United States v. Gonzalez-Perez

United States Court of Appeals
For the First Circuit
No. 12-1743
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID GONZÁLEZ-PÉREZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Ripple,* Circuit Judges.
Tina Schneider, for appellant.
María A. Domínguez-Victoriano, First Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, and Jacqueline D. Novas-Debien,
Assistant United States Attorney, were on brief, for appellee.
January 23, 2015
*
Of the Seventh Circuit, sitting by designation.
TORRUELLA, Circuit Judge. Defendant David González-Pérez
("González"), a former officer with the Puerto Rico Police
Department ("PRPD"), was charged with drug and gun charges for his
participation in fifteen drug transactions that were part of an FBI
sting operation aimed at corrupt police officers. After an eleven-
day trial, the jury acquitted González of all charges arising out
of the first drug transaction, as well as all firearm charges, but
convicted him on all other counts. González now appeals, arguing
that the district court erred by declining to give jury
instructions on entrapment, duress, and impeachment by prior
conviction, and by failing to prevent other trial errors at closing
arguments. Finding no reversible error, we affirm.
I. Facts
Aiming to combat corruption in the PRPD, in 2008 the
Federal Bureau of Investigation ("FBI") launched a sting operation
called "Operation Guard Shack," which has been described in detail
in other cases arising out of the same operation. See United
States v. Díaz-Castro, 752 F.3d 101 (1st Cir. 2014); United States
v. Delgado-Marrero, 744 F.3d 167 (1st Cir. 2014); United States v.
Díaz-Maldonado, 727 F.3d 130 (1st Cir. 2013). The FBI hired
confidential informants to invite police officers, suspected to be
corrupt, to provide armed protection for drug transactions staged
and secretly recorded by the FBI. Police officers providing armed
-2-
protection for these drug transactions were usually paid between
$2,000 and $2,500 per transaction.
The FBI's main confidential informant in this case was
Héctor Cotto-Rivera ("Cotto"), a former PRPD officer. González and
Cotto had met and worked together at the PRPD. In early 2008,
while still working as police officers with the PRPD, González and
Cotto were charged at the state level for taking a bribe from an
arrestee to fix his case.1 As a result of these criminal charges,
they were both initially suspended and then terminated from their
employment with the PRPD. Both Cotto and González pled guilty to
omission in the fulfillment of their duties.
Cotto also faced federal charges for taking bribes.
Seeking leniency on the federal charges, Cotto became a
confidential informant for the FBI. He portrayed himself as a drug
dealer and was tasked with identifying corrupt police officers.
Cotto testified at trial that, since he already knew that González
was a corrupt officer, he approached González and asked him to sell
Cotto drugs. González, however, did not do so. Cotto testified
that, on other occasions, González approached Cotto asking him for
work in his purported drug businesses, but that Cotto did not offer
1
According to Cotto, González, who had arrested a person for
drugs and firearms, asked Cotto to be a middleman and receive
$8,000 from the arrestee in exchange for González's dismissal of
the charges. Cotto accepted González's proposal and received
$8,000 from the arrestee. Cotto testified that he and González
split the money evenly.
-3-
him any job, supposedly because at the time they still had the
state bribery charges pending.
Sometime later, Cotto became involved in Operation Guard
Shack, where he played the role of the right-hand man for a drug
trafficker and was tasked with identifying and inviting corrupt
police offers to provide armed protection for the drug
transactions. The plan was to require each police officer
recruited to, in turn, recruit another corrupt police officer, so
that the FBI could identify additional corrupt officers. Cotto
approached police officers whom he already thought were corrupt,
including González.
On or about September 9, 2009, Cotto telephoned González
to tell him for the first time about an armed security job that he
had available for the following day. Cotto told González that the
job would pay $2,000. González, who was aware that the work being
offered was not legal,2 responded: "Okay. If you're gonna pay me,
yes. If you're gonna take me for a fool, no." After Cotto
reassured him that the job indeed paid $2,000, González enlisted
for the job. Details of the transaction were not discussed over
the phone, because González was reluctant to do so.3 Cotto did,
2
Although González claims that the word "drugs" was never
mentioned during the telephone conversation, he admitted that he
knew the job must have been illegal because of the high pay being
offered.
3
During the telephone conversation Cotto asked González: "You
want me to give you details, or not?" González responded: "Well --
-4-
however, tell González that he needed to wear a bulletproof vest,
take a firearm with him, and bring another police officer to also
provide armed security. González agreed to wearing a bulletproof
vest but said he was unable to get a firearm or enlist someone else
for the job. Cotto told González not to worry about the firearm,
and reached out to a correction officer with whom he was acquainted
because a third person who could be trusted was allegedly needed
for the security detail. Cotto and González then discussed the
details about how González was to get to the apartment where the
security would be provided.
As planned, on September 10, 2009, González met with
Cotto at the Plaza Las Américas shopping mall, where they were
joined by Christian Díaz-Maldonado ("Díaz"), the correction officer
recruited by Cotto.4 They all drove together to an apartment in
Isla Verde, Puerto Rico, where the security would be provided.
This apartment had concealed audio and recording devices.
While waiting for the drug buyer at the apartment,
González drank beer and casually chatted with Cotto, Díaz, and the
purported drug trafficker, Eddie.5 After the drug buyer arrived,
no, I don't know if over the phone . . . ."
4
Díaz was charged and convicted in a separate case for his
participation in Operation Guard Shack. He appealed his conviction
and sentence, both of which were affirmed by this court. See Díaz-
Maldonado, 727 F.3d 130.
5
Eddie was really an undercover special agent in the FBI's New
York office.
-5-
González frisked the buyer for concealed weapons and recording
devices. Eddie then brought out a piece of luggage and removed
bricks of fake cocaine from it. The buyer examined the bricks.
Upon the conclusion of the drug transaction, González and
Díaz escorted the buyer to the exit and returned to Cotto, who then
paid $2,000 to each González and Díaz. González took the money
without hesitation, counted it, and placed it in his pocket. As he
was getting ready to leave the apartment, González told Eddie, "we
are at your service."
After the September 10 transaction, González participated
in fourteen additional drug transactions. He was paid either
$2,000 or $2,500 for his participation in each of them. For these
subsequent transactions, González carried firearms. He also
recruited additional people to provide armed security for these
transactions, including his brother, his sister-in-law, his
neighbor, and his barber. These subsequent transactions had the
same modus operandi as the one that took place on September 10,
2009. Most of these transactions were preceded by recorded
telephone conversations between González and Cotto, during which
they discussed whether González had recruited others to assist in
the transactions, their names, and whether González had explained
to those recruited what was expected of them during the
transactions. González manifested his gratitude for being offered
these additional work opportunities, reiterated that he was at
-6-
Eddie's service and indicated his willingness to engage in other
illegal activities, such as buying illegal firearms and
coordinating drug smuggling ventures for Eddie. González's last
transaction took place on March 16, 2010. He was arrested in
September 2010.
In August 2011, González was tried alone before a jury on
sixty-three counts contained in a second superseding indictment.
The charges included multiple counts of conspiracy to possess with
intent to distribute cocaine, 21 U.S.C. §§ 841(a)(1),
(b)(1)(A)(ii)(II), 846; aiding and abetting an attempt to possess
with intent to distribute cocaine, 21 U.S.C. §§ 841(a)(1),
(b)(1)(A)(ii)(II), 846; 18 U.S.C. § 2; possession of a firearm in
relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A); and
aiding and abetting possession of a firearm in relation to a drug
trafficking crime, 18 U.S.C. § 924(c)(1)(A); id. § 2.
At trial, González admitted his participation in the drug
transactions, but claimed that he was carrying blank firearms. He
also claimed that when he agreed to participate in the initial
transaction, he did not know that it would involve drugs and that
it was not until the bricks of cocaine were pulled out of the
luggage in the middle of the first transaction that he realized
that he was in a drug transaction. González further claimed that
Cotto took advantage of his financial situation, and that he
continued participating in the transactions out of fear for his
-7-
safety and that of his family. Accordingly, González requested
jury instructions on entrapment and duress. He also requested jury
instructions on impeachment of witness by prior conviction. The
district court denied his request.
Following an eleven-day trial, the jury acquitted
González of all the firearm charges and of the drug charges arising
out of the first drug transaction. González was convicted of the
drug charges arising out of the fourteen subsequent drug
transactions. He was sentenced at the lower end of his applicable
Guidelines' sentencing range (i.e., 292 months of imprisonment), to
be followed by a five-year term of supervised release. This appeal
followed.
II. Discussion of González's Claims
A. Denial of Instruction on Entrapment Defense
González claims that he was entitled to a jury
instruction on entrapment. He argues that there was enough
evidence in the record to find both that the government induced him
to commit the crimes by "forceful solicitation and dogged
insistence," and that he otherwise lacked the predisposition to do
so. Because González preserved his objection below, we review the
district court's refusal to give an entrapment instruction de novo.
United States v. Dávila-Nieves, 670 F.3d 1, 9 (1st Cir. 2012). In
so doing, we examine the evidence in the light most favorable to
González. Id. at 10.
-8-
The defense of entrapment has two elements:
(1) government inducement of the criminal conduct; and (2) an
absence of predisposition on the part of the defendant to engage in
the criminal conduct. Díaz-Castro, 752 F.3d at 109; United States
v. Panet-Collazo, 960 F.2d 256, 259 (1st Cir. 1992). Inducement
requires not only giving the defendant the opportunity to commit
the crime but also a "plus" factor of government overreaching.
United States v. Guevara, 706 F.3d 38, 46 (1st Cir. 2013) (internal
quotation marks omitted). Examples of government conduct that may
satisfy this "plus" factor include "excessive pressure, such as the
use of intimidation, threats, or 'dogged insistence,' [and] 'taking
advantage of an alternative, non-criminal type of motive.'" Id.
(citations omitted). "Operations which merely give a defendant an
opportunity to commit a crime, including sting operations,
ordinarily do not constitute entrapment." Dávila-Nieves, 670 F.3d
at 9.
In order to be entitled to an instruction on entrapment,
the record must show "some hard evidence" of both government
inducement and the defendant's lack of predisposition. Id. This
evidence must be more than uncorroborated self-serving assertions.
United States v. Shinderman, M.D., 515 F.3d 5, 14 (1st Cir. 2008).
In assessing the sufficiency of this evidence, the district court
may not weigh the evidence, make credibility determinations or
resolve conflicts in the evidence. Dávila-Nieves, 670 F.3d at 10.
-9-
Rather, it must determine whether the evidence is enough, "if
believed by a rational juror, to create a reasonable doubt that the
defendant committed the crime of his own accord." Panet-Collazo,
960 F.2d at 259.6
González claims that the government improperly induced
him to commit the charged crimes because Cotto was a friend of his,
knew of González's difficult financial situation, and called
González several times, first asking to buy drugs from him, and
then to offer him the armed security job. None of these
circumstances amount to improper government inducement.
First, González cites no evidence indicating that Cotto
solicited his participation by appealing directly to their
friendship. United States v. Baltas, 236 F.3d 27, 37 (1st Cir.
2001) (rejecting "the proposition that friendship, without a plea
predicated upon friendship, suffices legally as inducement"
(quoting United States v. Young, 78 F.3d 758, 761 (1st Cir.
1996))).
Second, González cites no evidence indicating that his
financial situation was such that he was at a particularly
6
We recently stated in Díaz-Maldonado that "the entrapment
defense is a difficult defense to raise and prevail on." 727 F.3d
at 139. There, we affirmed the district court's refusal to charge
the jury on entrapment and we noted that "[i]n twenty-two prior
appeals to this circuit challenging a trial court's refusal to give
a jury instruction on entrapment, we have overruled the refusal
only three times." Id. at 139-140. Subsequently, in Díaz-Castro,
we once again affirmed the district court's refusal to give an
instruction on entrapment. 752 F.3d 101.
-10-
vulnerable point in his life. All the record shows is that
González had various part-time jobs, the last one ending the week
preceding his first transaction, that he was receiving unemployment
benefits, and that he thought that the high payment offered by
Cotto would help him solve his financial situation. This is not
enough to constitute inducement. See United States v. Díaz-Díaz,
433 F.3d 128, 136 (1st Cir. 2005) ("The promise of financial gain,
however, even if significant, is insufficient to demonstrate
government inducement."); Baltas, 236 F.3d at 37 (holding that
merely presenting defendant with a plan to alleviate a "strangling
financial situation" does not constitute inducement).
Third, González's bare assertion that Cotto called him
several times and González declined previous invitations to commit
offenses does not amount to inducement. In analyzing whether there
was improper inducement, the method of purportedly inducing a
defendant is more important than the number of solicitations.
Accordingly, we have held that having an enthusiastic and
persistent buyer does not amount to improper government inducement.
United States v. Teleguz, 492 F.3d 80, 84 (1st Cir. 2007)
("[M]erely giving a defendant an opportunity to commit a crime when
the government puts forth an enthusiastic and persistent buyer of
illicit goods cannot be improper inducement."); United States v.
Pratt, 913 F.2d 982, 989 (1st Cir. 1990) (rejecting defendant's
contention that he was entitled to a jury instruction regarding
-11-
entrapment given evidence of multiple phone calls from the
government agent, even coupled with defendant's failure to return
phone calls and appear at scheduled meetings).
Here, there was no arm-twisting or undue coercive method
employed. Although González claims that there was some resistance
on his part before the first drug transaction and that it took
several calls before all details were ironed out, the record shows
that González's resistance had nothing to do with the idea of
providing protection for the transaction,7 but rather with the
requirement of taking a firearm with him and of recruiting someone
else to also provide armed security. The several telephone calls
were made to straighten out the details, not to convince him to do
the job. See United States v. Rogers, 102 F.3d 641, 646 (1st Cir.
1996) (rejecting defendant's claim that he was "targeted" because
he "proved ready enough to enter into talks" and "[h]is only
resistance was not to the idea of the crime, but rather to the
risks and the terms"). In fact, González seemed so eager to avail
himself of the opportunities to commit the crimes that he
repeatedly told Eddie that he was "very grateful" and "at his
service," and exclaimed "Oh wow! That's awesome, dude," upon
learning of an additional opportunity to provide armed security.
7
The first time that Cotto offered him a job providing armed
security, González said that he would be happy to participate if
Cotto would not "take [him] for a fool" and would actually pay him.
-12-
Moreover, additional evidence on the record undercuts
González's claim of improper government inducement. The evidence
showed that he associated with people connected to the drug world,8
he never reported any alleged threat, he participated in fifteen
separate transactions, and the videos of these transactions show
that he "d[id]n't look anything like a person who's being
entrapped." See United States v. Capelton, 350 F.3d 231, 243 (1st
Cir. 2003) (emphasizing these same circumstances as indicators that
there was no government inducement). In fact, he seemed so
comfortable around Eddie, the drug dealer, that he drank beer with
him, hugged him, and even invited his family and close friends,
including his brother, sister-in-law, and his neighbor, to
participate in the drug transactions. He also was comfortable
enough to make demands from Cotto and even reproached Cotto for not
answering his telephone call when González had been calling him all
day to ask him whether there was more work.
Although González would have us consider only the
evidence proffered by him, to the exclusion of other evidence in
the case, when we assess the sufficiency of the evidence for an
instruction on entrapment, we must consider all the evidence on
record. Looking at all the evidence in the light most favorable to
González, no reasonable juror could conclude that he was improperly
8
According to the evidence on record, while working as a police
officer, González let a drug trafficker, who would potentially face
drug and firearm charges, walk away in exchange for money.
-13-
induced by the government. Because we conclude that González did
not carry his entry-level burden as to improper government
inducement, the district court's refusal to charge the jury on
entrapment was justified and we need not dwell on the evidence of
predisposition. United States v. Ramos-Paulino, 488 F.3d 459, 462
n.1 (1st Cir. 2007) ("Given the disjunctive nature of the
[entrapment] test, we can fulfill our appellate function . . . on
either inducement or predisposition." (alteration in original)
(quoting Capelton, 350 F.3d at 242-43)).
B. Denial of Instruction on Duress Defense
González claims that he was also entitled to a jury
instruction on duress. "Duress is a common law defense that
excuses criminal conduct if the defendant violated the law only
because [he] was unlawfully threatened by another person with death
or serious bodily injury." United States v. Vázquez, 724 F.3d 15,
27 (1st Cir. 2013). A duress defense requires proof that the
defendant committed a crime as a result of: "(1) an immediate
threat of serious bodily injury or death, (2) a well-grounded
belief that the threat will be carried out, and (3) no reasonable
opportunity to escape or otherwise to frustrate the threat."
United States v. Arthurs, 73 F.3d 444, 448 (1st Cir. 1996); see
also Díaz-Castro, 752 F.3d at 108.
In support of his duress defense, González points to his
testimony that, because he was involved in a drug transaction and
-14-
he "was providing security for [ ] an important person" who "had
control of everything" and who knew where González lived, González
believed that his own life and the lives of his family members were
in danger. It was implied, González claimed, that if anyone went
to the police, Eddie would take care of them "in a violent way."
Also, according to González, Cotto told him that González had to
continue participating in the drug transactions.
The district court concluded that the record lacked
evidence to support the duress defense and, thus, it declined
González's requested instruction. Since González's objection was
preserved below, we review de novo whether he made a threshold
showing that the record evidence, construed in his favor, supported
his requested instruction. Díaz-Castro, 752 F.3d at 108; United
States v. Baird, 712 F.3d 623, 627 (1st Cir. 2013). Here, González
has not made such a showing.
The alleged threat was not immediate, or even imminent.
If a threat at all, "it was no more than a 'vague threat of future
harm,' which is insufficient to support a duress instruction."
Vázquez, 724 F.3d at 28 (quoting Arthurs, 73 F.3d at 450) (refusing
to consider alleged threat of what gang-members "do to people [who]
. . . snitch" as immediate or "imminent"). In addition, the
alleged threat would be irrelevant to the crimes charged, as it was
directed at those who would "go to the police," rather than to
those who refused to provide armed security for drug transactions.
-15-
In analyzing duress, "the relevant threat is that which 'caused the
actor to engage in conduct violating the literal terms of the
criminal law.'" Id. (quoting United States v. Bailey, 444 U.S.
394, 409 (1980)). González faces drug charges, not charges for
failing to report drug crimes. See Vázquez, 724 F.3d at 28
(rejecting a duress defense and concluding that because defendant
was "charged with violating the laws criminalizing the sale of
cocaine, not with failing to report those crimes," the threat
against "snitches" was irrelevant).
Even accepting that González might have construed the
alleged threat against those who would "go to the police" to be the
equivalent of a threat of harm for not actively committing the drug
crimes, "such a subjective belief would not constitute a 'well-
grounded' fear." Id. (quoting United States v. Bello, 194 F.3d 18,
27 (1st Cir. 1999)). The evidence required is that of threats
causing "a defendant of ordinary firmness and judgment" to believe
that he would face immediate danger if he did not commit the
criminal acts. Vázquez, 724 F.3d at 28 (citing United States v.
Castro-Gómez, 360 F.3d 216, 219 (1st Cir. 2001)). The evidence in
the record does not meet that standard. In fact, it shows the
opposite. There is no evidence that González was threatened before
making the initial choice to participate, when he already knew that
he would be providing security for a "dangerous" and "powerful"
person, who was involved in "something illegal." Then, after the
-16-
first transaction, González told Eddie that he was "at his service"
and chose to return fourteen additional times, in which he showed
excitement at the prospect of participating in additional
transactions. In fact, he reproached Cotto for not picking up the
phone when González had been trying to call him asking for
additional work. González also took his close friends and family
to participate in some of the transactions. Based on that
evidence, a reasonable juror could not plausibly conclude that the
defendant faced immediate danger if he did not commit the crimes
charged.
In addition, the record is devoid of evidence suggesting
that González lacked a reasonable opportunity to escape or
otherwise frustrate the alleged threat against him. Vázquez, 724
F.3d at 28; Arthurs, 73 F.3d at 448. Instead, the record shows
that he was enjoying himself, drinking beer, and hugging Eddie.
See Díaz-Castro, 752 F.3d at 108-109 (rejecting defendant's claim
that he was unable to withdraw because there was no record evidence
of any effort to withdraw and the video showed defendant enjoying
himself).
Furthermore, the duress defense is unavailable if the
defendant placed himself in a situation in which it was probable
that he would be subjected to duress. Id. at 109. Here, the
record shows that González put himself in this situation not once,
-17-
but numerous times, by making himself available and "at Eddie's
service."
In light of this, the evidence at trial, even when
construed in González's favor, could not have supported a finding
of duress. Therefore, the district court did not err in refusing
to give an instruction on the duress defense.
C. Denial of Instruction on Impeachment by Prior Conviction
González next claims that the district court committed
reversible error when it failed to give his requested instruction
concerning the impeachment of witnesses by prior conviction.
We review the district court's refusal to give this
requested jury instruction under an abuse of discretion standard.
United States v. De La Cruz, 514 F.3d 121, 139 (1st Cir. 2008).
The refusal to give a requested instruction constitutes a
reversible error "only if the instruction (1) is substantively
correct; (2) was not substantially covered in the charge actually
delivered to the jury; and (3) concerns an important point in the
trial so that the failure to give it seriously impaired the
defendant's ability to effectively present a given defense."
United States v. González-Soberal, 109 F.3d 64, 70 (1st Cir. 1997)
(quoting United States v. Gibson, 726 F.2d 869, 874 (1st Cir.
1984)). Under the third requirement, "reversal is not required
unless a defendant suffers substantial prejudice." De La Cruz, 514
F.3d at 139.
-18-
Here, González requested a jury instruction on
impeachment of witnesses by prior conviction because government
witnesses Cotto and Eusebio Hernández ("Hernández") both had prior
felony convictions.9 The government did not object to the
instruction. The district court, however, denied the instruction
because it understood that the instruction is warranted only if the
witness denies the prior conviction. Since both Cotto and
Hernández had admitted their prior convictions while testifying,
the district court declined to give the requested instruction.
González is correct that the district court misunderstood
the applicable law. Impeachment by prior conviction means that the
witness's character for truthfulness may be attacked by evidence of
certain criminal convictions. See Fed. R. Evid. 609(a). It does
not require that the witness first deny the prior criminal
conviction. Id. However, this does not amount to a reversible
error in this case.
This circuit's pattern instruction on impeachment of
witness testimony by prior conviction reads: "You have heard
evidence that [witness] has been convicted of a crime. You may
consider that evidence, together with other pertinent evidence, in
deciding how much weight to give to that witness's testimony."
9
Cotto's conviction related to the bribery incident when he was
a police officer, while Hernández's conviction resulted from his
own participation in the sham drug transactions with González.
-19-
Pattern Crim. Jury Instr. 1st Cir. § 2.03 (1998) (alteration in
original).
The jury instruction provided by the district court
included the following language:
You have heard the testimony of Héctor Cotto
and Eusebio Hernández, that they provided
evidence under agreements with the government
and or participated in the crime charged
against the defendant and or received money
from the government in exchange for providing
information. Some people in this position are
entirely truthful when testifying. Still you
should consider the testimony of these persons
with particular caution. You may consider
they may have had reason to make up stories or
exaggerate what others did because they wanted
to help himself [sic]. You must determine
whether the testimony of such a witness has
been affected by any interest in the outcome
of this case, any prejudice for or against the
defendant, or by any of the benefits he has
received. You may consider their guilty pleas
in assessing their credibility, but you are
not to consider their guilty pleas as evidence
against this defendant in any way. (Emphasis
added).
Although the instruction given by the district court did
not contain the specific language sought by González, "there is no
reversible error if the jury charge taken as a whole substantially
covered the issues contained in the requested instruction." United
States v. Angiulo, 897 F.2d 1169, 1207 (1st Cir. 1990). "The
charge need not follow the exact form and wording of the
defendant's proposed instructions." González-Soberal, 109 F.3d at
70 (internal quotations omitted).
-20-
We conclude that the instruction given to the jury
substantially addressed issues of credibility with respect to both
government witnesses. The fact that both Cotto and Hernández each
had a prior felony conviction was elicited, and thus, the jury was
aware of their criminal backgrounds. The district court then
reminded the jury that the two witnesses had guilty pleas and had
cooperation agreements with the government. It instructed the jury
that they had the duty to determine credibility, that the jury
should consider the testimony of these two witnesses with greater
caution, and that they were to consider all the factors they deemed
relevant in assessing their credibility, including the prior guilty
pleas of both Cotto and Hernández. González has presented no
evidence that would lead us to believe that the jury felt prevented
from viewing the testimony of these two government witnesses with
particular skepticism or greater caution. Therefore, we find no
error in the instructions given. See González-Soberal, 109 F.3d at
71 (finding no error where the district court failed to give the
impeachment by prior conviction instruction, because the
instruction provided reminded the jury that the two witnesses had
been convicted, that they had cooperation agreements with the
government, and that the jury should view their testimony with
greater caution).
-21-
D. Closing Arguments
1. González's closing argument
González alleges that during his closing argument the
district court made several unjustified sua sponte interruptions,
and sustained various unfounded objections interposed by the
government, which prevented him from making an effective closing
argument and thus rendered the trial unfair. Based on these
alleged interruptions and objections, González moved for a new
trial. The district court denied González's motion under Federal
Rules of Criminal Procedure Rule 33, finding that the court's
interjections were warranted and that it had been correct in its
rulings sustaining objections made during González's closing
argument. The court also found that even if error occurred,
González had not been prejudiced by the court's interjections and
rulings. González appeals the denial of his motion for a new
trial.
We review the denial of a Rule 33 motion for a new trial
for "manifest abuse of discretion." United States v. Valerio, 676
F.3d 237, 246 (1st Cir. 2012). A new trial is granted "sparingly,"
and only where there would be "a miscarriage of justice and where
the evidence preponderates heavily against the verdict." United
States v. Merlino, 592 F.3d 22, 32 (1st Cir. 2010) (quoting United
States v. Wilkerson, 251 F.3d 273, 278 (1st Cir. 2001)). When
determining the prejudicial effect of challenged acts, a court
-22-
should not grant a motion for a new trial where a process, although
imperfect, adequately protected the defendant's rights. United
States v. Glantz, 810 F.2d 316, 321 (1st Cir. 1987). Rather, the
court must decide whether the alleged errors affected the
defendant's substantial rights. United States v. Meserve, 271 F.3d
314, 332 (1st Cir. 2001). After all, "the Constitution entitles a
criminal defendant to a fair trial, not a mistake-free trial." Id.
(quoting United States v. Sepúlveda, 15 F.3d 1161, 1196 (1st Cir.
1993)).
In general, we have recognized that, "a judge is not a
mere umpire; he is the governor of the trial for the purpose of
assuring its proper conduct, and has a perfect right -- albeit a
right that should be exercised with care -- to participate actively
in the trial proper." United States v. Ofray-Campos, 534 F.3d 1,
33 (1st Cir. 2008) (quoting Logue v. Dore, 103 F.3d 1040, 1045 (1st
Cir. 1997)) (quotation marks omitted). Trial judges also have
"broad discretion over the scope of summations." United States v.
Grabiec, 96 F.3d 549, 552 (1st Cir. 1996).
González alleges that, while defense counsel was "arguing
that Cotto was unworthy of belief," the district court improperly
interrupted him and stated: "Counsel, I assume that is your
position, it will be for the jury to determine based on the
evidence whether he lied or not." González claims that this
statement by the court improperly "sent the message that his
-23-
position was not one shared by the court." We disagree. First,
counsel should refrain from making statements that convey a
personal opinion relating to a witness's credibility. See United
States v. Auch, 187 F.3d 125, 131 (1st Cir. 1999); Grabiec, 96 F.3d
at 550 (observing that the rule that counsel must not express a
personal opinion, though generally applied to prosecutors, "applies
both ways"). Second, the court's statement did not indicate,
either explicitly or implicitly, that the court did not share
defense counsel's position. Furthermore, even if the jury could
have inferred anything from the court's statement, any prejudice
from such inference would have been cured by the court's
instruction to disregard its comments and admonishments to counsel.
Specifically, the court gave the following instruction:
Do not assume from anything that I may have
said that I have any opinion concerning any of
the issues in this case. Except for my
instructions to you on the law, you should
disregard anything that I may have said during
the trial in arriving at your own findings as
to the facts. . . . You are to draw
absolutely no inference against the side to
whom an admonition of the Court may have been
addressed during the trial.
We assume the jury to have followed the court's instructions. See
United States v. Rodríguez, 675 F.3d 48, 63 (1st Cir. 2012).
González also complains that when defense counsel
intended to use transcripts to refresh a witness testimony to the
jury, the district court interrupted him and said "I will request
that you argue, the transcript is not in evidence." Although
-24-
González avers that the use of transcripts may ensure the accuracy
of the recitation of a testimony, here, defense counsel was not
merely reading from transcripts. Rather, he was also projecting
the transcripts from the overhead projector and referencing them as
evidence. Since these transcripts were not in evidence, we find no
error in the court's interjection. See Herring v. New York, 422
U.S. 853, 862 (1975) (recognizing the broad discretion of the trial
judge in closing arguments). We note that the court did not
prevent defense counsel from arguing the content of the transcripts
or otherwise getting his point across. Rather, it only instructed
him not to refer to something as evidence that had not been
admitted as such.
Next, González alleges that while defense counsel was
arguing that the sting operation was "poorly planned" and that "out
of 17 people, we have 15 or 16 who were mechanics, truck drivers,"
the court interrupted him and said that he was misquoting the
evidence, that there was no "evidence for that amount of people"
and that he should "stick to the evidence." There was no error.
The evidence admitted at trial simply did not support defense
counsel's contention. Faced with this misquoting of the evidence,
it was within the district court's discretion to interrupt defense
counsel's argument. See United States v. DiSanto, 86 F.3d 1238,
1248 (1st Cir. 1996) (noting that the district court is "best
situated to make a battlefield assessment of the impact that a
-25-
particular piece of improper information may have on a jury"
(quoting United States v. Rivera-Gómez, 67 F.3d 933, 998 (1st Cir.
1995))).
González also alleges that, while defense counsel was
arguing about the timing for retrieving the firearms from his home,
the district court improperly interrupted him and concluded that he
was making reference to punishment and that there was an issue of
jury nullification. The court's interruptions responded to defense
counsel's reference to González having been in prison since October
2010, not being back home since his arrest, and not being back home
for more than a year. Because the arguments were directed at the
gun charges and the jury acquitted González of all such charges, we
need not decide whether the district court's ruling on this matter
was correct, as any error would be harmless. See United States v.
Crochiere, 129 F.3d 233, 236 (1st Cir. 1997) (holding that the
acquittal rendered the alleged error harmless).
González also challenges the court's interjections when
defense counsel was arguing that the design of the sting operation
was flawed. In making his point, defense counsel stated that the
operation "attracted people simply down and out, and in need of
money"; that those attracted were "simply poor and vulnerable"; and
that the government should "go after the real drug traffickers,
[that] this island is full of drug traffickers." The government
objected to these statements and the court sustained the
-26-
objections. There was no error. Although jurors have the power to
set an accused free for any reason or for no reason, their duty is
to apply the law as given to them by the court. United States v.
Appolon, 695 F.3d 44, 65 (1st Cir. 2012). "Neither the court nor
counsel should encourage jurors to exercise their power to
nullify." Id. (quoting United States v. Bunchan, 626 F.3d 29, 34
(1st Cir. 2010)) (internal quotation marks omitted). Here, by
suggesting that there are worse people out there, and that the
government should go after them and not after the poor and
vulnerable, defense counsel was encouraging the jury to disregard
the law and acquit González. Thus, the statements were aimed at
jury nullification and the government's objections were properly
sustained.
We need not recount in detail the additional
interjections and government objections about which González now
complains. For present purposes, it suffices to say that we have
reviewed each of them in the context of the record as a whole.
They involved either defense counsel's attempt to instruct the jury
as to legal issues, to argue the entrapment defense despite being
precluded from doing so by a prior court order, defense counsel's
opinion about the credibility of witnesses, or arguments
specifically related to the gun charges for which González was
acquitted. Even if the court's ruling on these matters were
-27-
erroneous, they would be harmless. See Rodríguez, 675 F.3d at 61-62.
Additionally, as discussed supra, following closing
arguments, the court explicitly instructed the jury that, in
rendering its decision, it should not consider the court's comments
and admonishments to counsel, nor the objections or arguments made
by counsel.
Consequently, we conclude that González was not
prejudiced by the trial court's rulings and interjections, nor was
his right to a fair trial infringed upon. Thus, the district court
did not manifestly abuse its discretion in denying González's
motion for a new trial. See Merlino, 592 F.3d at 32.
2. The Government's rebuttal argument
Finally, González claims that the government made some
improper remarks in its rebuttal argument which rendered the trial
unfair. Where a timely objection was made, "[w]e review de novo
whether the challenged portion of the government's closing argument
was improper and, if so, whether it was harmful." Appolon, 695
F.3d at 66. The prosecutor's improper statements during closing
argument are considered harmful if they "so poisoned the well that
the trial's outcome was likely affected, thus warranting a new
trial." Rodríguez, 675 F.3d at 62 (quoting United States v.
Azubike, 504 F.3d 30, 39 (1st Cir. 2007)); United States v. Garza,
435 F.3d 73, 77 (1st Cir. 2006) ("A non-constitutional evidentiary
error is harmless . . . so long as it is highly probable that the
-28-
error did not influence the verdict." (quoting United States v.
Piper, 298 F.3d 47, 56 (1st Cir. 2002)) (internal quotation marks
omitted)). In making this determination, we focus on (1) the
severity of the misconduct, including whether it was isolated
and/or deliberate; (2) whether curative instructions were given;
and (3) the strength of the evidence against the defendant.
Rodríguez, 675 F.3d at 62.
In contrast, we review for plain error "any part of the
government's rebuttal argument which the defendant failed to object
to." Id. at 64. To meet this "exacting standard," id., the
defendant must show that an error occurred, which was clear or
obvious and which not only affected the defendant's substantial
rights, but also seriously impaired the fairness, integrity, or
public reputation of judicial proceedings. Id.; United States v.
Pires, 642 F.3d 1, 14 (1st Cir. 2011). "[P]lain error review tends
to afford relief . . . only for 'blockbuster' errors." Rodríguez,
675 F.3d at 64 (citations omitted).
During the rebuttal argument, the government responded to
González's reference that the "government ha[d] a problem" by
stating: "Do you know how many times the government doesn't have
evidence like you saw in this case?" The government also stated
that defense counsel wanted to confuse the jury, since defense
counsel was unable to make González disappear from the videos
played at trial. González timely objected to both statements, and
-29-
the district court overruled both objections. González now claims
that the government improperly compared the evidence in this case
to that in other cases and, thus, engaged in bolstering,10 and that
it misstated and disparaged the defense strategy by taking aim at
defense counsel.
The challenged government statements were not improper.
Regarding the first statement, defense counsel invited the
prosecutor's comparison to other cases by stating that the
government "ha[d] a problem in this case . . . . They are very
concerned that they had to rely so much on Cotto and Eusebio
Hernández to prove their charges." It was reasonable for the
prosecutor to respond that it did not have a problem because in
this case, unlike many others, there was video evidence linking
González to the crimes charged. See United States v. Ayala-García,
574 F.3d 5, 18 (1st Cir. 2009) ("Our cases establish that some
leeway is appropriate when the government's challenged comments may
fairly be seen as a response to comparable remarks by defense
counsel."). And contrary to González's contentions, the
government's comments cannot fairly be read to suggest that
evidence not presented at trial supported the defendant's guilt.
10
We note that bolstering generally "occurs when a prosecutor
implies that a witness's testimony is corroborated by evidence
known to the government but not known to the jury." United States
v. Valdivia, 680 F.3d 33, 48 (1st Cir. 2012) (citations omitted).
-30-
Instead, the prosecutor was pointing out how much inculpatory
evidence the government had introduced at trial.
The prosecutor's further suggestions that defense counsel
was trying to confuse the jury because he could not make González
disappear from the videos, while perhaps impolitic, did not render
the trial unfair. These comments, too, referred to the strength of
the government's case (specifically, the fact that there was video
evidence). Moreover, United States v. Manning, which González
cites for his argument that the comments were improper, involved
statements much more egregious than those in this case: there, the
prosecutor stated that the role of the defense counsel in a
criminal trial is to "cloud the issues or make smoke screens," and
he "liken[ed] them to Shakespeare's players, full of sound and fury
signifying nothing." 23 F.3d 570, 573 n.1 (1st Cir. 1994).
Nothing like that was said in this case.
Finally, González alleges that the government misstated
the law as to "reasonable doubt" and "criminal intent." Since
González did not contemporaneously object to these allegedly
improper statements, we review them only for plain error.
Rodríguez, 675 F.3d at 64. González fails to meet that standard.
The statement regarding "reasonable doubt" was made in
the context of the firearm charges and González was acquitted of
all such charges, which makes clear that such alleged error does
not meet the standard for plain error. As to the other statement,
-31-
the government said that "all criminal intent means is that
[González] knew he was breaking the law." González has failed to
show that, when read in context, the statement was clearly and
obviously erroneous. Moreover, after closing arguments, the
district court gave specific instructions as to what both criminal
intent and reasonable doubt meant. González does not point to
anything indicating that the jury disregarded these instructions
and we ordinarily presume that juries follow instructions. See id.
at 63. He has simply failed to show that the alleged misstatements
of the law affected his substantial rights and seriously impaired
the fairness, integrity, or public reputation of judicial
proceedings. Pires, 642 F.3d at 14; see also Rodríguez, 675 F.3d
at 65 (noting that the fact that defendant had objected to the
prosecutor's statements during closing argument, but had failed to
do so during rebuttal suggested that even the defendant "failed to
regard the comments as having a damaging effect" (citations
omitted)). Thus, the alleged errors do not constitute the
"blockbuster" errors required to satisfy the plain error standard.
Rodríguez, 675 F.3d at 64.
III. Conclusion
The record reflects that González was afforded a fair and
impartial trial, that he was not entitled to entrapment or duress
instructions, that the denial of the requested instructions on
impeachment of witnesses for prior convictions did not constitute
-32-
reversible error, and that his conviction was not tainted by
prejudicial error either from the district court or in the
government's rebuttal argument. Accordingly, his conviction is
affirmed.
Affirmed.
-33-