U.S. v. Figueroa

• Decision Date: 09 April 1990
• Docket Number: HERNANDEZ-MES,A,Nos. 88-5460,s. 88-5460
• Citation: 900 F.2d 1211
• Parties: UNITED STATES of America, Appellee, v. Pedro Victor FIGUEROA, Appellant. UNITED STATES of America, Appellant, v. Noemippellee. UNITED STATES of America, Appellee, v. Santiago SILVA, a/k/a Santiago Silva-Suarez, Appellant. to 88-5462.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1211

900 F.2d 1211

UNITED STATES of America, Appellee, v. Pedro Victor FIGUEROA, Appellant.

UNITED STATES of America, Appellant, v. Noemi HERNANDEZ-MESA, Appellee.

UNITED STATES of America, Appellee, v. Santiago SILVA, a/k/a Santiago Silva-Suarez, Appellant.

Nos. 88-5460 to 88-5462.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 13, 1989.

Decided April 9, 1990.

Paul Engh, Minneapolis, Minn., and William M. Orth, St. Paul, Minn., for appellants.

Douglas R. Peterson, Minneapolis, Minn., for appellee.

Before McMILLIAN, JOHN R. GIBSON and BOWMAN, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Pedro Victor Figueroa, Noemi Hernandez-Mesa, and Santiago Silva appeal their convictions on cocaine distribution and conspiracy charges. Figueroa and Silva were found guilty of aiding and abetting the distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) (1988) and 18 U.S.C. Sec. 2 (1988). Hernandez-Mesa was found guilty of possession with the intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1). In addition, all three appellants were found guilty of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846 (1988). On appeal, they argue that the district court ¹ erred by: (1) denying their motions for mistrial following the government's rebuttal argument; (2) rejecting the jury instructions they offered on the conspiracy charges; and (3) refusing to strike the portion of the indictment specifying the overt acts attributed to the appellants. In addition, Figueroa and Silva contend that the court abused its discretion in applying the United States Sentencing Guidelines. We affirm the district court's judgment in all respects.

Appellants' convictions arise from an undercover narcotics investigation conducted by the Minnesota Bureau of Criminal Apprehension in the St. Paul, Minnesota area. On March 29, 1988, Special Agent Eugene Leatherman purchased, using $1,500 in marked currency, one ounce of cocaine from Santiago Silva and Juan Joseph Aguirre in Aguirre's home. Leatherman returned to the Aguirre home the following day to purchase more cocaine, and Aguirre showed him two solid chunks of cocaine. Pedro Victor Figueroa then arrived and watched as Leatherman exchanged $3,000 in marked currency to Aguirre for the two chunks of cocaine after Leatherman was assured of the quality of the cocaine. The three individuals then negotiated a plan to exchange eighteen ounces of cocaine for $14,000 and a stolen automobile in the near future. Figueroa did not speak English fluently but participated actively in the negotiations, and Aguirre informed Leatherman that Figueroa would be returning to Miami soon to acquire more cocaine. Throughout this discussion, Leatherman reported that he heard Figueroa continually clicking the safety of a gun concealed in his pocket. Figueroa also carried a pager. In an Oldsmobile registered to Noemi Hernandez-Mesa, the final co-defendant, Figueroa then returned to an apartment which was leased in her name. Government surveillance of the apartment revealed that Silva met Figueroa at the door when he returned.

The following day, March 31, 1988, Leatherman again returned to the Aguirre residence to complete the large cocaine transaction previously discussed. Silva waited in the Hernandez-Mesa Oldsmobile while Figueroa and Aguirre accompanied Leatherman to the basement where Figueroa displayed ten ounces of cocaine in pressed kilogram form to Leatherman. Figueroa and Aguirre broke off negotiations, however, when they became dissatisfied with the manner in which Leatherman was attempting to arrange the transaction. Figueroa left with the cocaine, which he described as "my coke," and Silva picked him up in the Oldsmobile. Police officers stopped the vehicle, found the cocaine in the front seat console between the two men, and discovered a loaded .25 caliber pistol at Silva's feet. Silva was carrying a pager with Aguirre's telephone number on its display screen.

Simultaneous with the vehicle search, police searched the Hernandez-Mesa apartment pursuant to a warrant. Among other things, they found the following: (1) a triple beam scale and cutting agent in the bathroom; (2) a large number of plastic bags, six of which contained a total of thirty grams of cocaine, some of which had Hernandez-Mesa's fingerprints on them; (3) $3,370 in cash in a shoe box in a closet and $12,945 in cash in a man's suit jacket; (4) a gray bag containing six ounces of cocaine with Figueroa's and Silva's fingerprints on it; (5) a loaded .38 caliber revolver and a box of bullets in a closet; and (6) Hernandez-Mesa's address book containing Aguirre's telephone number, a letter addressed to Aguirre, and drug notes referring to Hernandez-Mesa. When Hernandez-Mesa herself was searched, police found another pager and, in her purse, Western Union money transfers bearing the names of Figueroa and Silva.

Figueroa, Silva, Aguirre, ² and Hernandez-Mesa were arrested, tried jointly, and found guilty after a jury trial. Figueroa and Silva were each sentenced to ninety-seven months and Hernandez-Mesa to thirty-six months. This appeal followed.

I.

Appellants contend that the district court erred by denying their motions for a mistrial based upon certain remarks during the government's rebuttal argument. Essentially, they argue that these remarks exceeded the bounds of propriety and denied them their right to a fair trial. Specifically, they object to the following statement made by the prosecutor in rebuttal argument:

Members of the jury, what is most significant about the arguments of the defense counsel, the fact that Mr. Wernick [attorney for Hernandez-Mesa] got up and said, "Not my client. It's all the men in the courtroom." Mr. Engh [attorney for Figueroa] got up and said, "Not my client. Mr. Aguirre, Mr. Silva, Hernandez-Mesa, the other three defendants." Mr. Rosas [attorney for Aguirre] gets up and he says, "Huh-uh, not 705 East Magnolia. It's those three people over at 1434 Case; Figueroa, Silva, Hernandez-Mesa." And Mr. Orth [attorney for Silva] stands up, and he says, "Huh-uh, not Mr. Silva. It's Mr. Figueroa, Hernandez-Mesa, perhaps, and certainly Mr. Aguirre."

Those arguments confirm, members of the jury, is [sic] that all four defendants are co-conspirators.

(Tr. V at 704) (emphasis added). After these remarks were made, the attorneys for all four co-defendants objected and moved for a mistrial, describing this as a "guilt by association" argument and an improper attempt to establish that they were co-conspirators based upon their denials of individual guilt. The court denied these motions.

After these objections, the prosecutor made the following statement:

In any event, members of the jury, again, it is the evidence that will control. The government asks you to look at the evidence in making the determination of whether or not the four defendants are co-conspirators.

(Tr. V at 705). After a lunch break, the court gave the following instruction to the jury concerning the rebuttal argument:

Ladies and gentlemen, just prior to our break for lunch, there was an objection which was made to a portion of the argument made by the prosecutor, and I want to give you a particular instruction.

It is imperative that you understand that each person who is accused in a United States courtroom is to be judged separately. The mere fact that they're tried together doesn't indicate that they took part in a crime or that they took part in a crime together.

You may be called upon, and will be, to make decisions on those issues in this case, but those decisions must be based only on a [sic] independent review of the facts as they relate, and one of the charges involves both aiding and abetting, or one of them involves aiding and abetting, and others involve kinds of conspiracy, and those are charges where people work together.

But you will have to determine from the facts that they did. If you find that they did work together, and you will have to find whether or not they conspired, and in a moment I will tell you about conspiracy, but that determination is not based on whether or not they're tried together or whether they said other people did it. It's only based on the evidence which you find proven in this Court. I wanted to tell you that.

If there was any contrary suggestion, I specifically instruct you, you are not to consider that and may not consider an argument along that line.

(Tr. V at 708-09).

It is often stated that an attorney representing the United States is obligated to try a case fairly and, "while he may strike hard blows, he is not at liberty to strike foul ones." Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935); see United States v. O'Connell, 841 F.2d 1408, 1428 (8th Cir.1988) ("the prosecutor's special duty as a government agent is not to convict, but to secure justice"), cert. denied, --- U.S. ----, 109 S.Ct. 799, 102 L.Ed.2d 790 (1989). The Supreme Court has cautioned the government to abstain from arguments which are "undignified and intemperate, containing improper insinuations and assertions calculated to mislead the jury." Berger, 295 U.S. at 85, 55 S.Ct. at 633.

The grant or denial of a mistrial may be reversed only upon a showing of abuse of discretion. O'Connell, 841 F.2d at 1427. On appeal, we conduct a two-part inquiry concerning the alleged prosecutorial misconduct: "[W]e consider whether the remarks were in fact improper and, if so, whether they prejudicially affected the defendants' substantial rights so as to deprive them of a fair trial." Id.

When we apply this analysis here, we are compelled to conclude that the prosecutorial remarks were indeed improper, but not to an extent unfairly prejudicial to the appellants. The government contends that its rebuttal argument was merely a fair reply to the inconsistent defense theories raised by defense counsel in their summations. See, e.g., United States v....