United States v. Rodriguez-Santana ( 2000 )


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  •         [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]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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