to produce any evidence of
a defense he was advancing, rather than as a statement about the
silence of the defendant himself, then the comments cannot form
7 Ms. Mathis said she had traveled to Houston with Reed, and that no drugs were bought or sold on that trip. She also claimed that her car had required repair in Houston.
20 the basis for a reversal. See Bright, 630 F.2d at 825; United
States v. Ramirez, 963 F.2d 693, 700 (5th Cir.), cert. denied,
Garcia v. United States, 113 S.Ct. 388 (1992); United States v.
Jones, 648 F.2d 215, 218 (5th Cir. Unit B 1981). In any case,
Johnson did not show that he was prejudiced by the comments, and
the evidence to support his conviction was strong.
Second, the appellants collectively object to the
prosecutor's opening argument, in which she stated that
conviction of the defendants was required to protect the jurors'
community from drug dealers. Because appellants did not object
to this portion of the prosecutor's argument at trial, appellants
now must establish that the court's allowance of the prosecutor's
comments was plain error. Valdiosera-Godinez, 932 F.2d at 1097;
Diaz-Carreon, 915 F.2d at 957. The prosecutor introduced her
statements about the drug problems in Amarillo with prefatory
phrases such as "You will see...."; "The evidence will show....";
"You will hear"; and "You will learn." The prosecutor's statement
that illicit drug sales were common in certain sections of
Amarillo was later corroborated by witnesses for both the
prosecution and the defense. The government now argues that the
prosecutor's opening remarks were nothing more than a "road map"
to what she believed the evidence would show, while appellants
contend the prosecutor's comments were calculated to prejudice
the jury and "inflame their passions." In United States v.
Morris, 568 F.2d 396, 401 (5th Cir. 1978), this court made it
clear that a prosecutor may state her own opinion or knowledge of
21 the case as long as she makes it clear that her conclusions are
"the conclusions to be drawn from the evidence." In the instant
case, the prosecutor presented evidence in support of her opening
statements. In light of that crucial fact, we cannot say that
the statements constitute plain error.
Third, in her closing argument, the prosecutor stated that
she would not ask the jury to convict the defendants based solely
on one witness' testimony, but that since she had presented nine
witnesses against the defendants, she felt the jury "could feel
pretty comfortable" about convicting the defendants. Appellants
objected to this statement when made. The appellants claim that
the prosecutor was suggesting to the jury that there was
something legally crucial about the fact that the government had
produced nine witnesses, and that the prosecutor herself found
these witnesses credible. We have often said that a prosecutor
"may not express his personal opinion as to the credibility of
witnesses, or his own belief regarding a defendant's guilt."
United States v. Walker, 613 F.2d 1349, 1355 (5th Cir.), cert.
denied, 446 U.S. 944 (1980) Here, however, it is clear from the
context in which the statement was made that the prosecutor was
not expressing her personal opinion about the defendants' guilt,
the credibility of individual witnesses or of the witnesses as a
group. Instead, she was offering a generalized comment on the
weight of the government's case against the defendants. In other
words, she was simply saying that the case against the defendants
was not thin. A prosecutor's assessment that the evidence for
22 her case is strong is similar to her vouching for her witnesses
by noting the absence of any evidence suggesting they have any
reason to lie. Each is permissible to the extent that it draws a
conclusion based solely on the evidence presented. See United
States v. Enstam, 622 F.2d 857, 869 (5th Cir. 1980), cert.
denied, 450 U.S. 912 (1981) (it is acceptable to draw reasonable
inferences from the evidence when arguing to the jury; provided
prosecutor does only this, she is not injecting "personal
opinions" into her argument); Bright, 630 F.2d at 824 (a
prosecutor may respond to character assassination visited upon
the government's witnesses, and may point to the lack of any
reason to think a witness is lying; "[t]he prosecutor is not
obliged to sit quietly while character assaults are made on his
witnesses; he is entitled to argue fairly their credibility");
United States v. Binker, 795 F.2d 1218, 1223 (5th Cir. 1986)
(prosecutor may respond to attacks on credibility of her
witnesses), cert. denied, 479 U.S. 1085 (1987).
Fourth, in her closing argument, one of the prosecutors
stated that while the government's star witnesses plea-bargained,
they did not get sweet deals. She continued:
I want you [the jury] to think about what these guys' lives are going to be like the rest of their life....Did you see James Dawkins [government witness] shaking up there when Seldon Hale [defense attorney] asked him, "What unit are you in, Mr. Dawkins?" Did you see him? He is scared....From now on, every Government witness in this case is going to have to watch his back....Do you remember Gilbert Salinas [government witness] telling us that Joe Cofer [defendant who is not appealing] told him, "It is not smart to be talking on people if you are going to the pen." And he told Gilbert Salinas that he could get
23 him hit in the pen. He can get him from here, clear down to the pen. And folks, it can be done. You notice when one of the defense lawyers was questioning, I don't know who they were questioning, but they wanted to know, "What bay is Johnny Miller [government witness] in? What bay is Gilbert Salinas in? What bay is Homer Perkins in?" Well, why do they want to know, folks? They want to get to them. (emphasis added)
Appellants objected to the statement when it was made. They
contend that the prosecutor's statement was prejudicial insofar
as it implied that the defendants and their attorneys were
threatening (or would threaten) physical harm to the government's
witnesses. This does appear to be the clear import of the
diatribe, and for that reason, we believe it was improper.
However, we find that in light of the strong evidence against the
appellants, there was no substantial prejudicial effect.
CONCLUSION
The appellants' convictions and sentences are AFFIRMED.
Appellants' claims of ineffective assistance of counsel are
dismissed without prejudice to their being raised in a habeas
corpus proceeding.