U.S. v. Smith, S-M

• Citation: 962 F.2d 923
• Decision Date: 24 April 1992
• Docket Number: No. 89-10649,S-M,89-10649
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Shawn Joaquin SMITH, aka "an", Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 923

962 F.2d 923

UNITED STATES of America, Plaintiff-Appellee, v. Shawn Joaquin SMITH, aka "S-Man", Defendant-Appellant.

No. 89-10649.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Nov. 4, 1991.

Decided April 24, 1992.

Annette R. Quintana, Las Vegas, Nev., for defendant-appellant.

Bradford R. Jerbic, Asst. U.S. Atty., Thomas R. Green, Asst. U.S. Atty., Las Vegas, Nev., for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before: POOLE, REINHARDT, and FERNANDEZ, Circuit Judges.

REINHARDT, Circuit Judge:

Shawn Joaquin Smith appeals his conviction for attempted possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and use of a firearm in a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). Smith contends, inter alia, that the prosecutor's improper vouching during closing argument constituted plain error and warrants reversal of his conviction notwithstanding his failure to raise a contemporaneous objection. We agree.

I

In 1988, United States Customs agents together with the Las Vegas Metropolitan Police Department began a sting operation designed to attract prospective buyers of large quantities of narcotics. On December 3, 1988, one of the agents was contacted by Leonard Erivin, who negotiated a preliminary deal for five kilos of cocaine at $14,500 per kilo on behalf of his associates and then gave the agent a telephone number for George Brown. Another member of the undercover team, Detective Davis, contacted Brown and arranged a preliminary meeting at Carrows Restaurant. At the restaurant, Brown informed Davis that he represented another person, whom he identified as his "main man" or "money man".

On December 5, after obtaining a sample of the cocaine from Davis and Detective Orduno, who posed as the supplier, Brown drove to Lisbon Hall's house. When Brown arrived at the house, nobody was there. The officer who had followed Brown from the meeting with Davis and Orduno saw Brown drive to a nearby store and place a call. Shortly thereafter, Hall arrived at the house with appellant Smith, and the three men entered the house together. Brown subsequently called Davis and arranged to conduct the cocaine transaction at Carrows Restaurant. The surveillance officer observed Hall and Brown leave the house in Brown's car with two satchels, later found to contain $71,500. Slightly later, Smith emerged from the house and drove off in the car in which he and Hall had arrived.

When the two vehicles arrived at the restaurant, Smith circled the parking lot two times before parking in a spot halfway between Orduno's car and the car driven by Hall and Brown. Hall and Brown entered the restaurant, where Brown met with Davis and Orduno. The four men then returned to the parking lot to conduct the transaction. When Hall and Brown handed over the money, Orduno gave a prearranged arrest signal by depressing the brake pedal three times, and surveillance officers placed Brown and Hall under arrest. Simultaneously, other officers arrested Smith. When the officers approached Smith's vehicle, they observed that he was holding a shotgun across his lap with the muzzle pointed toward the front of the door on the driver's side. The gun was later found to be loaded.

A grand jury returned a three-count indictment charging Hall, Brown, and Smith with conspiracy to possess a controlled substance with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count I); attempt to possess a controlled substance with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count II); and use of a firearm in a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count III). Brown entered a guilty plea to Counts I and II of the indictment and agreed to testify against Hall and Smith in exchange for a grant of immunity as to Count III.

At trial, Brown testified that when he arrived at Hall's house and found nobody there, he placed a call to Hall's car phone. Hall informed Brown that he was on his way to the house and that Smith was with him. During the rendezvous at Hall's house immediately prior to the final meeting at Carrows, Hall and Brown discussed the upcoming drug transaction and Smith participated in the conversation. At the end of the discussion, according to Brown, Hall told Smith to take the second car to the restaurant and to act as "the heavy in the background" during the transaction. Brown further testified that the shotgun that Smith was holding when he was arrested was taken from Hall's residence; however, Brown was unclear as to who had removed the shotgun from the house and placed it in the car. Brown also stated that he was not sure whether Smith had any monetary interest in the transaction.

During his closing argument, Smith's counsel attempted to discredit Brown's testimony by suggesting that Brown had a strong motive for testifying in a way that would help the prosecution:

[L]et me tell you some of the instances where he tried to mislead you. Not the prosecutor. He's got a job to do. It's his job to ask the questions. It's [Brown's] job to answer them truthfully and he didn't.

....

You know nobody made George Brown plead guilty and they didn't. But I think George Brown came to the realization that he was the guy that made all the deals, that he was an absolute dead, stinkin' fish and he knew it.

And I think that you are entitled to assume that his lawyer told him that the only way you're not going to get the most serious penalty that the law allows is if you plead guilty. Because if you plead guilty then there are certain other benefits you may be entitled to under the new sentencing guidelines, benefits which can drastically and dramatically reduce a sentence. George Brown knew about those things when he came in here to testify.

Now, he also knew that if he got on the witness stand here and he said, no, I don't know Lisbon Hall. He wasn't in the restaurant to do any dope deal with me, he was just in there having a sandwich, and he had already as part of his guilty plea pled guilty to this offense, that the United States Government had the option of prosecuting him for perjury. They might have a little more incentive to prosecute him for perjury, mightn't they, if he fouled up their case on them. Do you think that might be some incentive for him to tell it the way he believes the government wants to hear it? I think so.

....

And what actually--what actually did [Brown] say? First of all we have to recognize that the questions he was asked were propounded by ... the government prosecutor. And it's the government prosecutor's and the government's responsibility to prove the guilt of Shawn Smith beyond a reasonable doubt. And if he's not satisfied, meaning the prosecutor, if he's not satisfied with the answer he gets, he can ask other questions to give you more illumination to what the witness has testified.

Smith's counsel then went on to sum up the evidence for and against Smith. At one point he discussed a telephone log of calls made from a cellular phone in Hall's girlfriend's car that showed three calls made to Smith's residence. Smith's counsel pointed out that there had been no evidence that Smith was the person who received those calls, and characterized any attempt to imply that Smith had in fact received the calls as "a prosecutor's trick". ¹

In rebuttal, the prosecutor took heated exception to Smith's counsel's characterization of the prosecutor's role and to the suggestions made about Brown's motives and testimony. He stated:

That [getting a conviction] isn't a prosecutor's job. A prosecutor's job is to guarantee that every criminal defendant receives a fair trial. That's my job. A prosecutor's job is to turn over every piece of evidence to the defense if it would assist them. That's the prosecutor's job.

.... How many times did you see me during the course of trial give exhibits to the defense so that they can mark them? Or see me stipulate to the admission of exhibits for the defense? My job is to assure these individuals a fair trial, not to convict them.

....

.... Mr. Waterman implies that George Brown got up here and said whatever he wanted to say and that the prosecution wouldn't prosecute him for perjury, not if he brought him a conviction. Well, that's absurd. My job is to guarantee a fair trial. If any witness commits perjury on the stand it's my job to seek an indictment against him if I can prove it.

Later, commenting on Smith's counsel's discussion of the evidence, the prosecutor noted: "Truth isn't something to be abused like that. Truth is as it is. And the government's job is to find the truth, to ferret through all this confusion, to ferret through all the smoke screens and lead you to the truth." Still later, he returned again to Smith's counsel's attack on Brown's testimony: "[My grandmother] asked me, 'What do you do in a trial?' 'Present evidence.' 'And then what happens?' 'Well then I sit down and everyone says bad things about me.'.... But if I did anything wrong in this trial, I wouldn't be here. The court wouldn't allow that to happen." Smith's counsel did not raise an objection to any of these statements.

Smith was convicted of Counts II and III, the attempted possession and weapons charges, but acquitted as to Count I, the conspiracy charge. The district court sentenced him to consecutive terms of imprisonment of 151 months for Count II and 60 months for Count III, to be followed by a five-year term of supervised release. The court also imposed a fine of $17,500. Smith timely appealed both his conviction and his sentence.

II

Smith first argues that there was insufficient evidence to support his conviction on either count. We will uphold a conviction against a challenge to the sufficiency of the evidence if a rational jury could find the defendant guilty beyond a reasonable doubt of each...