U.S. v. Collins

• Decision Date: 12 July 2005
• Docket Number: No. 03-4848.,No. 03-4895.,03-4848.,03-4895.
• Citation: 415 F.3d 304
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald COLLINS, Defendant-Appellant. United States of America, Plaintiff-Appellant, v. Ronald Collins, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

415 F.3d 304

UNITED STATES of America, Plaintiff-Appellee, v. Ronald COLLINS, Defendant-Appellant.

United States of America, Plaintiff-Appellant, v. Ronald Collins, Defendant-Appellee.

No. 03-4848.

No. 03-4895.

United States Court of Appeals, Fourth Circuit.

Argued September 30, 2004.

Decided July 12, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED:

Matthew Alan Wartel, Alexandria, Virginia, for Appellant/Cross-appellee. Michael James Elston, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee/Cross-appellant.

ON BRIEF:

Paul J. McNulty, United States Attorney, LeDora Knight, Assistant United States Attorney, Alexandria, Virginia, for Appellee/Cross-appellant.

Before MICHAEL and DUNCAN, Circuit Judges, and ROGER W. TITUS, United States District Judge for the District of Maryland, sitting by designation.

Affirmed and remanded in part and judgment withheld in part by published opinion. Judge TITUS wrote the opinion, in which Judge MICHAEL and Judge DUNCAN joined.

TITUS, District Judge.

Ronald Collins appeals his conviction for conspiracy to distribute fifty (50) or more grams of a mixture containing a detectable amount of cocaine in violation of 21 U.S.C. § 841(a)(1) and maintaining and controlling a room or enclosure for the purpose of unlawfully storing, distributing, and using a controlled substance in violation of 21 U.S.C. § 856(a)(2). Collins also appeals his sentence for the above convictions. In addition, the Government cross-appeals, arguing that the district court erroneously sentenced Collins.

Collins was indicted for his role in a larger drug conspiracy. Some of the members of that conspiracy testified against Collins at trial, including his nephew, Lionel Kearse. The thrust of the case for the defense was an attempt to discredit the various witnesses and informants who testified for the government. The jury, presumably finding at least some of the informants credible, found Collins guilty on both counts.

In his appeal, Collins raises five issues. First, he argues that the government attorney engaged in prosecutorial misconduct by making an improper "vouching" statement during her rebuttal closing argument. Second, he argues that the Government made a late disclosure of Brady material. Third, he argues that 21 U.S.C. § 841 is unconstitutional. Fourth, he argues that the district court gave improper jury instructions. Fifth, he argues that, under Apprendi and Blakely, his sentence is unconstitutional, as the facts used to sentence him were not determined by a jury beyond a reasonable doubt.¹ In addition the Government has filed a cross-appeal arguing that the district court's determination of Collins' criminal history was in error. Each of Collins' issues on appeal will be considered and disposed of seriatim, and the Government's cross-appeal will be considered last.

Improper Argument (Vouching)

Collins' first argument on appeal is that the prosecuting attorney made an improper statement during her rebuttal closing argument, unconstitutionally tainting the outcome of the case. As this issue raises a question of law, the appropriate standard of review is de novo. United States v. Cheek, 94 F.3d 136, 140 (4th Cir.1996). The allegedly improper statement made by the prosecutor is as follows:

That [plea] agreement is a contract between them [the cooperators] and the United States, which means that they have certain functions, and we have certain functions. Their function is to tell the truth. Each witness who got up there said that his job or responsibility was to tell the truth.

The government is always seeking to determine whether they are telling the truth, and we do not take lightly the fact that we have an agreement with the defendant — with each one of those witnesses where they are supposed to tell the truth.

J.A. 505-06. As conceded at oral argument, it is not this entire soliloquy which is arguably inappropriate. The allegedly improper statement is the first sentence of the second paragraph, where the prosecutor stated that the "government is always seeking to determine whether [a cooperator is] telling the truth [.]"

The question then presented is first, whether this statement constitutes improper vouching for the credibility of a witness and, if so, whether those "remarks or conduct prejudicially affected [the Defendant's] substantial rights so as to deprive him of a fair trial." United States v. Scheetz, 293 F.3d 175, 185 (4th Cir.2002).

Collins argues, and the Government agrees, that "[i]t is impermissible for a prosecutor to indicate her personal belief in the credibility of Government witnesses or to elicit one witness' opinion that another witness has told the truth." United States v. Hayes, 322 F.3d 792, 800 (4th Cir.2003) (citing United States v. Lewis, 10 F.3d 1086, 1089 (4th Cir.1993)); see also Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). The disagreement between Collins and the Government arises from each party's interpretation of the aforementioned excerpt from the prosecutor's rebuttal closing argument. Collins contends that the statement suggests to the jury that "the Government official was checking to see whether the witnesses were telling the truth in accordance with their plea agreements." Appellant's Brief at 19. The Government disputes this interpretation, arguing that the prosecutor was merely focusing the jury's attention on the terms of the plea agreement. Appellee's Brief at 23-24. The district court, during the trial, agreed with the Government's interpretation, explaining to the parties that "[i]t's fair game for both sides to address [the credibility of the witnesses]. What [the prosecutor] was doing, I think, was focusing to raise attention on the plea agreement.... And that's perfectly appropriate." J.A. 508.

As could be expected considering the ubiquitous nature of cooperating witnesses in criminal trials, the issue of a prosecutor referring to plea agreements at trial has been considered by most circuits. A Tenth Circuit opinion very effectively delineated what comments are appropriate and what comments are improper, explaining that

[p]resenting evidence on a witness' obligation to testify truthfully pursuant to an agreement with the government and arguing that this gives the witness a strong motivation to tell the truth is not, by itself, improper vouching.... Use of the `truthfulness' portions of [a plea agreement] becomes impermissible vouching only when the prosecutors explicitly or implicitly indicate that they can monitor and accurately verify the truthfulness of the witness' testimony.

United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir.1990) (citations omitted). Other circuits are in agreement with the Tenth. For example, the Ninth Circuit cautioned that "[t]he prosecution may not portray itself as a guarantor of truthfulness." United States v. Roberts, 618 F.2d 530, 537 (9th Cir.1980). Nor may the Government "give jurors the impression that the prosecutor is carefully monitoring the testimony of the cooperating witness to make sure that the latter is not stretching the facts[.]" Id. at 536 (quoting United States v. Arroyo-Angulo, 580 F.2d 1137, 1150 (2d Cir.1978) (Friendly, J. concurring)).

The relevant case from this Circuit is United States v. Henderson, 717 F.2d 135 (4th Cir.1983) cert. denied 465 U.S. 1009, 104 S.Ct. 1006, 79 L.Ed.2d 238 (1984). After canvassing the views of other circuits, this Court adhered to the views of the Seventh Circuit, expressed in United States v. Hedman, 630 F.2d 1184, 1198-99 (7th Cir.1980) and United States v. Craig, 573 F.2d 513, 519 (7th Cir.1978) cert. denied 439 U.S. 820, 99 S.Ct. 83 (1978), and found no improprieties in "permitting the government to introduce the terms of [the cooperator's] plea bargain during the government's case in chief." Henderson, 717 F.2d at 138. Henderson, however, is not directly on point because the statement made in the current controversy was part of the prosecutor's rebuttal closing argument, rather than during the Government's case in chief. The Government argues, in effect, that there is no distinction between the two methods of referring to the plea agreements. See Appellee's Brief at 24. We disagree.

By its own language, Henderson differentiates the current situation from the introduction of the terms of a plea agreement on direct or re-direct examination. In explaining why the Government did not improperly draw attention to the plea agreement, this Court found relevant the fact that "Henderson ma[de] no claim that the prosecutor made improper use of the plea bargain promise of truthfulness in closing argument." Henderson, 717 F.2d at 138. Thus, potentially prejudicial statements made during closing arguments require closer scrutiny than the eliciting of information about the plea agreement during the prosecutor's case in chief.

This distinction is an important one because the potential for impermissible vouching is greater during an attorney's soliloquy to the jury than during an attorney's interaction with a witness. In the former posture the attorney has greater leeway to develop her own thoughts and convey those concepts to the jury. Therefore, we do not find Henderson to be directly on point. Rather, applying the rationale of Bowie, Roberts and Arroyo-Angulo, we find the prosecutor's argument in this case, at a stage when there is a heightened concern about impermissible vouching, either crossed the line, or, at best, was a close call.

However, regardless of the side of the line on which this statement falls, we conclude that it did not "so infect [] the trial with unfairness as to make the resulting conviction a denial of due process." Scheetz, 293 F.3d at 185 (citing United States v. Morsley, 64 F.3d 907, 913 (4th Cir.1995)). Even if we were to find that the prosecutor's statement implied that the government could insure the credibility of the witness, "[s]uch...