United States v. Alex Alexander , 741 F.3d 866 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3498
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALEX ALEXANDER,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 11 CR 50018-1 — Frederick J. Kapala, Judge.
ARGUED OCTOBER 28, 2013 — DECIDED FEBRUARY 4, 2014
Before POSNER, WILLIAMS, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. A jury found Alex Alexander
guilty of possessing marijuana with the intent to distribute,
possessing a gun though he is a felon, and possessing a gun in
furtherance of a drug crime. Alexander argues on appeal—for
the first time—that the prosecutor impermissibly vouched for
the credibility of the key government witness during his
closing argument. With the benefit of appellate hindsight, we
conclude that the prosecutor’s closing argument at two points
2 No. 12-3498
strayed across an admittedly fine line into improper vouching,
but the errors were not serious and did not deprive Alexander
of a fair trial or cause his convictions. Alexander thus cannot
establish the plain error that would be required to win reversal
based on prosecutorial behavior not objected to at trial. We
affirm the judgment of the district court.
Alexander’s convictions stem from a traffic stop in
Rockford, Illinois, on a February afternoon in 2011 not long
after a snow storm. Rockford Police Officer Mark Honzel was
on patrol that day and saw Alexander’s car stopped on Blake
Street next to another car, obstructing a lane of traffic. Honzel
drove toward the cars, but Alexander drove away and turned
down an icy, snow-filled alley. Rather than follow him down
the alley, Honzel caught up with Alexander after he emerged,
pulled up behind him, and turned on the squad car’s lights to
pull him over. Alexander did not stop immediately but began
to turn onto another street. This maneuver caused him to lose
control of his car and slide deep into a snow bank.
Officer Honzel walked up to the car as Alexander vainly
tried to back out of the snow bank. Opening the driver’s side
door, Honzel was struck by the smell of “fresh raw cannabis.”
He told Alexander to turn the car off, and Alexander complied.
Honzel then called in a drug-sniffing dog, which alerted to the
presence of drugs in the car’s center console. The subsequent
search of the car turned up six grams of marijuana divided into
several small plastic bags, $365 in cash, a digital scale, two cell
phones, and a loaded gun, which was beneath the front
passenger seat. Officer Honzel testified that one of the cell
phones displayed a new text message inquiring about drugs:
“How much for a half?” An additional $470 in cash was found
No. 12-3498 3
on Alexander’s person. Following his arrest, Alexander was
charged in federal court with possessing marijuana for distri-
bution, 21 U.S.C. §841(a)(1), possessing a gun in connection
with a drug crime, 18 U.S.C. §924(c)(1)(A), and possessing a
gun as a felon, 18 U.S.C. §§922(g)(1), 924(e)(1).
At trial Alexander’s defense was that he did not know the
marijuana and gun were in the car, which he did not own. He
did not testify or present other evidence that he was unaware
of the contraband, but his lawyer sought to support this
defense in his opening and closing arguments. He pointed out
that Alexander is a large man who, his lawyer reasoned, would
have trouble bending over to retrieve a gun from under the
passenger seat and so would not stash one there. The car had
a lot of things in it, including a lot of trash, but nothing that
undoubtedly belonged to Alexander. The government had
presented no fingerprint or DNA evidence to establish that
Alexander had ever touched the gun or the drug-related items.
Alexander’s lawyer argued in closing that Officer Honzel’s
account of his encounter with Alexander was not trustworthy.
The text message Honzel claimed to have seen was not
recovered from either of the seized phones. (No text messages
were recovered.) Also, Officer Honzel had written in his police
report that he first saw Alexander on Kent Street. He later
explained (including when he testified) that he had made a
mistake in writing his report and actually had first seen
Alexander on Blake Street, which is one block north of Kent.
Alexander’s lawyer argued that the error showed Honzel’s
general lack of credibility regarding his encounter with
Alexander. Questioning Honzel’s credibility further, the
lawyer asked rhetorically why he would have waited for a
4 No. 12-3498
drug-sniffing dog to arrive when he supposedly smelled the
marijuana himself, which would have provided probable cause
for the search even without the dog. The lawyer seemed to
imply that Officer Honzel claimed to have smelled the mari-
juana himself to give the impression that Alexander must have
been able to smell it too—and thus must have been aware it
was there—when Alexander had not actually smelled it and
did not know it was there.
The prosecutor responded in the rebuttal portion of his
closing argument to Alexander’s attack on Officer Honzel’s
credibility:
We know that Officer Honzel had no incentive,
no incentive at all, to falsely implicate the defen-
dant in any type of crime. And we can go even
one step further, that if Officer Honzel was bent
on breaking the law and violating his oath of
office, he could have done a lot better. I mean, if
you’re really going to manufacture evidence, if
you’re really going to lie and dishonor yourself,
then why not go all the way. Why not claim that
he saw the defendant holding onto that gun.
Why not claim that he saw the defendant make
a hand-to-hand transaction with the black
Dodge, the occupant of the black Dodge. Why
not claim that he saw the defendant hiding the
gun underneath the front seat, if you’re really
going to break the law here. But he didn’t say
any of that because he told you the truth. Did he
transpose the name of a street that was one block
off? Yes. Is Mark Honzel a human being? Yes.
But he was honest and humble enough to admit
that to you.
No. 12-3498 5
Alexander’s lawyer did not object to any of the prosecutor’s
remarks.
The jury found Alexander guilty of all three crimes. The
district court determined at sentencing that Alexander was a
career offender under the Sentencing Guidelines, see U.S.S.G.
§4B1.1, and imposed a prison term of 390 months.
On appeal Alexander argues that the prosecutor
impermissibly “vouched” for Officer Honzel’s credibility.
“Improper vouching is trying to bolster a witness’s believabil-
ity with ‘evidence’ that was not presented and may well not
exist.” United States v. Edwards, 581 F.3d 604, 610 (7th Cir. 2009).
This understanding of improper vouching includes prosecuto-
rial expressions of a “personal belief in the witness’s truthful-
ness” but does not include a prosecutor’s reminder to the jury
“of evidence presented at the trial that tends to show that a
witness was telling the truth.” Id. at 609–10.
In evaluating such claims when a timely objection was
made, we ask whether the prosecutor’s statements, standing
alone, were improper and if so whether they denied the
defendant a fair trial. United States v. Wolfe, 701 F.3d 1206, 1211
(7th Cir. 2012); United States v. Lathrop, 634 F.3d 931, 939–40
(7th Cir. 2011). Our review is more deferential when the
defendant did not object at the trial to the prosecutor’s state-
ments. In such cases, including this one, we reverse only if the
error was “plain,” by which we mean that it was obvious,
affected the defendant’s substantial rights to such an extent
that he would not otherwise have been convicted, and seri-
ously affected the fairness, integrity, or public reputation of the
judicial proceedings. United States v. Tucker, 714 F.3d 1006,
1011–12 (7th Cir. 2013). That is a lengthy way of saying that we
will not grant Alexander a new trial unless there was an error
6 No. 12-3498
so egregious that the district judge should have stepped in
even though no objection was made.1
Alexander argues that the prosecutor’s statements that
Officer Honzel would not violate his oath or break the law
were improper and led to his conviction. Indeed, prosecutors
are not supposed to imply that a police officer’s professional
oath—as distinct from the oath as a witness—will prevent
lying. See United States v. Cornett, 232 F.3d 570, 575–76 (7th Cir.
2000) (prosecutor’s statement that “police officers take an oath
to follow the law” was error because it “bolstered the credibil-
ity of the police officers by commenting on their occupational
integrity,” and “it is improper for a prosecutor to vouch for the
credibility of witnesses by referring to facts outside the
record”). The prosecutor’s reference to the officer’s oath of
office went outside the record, as in Cornett, and was therefore
improper.
Also improper, though the question is close, was the
prosecutor’s statement that Officer Honzel had “no incentive,
no incentive at all, to falsely implicate the defendant in any
type of crime.” In Edwards, we concluded that a prosecutor’s
similar statement (in the form of a rhetorical question) about an
officer’s lack of motive to testify falsely—“what possible reason
does he have to risk his career?”—was improper vouching,
though it proved to be harmless. 581 F.3d at 610–11. The
question “implied that the prosecutor had an undisclosed
reason to believe that the consequences if the officer lied would
be sufficiently grave to guarantee that he would testify
truthfully.” Id.; United States v. Badger, 983 F.2d 1443, 1451 (7th
1
If there has been a change in the law after trial but before appeal, an
appellate court can conclude that an error is “plain” even if it was not
understood to be an error at all at the time of trial. See generally
Henderson v. United States,—U.S.—, 133 S. Ct. 1121 (2013).
No. 12-3498 7
Cir. 1993) (improper to ask jury whether agent would risk job,
reputation, and pension to lie about defendant where no
evidence was offered on those topics).
Since no evidence had been presented on the question in
this case, the prosecutor’s statement that Officer Honzel had no
incentive to lie similarly implied undisclosed knowledge that
Honzel had every reason to tell the truth, particularly when
added to the prosecutor’s assertion that Honzel would
“dishonor” himself by lying. And police officers—who are
engaged in “the often competitive enterprise of ferreting out
crime,” Maryland v. King,—U.S.—, 133 S. Ct. 1958, 1970 (2013)
(internal citations omitted)—may sometimes have an incentive
to be untruthful or to shade the facts in pursuit of a conviction.
The line here is admittedly a fine one that may easily be
overlooked by the prosecutor, defense counsel, and judge in
the pressure of extemporaneous speeches to the jury. On one
hand, the prosecutor may point out the absence of specific
evidence of a motive for the officer to lie, but on the other
hand, the prosecutor may not imply without evidence that the
officer has special reasons to tell the truth. Under the reasoning
of Edwards, the prosecutor’s statement in this case, which
implied without reference to admitted evidence that Officer
Honzel would best serve his own interests by telling the truth,
was improper. The prosecutor’s statement bolstered Honzel’s
“believability with ‘evidence’ that was not presented and may
well not exist.” Edwards, 581 F.3d at 610. But the fact that the
line is so fine—the difference between “Officer Honzel had no
reason to lie” and “you have heard no evidence that Officer
Honzel had any reason to lie”—emphasizes the need for a
timely objection.
We do not see a problem, however, with the argument that,
if Honzel were going to lie, he would have done so on a larger,
more persuasive scale. It amounted to an appeal to jurors’
8 No. 12-3498
common sense, one they surely were able to evaluate for
themselves. Nor do we have a problem with the prosecutor’s
statement that Honzel did not tell a more elaborate story
“because he told you the truth.” A prosecutor may properly
comment on the credibility of a witness so long as the comment
reflects reasonable inferences from the evidence rather than
personal opinion. United States v. Nunez, 532 F.3d 645, 654 (7th
Cir. 2008); United States v. McKee, 389 F.3d 697, 699 (7th Cir.
2004); United States v. Morgan, 113 F.3d 85, 89 (7th Cir. 1997). In
context, the prosecutor’s comment here was framed not as
personal opinion but as fair comment on the evidence.
Because there was no objection here to the two comments
that went a little over the line, we next ask whether the trial
was unfair and whether it was so unfair that Alexander would
have been acquitted but for the error. Tucker, 714 F.3d at
1011–12; Wolfe, 701 F.3d at 1211. Multiple factors are relevant
to this inquiry, including the seriousness of the prosecutor’s
misconduct, whether the jury was instructed to disregard
arguments not supported by evidence, whether the defense
had an opportunity to respond to the statements, whether the
defense “invited” the comments, and the strength of the
evidence supporting the conviction. See Darden v. Wainwright,
477 U.S. 168, 181–82 (1986); Wolfe, 701 F.3d at 1211. The
strength of the evidence against the defendant is often decisive.
See Howard v. Gramley, 225 F.3d 784, 793 (7th Cir. 2000) (the
“most important [factor] is the weight of the evidence against
the defendant”); United States v. Morgan, 113 F.3d 85, 90 (7th
Cir. 1997) (the “weight of the evidence is generally the most
important consideration”). This is even more true when
reviewing for plain error since an improper statement’s effect
on the outcome of the trial is what matters.
The government argues in part that the prosecutor’s
statements did not deprive Alexander of a fair trial because his
No. 12-3498 9
lawyer invited the statements by attacking Officer Honzel’s
credibility. Alexander responds that he was questioning only
Officer Honzel’s perceptive powers and memory—not his
honesty—and so did not invite the response. The “invited
response” concept is part of a broader requirement that, when
assessing the prejudicial effect of a prosecutor’s improper
statements, courts consider the comments in the context of the
whole trial, accounting for any mitigating circumstances such
as improper statements from the defense that might have
disposed the jury to favor the defendant’s position. Darden,
477 U.S. at 182; United States v. Young, 470 U.S. 1, 11–14 (1985).
To conclude that a prosecutor’s response was invited is not to
condone it. Darden, 477 U.S. at 182 (The “idea of ‘invited
response’ is used not to excuse improper comments, but to
determine their effect on the trial as a whole.”); Young, 470 U.S.
at 11 (“Clearly two improper arguments—two apparent
wrongs—do not make for a right result.”); United States v.
Mazzone, 782 F.2d 757 (7th Cir. 1986) (“Properly understood
[the invited response] doctrine does not condone the prosecu-
tor’s descending to the level of defense counsel or enact the
proposition that two wrongs make a right; it merely recognizes
that the impact on the defendant from the prosecutor’s
misbehavior may be less if the defendant’s counsel aroused the
jury against the prosecutor.”). The correct response to a
defense attorney’s improper argument is a timely objection,
not in-kind retaliation.
Questioning an officer’s honesty is not sufficient to invite
improper vouching by the prosecutor. Nevertheless, the
prosecutor’s slips across the line here did not deny Alexander
a fair trial and certainly did not amount to plain error. The
prosecutor’s slips were mild, and as the government points
out, the undisputed evidence against Alexander was strong.
He was found alone in a car that contained marijuana pack-
10 No. 12-3498
aged for sale, a loaded gun, multiple cell phones, and lots of
cash. Officer Honzel’s inconsequential use of the wrong street
name in his report was not likely to make the jury disbelieve
his testimony that he smelled marijuana in Alexander’s car. In
short, the prosecutor’s improper vouching for Honzel’s
honesty was not seriously prejudicial. We are confident
Alexander would have been convicted anyway, and we find no
plain error.
The judgment of the district court is AFFIRMED.