Filed: Aug. 16, 2000
Latest Update: Feb. 21, 2020
Summary: Defendant, Appellant.presence of counsel, each member of the jury.she could follow the case and the evidence;we repeat today that the district courts should not use such language.instruction was harmless error under these particular circumstances.
[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
____________________
No. 99-1560
UNITED STATES,
Appellee,
v.
MANUEL RODRIGUEZ-SANTANA,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
____________________
Before
Torruella, Chief Judge,
Stahl and Lynch, Circuit Judges.
_____________________
Rafael F. Castro-Lang, by appointment of the Court, on brief for
appellant.
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco,
Assistant United States Attorney, Chief, Criminal Division, and Camille
Vélez-Rivé, Assistant United States Attorney, on brief for appellee.
____________________
August 4, 2000
____________________
Per Curiam. Appellant Manuel Rodríguez-Santana was convicted
of conspiring to illegally import and possess with intent to distribute
cocaine and of illegally importing cocaine. He was sentenced to serve
360 months of imprisonment, to be followed by five years of supervised
release. Appellant claims on appeal (1) that he received ineffective
assistance of counsel; (2) that the prosecution's closing argument was
improper; and (3) that the court's instructions to the jury constitute
reversible error. None of appellant's claims has merit, and we affirm
the judgment of the district court.
I. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Appellant argues that his trial counsel rendered
constitutionally deficient assistance by (1) failing to join a
codefendant's successful motion for a mistrial; (2) failing to move to
strike a juror with limited English language ability; and (3) making an
improper closing argument. To succeed on his ineffective assistance of
counsel claim, appellant must demonstrate both that counsel's
performance fell below the applicable standard of reasonable
decisionmaking under the circumstances and that such substandard
performance resulted in prejudice. See United States v. Fisher, 3 F.3d
456, 463 (1st Cir. 1993). Particularly where tactical decisions are at
issue, appellant must overcome a "strong presumption that counsel's
conduct falls within the wide range of reasonable professional
assistance." Strickland v. Washington,
466 U.S. 668, 689 (1984).
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1. Motion for Mistrial
On the fifth day of appellant's trial, a court security
officer informed the trial judge that he had overheard a member of the
jury remark that she recognized codefendant Modesto Molina from a
previous criminal proceeding, in which she had been a member of the
jury pool but was excused without participating in the actual trial.
The district court also learned that, when this comment was made,
another juror remarked that Molina "seemed to be in every courtroom in
the district," in apparent reference to having seen Molina's name on a
court calendar posted near the public telephones. After learning of
these remarks, the district court individually interviewed, in the
presence of counsel, each member of the jury. During these interviews,
it was established that the comments were made in reference to Molina
only, and not to appellant Rodríguez-Santana.
Based on the jurors' remarks, Molina's counsel moved for a
mistrial, which was granted by the district court. Rodríguez-Santana's
counsel declined to join the motion, explaining to the court (1) that
he considered the comments to implicate only Molina and not his client;
(2) that his client's trial had already been delayed two years for
Molina's benefit; (3) that both he and his client were pleased with the
cross-examination of the government's main witness and otherwise felt
that the evidence was "coming in" well for appellant; and (4) that,
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based on those factors, appellant had instructed him not to join the
motion for a mistrial.
We find counsel's decision not to join the motion for a
mistrial to fall well within the "wide range of reasonable professional
assistance." See id. It was apparent from the interviews with the
jurors that appellant was implicated only marginally, if at all, by the
grounds for the mistrial motion. Furthermore, counsel expressed
reasonable grounds for declining to join the motion, most notably
appellant's own wishes. See
id. at 691 ("The reasonableness of
counsel's actions may be determined or substantially influenced by the
defendant's own statements or actions."). Under the circumstances, we
hold that the failure to join the motion for mistrial did not
constitute ineffective assistance of counsel.
2. Motion to Strike
Appellant next contends that it was ineffective assistance
of counsel for his attorney not to move to strike a juror who
indicated, during the interviews discussed above, that although she
understood English and was fully able to understand the proceedings she
nevertheless was not comfortable speaking English.
The qualifications for federal jury service, set forth at 28
U.S.C. § 1865, state that any person is qualified for jury service
unless, inter alia, she "is unable to speak the English language." Id.
§ 1865(b)(3); see also McDonough Power Equip. v. Greenwood, 464 U.S.
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548, 555 (1984) ("[T]he statutory qualifications for jurors require
only a minimal competency in the English language.") (citing 28 U.S.C.
§ 1865). When the juror at issue here indicated to the court that she
did not speak English easily,1 the district court conducted an in camera
hearing with the juror in the presence of counsel to evaluate her
proficiency in English. During that hearing, it was established (1)
that the juror had completed twenty-two credits of English courses in
connection with receiving a bachelor's degree in secretarial sciences;
(2) that she used textbooks in English; (3) that she had participated
in two previous criminal cases in federal court and was satisfied that
she could follow the case and the evidence; and (4) that she understood
the judge's questions in English during the in camera hearing, although
she responded in Spanish. On the basis of the hearing, both the
prosecutor and appellant's trial counsel indicated that they were
satisfied with the juror's capacity to understand the case and continue
her service on the jury.
Under the circumstances, we think that the juror's minimum
competency in the English language was sufficiently established so that
appellant's trial counsel was not unreasonable in determining not to
move to strike the juror. See Strickland, 466 U.S. at 688 ("In any
case presenting an ineffectiveness claim, the performance inquiry must
1 We note that this occurred after the juror had successfully filled
out the juror qualification form and participated in voir dire.
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be whether counsel's assistance was reasonable considering all the
circumstances."). The attorney for the United States obviously agreed
with counsel's evaluation of the juror's language skills,2 and the
district court also appears to have been satisfied with the juror's
English-language ability. See United States v. González-Soberal, 109
F.3d 64, 69 (1st Cir. 1997) ("We are hesitant to reverse the reasoned
conclusion of the trial judge on the question of a juror's ability to
understand English because the trial judge is in a much better position
to assess the language competency of a particular juror.").
Consequently, we hold counsel's decision not to constitute ineffective
assistance of counsel. See id. ("Although . . . the juror's command of
the English language was less than that of a native speaker, [it does]
not warrant the conclusion that the juror was unable to follow the
proceedings or understand the evidence and therefore do[es] not merit
reversal.").
3. Defense Counsel's Closing Argument
Appellant also claims that his attorney's closing argument
constituted ineffective assistance by breaching the attorney's ethical
duty of loyalty to his client. However, the portions of the transcript
emphasized by appellant, when read in the context of the closing
argument as a whole, were not unconstitutionally deficient.
2 We note that neither prosecution nor defense could reasonably have
expected to obtain any tactical advantage from a juror with limited
English language ability.
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Although appellant complains about his trial counsel's
decision to concede that the United States had proven a conspiracy,
this decision was not unreasonable under the circumstances. See
Strickland, 466 U.S. at 688. In light of the substantial evidence of
the conspiracy, and considering the guilty pleas of twelve of the
fourteen defendants named in the indictment, defense counsel made a
reasonable tactical decision not to dispute the existence of a
conspiracy but instead to focus on the alleged lack of evidence tying
his client to that conspiracy, while also attacking the credibility of
the government's witnesses. This is a defense strategy that has been
successful in other cases, and there is nothing in this case to suggest
that defense counsel's purely tactical decision in this regard was
indicative of any disloyalty or other defect in his representation of
appellant. We therefore hold that defense counsel's closing argument
did not constitute ineffective assistance of counsel.
II. PROSECUTION'S CLOSING ARGUMENT
Appellant next objects to the prosecutor's statement during
closing that "The Honorable Court will also instruct you in more detail
that Manuel Rodríguez Santana participated in a conspiracy." That
statement is flatly improper. Nonetheless, it is quite clear from the
adjoining parts of the prosecution's closing argument that what the
prosecutor meant was that the district court would instruct the jury in
detail about the elements of a criminal conspiracy charge. In fact,
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the prosecutor himself proceeded to explain the necessary elements and
that the government bore the burden of proving them. The impropriety
of the prosecutor's isolated comment surely did not affect the outcome
of trial, and therefore does not merit reversal. See United States v.
Hughes, 211 F.3d 676, 684 (1st Cir. 2000) (applying plain error review
to prosecution's comments during closing argument where defendant did
not object at trial, and stating that "[w]e will not reverse a
conviction for plain error unless it is clear that, inter alia, the
error 'affected the outcome of the proceedings.'").
Appellant also claims that the prosecutor improperly vouched
for the credibility of the government's cooperating witnesses when he
told the jury that the United States "depends on persons like them to
come forward and provide the details of how Manual Rodríguez Santana
was involved in the conspiracy," and also when he reminded the jury
that a cooperating witness had pled guilty. See United States v.
Rosario-Díaz, 202 F.3d 54, 65 (1st Cir. 2000) ("[P]rosecutors may not
place the prestige of the United States behind a witness by making
personal assurances about the credibility of a witness or by indicating
that facts not before the jury support the witness's testimony.").
First, we do not find reversible error in the prosecutor's
statement that the government depends upon cooperating witnesses in its
investigations and prosecutions of criminal defendants. Such statement
is certainly true, and more important it does not suggest that such
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cooperating witnesses are reliable or credible. Particularly in light
of the clear jury instructions given by the court advising the jury to
use caution when evaluating the testimony of cooperating witnesses, the
prosecutor's statement was very unlikely to affect the outcome of the
proceedings and therefore does not warrant reversal. See Hughes, 211
F.2d at 684.
Second, the prosecutor's reminder that a cooperating witness
had pled guilty in the case was accurately based in the record and made
no assurance as to the credibility of the witnesses's testimony. Under
the circumstances, we hold that this statement did not constitute
improper vouching.
III. JURY INSTRUCTIONS
Finally, appellant challenges two aspects of the jury
instructions given by the district court. First, appellant contends
that the court erred when it instructed the jury that "[i]t is only
required that the government's proof exclude any reasonable doubt
concerning the defendant's guilt." This statement by the district
court came at the end of a thorough and correct articulation of the
prosecution's burden of proving guilt beyond a reasonable doubt. The
instruction explicitly stated that the defendant need not prove his
innocence nor even produce any evidence at all, and also emphasized the
"strict and heavy" nature of the government's burden. Taken in the
context of the complete jury instruction on burden of proof, the
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court's reference to the "exclusion" of reasonable doubt was not
misleading and by no means constitutes reversible error. Cf. United
States v. Rodríguez-Cardona, 924 F.2d 1148, 1159-60 (1st Cir. 1991)
(upholding nearly identical instruction, without discussion of the
"exclude" language).
Second, appellant complains of the district court's
instruction that "[t]he fact that an accomplice has entered a plea of
guilty to the offense charged is not evidence in and of itself, of the
guilt of the other person." In United States v. González-González, 136
F.3d 6, 10-11 (1st Cir. 1998), we discouraged the use of "in and of
itself" language in reference to the guilty plea of an accomplice, and
we repeat today that the district courts should not use such language.
However, because the court's instructions in González-González, taken
as a whole, unequivocally told the jury not to consider an accomplice's
guilty plea as evidence of the defendant's guilt, we held that a new
trial was not warranted. See
id. at 11.
The district court in this case failed to give the kind of
emphatic clarifying instructions present in González-González.
However, we nevertheless find that the erroneous "in and of itself"
instruction was harmless error under these particular circumstances.
The jury instructions as a whole made clear to the jury that they
should find appellant guilty only if the prosecution had proven his
guilt beyond a reasonable doubt, including all of the elements of the
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crimes and including in particular proof of appellant's individual
participation in the conspiracy and substantive offense. Given the
substantial evidence submitted to the jury of appellant's guilt, we
cannot conclude that the court's ambiguous instruction as to the
probative value of an accomplice's guilty plea would have affected the
jury's verdict. The error, therefore, does not require reversal.
IV. CONCLUSION
For the reasons set forth above, we affirm the judgment of
the district court.
Affirmed.
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