786 F.3d 121 (1st Cir. 2015), 14-1036, United States v. Baez-Martinez

Docket Nº:14-1036
Citation:786 F.3d 121
Opinion Judge:SELYA, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Appellee, v. JORGE B
Attorney:David B. Hirsch for appellant. Max J. P
Judge Panel:Before Howard, Selya and Kayatta, Circuit Judges.
Case Date:May 13, 2015
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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786 F.3d 121 (1st Cir. 2015)

UNITED STATES OF AMERICA, Appellee,

v.

JORGE BÁ EZ-MARTÍNEZ, Defendant, Appellant

No. 14-1036

United States Court of Appeals, First Circuit

May 13, 2015

Page 122

[Copyrighted Material Omitted]

Page 123

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Jay A. García-Gregory, U.S. District Judge.

David B. Hirsch for appellant.

Max J. Pérez-Bouret, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Susan Z. Jorgensen, Assistant United States Attorney, were on brief, for appellee.

Before Howard, Selya and Kayatta, Circuit Judges.

OPINION

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SELYA, Circuit Judge.

A jury convicted defendant-appellant Jorge Bá ez-Martí nez of possessing a firearm as a convicted felon. Represented by new counsel on appeal, the defendant asserts that the prosecutor both offered an improper interpretation of witness testimony and invited the jury to infer guilt from the defendant's silence. Discerning no plain error, we affirm.

I. BACKGROUND

The background facts are largely undisputed, so we merely sketch the pertinent events and proceedings. On the evening of March 29, 2012, the defendant went to El Trapiche, a bar in Guaynabo, Puerto Rico. That same evening, local police were checking the licenses of establishments (like El Trapiche) that were sites of frequent criminal activity.

At roughly 10:00 p.m., a cadre of police officers descended upon El Trapiche. Four official vehicles, including a patrol car carrying uniformed officers and an unmarked car carrying plainclothes officers parked nearby.

After the vehicles parked, the patrol car activated its emergency lights. As officers Ivy González Ortiz (González) and Luis de Serrano Reyes (Serrano) were exiting the unmarked car, they noticed the defendant -- who was sitting at the outdoor bar -- glance in their direction and then discard a fanny pack behind the bar. This act raised the officers' suspicions because in their experience such fanny packs often were used to conceal firearms and drug-related contraband.

The officers approached the defendant, and Serrano jumped over the bar to retrieve the fanny pack. Inside, he found a loaded pistol with an obliterated serial number, additional ammunition, two cigarette lighters, and a card used for passing through toll booths. Serrano asked the defendant whether he had a permit for the firearm. When the defendant did not respond, he was arrested.

In due season, a federal grand jury charged the defendant with being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). Facing a fifteen-year mandatory minimum sentence, see id. § 924(e)(1), the defendant opted for trial. Inasmuch as the parties stipulated to several elements of the crime, the trial focused on whether the defendant knowingly possessed the firearm.

The government's case in chief consisted of the testimony of the two officers (González and Serrano). In the defense case, the defendant called his mother and sister, who testified that they had dinner with the defendant that evening and saw no fanny pack. Neither of them had known the defendant to wear a fanny pack or to smoke. His mother added that the vehicle the defendant regularly drove was equipped with its own freeway pass. The defendant also called an acquaintance with whom he had rendezvoused at El Trapiche. The acquaintance testified that the

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defendant was not wearing a fanny pack when they met.

The jury apparently credited the officers' testimony: it concluded that the government had proven beyond a reasonable doubt that the defendant knowingly possessed the firearm and found him guilty. The district court imposed the mandatory minimum sentence. This timely appeal followed.

II. ANALYSIS

In this venue, the defendant asseverates that prosecutorial misconduct entitles him to a new trial. The challenged actions fall into two categories. First, the defendant submits that the prosecutor inappropriately corrected the court interpreter's English translation of certain testimony given by the police officers. Second, he submits that the prosecutor's closing argument made impermissible references to his decision not to testify. Because the defendant interposed no contemporaneous objection to any of the statements that he now denigrates, our review is for plain error. See United States v. Sánchez-Berríos, 424 F.3d 65, 73 (1st Cir. 2005). Under this rubric, the defendant must establish " (1) that an error occurred (2) which was clear or obvious and which not only (3) affected [his] substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).

A. Translation Commentary.

We start with the defendant's claim that the prosecutor strayed into forbidden terrain by commenting on the court interpreter's translation of certain testimony. Under the Jones Act, 48 U.S.C. § 864, judicial proceedings in the District of Puerto Rico must be conducted in English. When a witness testifies in Spanish (as frequently happens), it is the interpreter's translation of that testimony that constitutes the evidence of record. See United States v. Morales-Madera, 352 F.3d 1, 6 (1st Cir. 2003).

During direct examination, the prosecutor asked González to describe what transpired after the police arrived at El Trapiche. As her account proceeded, the following exchange occurred:

[GONZÁ LEZ:] After the strobe lights went on, I noticed the gentleman that was sitting by the bar who then takes a look to his right side, which then would have been the right side.

[PROSECUTOR:] Excuse me. The translation. Basically she said he looks to the right " where we would be."

There was no objection, and direct examination continued.

The defendant now calumnizes the prosecutor for unilaterally supplying his own translation. This attack is not without a patina of plausibility: the prosecutor's spontaneous correction of the interpreter may well have constituted error. See United States v. Powell, 771 F.2d 1173, 1175 (8th Cir. 1985) (deeming similar correction improper). If the prosecutor thought that the interpreter had made a mistake, a simple follow-up question was all that was needed to set the record straight. Even assuming that there was an error, however, that error was not so prejudicial as to warrant relief.

To prevail under plain error review, the defendant would have to demonstrate that the alleged error likely swayed the outcome of the trial. See United States v. Landry, 631 F.3d 597, 606 (1st Cir. 2011). The defendant cannot make such a showing. The government introduced ample evidence concerning where the defendant

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was seated in relation to the officers. And shortly after the disputed exchange, González testified without objection that the defendant looked to the right and saw the strobe lights. Given this unchallenged testimony, the prosecutor's editorialization could not conceivably have influenced the verdict.

If more were needed -- and we doubt that it is -- the district court carefully instructed the jury, both near the beginning and near the end of the trial, that statements and objections of counsel are not evidence. Such an instruction can, in appropriate circumstances, allay the potential prejudice that may result from overzealous advocacy. See, e.g., United States v. Pires, 642 F.3d 1, 15 (1st Cir. 2011); United States v. Bey, 188 F.3d 1, 8-9 (1st Cir. 1999). In this instance, the court's meticulous instructions were sufficient to palliate any prejudice that might otherwise have flowed from the errant correction.

In much the same vein, the defendant takes issue with an objection that the prosecutor made during cross-examination of Serrano. We set the stage:

[DEFENSE COUNSEL:] Agent Serrano, I believe you testified here this afternoon that what you recall seeing [the defendant] do at the bar was slide this object, this fanny pack, across the bar.

In the initial report that you prepared back at the time you investigated the case, you actually wrote that he threw the fanny pack over the bar; correct? [SERRANO:] No. He extended his hand, and he threw -- he dropped the fanny pack behind the bar. . . . . [DEFENSE COUNSEL:] Do you recall telling Agent Torres that while you were there at the location, you noticed a male subject sitting in a bar with a black fanny pack and that you observed that subject later identified as [the defendant] throw the fanny pack to the other side of the bar? Do you recall telling Agent Torres that specific statement? [SERRANO:] I told him that he threw the fanny pack inside the bar with his right hand. [DEFENSE COUNSEL:] So you agree that . . . you told him that the person you saw threw the fanny pack? [PROSECUTOR:] Your Honor, we have an objection here. This is sort of like a translation. In Spanish tiro could be translated dropping in English versus throwing, and in Spanish, tiro could be throwing and dropping. I think here we only have a translation thing basically saying that he tiro, he dropped it, or that he threw it which is what brother counsel wants to make an impeachment. [DEFENSE COUNSEL:] Well, Your Honor, we disagree because I think that the witnesses have testified in Spanish, and they did not use the word " tiro." They used the word " slipped" or " dropped." [PROSECUTOR:] I'm sorry. He just testified, and he used the word " tiro." [COURT:] Did he testify whether the fanny pack was tiro or dropped? He did? [DEFENSE COUNSEL:] That's all I have, Your Honor. Thank you.

The defendant concedes that, as a general matter, a prosecutor is allowed to object to the court interpreter's translation and/or...

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