927 F. 2d 611 - United States v. Bazua-Vizcarra

MEMORANDUM^**

Marcial Bazua-Vizcarra appeals his conviction for conspiracy, aiding and abetting, and possession with intent to distribute heroin. 21 U.S.C. Secs. 841(a)(1), 846; 18 U.S.C. Sec. 2 (1988). He argues that certain statements made by the prosecutor during closing argument denied him due process and thus warrant a reversal of his conviction. We affirm the conviction.

Mr. Bazua-Vizcarra alleges that the prosecutor improperly (i) expressed his personal opinion as to the strength of the evidence in his case, (ii) characterized defense testimony as lies, and (iii) made inflammatory and irrelevant comments concerning the societal impact of drug abuse. Mr. Bazua-Vizcarra did not object to any of these statements at trial. We therefore review only for plain error. United States v. Young, 470 U.S. 1, 6 (1985); United States v. Laurins, 857 F.2d 529, 539 (9th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 3215 (1989). See also United States v. Feldman, 853 F.2d 648, 665 (9th Cir.1988), cert. denied, 489 U.S. 1030 (1989).

Plain error occurs when a mistake "undermine[s] the fundamental fairness of the trial and contribute[s] to a miscarriage of justice." Young, 470 U.S. at 16. See also Laurins, 857 F.2d at 539; United States v. Gwaltney, 790 F.2d 1378, 1386 (9th Cir.1986), cert. denied, 479 U.S. 1104 (1987). In the specific context of prosecutorial misstatements during closing argument, plain error occurs if the prosecutor's actions "had an unfair prejudicial impact on the jury's deliberations." Young, 470 U.S. at 16-17 n. 14. In evaluating the likelihood of prejudice, we review the allegedly improper statements in the context of the trial as a whole and particularly in light of defense counsel's conduct, the strength of the evidence, and any curative instructions provided by the judge. Id. at 12, 16, 19-20. See also Laurins, 857 F.2d at 539; United States v. Christophe, 833 F.2d 1296, 1300-01 (9th Cir.1987); United States v. Potter, 616 F.2d 384, 392-93 (9th Cir.1979), cert. denied, 449 U.S. 832 (1980).

I think you'll find that your task is not tremendously difficult, because the evidence in this case is clear as to what happened, and I believe that the evidence shows, and that you will find that the defendants have done the things with which they're charged in this indictment.

Mr. Bazua-Vizcarra contends that these comments amounted to improper prosecutorial vouching for the evidence and an inappropriate expression of personal belief in the defendants' guilt.

Prosecutors must refrain from injecting their personal opinions about evidence or defendants into a trial. "The rule that a prosecutor may not express his personal opinion of the defendant's guilt or his belief in the credibility of witnesses is firmly established." United States v. McKoy, 771 F.2d 1207, 1210-11 (9th Cir.1985). Such statements threaten both the independence and the fairness of the jury's deliberations.

First, jurors might conclude that the prosecutor has personal knowledge, based on evidence not produced at trial, that supports his opinion. Id. at 1211. See also Young, 470 U.S. at 18. The prosecutor's statement thus invites the jury to make its decision on the basis of something more than the evidence presented in the courtroom. Young, 470 U.S. at 18. The prosecutor's statements, in this instance, do not implicate this concern. The statement addressed the strength of the evidence before the jury and what "the evidence shows." The comment did not, expressly or implicitly, refer the jury to matters not in evidence. Cf. Laurins, 857 F.2d at 539 (expression of opinion not plain error where jury could construe it as "a comment on the evidence rather than an assertion of personal belief"), Potter, 616 F.2d at 393 (prosecutorial remarks "discussing the evidence in the case" not plain error).

The second concern animating the rule against expressions of prosecutorial opinion is a fear that jurors will view the prosecutor's statements either as expert testimony or as carrying the imprimatur of the government and, as a result, will defer to her credibility assessments rather than independently weigh the evidence themselves. Young, 470 U.S. at 18-19; McKoy, 771 F.2d at 1211. There is a slight risk that this prosecutor's statements might have influenced the jury's weighing of the evidence. However, the rather bland manner in which the prosecutor asserted his opinion, cf. McKoy, 771 F.2d at 1210 (former prosecutor stated that government had "an extremely strong case"), and the prosecutor's inclusion immediately thereafter of a statement acknowledging that the task of weighing the evidence rests with the jury, preclude a finding that this error was of constitutional magnitude.

Even assuming the statement was error, Mr. Bazua-Vizcarra does not argue, let alone prove, that this statement materially affected the outcome of his trial. Christophe, 833 F.2d at 1301 ("Even if misconduct occurred, reversal is warranted only if it is more probable than not that the misconduct materially affected the verdict.") See also United States v. Hawkins, 595 F.2d 751, 755 (D.C.Cir.1978), cert. denied, 441 U.S. 910 (1979) (prosecutor's improper statements during closing argument harmless because they "did not substantially sway the verdict").

The strength of the evidence against Mr. Bazua-Vizcarra makes the likelihood that this single comment altered the course of the jury's deliberations extremely remote. The jury heard firsthand testimony from an informant and from an agent of the Drug Enforcement Administration. Both of these witnesses conducted drug transactions with Mr. Bazua-Vizcarra during undercover operations. The jury also saw a videotape of a heroin exchange in which Mr. Bazua-Vizcarra participated. In short,

[t]his is not a case in which the evidence is so paper-thin that even a slight error might raise doubt as to the integrity of the verdict. Rather ... the testimonial proof of the illegal operation was substantial and compelling.

Id. (footnote omitted).

B. Characterization of Defense Testimony as False

During his closing argument, the prosecutor characterized testimony put on by the defense as "a bald faced lie." Later, he described the testimony of Mr. Bazua-Vizcarra's codefendant in the following terms:

Its [sic] difficult to stand up here and call someone a liar. Strong word. Its [sic] a strong term. But its what happened. You had a man come before you who is on trial. Its [sic] hard to believe, if you're someone who trusts in other people and trusts in their integrity, its [sic] hard to believe, that they would stand up--sit down here and take an oath to tell the truth, and look jurors in the eye, look a judge in the eye, and just make a lot of stuff up.

Unfortunately that's what's happened here. That's the determination you're going to have to come to to resolve this case.

Prosecutors should "avoid directly accusing a defendant of lying--since jurors could believe the government has knowledge outside the evidence about the defendant's veracity." United States v. Garcia, 818 F.2d 136, 144 (1st Cir.1987). Such statements implicate the same fairness concerns outlined with respect to the prosecutor's comments vouching for evidence.

Once again, however, Mr. Bazua-Vizcarra fails either to argue or to evidence the prejudicial impact of this statement on the jury's deliberations. In fact, he would be hard-pressed to do so in this instance because the jury acquitted the codefendant whose testimony was the subject of this attack by the prosecutor. It thus appears that the jury was unimpressed by the prosecutor's characterization of the testimony as untruthful.

C. Comments about the Societal Impact of Drug Abuse

Mr. Bazua-Vizcarra also accuses the prosecution of unduly inflaming the jury by arguing to it the horrific social costs of heroin peddling. The prosecutor stated:

He could stand here and tell you that heroin is no big deal. He told you heroin is the drug--heroin was the drug of the 20's and 30's. Heroin isn't the drug of 1980's or the 1990's. How does he know? Why doesn't he go tell someone who's been mugged or robbed by a heroin addict, someone trying to support a heroin habit that heroin isn't the drug of 80's? Heroin is not the drug of the 80's and the 90's. Why doesn't he go tell a school principal down in south Phoenix who starts the day picking up needles in the school yard, that heroin is not the drug of the 1980's?

Diatribes concerning the social ills caused by drug abuse have no place in a criminal trial. They speak to matters not in evidence and suggest to the jury that a conviction will somehow contribute to the "war on drugs." Prosecutors are not "at liberty to substitute emotion for evidence by equating, directly or by innuendo, a verdict of guilty to a blow against the drug problem." Hawkins, 595 F.2d at 754.

To prevail on appeal, however, Mr. Bazua-Vizcarra needed to show more than improper prosecutorial comments. Prosecutorial forays into matters of social policy, while inappropriate and perhaps unwise, do not amount to constitutional error absent evidence that they unfairly impacted the jury's verdict. Young, 470 U.S. at 16-17 n. 14. Mr. Bazua-Vizcarra has made no such showing.

Indeed the jury probably considered the prosecutor's statement as nothing more than a riposte to defense counsel's earlier statements minimizing this country's heroin trafficking problem. Counsel for Mr. Bazua-Vizcarra queried of the jury:

Ask yourselves how many heroin addicts have I met in my entire life. How many heroin addicts presently exist with all these designer drugs out there? Heroin is the drug of the 20's, of the 30's, of pre and post World War II. It still exists in ghettos and barrios. It's true, but that is not the drug of the 80's and it will not be the drug of the 90's.

While two wrongs during closing argument do not make a right, Young, 470 U.S. at 11, whether defense counsel baited the prosecution into making an improper argument is a relevant factor in evaluating the statement's likely impact on the verdict. Id. at 12. ("[T]he court must consider the probable effect the prosecutor's response would have on the jury's ability to judge the evidence fairly. In this context, defense counsel's conduct, as well as the nature of the prosecutor's response, is relevant." ) See also Feldman, 853 F.2d at 665; Gwaltney, 790 F.2d at 1385. In light of the dearth of evidence of prejudice and the strength of the case against Mr. Bazua-Vizcarra, we conclude that the verbal thrust and parry between defense counsel and the government on the importance of heroin prosecutions did not influence the jury's deliberations. No plain error occurred.

Nothing in this disposition should be read as condoning the prosecutor's behavior in this case. Some of his statements went beyond the pale. The issue decided today is not whether the prosecutor's closing argument was appropriate, but whether it amounted to plain error. Young, 470 U.S. at 6. We hold that Mr. Bazua-Vizcarra's failure to adduce any argument or evidence of prejudice precludes a finding that the statements effected a "miscarriage of justice." There was no plain error.

AFFIRMED.