United States v. Nelson Reyes

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-13456
JULY 9, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 06-10023-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NELSON REYES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 9, 2008)
Before BIRCH, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Nelson Reyes appeals his conviction for obstruction of a boarding, in
violation of 18 U.S.C. § 2237(a)(2)(A), and unauthorized entry into Cuban
territorial waters, in violation of 50 U.S.C. § 192 and 33 C.F.R. §§ 107.215,
107.230. Reyes has not shown that the district judge abused his discretion in
denying Reyes’s motion for mistrial or, alternatively, a new trial because he did not
carry his burden of showing that remarks by the prosecutor referencing the lack of
evidence from the witnesses were manifestly intended to comment on Reyes’s
failure to testify, or that they necessarily would have been construed as such by the
jury. We affirm.
I. BACKGROUND
A federal grand jury returned a three-count indictment against Reyes and
Modelin Machado and charged them with forcibly resisting a boarding authorized
by federal law, in violation of 18 U.S.C. § 2237(a)(2)(A) (“Count 2"), and entering
Cuban territorial waters without written permission, in violation of 50 U.S.C. § 192
and 33 C.F.R. §§ 107.215, 107.230 (“Count 3"). R1-1. Reyes pled not guilty.
During opening statements at trial, Reyes’s counsel represented that the
evidence would show that Reyes did not resist the boarding but that he was beaten
by the Coast Guard officers. R2 at 44-46. He also suggested that the Coast Guard
charged Reyes with obstructing the boarding in order to “justify” its “over zealous
treatment of him.” Id. at 46.
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Brooke Allison Millard, a Coast Guard Lieutenant stationed in Florida on a
patrol boat, the Matagorda, testified that, on July 19, 2006, officers on her boat
spotted a southbound go-fast boat. Id. at 47-53. The Matagorda tried to apprehend
the go-fast boat, but it fled. Id. at 54-55. They pursued the boat for approximately
five and a half hours until it stopped because of mechanical problems. Id. While
the go-fast boat was fleeing, it entered Cuban waters at least twice. Id. at 55.
On cross-examination, Lieutenant Millard said that, while watching the
officers boarding the go-fast boat from the Matagorda, she saw Reyes resist being
handcuffed. Id. at 65-67. Machado, the operator of the boat, complied with the
officers’ order to put his hands up, but Reyes moved to the front of the boat and
got down on the deck. Id. at 67. Manuel Hernandez, the Matagorda’s assistant
administrator, was the operator of the infrared camera on the ship. Id. at 79-81.
He recorded the chase and the boarding and testified that the recording accurately
depicted the events of the evening. Id. at 92-93.
On cross-examination, Reyes’s counsel introduced two still pictures taken
from the infrared recording. Id. at 94-96, 98-99; Exhs. NR1, NR2. In the first
picture, the civilians on the boat were not visible, although the first boarding party
member was getting on the boat. R2 at 97-98; Exh. NR1. Hernandez said that he
saw one of the civilians remaining standing with his hands raised while the other
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moved forward and got down below the side of the boat and was not visible. Id. at
97-103. On redirect, Hernandez testified that the camera cannot record heat
images through the side of the boat, so anything that happened on the deck below
the sides of the boat was not visible. Id. at 104.
The four members of the boarding party each testified. Id. at 106-07, 148-
49; R3 at 189-90, 240-41. All members of the boarding team testified that the men
on the boat were ordered to put their hands up, and, while Machado complied,
Reyes moved to the front of the boat, where there was a cabin. R2 at 119-20, 150-
52; R3 at 194-95, 243. It is unclear whether Reyes was standing, kneeling, or lying
on the deck when the officers boarded. R2 at 136-37, 153; R3 at 172-75, 214.
Additionally, the boarding party’s translator may have ordered the men to get
down as he was boarding. R3 at 243, 249-50, 260. The officers testified that
Reyes resisted being handcuffed. R2 at 122-24, 138, 147, 154; R3 at 196-97, 246.
The two officers who subdued Reyes both said that he was punching, kicking, and
biting them while on the deck. R2 at 154; R3 at 165, 197, 201. They used strength
techniques and struck Reyes with their elbows and knees in order to subdue and
handcuff him. R2 at 152; R3 at 164-65, 198-200. Once Reyes was handcuffed, he
was compliant and was not struck again. R2 at 148; R3 at 166, 202-03. At the
conclusion of the government’s case-in-chief, the defense rested without
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introducing additional evidence or calling any witnesses. R3 at 262-63.
During his closing argument, the prosecutor stated that “[i]n his opening
statement defense counsel told you that the defendant Reyes did exactly what he
was told to do. Is that true? Has that been verified by the evidence, the evidence,
that you heard come from that witness stand?” Id. at 270. Later in his closing
argument, the prosecutor stated:
Now the defendant, he has no burden here. The burden
starts with the government and stays with the government. We
embrace that. It is our burden. But if you remove the only
explanation, the only justification, the only set of facts that
ha[s] been proffered to you through the witness stand, and that
is Reyes refused to comply so we had to use force to gain his
compliance, you can forget about that.
Id. at 272-73. Defense counsel objected after both of these statements. Id. at 270,
273. After closing arguments, Reyes’s counsel moved for a mistrial and contended
that the government shifted the burden of proof and that its comments were
probably interpreted as comments on Reyes’s remaining silent. Id. at 290. The
district judge noted that he did not hear anything sufficient to merit a mistrial but
stated that Reyes could make a post-trial motion citing the transcript if necessary.
Id. at 291. The judge then instructed the jurors that they could not consider the fact
that Reyes did not testify, because he was under no obligation to do so and
statements made by the lawyers were not evidence. Id. at 293-94. The jury found
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Reyes guilty on both counts. Id. at 304; R1-55.
Following the verdict, Reyes’s counsel filed a motion for a mistrial or,
alternatively, for a new trial. R1-63. Defense counsel argued that a reference to
Reyes’s silence could not have been invited since it occurred during the
government’s initial closing argument. Id. at 5-6. The prosecutor had referred to a
lack of testimonial evidence twice, apparently showing manifest intent to comment
on Reyes’s not testifying. Id. at 6-7. Even if a plausible explanation had been
given for the remark, counsel contended that the jury necessarily would have
construed the remark to refer to Reyes’s decision not to testify. Id. at 7. Finally,
defense counsel argued that any error could not be considered harmless because the
evidence was not overwhelming and no curative instruction was given. Id. at 7-9.
The district judge denied the motion. First, the judge concluded that the
comment was not manifestly intended to refer to Reyes’s decision to not testify but
rather it referred to a failure by the defense generally to offer testimonial evidence
to rebut the government’s case. R1-68 at 1-2. The judge then determined that the
jury would not necessarily consider the remark to refer to Reyes’s not testifying
but rather as a comment about the logical inferences from the evidence presented.
Id. at 2. Finally, the judge concluded that the prosecutor did not shift the burden of
proof because the instruction on the burden of proof eliminated any prejudice
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caused by the prosecutor’s remarks. Id. at 3. The judge sentenced Reyes to
eighteen months of imprisonment.
II. DISCUSSION
Reyes argues on appeal that the prosecutor’s comments were improper and
cites United States v. LeQuire, 943 F.2d 1554 (11th Cir. 1991). He contends that
the prosecutor manifestly intended to comment on his silence, especially since he
did so during his initial closing argument and not in response to an argument by the
defense, and he mentioned the lack of testimonial evidence twice. Reyes submits
that the remark had to refer to his failure to testify because the prosecutor referred
to evidence from witnesses, while the defense had submitted only two pictures into
evidence. Reyes argues that the jury could not have construed the remark in any
way other than referencing the fact that Reyes did not testify because the
prosecutor mentioned only evidence from witnesses. Finally, he contends that the
error cannot be considered harmless because the evidence was not overwhelming,
and there was no curative instruction.
Because the district judge has the opportunity to observe the prosecutor’s
demeanor firsthand, the decision to deny a motion for a mistrial based on improper
remarks during closing argument is reviewed for abuse of discretion. United States
v. Watson, 866 F.2d 381, 386 (11th Cir. 1989). To determine whether a prosecutor
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has impermissibly commented on a defendant's decision not to testify, “courts must
inquire whether the statement ‘was manifestly intended or was of such character’
that the jury would necessarily construe it as a comment on the failure of the
accused to testify.” United States v. Chirinos, 112 F.3d 1089, 1099 (11th Cir.
1997) (citation omitted). The defendant has the burden of establishing that one of
the two criteria exists. United States v. Knowles, 66 F.3d 1146, 1163 (11th Cir.
1995). We “will not find that a prosecutor manifestly intended to comment on a
defendant's failure to testify if some other explanation for the prosecutor's remark
is equally plausible.” Chirinos, 112 F.3d at 1099. Therefore, if a neutral
explanation for the prosecutor’s remarks exists, then there was no “‘manifest
intent.’” United States v. Garcia, 13 F.3d 1464, 1474 (11th Cir. 1994) (quoting
Watson, 866 F.2d at 386). To decide whether the jury would construe a statement
as a comment on the failure of the accused to testify, “‘the question is not whether
the jury possibly or even probably would view the challenged remark in this
manner, but whether the jury necessarily would have done so.’” Chirinos, 112
F.3d at 1099 (citation omitted).
During his closing argument, the prosecutor in LeQuire told the jury that the
defendant was disadvantaged by the fact that he did not “have the guts” to get on
the stand and tell his side of the story. 943 F.2d at 1564. We determined that this
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remark was probably not “manifestly intended” to comment on the defendant’s not
testifying, because the prosecutor presented a plausible alternative that the remark
was invited by the defense’s accusation that the government’s witnesses were liars.
Id. at 1565. Although we recognized that the comment could not have been
interpreted by the jury as anything but a comment on the defendant’s silence, id.,
we concluded that the error was harmless because the evidence against the
defendant was overwhelming, and the district judge gave a curative instruction, id.
at 1567.
In Watson, after the defense emphasized during closing argument that the
government had failed to disprove the defense’s alternative explanations of the
charged offense, the prosecutor responded by advising the jury that Watson had no
duty to testify, but that, if there was someone who could have testified differently
than the government’s allegations as to what had occurred, the defendant would
have known which witnesses to call. 866 F.2d at 384. We determined that the
remarks were a permissible comment on the defense’s failure to counter the
evidence presented by the government and were not manifestly intended to
comment on the defendant’s right to not testify. Id. at 386. We also noted that the
district judge could have considered the prosecutor’s comment reminding the jury
that the defendant did not have to testify to have negated any possibility that the
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jury would have misinterpreted the remarks. Id.
Similarly, in Chirinos, the prosecutor first asked the jury members whether
they had heard any witness testimony disputing that a diagram of a room was
drawn properly. 112 F.3d at 1099. Later, the prosecutor told the jury that only one
person had testified regarding photographs taken of a room, and the prosecutor
then asked the jury whether it had heard anyone say that the photograph was not
the room in question. Id. We decided that the statements were proper comments
on the defense’s failure to counter or explain the evidence. Id. at 1100. Further,
we determined that the comments would not necessarily have been construed by
the jury as a comment on the failure of the defendant to testify and noted that the
district judge had “instructed the jury that the law does not require a defendant to
testify to prove his innocence or to produce any evidence at all.” Id.
Finally, in United States v. Blankenship, 382 F.3d 1110 (11th Cir. 2004), the
prosecutor in closing argument noted that the government had the burden of proof
and informed the jury that, if the defense wanted the jury to believe a fact, it had to
prove that fact. Id. at 1127. We recognized that the statement was legally
incorrect, but held that it was not manifestly intended to comment on the
defendant’s silence because the prosecutor expressly recognized the defendant’s
right to remain silent. Id. at 1128. The jury may have interpreted the statements as
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referring to a failure of the defense generally. Id. We additionally recognized that
an isolated comment would need to be “much more prejudicial” to merit a reversal.
Id.
Reyes asserts that the decision of the district judge should be reversed based
on our decision in LeQuire, which is distinguishable. In this case, as in LeQuire, it
appears that the prosecutor did not manifestly intend to refer to Reyes’s decision
not to testify. Instead, it is likely that the prosecutor was referring to the failure of
the defense to rebut the government’s evidence that Reyes resisted the boarding.
Therefore, the prosecutor’s reference to the witnesses plausibly could have been
meant to refer to the fact that every officer who witnessed the events said that
Reyes resisted the boarding, since the recording and pictures were inconclusive
regarding Reyes’s resistance. Given this plausible explanation, Reyes has not
shown that the prosecutor manifestly intended to comment on his silence.
Chirinos, 112 F.3d at 1099-1100 (determining that there is no manifest intent to
comment on a defendant’s not testifying when a plausible, proper explanation
exists).
Unlike LeQuire, the jury in this case would not necessarily have construed
the prosecutor’s statements as a reference to Reyes’s right not to testify. In
LeQuire, the prosecutor told the jury that the defendant did not “have the guts” to
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take the witness stand, which expressly commented on the defendant’s right to
silence. 943 F.2d at 1564. In this case, the prosecutor did not expressly refer to
Reyes’s decision not to testify. Instead, the prosecutor’s statement was similar to
that in Chirinos, where the prosecutor asked the jury members if they had heard
any contrary evidence from the witnesses. As in Chirinos, the jury in this case
could have construed the prosecutor’s remarks as referencing a failure of the
defense to present evidence rather than a failure of the defendant to testify.
Chirinos, 112 F.3d at 1099-1100. This conclusion is especially true even though
the prosecutor mentioned Reyes both times because the prosecutor prefaced his
argument as a rebuttal to the defense’s statement during opening argument that
Reyes did exactly what he was asked to do, and the prosecutor later reminded the
jury that only the government carried the burden of proof. Watson, 866 F.2d at
386. Therefore, the jury would not necessarily have construed the remarks as
referencing Reyes’s right not to testify. Chirinos, 112 F.3d at 1099-1100.
Significantly, the district judge’s instructions, issued almost immediately after
Reyes’s counsel moved for mistrial, reminded the jury that Reyes was under no
obligation to testify and that the arguments of the lawyers were not evidence.
Chirinos, 112 F.3d at 1100.
Reyes has not carried his burden of showing that the remarks in question
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were manifestly intended to comment on his failure to testify because the
prosecutor’s reference to the witnesses plausibly could have been meant to refer to
the fact that every officer who witnessed the events said that Reyes resisted the
boarding. Furthermore, the remarks would not necessarily have been construed as
referring to Reyes’s silence by the jurors, who could have construed the
prosecutor’s remarks as referencing a failure of the defense to present evidence
rather than as a failure of Reyes to testify. Therefore, the district judge did not
abuse his discretion in denying Reyes’s motion for a mistrial or, alternatively, a
new trial.
III. CONCLUSION
Reyes has appealed his conviction for obstruction of a boarding and
unauthorized entry into Cuban territorial waters. Because Reyes has not met his
burden of showing that the subject remarks were intended to comment on his
failure to testify, or that they necessarily would have been construed as such by the
jury, the district judge’s denying Reyes’s motion for a mistrial or, alternatively, a
new trial was appropriate. Therefore, Reyes’s conviction is AFFIRMED.
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