Filed: Jul. 07, 2014
Latest Update: Mar. 02, 2020
Summary: received by Chau tested positive for cocaine.1, Appellate counsel for the United States was not the, prosecutor at trial. I'll give Mr. Thompson, [defense counsel] credit.witnesses.-7-, statements, although Rojas asked for no such instruction.United States v. Sepulveda, 15 F.3d 1161, 1184 (1st Cir.
United States Court of Appeals
For the First Circuit
No. 13-1352
UNITED STATES OF AMERICA,
Appellee,
v.
ROLANDO A. ROJAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Howard and Kayatta, Circuit Judges.
Alan Jay Black for appellant.
Donald C. Lockhart, Assistant United States Attorney,
with whom Peter F. Neronha, United States Attorney, was on brief,
for appellee.
July 7, 2014
KAYATTA, Circuit Judge. Rolando Rojas appeals from his
conviction for distributing cocaine, pointing to two instances of
prosecutorial misconduct during closing arguments: improper
vouching and the playing of an audio recording never entered into
evidence. Because the district judge ably responded to both of the
prosecutor's errors, and neither of the errors affected Rojas's
conviction, we affirm.
I. Background
Rolando Rojas was indicted for distributing cocaine on
three occasions in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C),
and (b)(1)(B)(iii). His buyer was an undercover agent, Wing Chau,
who made audio and video recordings of their meetings and also
recorded many of their phone calls.
At trial, Chau testified that the first sale took place
in January 2011, following two recorded phone calls between him and
Rojas. According to the transcript of the first call, Chau said to
Rojas, "I want to pick up that OZ from you," and Rojas responded,
"yeah, I'm going to be around." Chau then asked, "[y]ou cooked the
good one for me?" Rojas against responded, "[y]eah." In the
second call, Chau told Rojas he would be at their meeting place in
five minutes, and Rojas responded, "It's going to be a G . . . but
it's gonna be rock, rock, rock. It's going to be good man."
The prosecution presented a video showing their meeting,
and a separate audio recording, which together seem to depict Rojas
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agreeing to accept cartons of cigarettes as payment for cocaine,
though the actual cocaine cannot be seen due to the position of the
camera. Chau testified that after the purchase he gave the
substance he received to a detective, who himself testified that he
performed a preliminary test confirming that it was cocaine, a
result further confirmed by a full chemical test, according to
another witness.
In several phone calls later in January, Chau and Rojas
discussed the previous sale and possible future sales, with Chau
expressing his interest in more cocaine (e.g., "I still need the
hard stuff") and Rojas agreeing that he would try to procure it
(e.g., "let me see what I can do"). The second sale, Chau
testified, took place in February 2011. On the phone the day
before, Chau asked if Rojas had "that material," and Rojas said
that he would "get it and then make it" by the following afternoon.
The prosecution presented a video of their meeting, with audio,
which shows Rojas producing a bag carrying a white substance while
saying, "[t]his . . . is bomb man." As with the first sale, the
substance tested positive for cocaine.
Rojas allegedly sold cocaine to Chau for the third and
final time in March 2011. In a phone call a few days before, Chau
said, "I need . . . 120 grams," and Rojas responded, "I'm going to
try to give it to you." In later calls, Chau and Rojas negotiated
the price and worked out the logistics of their meeting. The
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prosecution again presented a video of their meeting, with audio,
in which Rojas again accepts payment in cigarette cartons and seems
to refer to the cocaine he is selling ("[t]his is bomb"), but the
cocaine itself is out of view, as in the first sale. The substance
received by Chau tested positive for cocaine.
When Rojas was arrested in July 2011, he was interviewed
by Christian Jardin, who also testified at trial. According to
Jardin, Rojas confessed to all three sales.
Rojas's defense focused on three arguments. First, Rojas
questioned Chau's credibility. Rojas's counsel observed in closing
argument that Chau's work as an undercover agent involved
"fool[ing] people about who he is and what he's doing." Second,
Rojas pointed to gaps in the audio and video recordings: there was
no recording for Rojas's confession, nor for some of the calls
between Chau and Rojas, and the video of the first sale did not
show cocaine changing hands. Third, regarding the substances that
Rojas allegedly sold to Chau, Rojas alleged irregularities in the
chain of custody and noted that Chau's car was not searched before
the sales, meaning Chau could have brought the drugs with him. The
arguments regarding the recordings and the substance received by
Chau were interweaved with the attack on Chau's credibility. For
example, defense counsel argued in closing that a detective should
have searched Chau's car because "on some occasions police officers
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lie," including officers in the local police department Chau worked
with.
In closing arguments, and notwithstanding the strong hand
of proper evidence he possessed, the prosecutor committed two
errors.1 First, the prosecutor played an audio recording for the
jury that had not been entered into evidence. In the recording,
taken during a call between Chau and Rojas preceding the March
sale, Rojas explained that he was having difficulty obtaining "that
shit" (presumably, the cocaine Chau had requested) but would have
it soon. Defense counsel did not object at the time the tape was
played but moved for a mistrial in a chambers conference following
closing arguments. The judge denied the motion but instructed the
jury, as soon as it reconvened, to disregard the unadmitted tape.
The prosecutor's second error occurred in his rebuttal,
when he offered an overzealous and inappropriate response to
defense counsel's arguments regarding the credibility of the
government's witnesses. Defense counsel objected, the judge
sustained the objection, and defense counsel asked for no further
relief. We reproduce here the full exchange between the court and
counsel:
THE COURT: Mr. Rose, any rebuttal argument?
1
Appellate counsel for the United States was not the
prosecutor at trial.
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MR. ROSE: Yes, sir. Thank you. And I'm going to
try to get not too excited. I'll give Mr. Thompson
[defense counsel] credit. At least he had the
nerve to call Special Agent Jardin a liar to his
face. He waited until Special Agent Chau left.
Ladies and Gentlemen, if you have any issues with
the way this investigation was run, blame me. I'm
in charge. I'm responsible.
MR. THOMPSON: Objection, Your Honor.
THE COURT: Sustained.
MR. ROSE: And when you're done blaming me --
MR. THOMPSON: Objection, Your Honor.
MR. ROSE: -- let's go back to the evidence.
THE COURT: Mr. Rose.
MR. ROSE: Pardon me, Your Honor.
THE COURT: Thank you. The objection was
sustained.
MR. ROSE: Thank you, Your Honor. And I apologize
to the Court. That did not come out the way I
wanted it to. Lawyers' opinions don't matter, they
really don't. All that matters is the evidence,
okay?
II. Analysis
The government has admitted that the prosecutor's
statement in rebuttal constituted misconduct and that the tape was
erroneously played. We start with the more serious error, the
comments during rebuttal, then turn to the tape.
A. The Inappropriate Statements in Rebuttal
There is no question that the prosecutor in this case
improperly used his own personal credibility, and therefore that of
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the government, to vouch for the prosecution's investigation and
witnesses. See, e.g., United States v. Auch, 187 F.3d 125, 131
(1st Cir. 1999). This case marks at least the third time in the
past three years that we have noted in a published opinion improper
vouching by a prosecutor. See United States v. Rodríguez-Adorno,
695 F.3d 32, 41 (1st Cir. 2012); United States v. Gomes,
642 F.3d
43, 46-47 (1st Cir. 2011). In this instance, the prosecutor in
effect testified that he ran the investigation, and that any flaws
in it were therefore not probative on the question of the
witnesses' credibility. In other words, he employed his own
standing and credibility to buttress the one part of his case upon
which the defense focused its attack. Quite simply, the
experienced prosecutor likely knew better, as his apology and
partially-corrective retraction implied.2
Nevertheless, the prosecutor's error caused no harm
justifying setting aside the verdict. As the transcript reflects,
the district judge sustained an objection to the statements, and
Rojas requested no additional relief. Even on appeal, Rojas fails
to describe specifically what the judge should have done
differently. Rojas does not argue, for example, that the judge
should have declared a mistrial based on the statements. Perhaps
the judge should have instructed the jury to disregard the
2
He did not retract the actual thrust of the improper
remarks, i.e., the suggestion that he, not the witnesses, was
responsible for any flaws in the investigation.
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statements, although Rojas asked for no such instruction. The
judge did offer the following general instructions prior to
deliberations, the first of which was also given at the beginning
of trial:
• "The evidence that is properly before you does
not . . . include comments or statements or
arguments by attorneys."
• "[T]he mere fact that this case is brought in the
name of the United States of America does not
entitle the prosecution to any greater
consideration than that which is accorded to Mr.
Rojas."
We have held that instructions of this kind can help eliminate any
prejudice arising from improper vouching. See United States v.
Mejia-Lozano, 829 F.2d 268, 274 (1st Cir. 1987).
Rojas does say vaguely that the judge should have, as a
result of both of the prosecutorial errors at issue on this appeal,
given a "stern rebuke" and applied "repressive measures," quoting
Berger v. United States, 295 U.S. 78, 85 (1935). But Berger can be
easily distinguished based on the more frequent and severe
prosecutorial misconduct there, including "misstating the facts in
his cross-examination of witnesses," "pretending to understand that
a witness had said something which he had not said and persistently
cross-examining the witness upon that basis," "assuming prejudicial
facts not in evidence," "bullying and arguing with witnesses," and
generally "conducting himself in a thoroughly indecorous and
improper manner."
Id. at 84. The less egregious misconduct here,
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while warranting a rebuke, did not mandate that one be given sua
sponte.
In any event, even assuming for the sake of argument that
the judge erred by failing to give a stronger rebuke or
instruction, Rojas's challenge would fail under the plain error
standard, which applies here because Rojas did not request at trial
the relief he now says he should have received. See United States
v. Mitchell, 596 F.3d 18, 25 (1st Cir. 2010); United States v.
Kasenge,
660 F.3d 537, 541-42 (1st Cir. 2011). To prevail under
this standard, Rojas would have to show, among other things, that
the error affected his substantial rights.
Mitchell, 596 F.3d at
25. Although Rojas made an attack on Chau's credibility the
cornerstone of his defense, and the prosecutor's statements sought
to buttress Chau's credibility, the jury had no actual reason to
doubt Chau. More importantly, the audio and video tapes and
physical evidence rendered attacks on Chau's credibility largely
tangential and speculative. The fact that Chau did not record all
of his interactions with Rojas would not create doubt about Chau's
testimony unless there was some independent reason to question him.
And the fact that Chau's car was not searched for drugs before he
met with Rojas would only be of significance if it was plausible to
believe that Chau repeatedly obtained and turned over to the
government the consequential amounts of cocaine involved, while
Rojas supplied only fake product. We cannot imagine that the jury
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would have accepted the defense's attacks on Chau's credibility if
only the judge had given a stronger instruction about the
prosecutor's statements.
B. The Playing of the Tape
Both sides agree that in playing portions of nine audio
and video recordings during his closing statement, the prosecutor
inadvertently included an audio recording not entered into
evidence. Rojas made no objection at the time, but did request a
mistrial after all of the closing statements were completed.
Assuming for the sake of argument that Rojas's request for a
mistrial was timely, we review the denial of the motion for abuse
of discretion, requiring a showing of "clear prejudice." United
States v. Pagán-Ferrer, 736 F.3d 573, 586 (1st Cir. 2013) (internal
quotation marks omitted).
Here, any incremental impact of the unadmitted tape
beyond that of the admitted tapes was so minimal that no one
appeared to notice as it was played that it had not been admitted.
This was thus not a case in which disputed evidence kept out for
its substantial prejudicial impact was played to the jury. To the
contrary, even on appeal Rojas can point to nothing in the
recording that was either unfairly prejudicial or uniquely
inculpatory. Adding belt to suspenders, the judge also gave a
curative instruction as soon as he was alerted to the issue. See
United States v. Sepulveda, 15 F.3d 1161, 1184 (1st Cir. 1993).
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Rojas provides no basis for doubting that the jury disregarded the
evidence as instructed.
III. Conclusion
For the reasons described above, we affirm Rojas's
conviction.
So ordered.
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