U.S. v. Freisinger

• Decision Date: 24 June 1991
• Docket Number: No. 90-2084,90-2084
• Citation: 937 F.2d 383
• Parties: UNITED STATES of America, Appellee, v. Keith M. FREISINGER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 383

937 F.2d 383

UNITED STATES of America, Appellee, v. Keith M. FREISINGER, Appellant.

No. 90-2084.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 11, 1991.

Decided June 24, 1991.

Thomas J. O'Flaherty (as appointed counsel, on the appeal only), Cedar Rapids, Iowa, for appellant.

Daniel C. Tvedt (argued), and Timothy Gallagher, on brief, Cedar Rapids, Iowa, for appellee.

Before MAGILL, Circuit Judge, ROSS, Senior Circuit Judge, and HUNTER, ^* Senior District Judge.

ELMO B. HUNTER, Senior District Judge.

This is an illegal drugs and firearms case. In August, 1989, an Iowa deputy sheriff placed appellant Freisinger under arrest for drunken driving. The deputy, along with other officers, confiscated from Freisinger's car a film container with a white residue in it, a gun case containing a rifle and ammunition, and $2,460 in cash. The officers also saw, but did not then search, two large plastic bags on the floor and passenger seat. After impounding the car, an inventory search uncovered a sunglasses case containing two plastic bags of nearly 81 grams of cocaine, a number of "bindles" or pharmacy folds used for delivery of cocaine, spoons which could be used to heat or "cook" drugs, and a loaded .32 caliber revolver and two .357 magnum revolvers, all three of which were in a knotted pillowcase which was inside one of the large plastic bags.

After four days of trial, a jury convicted Freisinger on one count of possession with intent to distribute cocaine, and four counts of carrying a firearm during the commission of a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c)(1). The firearms convictions were based on Freisinger's carrying four firearms during the single drug trafficking offense. The district court sentenced Freisinger to 27 months imprisonment on the drug count and five years each on the firearms counts to be served consecutively to the 27-month sentence. Three of the sentences imposed on the firearm convictions, however, were to run concurrently to each other. Thus, Freisinger was sentenced to 27 months on the drug conviction, to be followed by three concurrent five-year sentences, all of those to be followed by the other five-year sentence, for a total of 147 consecutive months imprisonment. On appeal, Freisinger challenges: 1) the propriety of remarks which were part of the government's closing argument; 2) the sufficiency of the evidence on the issue of whether he was "carrying" a firearm in violation of section 924(c)(1); and 3) the multiple convictions and sentences for the firearms convictions despite the fact that there was but one drug trafficking offense. We affirm in part, reverse in part and remand with instructions.

I.

Freisinger complains that in closing arguments government counsel improperly injected his personal beliefs as to the credibility of government witnesses and personalized the arguments with the repeated use of the pronoun "I." ¹ First we address Freisinger's contention that government counsel personalized the closing argument and overused the personal pronoun "I," in such phrases as "I suggest to you that" and "I submit to you that." Freisinger suggests that flagrant use of that pronoun could be construed as improper commentary. Thus, he points out that government counsel used "I" 35 times during closing arguments. No such tallying is an indication of improper commentary nor can it measure the degree of impropriety if there is any. Use of the personal pronoun "I" is a normal and ordinary use of the English language. If courts were to ban the use of it, prosecutors would indulge in even more legalese than the average lawyer, sounding even more stilted and unnatural. As a simple illustration of how natural it is to use "I" in conversation--or more specifically, in arguments before a jury--defense counsel in this case himself used the pronoun 51 times. Of course, as discussed below, prosecutors have a duty to refrain from suggesting that they know something that the jury does not. That does not mean, however, that prosecutors should refrain from all use of the pronoun "I." We therefore find nothing improper in the Assistant United States Attorney's use of the pronoun "I."

On the other hand, it is improper for government counsel to vouch for a witness's veracity. United States v. Peyro, 786 F.2d 826, 831-32 (8th Cir.1986). The reason for the rule is articulated well in United States v. Modica, 663 F.2d 1173 (2d Cir.1981), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982), where the court wrote:

The American Bar Association Standards for Criminal Justice declare: "It is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or guilt of the defendant." ABA Standards for Criminal Justice, Standard 3--5.8(b) (1980) [hereinafter cited as "ABA Standard (number)"]. The policies underlying this proscription go to the heart of a fair trial. The prosecutor is cloaked with the authority of the United States Government; he stands before the jury as the community's representative. His remarks are those, not simply of an advocate, but rather of a federal official duty-bound to see that justice is done. The jury knows that he has prepared and presented the case and that he has complete access to the facts uncovered in the government's investigation. Thus, when the prosecutor conveys to the jurors his personal view that a witness spoke the truth, it may be difficult for them to ignore his views, however biased and baseless they may in fact be.

Id. at 1178-79.

In efforts to circumvent the rule, counsel too often employ phrases such as "I suggest that" or "I submit that" (as was done in this case), which are no less improper when they convey personal belief as to a witness's credibility. Such improper commentary, however, rarely necessitates reversal because any resulting prejudice is usually not so great "as to deprive [the defendant] of a fair trial." United States v. Pierce, 792 F.2d 740, 742 (8th Cir.1986). The Modica court acknowledged the dilemma, noting that "this Court has often brandished the sword of reversal only to resheath it in the absence of substantial prejudice." 663 F.2d at 1182.

This Court has previously commented on the frequency with which it has had to address the "acceptable limits of closing argument." Pierce, 792 F.2d at 742. While reversal of convictions is not the proper remedy in cases where no substantial prejudice has resulted from inappropriate remarks made during closing argument, prosecutorial overreaching should not go unchecked. The Modica court outlined a catalog of sensible remedies which, in the future, should be utilized as a means of extracting compliance with ethical standards.

In the present case, government counsel's remarks during closing argument were clearly improper. He employed the "I submit that" device in arguments like, "I submit to you that there is no reason for Randy and Diane Herbst to drive here from Dubuque, Iowa and tell you anything but the truth," and "I submit to you that the testimony that you heard from the officers was the truth." Transcript of Final Arguments at 19, 23. Counsel also argued, "They came here and told the truth." Transcript of Final Arguments at 41. This kind of argumentation is not only improper, it is unnecessary. Counsel can just as easily argue issues of credibility without injecting personal views. The kind of arguments made here at the very least suggests that the government may know something that the jury does not. Government counsel must eschew that kind of argumentation, even when couching the argument in less brazen language.

Freisinger did not object to the improper remarks at trial and therefore asks us to review the matter for plain error under Rule 52 of the Federal Rules of Criminal Procedure. First, we simply note that because improper closing remarks are reversible only if they are so prejudicial as to deprive the defendant of a fair trial, there is no difference between improper remarks which require reversal where an objection to the remarks has been preserved and remarks which constitute plain error. If a prosecutor's remarks are so prejudicial that they deny the defendant a fair trial, then those remarks must, ipso facto, affect a substantial right of the defendant: the right to a fair trial. In this case, however, the government's remarks--while unquestionably improper--did not deprive the defendant of a fair trial. The evidence was more than sufficient to support the jury's verdict. Therefore, reversal of the convictions on that basis is not warranted. In the future, however, government counsel should be on notice that while their misconduct may not result in reversal of convictions, it may result in the imposition of sanctions along the lines suggested in Modica.

II.

Freisinger also argues that the evidence is insufficient to support a finding that he "carried" ² the four weapons found in the car, but this is just a clever way of disguising a jury instruction issue which has not been preserved for review. Even viewing the evidence in the light most favorable to the appellant--which is just the opposite of the proper standard of review here--the evidence conclusively established that there were four firearms in the passenger compartment of Freisinger's car. That alone constitutes "carrying" as that term is used in common parlance. Having failed to offer a jury instruction defining "carries," Freisinger cannot now be heard to complain that the ordinary meaning of the word is not the same as the meaning of that word as used in section 924(c)(1). Thus, because carrying a firearm in a vehicle is within the ordinary meaning of "carrying a firearm," and because the evidence was more than sufficient to support a finding of the former, the challenge to the sufficiency of the evidence fails.

Even reviewing this issue under the plain error...