United States v. Baez-Martinez ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1036
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE BÁEZ-MARTÍNEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Howard, Selya and Kayatta,
Circuit Judges.
David B. Hirsch for appellant.
Max J. Pérez-Bouret, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Susan Z. Jorgensen, Assistant United States Attorney,
were on brief, for appellee.
May 13, 2015
SELYA, Circuit Judge. A jury convicted defendant-
appellant Jorge Báez-Martínez of possessing a firearm as a
convicted felon. Represented by new counsel on appeal, the
defendant asserts that the prosecutor both offered an improper
interpretation of witness testimony and invited the jury to infer
guilt from the defendant's silence. Discerning no plain error, we
affirm.
I. BACKGROUND
The background facts are largely undisputed, so we merely
sketch the pertinent events and proceedings. On the evening of
March 29, 2012, the defendant went to El Trapiche, a bar in
Guaynabo, Puerto Rico. That same evening, local police were
checking the licenses of establishments (like El Trapiche) that
were sites of frequent criminal activity.
At roughly 10:00 p.m., a cadre of police officers
descended upon El Trapiche. Four official vehicles, including a
patrol car carrying uniformed officers and an unmarked car carrying
plainclothes officers parked nearby.
After the vehicles parked, the patrol car activated its
emergency lights. As officers Ivy González Ortiz (González) and
Luis de Serrano Reyes (Serrano) were exiting the unmarked car, they
noticed the defendant — who was sitting at the outdoor bar — glance
in their direction and then discard a fanny pack behind the bar.
This act raised the officers' suspicions because in their
-2-
experience such fanny packs often were used to conceal firearms and
drug-related contraband.
The officers approached the defendant, and Serrano jumped
over the bar to retrieve the fanny pack. Inside, he found a loaded
pistol with an obliterated serial number, additional ammunition,
two cigarette lighters, and a card used for passing through toll
booths. Serrano asked the defendant whether he had a permit for
the firearm. When the defendant did not respond, he was arrested.
In due season, a federal grand jury charged the defendant
with being a felon in possession of a firearm. See 18 U.S.C.
§ 922(g)(1). Facing a fifteen-year mandatory minimum sentence, see
id. § 924(e)(1), the defendant opted for trial. Inasmuch as the
parties stipulated to several elements of the crime, the trial
focused on whether the defendant knowingly possessed the firearm.
The government's case in chief consisted of the testimony
of the two officers (González and Serrano). In the defense case,
the defendant called his mother and sister, who testified that they
had dinner with the defendant that evening and saw no fanny pack.
Neither of them had known the defendant to wear a fanny pack or to
smoke. His mother added that the vehicle the defendant regularly
drove was equipped with its own freeway pass. The defendant also
called an acquaintance with whom he had rendezvoused at El
Trapiche. The acquaintance testified that the defendant was not
wearing a fanny pack when they met.
-3-
The jury apparently credited the officers' testimony: it
concluded that the government had proven beyond a reasonable doubt
that the defendant knowingly possessed the firearm and found him
guilty. The district court imposed the mandatory minimum sentence.
This timely appeal followed.
II. ANALYSIS
In this venue, the defendant asseverates that
prosecutorial misconduct entitles him to a new trial. The
challenged actions fall into two categories. First, the defendant
submits that the prosecutor inappropriately corrected the court
interpreter's English translation of certain testimony given by the
police officers. Second, he submits that the prosecutor's closing
argument made impermissible references to his decision not to
testify. Because the defendant interposed no contemporaneous
objection to any of the statements that he now denigrates, our
review is for plain error. See United States v. Sánchez-Berríos,
424 F.3d 65, 73 (1st Cir. 2005). Under this rubric, the defendant
must establish "(1) that an error occurred (2) which was clear or
obvious and which not only (3) affected [his] substantial rights,
but also (4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." United States v. Duarte, 246
F.3d 56, 60 (1st Cir. 2001).
-4-
A. Translation Commentary.
We start with the defendant's claim that the prosecutor
strayed into forbidden terrain by commenting on the court
interpreter's translation of certain testimony. Under the Jones
Act, 48 U.S.C. § 864, judicial proceedings in the District of
Puerto Rico must be conducted in English. When a witness testifies
in Spanish (as frequently happens), it is the interpreter's
translation of that testimony that constitutes the evidence of
record. See United States v. Morales-Madera, 352 F.3d 1, 6 (1st
Cir. 2003).
During direct examination, the prosecutor asked González
to describe what transpired after the police arrived at El
Trapiche. As her account proceeded, the following exchange
occurred:
[GONZÁLEZ:] After the strobe lights went on,
I noticed the gentleman that was sitting by
the bar who then takes a look to his right
side, which then would have been the right
side.
[PROSECUTOR:] Excuse me. The translation.
Basically she said he looks to the right
"where we would be."
There was no objection, and direct examination continued.
The defendant now calumnizes the prosecutor for
unilaterally supplying his own translation. This attack is not
without a patina of plausibility: the prosecutor's spontaneous
correction of the interpreter may well have constituted error. See
-5-
United States v. Powell, 771 F.2d 1173, 1175 (8th Cir. 1985)
(deeming similar correction improper). If the prosecutor thought
that the interpreter had made a mistake, a simple follow-up
question was all that was needed to set the record straight. Even
assuming that there was an error, however, that error was not so
prejudicial as to warrant relief.
To prevail under plain error review, the defendant would
have to demonstrate that the alleged error likely swayed the
outcome of the trial. See United States v. Landry, 631 F.3d 597,
606 (1st Cir. 2011). The defendant cannot make such a showing.
The government introduced ample evidence concerning where the
defendant was seated in relation to the officers. And shortly
after the disputed exchange, González testified without objection
that the defendant looked to the right and saw the strobe lights.
Given this unchallenged testimony, the prosecutor's
editorialization could not conceivably have influenced the verdict.
If more were needed — and we doubt that it is — the
district court carefully instructed the jury, both near the
beginning and near the end of the trial, that statements and
objections of counsel are not evidence. Such an instruction can,
in appropriate circumstances, allay the potential prejudice that
may result from overzealous advocacy. See, e.g., United States v.
Pires, 642 F.3d 1, 15 (1st Cir. 2011); United States v. Bey, 188
F.3d 1, 8-9 (1st Cir. 1999). In this instance, the court's
-6-
meticulous instructions were sufficient to palliate any prejudice
that might otherwise have flowed from the errant correction.
In much the same vein, the defendant takes issue with an
objection that the prosecutor made during cross-examination of
Serrano. We set the stage:
[DEFENSE COUNSEL:] Agent Serrano, I believe
you testified here this afternoon that what
you recall seeing [the defendant] do at the
bar was slide this object, this fanny pack,
across the bar.
In the initial report that you prepared back
at the time you investigated the case, you
actually wrote that he threw the fanny pack
over the bar; correct?
[SERRANO:] No. He extended his hand, and he
threw — he dropped the fanny pack behind the
bar.
. . . .
[DEFENSE COUNSEL:] Do you recall telling
Agent Torres that while you were there at the
location, you noticed a male subject sitting
in a bar with a black fanny pack and that you
observed that subject later identified as [the
defendant] throw the fanny pack to the other
side of the bar?
Do you recall telling Agent Torres that
specific statement?
[SERRANO:] I told him that he threw the fanny
pack inside the bar with his right hand.
[DEFENSE COUNSEL:] So you agree that
. . . you told him that the person you saw
threw the fanny pack?
[PROSECUTOR:] Your Honor, we have an
objection here. This is sort of like a
translation. In Spanish tiro could be
-7-
translated dropping in English versus
throwing, and in Spanish, tiro could be
throwing and dropping.
I think here we only have a translation thing
basically saying that he tiro, he dropped it,
or that he threw it which is what brother
counsel wants to make an impeachment.
[DEFENSE COUNSEL:] Well, Your Honor, we
disagree because I think that the witnesses
have testified in Spanish, and they did not
use the word "tiro." They used the word
"slipped" or "dropped."
[PROSECUTOR:] I'm sorry. He just testified,
and he used the word "tiro."
[COURT:] Did he testify whether the fanny
pack was tiro or dropped? He did?
[DEFENSE COUNSEL:] That's all I have, Your
Honor. Thank you.
The defendant concedes that, as a general matter, a
prosecutor is allowed to object to the court interpreter's
translation and/or defense counsel's attempts at impeachment. He
nonetheless asserts that the objection should have been made at
sidebar. His rationale is that the prosecutor relied on evidence
outside the record (presumably, his understanding of Spanish) to
bolster Serrano's credibility and, thus, unfairly interfered with
defense counsel's attempt to impeach Serrano.
This claim of error arguably fails to satisfy any aspect
of the plain error test. We need not run the gamut. For present
purposes, it suffices to say that while the prosecutor's objection
might more appropriately have been made at sidebar, see United
-8-
States v. Diaz-Castro, 752 F.3d 101, 112 (1st Cir. 2014), the
defendant has identified no case holding that an otherwise
appropriate objection to impeachment based on a translation issue
must invariably be made in that manner. Whether and when
objections should be made at sidebar rather than in open court are
matters that, within broad limits, lie peculiarly within the
discretion of the trial court. Cf. United States v. Cassiere, 4
F.3d 1006, 1018 (1st Cir. 1993) (discussing district court's "broad
discretion to control trial proceedings"). There was no obvious
abuse of that broad discretion here — and errors that are not
obvious cannot be plain. See United States v. Olano, 507 U.S. 725,
734 (1993).
To cinch matters, the defendant has not shown that the
prosecutor's statement had any effect on the outcome of the trial.
The prosecutor merely pointed out that there were two ways to
translate the word tiro. In and of itself, that was not
prejudicial.1
At any rate, the prosecutor's remark was made in the
context of a clearly identified objection. Because the court
explicitly instructed the jury that objections of counsel were not
to be considered as evidence, we can safely presume that the jury
1
The defendant's suggestion that the prosecutor's comment
somehow violated the Jones Act, 48 U.S.C. § 864, is untenable. So
long as the proceedings are conducted in English (as they were
here), an occasional reference to a foreign-language word or phrase
by a lawyer or a witness does not offend the Jones Act.
-9-
did not factor the remark into its decision. See United States v.
Sampson, 486 F.3d 13, 39 (1st Cir. 2007) ("Jurors are normally
presumed to follow the trial court's instructions."). The
defendant has offered no reason to question the force of that
presumption here.
B. References to the Defendant's Silence.
We turn next to the plaint that the prosecutor improperly
adverted in summation to the defendant's silence. This claim of
error targets two separate statements made by the prosecutor during
closing arguments.
After cataloging the government's evidence, the
prosecutor stated during the initial portion of his summation:
Ladies and gentlemen, the testimonies of Agent
Gonzalez and Agent Serrano stand uncontested,
uncontested.
During his rebuttal argument, the prosecutor added:
The testimony of Agent González and Agent
Serrano stands uncontested.
The only witnesses that have entered through
that door and sat here and provided testimony
that were actually there that night, that were
actually present at the time of the arrest,
are only Agents González and Serrano.
Everybody else had no knowledge of what
happened that night, nothing.
The Fifth Amendment prohibits prosecutors from commenting
on a defendant's exercise of his right to remain silent. See
United States v. Robinson, 485 U.S. 25, 30 (1988); Griffin v.
-10-
California, 380 U.S. 609, 615 (1965). A prosecutor can transgress
this prohibition through indirect allusions to a defendant's
silence. See United States v. Taylor, 54 F.3d 967, 978 (1st Cir.
1995). References made during closing arguments are of particular
concern because such arguments "represent the parties' last, best
chance to marshal the evidence and persuade the jurors of its
import." Id. at 977.
It is too well settled to warrant citation of authority
that a prosecutor, in his closing argument, may try to convince the
jury of the force (or lack of force) of the testimony of particular
witnesses. There is sometimes a fine line, however, between a
permissible critique of witness testimony and an impermissible
comment on the defendant's silence. For that reason, we have
warned that prosecutors should tread with caution in this area.
See id. at 979; United States v. Sepulveda, 15 F.3d 1161, 1186 (1st
Cir. 1993).
In considering whether a prosecutor has sailed too close
to the wind, we first must situate his comments within the context
of the surrounding proceeding. See Sepulveda, 15 F.3d at 1187;
United States v. Lilly, 983 F.2d 300, 307 (1st Cir. 1992). We then
ask whether "the language used was manifestly intended or was of
such character that the jury would naturally and necessarily take
it to be a comment on the failure of the accused to testify."
Sepulveda, 15 F.3d at 1187 (internal quotation marks omitted).
-11-
In the absence of meaningful indicia of impropriety, we
will not interpret ambiguous comments in their most pernicious
sense. After all, "a court should not lightly infer that a
prosecutor intends an ambiguous remark to have its most damaging
meaning or that a jury, sitting through lengthy exhortation, will
draw that meaning from the plethora of less damaging
interpretations." Donnelly v. DeChristoforo, 416 U.S. 637, 647
(1974). This principle takes on added force where, as here, the
complaining party has failed to interpose a timely objection. See
Taylor, 54 F.3d at 979. In such circumstances, "it seems fair to
give the arguer the benefit of every plausible interpretation of
her words." Sepulveda, 15 F.3d at 1187.
Nothing in the record of this case indicates that the
prosecutor's statements, taken in context, were deliberate
references to the defendant's silence. Nor is there any reason to
believe that the jury would have treated them as such. Indeed, the
two most likely interpretations of the challenged comments are both
innocuous.
To begin, it seems likely that the prosecutor was simply
arguing that his witnesses, but none of the defense witnesses, were
present at the time of the arrest. Thus, the defense witnesses
were unable to contradict the officers' version of what transpired
at El Trapiche.
-12-
Careful perscrutation of the record strongly supports
this interpretation. During trial, the prosecutor cross-examined
each defense witness who claimed to have seen the defendant on the
evening of March 29 about whether he or she had been at El Trapiche
when the defendant was arrested. Each witness admitted to being
elsewhere. Since the trial lasted only two and one-half days,
these admissions would have been fresh in the jurors' minds.
The remainder of the prosecutor's closing argument
provides supporting context. During his rebuttal, the prosecutor
summarized the testimony of the defense witnesses, arguing: "None
of those four witnesses were present at El Trapiche. None
. . . were there at the time of the incident, and none of them can
tell you that the defendant did not in fact throw that fanny pack."
That line of argument was followed shortly by the prosecutor's
second challenged statement, which pointed out that none of the
testimony offered by those witnesses directly contested the on-the-
scene observations of the police officers. Viewed in the context
of the record as a whole, the prosecutor's statements do not come
close to plain error. See United States v. Rodriguez-Preciado, 399
F.3d 1118, 1132 (9th Cir. 2005) (explaining that comment on failure
of defense to counter testimony presented does not violate Fifth
Amendment); United States v. Wade, 931 F.2d 300, 305 (5th Cir.
1991) (similar).
-13-
Alternatively, the jury might have construed the
challenged remarks (or, at least, the second of them) as an attempt
to shore up the credibility of the government's witnesses. In his
closing, defense counsel argued that the testimony of the two
officers had diverged on certain details; that Serrano previously
had made inconsistent statements about how the defendant discarded
the fanny pack; and that the police version of the events was
incredible. The prosecutor was entitled to counter those
arguments, see Sepulveda, 15 F.3d at 1187, and we think that the
jury may well have interpreted what he said as fair comment to that
effect.
To sum up, the challenged statements were neither
manifestly intended nor of a character such that "the jury would
naturally and necessarily take [them] to be a comment on the
failure of the accused to testify." Id. (internal quotation mark
omitted). Here, moreover, the district court twice instructed the
jury that the government bore the burden of proof, that the
defendant was presumed innocent, and that no adverse inference
could be drawn from the defendant's decision not to testify. Any
possibility that the jury might have put an untoward spin on the
prosecutor's isolated statements was diminished by these clear
instructions. See Taylor, 54 F.3d at 980.
In an effort to blunt the force of this reasoning, the
defendant suggests that there were improper insinuations lurking
-14-
beneath the prosecutor's words. He says that because he was the
only person (apart from the officers) who was "actually [at El
Trapiche] that night," the prosecutor's comments ineluctably drew
the jury's attention to his failure to testify. But even though we
have recognized that references to evidence being uncontradicted
may cause constitutional concern if the defendant is the only
person who logically could contradict that evidence, see Bey, 188
F.3d at 9; United States v. Flannery, 451 F.2d 880, 881-82 (1st
Cir. 1971), that is not the case here.
Defense counsel noted during his summation that there
were fifty people in the area, and that at least six young people
were sitting at a table near the defendant. In addition, the
testimony established that a bartender was working in the general
vicinity of where the defendant sat. Even if the defendant might
have had trouble tracking down other patrons, the record discloses
no reason why the bartender could not have been called as a
witness.2 The fact that the jury was aware that other potential
witnesses were present takes the sting out of the prosecutor's
comments and puts them outside the realm of "naked finger-pointing
at the defendant." United States v. Stroman, 500 F.3d 61, 66 (1st
Cir. 2007); see United States v. Ayewoh, 627 F.3d 914, 925 (1st
2
Indeed, during his opening statement, defense counsel told
the jury that it would hear testimony from the bartender to the
effect "that he never saw [the defendant] throw a fanny pack, and
. . . never heard a fanny pack land on the floor of the bar." The
record is silent as to why the defense reneged on this commitment.
-15-
Cir. 2010); United States v. Glantz, 810 F.2d 316, 323 (1st Cir.
1987).
C. A Parting Shot.
In a last-ditch effort to save the day, the defendant
contends that even if none of the prosecutor's actions warrants a
new trial when viewed in isolation, their combined effect tips the
scales. This contention invokes the cumulative error doctrine,
which holds that the aggregate impact of errors may sometimes
necessitate setting aside a verdict even though each individual
error is harmless. See Sepulveda, 15 F.3d at 1195-96.
In this case, the doctrine adds very little to the
defendant's overall attack. It is the aggregate effect of errors
— not the aggregate effect of non-errors — that counts. See
Williams v. Drake, 146 F.3d 44, 49 (1st Cir. 1998). Viewed against
this backdrop, aggregating the effect of the defendant's claims of
error leads nowhere. Even considered as a group, the prosecutor's
challenged actions do not "synergistically achieve the critical
mass necessary to cast a shadow upon the integrity of the verdict."
Id. (internal quotation marks omitted).
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the judgment is
Affirmed.
-16-