U.S. v. Carroll, No. 93-5030

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtNATHANIEL R. JONES
Citation26 F.3d 1380
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Richard CARROLL, Defendant-Appellant.
Docket NumberNo. 93-5030
Decision Date26 August 1994

Page 1380

26 F.3d 1380
UNITED STATES of America, Plaintiff-Appellee,
Richard CARROLL, Defendant-Appellant.
No. 93-5030.
United States Court of Appeals,
Sixth Circuit.
Submitted Oct. 13, 1993.
Decided June 22, 1994.
Rehearing and Suggestion for Rehearing En Banc Denied Aug. 26, 1994.

Page 1381

Daniel A. Clancy, U.S. Atty., Memphis, TN, Leigh Grinalds, Asst. U.S. Atty., Jackson, TN (briefed), for plaintiff-appellee.

Hugh Harvey, Hardee & Martin, Jackson, TN (briefed), for defendant-appellant.

Before: MARTIN and JONES, Circuit Judges; and WEBER, District Judge. *

NATHANIEL R. JONES, Circuit Judge.

Appellant Richard Carroll appeals his conviction for possession and distribution of cocaine, alleging that:

(1) the court erred by failing to instruct the jury to disregard improper remarks by the prosecutor;

(2) the court erred by not bringing the matter to trial within the required time limit;

(3) the court erred by determining that Carroll's sentencing range was within criminal history two; and

(4) the court erred by not producing witness interview notes for Appellant's inspection.

The second, third, and fourth allegations are entirely meritless. However, the issue raised in the first allegation merits an extended discussion. We have developed at least three different approaches to this issue, at least one of which is inconsistent with the other two. For this reason, we offer an in-depth analysis so as to clarify our doctrine on

Page 1382

prosecutorial misconduct in closing argument. It turns out that, by failing to admonish the jury to disregard the prosecutor's improper remarks at closing argument, the trial court committed reversible error. Therefore, we reverse Carroll's conviction and remand for a new trial.

I. Facts

Appellant was indicted for possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1), and for conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846. The trial was continued three times, first upon a motion by Appellant, and the next two times upon motion by the government due to the unavailability of a material government witness, Robin Patrick, for medical reasons. For purposes of measuring the time until trial, the court did not count the period in which the continuances were pending. Before the jury was impaneled, Appellant moved for a dismissal under the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq.; this motion was denied.

At trial, Robin Patrick testified that she had a plea agreement with the government according to which she would receive a lesser sentence in exchange for her truthful testimony. She further testified that Appellant had provided cocaine to her before Appellant met her husband, and that she set up deals between Appellant and her husband to enable her husband to purchase more cocaine from Appellant.

Her husband, Richard David Patrick, Jr., testified that he, too, had an agreement with the government according to which he would receive a lesser sentence in return for his truthful testimony. He further testified that his wife set up a cocaine deal between Appellant and himself. Other witnesses identified the cocaine that Appellant sold to the Patricks.

At closing argument, the prosecutor stressed that the Patricks' plea agreements provided that any lies or half-truths on the part of the witnesses would void the agreements, and he declared that if Richard Patrick lied, he would lose the benefit of their plea agreement. 1 Appellant objected, and the court sustained, ruling that the prosecutor could comment on what the agreement says, but could not tell what the government would or would not do if the witness did not tell the truth. Moments later, the prosecutor made a very similar point with regard to Robin Patrick. 2 There was no objection at that time. During his rebuttal, the prosecutor reiterated these points. 3 Again, Appellant

Page 1383

objected, but this time the court overruled the objection, saying that the agreement is in evidence and that the statement to which Appellant objected was "a proper comment on the evidence." R. 35-2 at 281.

The jury found Appellant guilty on both counts. At the disposition proceedings, based upon a prior Florida conspiracy to import marijuana conviction, the court found that Appellant's sentencing range fell within criminal history category two. This appeal followed.

II. Discussion

A. Improper Remarks by Prosecutor

The first issue on appeal involves a challenge to the district court's denial of Appellant's motion for a mistrial. "We review the denial of a motion for mistrial for an abuse of discretion." United States v. Chambers, 944 F.2d 1253, 1263 (6th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1217, 117 L.Ed.2d 455 (1992); United States v. Atisha, 804 F.2d 920, 926 (6th Cir.1986), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987). 4 An abuse of discretion exists when the reviewing court is firmly convinced that a mistake has been made. In re Benedectin, 857 F.2d 290, 307 (6th Cir.1988), cert. denied, 488 U.S. 1006, 109 S.Ct. 788, 102 L.Ed.2d 779 (1989); Schrand v. Federal Pacific Electric Co., 851 F.2d 152, 156-57 (6th Cir.1988). The first issue also involves improper comments made by the prosecutor without objection from Appellant. These we review only for plain error. United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985); United States v. Morrow, 977 F.2d 222, 229 (6th Cir.1992) (en banc), cert. denied, --- U.S. ----, 113 S.Ct. 2969, 125 L.Ed.2d 668 (1993). "The plain error doctrine mandates reversal 'only in exceptional circumstances' and only where the error is so plain that 'the trial judge and prosecutor were derelict in countenancing it.' " United States v. Slone, 833 F.2d 595, 598 (6th Cir.1987) (quoting United States v. Mendez-Ortiz, 810 F.2d 76, 78 (6th Cir.1986), cert. denied, 480 U.S. 922, 107 S.Ct. 1384, 94 L.Ed.2d 697 (1987); United States v. Hook, 781 F.2d 1166, 1172 (6th Cir.), cert. denied, 479 U.S. 882, 107 S.Ct. 269, 93 L.Ed.2d 246 (1986); United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982)).

Appellant contends that during the prosecutor's closing remarks, "he improperly vouched for the credibility of the Government's witnesses, put the prestige of the Government behind them, and commented on evidence not before the jury." Appellant's Br. at 6. We find that the record supports this allegation.

Appellant further contends that the court erred by not granting a mistrial on the basis of the prosecutor's improper remarks. Because we have developed mutually inconsistent approaches for determining whether this sort of prosecutorial misconduct warrants a mistrial, to properly resolve the issue, we must first explore these various approaches.

1. The Standard for Determining When a Prosecutor's Improper

Comments Constitute Reversible Error

Since 1976, the Sixth Circuit has applied at least three different tests for determining whether improper remarks by a prosecutor during closing arguments warrant a new trial. To make matters even more confusing, all three tests have been applied within the past two years. 5

Page 1384

The first of these tests was introduced in United States v. Leon, 534 F.2d 667, 678-683 (6th Cir.1976). The court began its analysis with an "oft-repeated" quote from the United States Supreme Court that stresses the importance of the issue:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor--indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Id. at 679 (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935)). The court proceeded to establish a two-step approach; first, it determines whether the prosecutor's remarks were improper, and second it determines whether the error was harmless. As to the second step, the court held that a reviewing court will consider the following four factors:

the degree to which the remarks complained of have a tendency to mislead the jury and to prejudice the accused; whether they were isolated or extensive; whether they were deliberately or accidentally placed before the jury, and the strength of the competent proofs introduced to establish the guilt of the accused.

Id. Another factor that is relevant is whether the trial court gave the jury a "cautionary instruction designed to overcome or to dissipate any prejudice that may have been caused." Id. Presumably, this factor is encompassed within the first factor, the tendency of the remark to mislead the jury or to prejudice the accused. The Leon court applied this "test" to the prosecutor's remarks, and concluded that the prosecutor deliberately injected inadmissible, prejudicial remarks into his closing argument, that the remarks may have affected the jury, that the trial court failed to give an appropriate cautionary instruction, and that the evidence against the defendant was not overwhelming. Therefore, the court remanded for a new trial.

The second test was introduced in United States v. Bess, 593 F.2d 749, 753-57 (6th Cir.1979). Bess was a close case in which credibility was the key issue. Id. at 753. The prosecutor declared in his closing argument that "[i]f the United States did not believe the defendant was guilty ... the...

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