Filed: Apr. 13, 2011
Latest Update: Feb. 22, 2020
Summary: witness vouching on cross-examination and in closing.Q. And you have absolutely no basis to, dispute the statement in [Fitzgerald's] report, that from where he sat he had a clear view up, Woodward Avenue and a clear view down George, Street United States v. Gentles, 619 F.3d 75, 83 (1st Cir.
United States Court of Appeals
For the First Circuit
No. 09-1527
UNITED STATES OF AMERICA,
Appellee,
v.
PATRICK GOMES, a/k/a Pistol,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Boudin, Circuit Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.
George F. Gormley, by appointment of the court, with whom
Stephen P. Super and George F. Gormley, P.C. were on brief for
appellant.
Kelly Begg Lawrence, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief for
appellee
April 13, 2011
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
BOUDIN, Circuit Judge. Patrick Gomes was convicted in
October 2008 on one count of conspiring to distribute cocaine base,
21 U.S.C. § 846 (2006), and two counts of distribution of cocaine
base within a thousand feet of a school and/or aiding and abetting
such distribution, 18 U.S.C. § 2 (2006); 21 U.S.C. §§ 841(a)(1),
860. On this appeal, Gomes claims that the prosecutor engaged in
witness vouching on cross-examination and in closing. Some
understanding of the trial evidence is necessary background.
The government's case was that Gomes had conspired with
Alex Curet to distribute crack cocaine and had participated with
Curet in two drug sales--one on September 25, 2007, and the other
on October 3, 2007--in which Curet sold a cooperating witness
("CW") crack cocaine. In both sales, recordings offered at trial
disclosed Curet handing drugs to the CW and receiving money in
return. The government alleged that Gomes acted as both driver and
lookout.
In the September sale, the CW wore hidden recording
equipment and made the exchange inside a car driven by Gomes.
Several officers testified that they saw that car travel past their
observation points two or three times before coming to a stop, and
one officer noted that the occupants were looking around. Gomes
was videotaped in the driver's seat during the drug deal, looking
at the CW in the backseat and talking, and Gomes' attorney admitted
in his opening statement that Gomes was "watching what went on"
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during the transaction. Gomes' defense at trial was that he was
merely giving his friend a ride and looking for parking as he
cruised; but a government witness said there had been no shortage
of parking spaces.
The October sale occurred in a car driven by the CW and
containing hidden cameras. The video and audio recordings showed
Gomes to be present outside the car immediately before and after
the sale was made. In addition, Sergeant Detective John Fitzgerald
testified that he observed Gomes and Curet leave a car that Gomes
had driven; that Gomes went immediately to speak to the CW in the
latter's car and was looking back and forth even when speaking to
the CW; and that when Curet approached the CW to complete the sale,
Gomes continued scanning and also turned his body to shield the
transaction from view.
The strength of the government's case was Gomes' presence
at both sales, his undeniable role as the driver in the first sale,
and indications that he was performing surveillance for Curet as
well. The weakness, if there was one, lay in the lack of any
handling by Gomes of either drugs or money and the absence of any
directly incriminating statements by Gomes during or after the
event. Although Gomes was recorded in the second sale talking with
the CW just before the buy, the conversation was benign.
During his defense, Gomes did not testify but sought to
impeach Fitzgerald, primarily through the use of an expert of his
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own. Fitzgerald's testimony was especially significant since it
identified Gomes as driving Curet to the scene and playing a
secondary role in the sale itself. Ultimately, the jury convicted
Gomes on all three counts, finding that each sale involved five
grams or more of cocaine base. Gomes was sentenced to 78 months in
prison, and he now appeals from his conviction on two grounds.
Gomes' first ground on appeal concerns the government's
cross-examination of Gomes' expert witness, a former FBI agent,
Richard Egan, who visited the scene and then offered testimony
questioning Fitzgerald's ability to see clearly what was happening
during the second sale. Fitzgerald had witnessed the scene using
binoculars but from a vantage point that was 100-150 feet or more
away from the sale. Fitzgerald said his view was crystal clear;
Egan said his own replication showed a chain fence and some foliage
complicating the sight lines.
In the course of cross-examining Egan, the prosecutor
asked questions that resulted in the following exchange:
Q. And you have absolutely no basis to
dispute the statement in [Fitzgerald's] report
that from where he sat he had a clear view up
Woodward Avenue and a clear view down George
Street?
A. His report is what it says. And I
don't--I positioned myself where his report
put me, and I didn't see it as clearly as he
did.
Q. But my question to you, sir, is you
have no basis for disputing his statement that
on October 3 that [sic] he had a clear view up
Woodward Avenue?
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[GSA305:7-15] At this point, Gomes' counsel objected to the
question as "comment on another witness' testimony," and the
objection was overruled. Thereafter the following ensued:
Q. Now, when you were at the FBI, how
serious a matter was it to put false
statements in a report?
A. It's always a serious matter.
Q. How serious?
A. It's going to get you fired or in jail.
On appeal, Gomes argues that in these exchanges the
prosecutor engaged in "improper vouching," which occurs where a
prosecutor seeks to bolster the credibility of the witness--in this
case, Fitzgerald--by expressing his own opinion that the witness is
telling the truth.1 Counsel's personal belief is neither impartial
nor relevant. See Model Rules of Prof'l Conduct R. 3.4(e) (1983)
(mandating that a lawyer shall not "in trial, . . . state a
personal opinion as to . . . the credibility of a witness"). A
further concern is that the prosecutor may thereby "place the
prestige of the United States behind a witness." United States v.
Torres-Galindo, 206 F.3d 136, 140 (1st Cir. 2000).
1
United States v. Castro-Davis, 612 F.3d 53, 66 (1st Cir.
2010) ("We have held that '[a] prosecutor improperly vouches for a
witness when she . . . impart[s] her personal belief . . . or
impli[es] that the jury should credit the prosecution's evidence
simply because the government can be trusted.'" (quoting United
States v. Perez-Ruiz, 353 F.3d 1, 9 (1st Cir. 2003), cert. denied,
124 S. Ct. 2058 (2004))), cert. denied,
131 S. Ct. 970 (2011); see
also United States v. Santana-Pérez,
619 F.3d 117, 122-23 (1st Cir.
2010); United States v. Gentles,
619 F.3d 75, 83 (1st Cir.), cert.
denied,
131 S. Ct. 622 (2010); United States v. Flores-De-Jesús,
569 F.3d 8, 18 (1st Cir.), cert. denied,
130 S. Ct. 479 (2009).
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The government says that the vouching objection was not
adequately preserved by what defense counsel said to the judge
("comment on another witness' testimony") and that review should be
only for plain error. Admittedly, vouching can be regarded as a
species of comment and yet, so phrased, the objection is pretty
uninformative. But we need not decide whether the objection was
clear enough in context, because the prosecutor's remarks were not
vouching at all.
Although the quoted questions were intended to undermine
Egan's testimony and thereby bolster Fitzgerald's credibility, this
does not make them vouching. Thus, no "vouching" would be involved
in asking Egan to explain what basis he had for questioning
Fitzgerald's testimony or whether a false report by an officer
would be a serious matter (although the latter might be
objectionable for other reasons). This is all that occurred if one
understands the prosecutor's "no basis" remarks to be
interrogative--rather than intended as assertions that might then
be taken to express the prosecutor's own view.
Although the prosecutor's "questions" may look
grammatically like assertions, the court reporter, who heard the
tone of voice, understood both "no basis" sentences as questions,
as the question marks in the transcript confirm. The prosecutor
made clear in the second statement that he intended a question
("But my question to you, sir, is . . ."). And the witness
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seemingly took the statements as invitations to respond to what
most witnesses (and jurors) would probably have understood as a
(hostile) request for a further explanation.
What defense counsel might have argued is that the quoted
passages taken together approached a somewhat different question
often regarded as improper, namely (in paraphrase), "Are you, a
former FBI agent, calling the government's witness, Sergeant
Detective Fitzgerald, a liar?" See United States v. Thiongo, 344
F.3d 55, 61 (1st Cir. 2003). But that was not what the prosecutor
literally said, was not the objection in trial court, is not argued
on appeal, and is not by any means plain error under settled case
law.
By contrast, Gomes' second claim of vouching--to which we
now turn--is technically stronger; it concerns a statement of the
prosecutor during the government's rebuttal to Gomes' closing
argument. The full quotation, with the objectionable language
emphasized for clarity, went as follows:
These are serious drugs. And he just sits
there by the second buy? Okay, maybe you can
figure he was in a daze the first day. He
didn't know what's going on. But the second
day, he knows exactly what's going on. Curet,
Perez, Curet, Perez. Oh, shoot. What does he
do? What he would have done, what he should
have done, if he was anything other than a
lookout, the kind of lookout that Dick Egan
told you was used all the time, is he would
have done what they did immediately after the
buy and what you saw them do on that video.
He would have walked across that street and
said, Get me out of here. And he didn't
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because Alex Curet was his man, because the
job for the day was being the lookout, because
John Fitzgerald gave you honest, candid,
truthful testimony.
The portion that we emphasize can be viewed as a personal
assertion by the prosecutor, and the government's brief concedes it
crossed the line into vouching. Formally, the statement is not
expressly a personal opinion and could have been intended, and
perhaps understood, as merely a description of what the prosecutor
was urging the jury to conclude based on the evidence. And, in
fairness, it followed a rather strong attack on Fitzgerald's
honesty in defense counsel's own closing argument.
However, the prosecutor's statement could also be
understood as an expression of his personal opinion and, if an
objection had been made during closing, the jury would have been
told that the prosecutor's own view was irrelevant and should have
no weight in the jury's deliberations. But no objection was made,
and while the judge could have intervened on his own, experienced
trial judges are usually reluctant to pursue a matter that is not
very important and that defense counsel may want left alone rather
than emphasized even by a cautionary instruction.
An objection not preserved at trial can be pursued on
appeal only if the error likely altered the outcome and created a
miscarriage of justice. United States v. Olano, 507 U.S. 725, 734-
37 (1993). Here, the government had a fairly strong case: a jury
would likely think that driving Curet to one drug deal might be
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mischance but that driving him to two was beyond innocent
explanation. And even if some of Fitzgerald's detail were
disregarded, Gomes' approach to the CW's car was damning enough,
taken in conjunction with his behavior at the earlier sale.
Furthermore, the potential for harm from vouching varies,
and it is likely to be more dangerous where the prosecutor flaunts
the government's skills and purity of motive or where the context
or the prosecutor's words imply private knowledge of the
defendant's guilt that unfortunately cannot be shared with the
jury. See, e.g., United States v. Manning, 23 F.3d 570, 572 (1st
Cir. 1994). In this case, neither vice manifested itself. The
jury heard and saw Fitzgerald, and the prosecutor's favorable
adjectives can only have added very little.
Affirmed.
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