United States v. A. Alvarez-Aguilar

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-1968
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District
* of Nebraska.
Alonzo Alvarez-Aguilar, *
* [UNPUBLISHED]
Appellant. *
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Submitted: November 18, 1999
Filed: December 21, 1999
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Before BEAM and FLOYD R. GIBSON, Circuit Judges, and WELLFORD,1 District
Judge.
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PER CURIAM.
Alonzo Alvarez-Aguilar was found guilty by a jury of conspiracy to distribute
methamphetamine in violation of 21 U.S.C. § 846 and was sentenced to 121 months
1
The Honorable Harry W. Wellford, United States Circuit Judge for the Sixth
Circuit, sitting by designation.
in prison.2 On appeal, Alvarez-Aguilar argues that: (1) he was denied a fair trial
because the government engaged in prejudicial prosecutorial misconduct by repeatedly
referring to and eliciting testimony on information that had been ruled inadmissible by
the district court; and (2) the evidence is insufficient to support his conviction. We
affirm.
This circuit has set forth a two-part test for reversible prosecutorial misconduct:
(1) the prosecutor's remarks or conduct must in fact have been improper; and (2) such
remarks or conduct must have prejudicially affected the defendant's substantial rights
so as to deprive the defendant of a fair trial. See United States v. Hernandez, 779 F.2d
456, 458 (8th Cir. 1985). We have reviewed the record and find no prosecutorial
misconduct under the first prong of this test. Contrary to Alvarez-Aguilar's assertions,
the record does not show that the prosecutor made improper remarks during closing or
opening arguments. As to the claim that the prosecutor elicited improper testimony
from three officers who testified for the government, the record shows only two
instances where two of the officers inadvertently and briefly referred to evidence
regarding investigative background information involving Alvarez-Aguilar that the court
had deemed inadmissible. In neither instance, however, was the improper testimony
solicited or prompted by the prosecutor's line of questioning. In fact, the record shows
that the prosecutor made every attempt in her questioning to adhere to the parameters
set down by the district court.
2
The Honorable Thomas M. Shanahan, United States District Judge for the
District of Nebraska.
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Having concluded that there was no improper conduct by the prosecutor, we
need not consider the issue of prejudice under the second prong of the test. We note,
however, that in the first instance Alvarez-Aguilar failed to object to the testimony.
The second time, the improper testimony was immediately stricken and was the subject
of a curative instruction. In sum, having carefully reviewed the parties' briefs and the
record on appeal, we find no error requiring reversal on the ground of prosecutorial
misconduct. Our review of the record also shows that there was sufficient evidence to
support the jury's verdict. We therefore affirm Alvarez-Aguilar's conviction and
sentence. See 8th Cir. R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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