United States v. Jose Rodriguez Sosa ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 30, 2006
No. 04-15890 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00432-CR-T-17-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE RODRIGUEZ SOSA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 30, 2006)
Before ANDERSON, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Jose Rodriguez-Sosa (“Rodriguez”) appeals his convictions for various
Hobbs Act and firearms offenses. For the reasons that follow, we Affirm.
I. BACKGROUND
In early August 2003, Carlos Martin-Gonzalez (“Martin”), a resident of
Tampa, Florida, left his job with Nestor Pagan’s Puerto Rican medical clinic after
the men had a disagreement. Soon thereafter, Pagan learned that seven checks had
been stolen from his business, and he suspected Martin was the culprit. Rodriguez,
a Puerto Rican police officer, was in Pagan’s office when Pagan reported the theft
to police. After bank surveillance videos showed that Martin had negotiated one of
the checks, the bank agreed to reimburse Pagan. Rodriguez offered to go to Tampa
and recover the other checks from Martin so that Pagan could drop his criminal
complaint. On August 9, Rodriguez arrived in Tampa. At Pagan’s behest, brothers
Pedro and Hector Rivera, who knew Martin from their youth in Puerto Rico,
picked Rodriguez up from the airport and drove him to Martin’s residence.
While Pedro Rivera waited in the car, Hector Rivera and Rodriguez
approached Martin’s apartment door. Upon recognizing Hector Rivera, Martin and
his wife, Glenda Badias, answered the door. Rodriguez entered the apartment,
struck Martin in the head, and demanded that he hand over Pagan’s money. When
Martin said he did not have any money, Rodriguez shot him twice, killing him.
Rodriguez then fired two shots at Badias while she was holding her daughter. One
2
bullet hit Badias near her clavicle, and the other bullet grazed her neck. One of the
bullets passed through Badias and entered her daughter’s thigh. Rodriguez,
Hector, and Pedro Rivera fled in Pedro Rivera’s car. On October 30, 2003, federal
agents arrested Pagan and Rodriguez.
Rodriguez and Pagan were indicted on six counts under various federal
statutes. On the first day of trial, Pagan entered into a plea bargain and agreed to
testify against Rodriguez. During the trial, federal agents Sergio Siberio and Luis
Gonzalez testified that while Rodriguez was being processed after his arrest,
Rodriguez stated that he had committed the crime on his own and that Pagan was
not involved. Pagan testified that Rodriguez said that Badias could not identify
him because he had shot her in the head. Pedro Rivera, who had also entered into a
plea agreement, testified against Rodriguez. Badias testified that Rodriguez shot
Martin, herself, and her daughter, and she showed her wounds to the jury. The
Government also offered as exhibits photographs depicting the wound sustained by
Badias and her daughter. Rodriguez objected that the prejudicial effect outweighed
the pictures’ relevance. The district court overruled the objection.
The jury convicted Rodriguez of all six counts, and he was sentenced to life
plus a consecutive term of 120 months in prison. He now appeals his conviction.
3
II. DISCUSSION
On appeal, Rodriguez argues that his convictions should be reversed and his
case remanded for a new trial because: (A) the prosecutor committed prosecutorial
misconduct by improperly bolstering the testimony of Government witnesses and
shifting the burden of proof to Rodriguez, and (B) the district court abused its
discretion by admitting into evidence photographs depicting the gunshot wounds
sustained by Badias and her daughter.
A. Prosecutorial Misconduct
Prosecutorial misconduct requires a new trial only if the challenged remarks
(1) were improper and (2) prejudiced the defendant’s substantial rights. United
States v. Hernandez, 145 F.3d 1433, 1438 (11th Cir. 1998). Because Rodriguez
failed to make a contemporaneous objection to the alleged prosecutorial
misconduct, we review this claim for plain error. United States v. Abraham, 386
F.3d 1033, 1036 (11th Cir. 2004).
1. Improper Bolstering
“Attempts to bolster a witness by vouching for his credibility are normally
improper and error.” United States v. Sims, 719 F.2d 375, 377 (11th Cir. 1983)
(citations omitted). “When faced with a question of whether improper vouching
occurred we ask: ‘whether the jury could reasonably believe that the prosecutor
4
was indicating a personal belief in the witness’s credibility.’” United States v.
Castro, 89 F.3d 1443, 1456-57 (11th Cir. 1996) (quoting Sims, 719 F.2d at 377).
“In applying this test, we look for whether (1) the prosecutor placed the prestige of
the government behind the witness by making explicit assurances of the witness’s
credibility, or (2) the prosecutor implicitly vouched for the witness’s credibility by
implying that evidence not formally presented to the jury supports the witness’s
testimony.” Id. at 1457.
As for the second prong of the test for prosecutorial misconduct, improper
vouching prejudicially impacts a defendant’s substantial rights when, viewed in the
context of the trial as a whole, it has “so infected the trial with unfairness as to
make the resulting conviction or sentence a denial of due process.” Parker v.
Head, 244 F.3d 831, 838 (11th Cir. 2001) (citation omitted). A denial of due
process occurs “when there is a reasonable probability that, but for the prosecutor’s
offending remarks, the outcome of the proceeding would have been different.”
United States v. Eyster, 948 F.2d 1196, 1207 (11th Cir. 1991). (citation omitted).
But where the court has given a curative instruction to address a prosecutor’s
improper and prejudicial remarks, “we will reverse only if the evidence is so highly
prejudicial as to be incurable by the trial court’s admonition.” United States v.
Harriston, 329 F.3d 779, 787 n.4 (11th Cir. 2003) (citations omitted). Moreover,
5
where the remarks represent only an insignificant portion of the trial, and properly
admitted evidence sufficiently establishes a defendant’s guilt, the defendant’s
substantial rights are not affected. United States v. Adams, 74 F.3d 1093, 1100
(11th Cir. 1996).
a. Vouching for the Credibility of Siberio and Gonzalez
Here, Rodriguez argues that, during closing arguments, the prosecutor
improperly vouched for the credibility of agents Siberio and Gonzalez by
rhetorically asking the jury why the agents would lie and asserting that an agent
would not “throw away” nearly 30 years of experience by committing perjury in a
case in which he had a tangential role. The Government counters that the
challenged remarks do not constitute improper vouching and that any prejudice
was cured by the district court’s instructions to the jury regarding statements of
counsel and the jury’s role in interpreting the evidence. The Government further
argues that there was overwhelming evidence of Rodriguez’s guilt, including, the
testimony of Pagan, Pedro Rivera, and Badias regarding Rodriguez’s role in the
shootings, telephone records confirming Rodriguez’s communication with Pagan
and Pedro Rivera during the relevant time periods and in the relevant geographic
areas, and Badias’s identification of Rodriguez as the shooter.
In our view, the challenged remarks neither placed the prestige of the
6
government behind the agents, nor implied that evidence not before the jury
supported the agents’ testimony. The remarks merely highlighted facts that would
help the jury assess the agents’ credibility after defense counsel had attacked the
veracity of the agents’ testimony. Moreover, the remarks were based on record
evidence concerning the extensive law enforcement experience of one of the agents
and the limited role both agents played in the case. Furthermore, in light of the
other evidence of Rodriguez’s guilt, there was no reasonable probability that the
challenged remarks impacted the trial’s outcome. Finally, any prejudice was cured
when the district court instructed the jury that the statements of counsel were not
evidence and that the jury’s interpretation of the evidence controls. Accordingly,
we conclude that the prosecutor’s comments regarding Siberio and Gonzalez do
not constitute prosecutorial misconduct.
b. Comments on the Truth-telling Requirements of Plea Bargains
Rodriguez contends that the prosecutor improperly vouched for the
credibility of Pedro Rivera and Pagan by asking them whether their respective plea
agreements required them to tell the truth and would be voided if they perjured
themselves. Rodriguez also contends that the prosecutor vouched for these
witnesses during closing argument by asserting that if these witnesses testified
falsely, their plea agreements would be voided and they would face additional
7
prosecution. The Government, however, notes that the challenged arguments were
made after defense counsel had attacked the credibility of these witnesses on cross-
examination and after defense counsel had argued that they had a motive to lie.
The Government also asserts that any prejudice was cured by the district court’s
instructions to the jury regarding the “caution” it must exercise in considering the
testimony of witnesses who may have a motive to testify falsely.
As we articulated in United States v. Diaz, “[w]e have held that it is
perfectly proper for a prosecutor to elicit testimony regarding the truth telling
portion of a plea agreement on redirect once the credibility of the witness is
attacked on cross-examination.” 190 F.3d 1247, 1254 (1999). We have further
held that it is proper for a prosecutor to point out that if a witness testifying
pursuant to a plea bargain perjures himself, he violates the plea agreement and
risks prosecution. See United States v. Cano, 289 F.3d 1354, 1365 (11th Cir.
2002); Castro, 89 F.3d at1457; United States v. Dennis, 786 F.2d 1029, 1046 (11th
Cir. 1986); Sims, 719 F.2d at 377.
Here, the thrust of defense counsel’s cross-examinations of Pagan and Pedro
Rivera was that they had a motive to lie because of the reduced sentences they
received in exchange for their cooperation with the Government. Defense counsel
made similar assertions during closing argument. In our view, the challenged
8
remarks were part of the Government’s efforts to rehabilitate its witnesses and do
not constitute improper vouching. Moreover, any suggestion of vouching was
mitigated by the court’s instruction to the jury that the testimony of witnesses
testifying pursuant to a plea agreement should be considered with more caution
than the testimony of other witnesses.
Although Rodriguez acknowledges our precedent, he argues that we should
overrule it. But the “law of this circuit is ‘emphatic’ that only the Supreme Court
or this court sitting en banc can judicially overrule a prior panel decision.” Walker
v. S. Co. Servs., Inc., 279 F.3d 1289, 1293 (11th Cir. 2002) (quoting Cargill v.
Turpin, 120 F.3d 1366, 1386 (11th Cir. 1997). Accordingly, we conclude that the
references to Pagan and Pedro Rivera’s plea agreements do not warrant reversal.
2. Burden-shifting
Rodriguez next contends that prosecutor impermissibly shifted the burden of
proof to Rodriguez. In a criminal proceeding, the government has the burden of
proving every element of the charged offense beyond a reasonable doubt. United
States v. Simon, 964 F.2d 1082, 1086 (11th Cir. 1992) (citation omitted). A
defendant “does not have to disprove anything nor prove innocence, and
state-created presumptions to the contrary are violative of due process.” Id.(citations omitted). Thus, “prosecutors must refrain from making burden-shifting
9
arguments which suggest that the defendant has an obligation to produce any
evidence or to prove innocence.” Id. (citation omitted). Nevertheless, “the
prejudice from the comments of a prosecutor which may result in a shifting of the
burden of proof can be cured by a court’s instruction regarding the burden of
proof.” Id. at 1087 (citing several cases to this effect).
Here, Rodriguez argues that the prosecutor impermissibly shifted the burden
of proof by repeatedly asserting that Rodriguez’s story was a fabrication because
he failed to produce evidence to corroborate various portions of his story. The
Government responds that the prosecutor’s remarks were merely comments on the
evidence and that any prejudice was cured by the court’s jury instructions and
statement’s by counsel regarding the burden of proof.
We conclude that Rodriguez’s burden-shifting argument lacks merit. First,
the prosecutor never argued that Rodriguez should have produced or needed to
produce evidence corroborating his story in order to establish his innocence.
Instead, the prosecutor merely commented on the evidence presented at trial and
the arguments presented by Rodriguez’s counsel, and emphasized the lack of
evidence corroborating Rodriguez’s story. Second, even if the challenged remarks
could be viewed as an attempt to shift the burden of proof, the district court’s
instructions to the jury sufficiently clarified that the government had the burden of
10
proof. Indeed, the district court emphatically instructed the jury that Rodriguez
had the right to remain silent, that he was not obligated to present any evidence,
that he was presumed innocent, and that the Government had the burden of proving
guilt beyond a reasonable doubt. Consequently, we conclude that the Government
did not improperly shift the burden of proof.
B. Photographs of the Gunshot Wounds
Rodriguez argues that the district court violated Federal Rule of Evidence
403 by admitting “gruesome” photographs into evidence because any probative
value was outweighed by the prejudice and was cumulative. “We review the
district court’s evidentiary rulings for abuse of discretion, and will only reverse if
an erroneous ruling resulted in substantial prejudice.” Conroy v. Abraham
Chevrolet-Tampa, Inc., 375 F.3d 1228, 1232 (11th Cir. 2004) (citation omitted).
The district court has broad discretion to admit relevant evidence. United
States v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006). Evidence is relevant if it
has “any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.” Fed. R. Evid. 401. But Rule 403 provides that otherwise
relevant evidence may be excluded if “its probative value is substantially
outweighed by the danger of unfair prejudice, . . . or needless presentation of
11
cumulative evidence.” Fed. R. Evid. 403 (emphasis added). Nevertheless, we
have recognized that “Rule 403 is an extraordinary remedy[,] which should be used
only sparingly” and that the balance “should be struck in favor of admissibility.”
Smith, 459 F.3d at 1295 (internal quotation marks omitted). Hence, in “reviewing
issues under Rule 403, we look at the evidence in a light most favorable to its
admission, maximizing its probative value and minimizing its undue prejudicial
impact.” United States v. Brown, 441 F.3d 1330, 1362 (11th Cir. 2006).
Rodriguez contends that the injuries depicted in these photographs was
irrelevant and had no probative value because Martin’s wife and daughter were not
mentioned as victims in the indictment or the prosecutor’s arguments. Rodriguez
also argues that even if the injuries were relevant, the photographs were
unnecessary and cumulative because Badias’s testimony provided a full description
of the injuries and the manner of injury was not in dispute. The Government
responds that the photographs were relevant because they allowed the inference
that Rodriguez attempted to shoot Badias in the head, thereby corroborating
Pagan’s testimony that Rodriguez had stated that Badias could not identify him
because he had shot her in the head. The Government also contends that the
photographs allowed the jury to draw reasonable inferences about Rodriguez’s
intent to eliminate the only adult witness to Martin’s murder. The Government
12
further asserts that the photographs were not gruesome and were less disturbing
than the images conjured by the facts of the crime. Finally, the Government argues
that any prejudice was cured by the district court’s instruction to the jury that it
must not be influenced by sympathy or prejudice.
In our view, the photographs depicting the location of Badias and her
daughter’s wounds had minimal probative value. The chain of inferences linking
the location of the wounds to any fact of consequence in this case is weak and
attenuated. And the photographs depicting the wounds had even less probative
value given that Badias testified as to the location of her wounds and pulled her
shirt down to allow the jury to see the wounds. Probative value is, in part, a
function of the prosecution’s need for the evidence in making its case. United
States v. King, 713 F.2d 627, 631 (11th Cir. 1983).
On the other side of the Rule 403 inquiry, the photographs were arguably
cumulative because the Government introduced independent evidence that
established the location of Badias and her daughter’s wounds. Nevertheless, “Rule
403 does not mandate exclusion merely because some overlap exists between the
photographs and other evidence.” United States v. De Parias, 805 F.2d 1447, 1454
(11th Cir. 1999), overruled on other grounds by United States v. Kaplan, 171 F.3d
1351 (11th Cir. 1999). Thus, admitting the photographs “hardly constitute[d] such
13
a needless accumulation of evidence as to amount to an abuse of discretion.” Id.Moreover, it is doubtful that the photographs caused unfair prejudice
considering the overwhelming evidence of Rodriguez’s guilt. Indeed, “in a
criminal trial[,] relevant evidence is inherently prejudicial; it is only when unfair
prejudice substantially outweighs probative value that the rule permits exclusion.”
King, 713 F.2d at 631 (emphasis added). And any unfair prejudice was likely
mitigated by the district court’s instruction to the jury that it must not be swayed by
sympathy or prejudice.
Even had the district court abused its discretion in admitting the
photographs, we conclude that the error was harmless — there was other,
overwhelming evidence of Rodriguez’s guilt, and any error had no substantial
impact on the jury’s verdict. See Harriston, 329 F.3d at 789 (stating that error is
harmless “where there is overwhelming evidence of guilt” or “the error had no
substantial influence on the outcome” and other sufficient evidence supports the
verdict).
III. CONCLUSION
For the reasons above, we AFFIRM the district court.
14