U.S. v. Garza

• Decision Date: 21 December 1979
• Docket Number: No. 78-5648,78-5648
• Citation: 608 F.2d 659
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David GARZA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 659

608 F.2d 659

UNITED STATES of America, Plaintiff-Appellee, v. David GARZA, Defendant-Appellant.

No. 78-5648.

United States Court of Appeals, Fifth Circuit.

Dec. 21, 1979.

Oscar J. Pena, Laredo, Tex., for defendant-appellant.

James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GOLDBERG, FAY and RUBIN, Circuit Judges.

GOLDBERG, Circuit Judge:

This case presents nothing new no new issue of law or unique factual configuration. It presents rather a situation far too common and too often condemned by this court to be in any manner excusable. We must deal again with grossly improper prosecutorial comment during closing argument which substantially prejudiced defendant's right to a fair trial on the evidence presented in his case.

David Garza was convicted by a jury on counts of conspiracy, distribution of heroin, and possession of heroin with intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The Government's case rested heavily upon the testimony of Juan Juarez, a "cooperating individual" that is, a confidential informant and Rudy Gonzales, an agent of the Drug Enforcement Administration, who worked as an undercover agent in the case. Juarez and Gonzales testified as to their participation directly with Garza and his co-conspirator David Sauceda in setting up and carrying out the alleged heroin transactions in Laredo, Texas, which formed the basis for the prosecution. Garza's defense, however, was alibi; he presented a number of witnesses who testified that at the time the Government contended he was participating in the heroin transactions, he was actually helping move a trailer in a trailer park in Laredo. Garza's defense was not insubstantial, and therefore a major issue in the trial became the credibility of Juarez and Gonzales and that of Garza's alibi witnesses.

The major issue presented on this appeal arises from remarks of the prosecutor in his closing argument in which he sought personally to vouch for the credibility of Juarez and Gonzales and to bolster the Government's case by indicating that it would not have been brought, and he would not personally have participated, if Garza's guilt had not already been determined. During the opening of his argument, the prosecutor stated that David Sauceda, Garza's alleged co-conspirator, was

(o)ut there at that Boys Club and never left until after he got arrested for murder. Out there selling heroin, selling to somebody else that is trying to improve the reality. Rudy Gonzales, the man from San Antonio that came over here. He wants to make this a better place. He wants to improve things. He wants to make that a prettier picture on the wall than it is right now.

Those pictures are sometimes hard to face. We don't like to look at the things. We don't like to do things that are unpleasant. None of us do. Being on the jury is unpleasant. But don't you know Rudy Gonzales' job is unpleasant too? Don't you know, even though Juan Juarez gets paid for what he is doing and probably paid pretty well, that even that is unpleasant. But it's something that needs to be done.

Rudy Gonzales and these other officers over here made a responsibility that they accepted upon themselves when they took that job to go out and improve that total picture. And I think he's a dedicated man, and you know what? You accepted the responsibility too, in this jury.

A few minutes later, the prosecutor returned to, and amplified, these themes:

And there isn't any reason in the world why Rudy Gonzales would take that stand. He's a professional man. He has been in this a long time. And if he wasn't good at it over there when he was doing it for the San Antonio Police Department, if he wasn't doing his job right over there, do you think he would ever have gotten on with the Drug Enforcement Administration? He did, and he has been with the Drug Enforcement Administration for 4 years.

If Mr. Juan Juarez wasn't doing the right thing, wasn't doing what he said he should do, he said that every case he had ever worked on had been a conviction. That's what he said. For 8 years. Do you think he would still be doing it? Do you think anybody would tolerate his wasting the taxpayers' money if he wasn't doing a good job? They get up here and say that's the man. If it wasn't the man, they wouldn't have any reason to say it, ladies and gentlemen. They would just go on off about their business and do something else.

Those people and the Government has (sic) no interest whatsoever in convicting the wrong person. But the person who does these things has a lot of interest in getting off the hook, doesn't he? He sure does.

Defense counsel in his closing argument attacked the credibility of Juarez and Gonzales. He argued that Juarez had stated that he was paid for his work on a case-by-case basis and that, unless he made a case, he would not be paid. As for Gonzales, defense counsel argued that alleged inconsistencies in his testimony undercut his credibility. Then, after arguing that the Government had not proved Garza's guilt beyond reasonable doubt, he anticipated the prosecutor's argument on the need to protect society from criminals and added, "Fine, I want to protect society from criminals, and you do too, but I don't want innocent people going to jail, and I'm sure you don't either."

In his rebuttal argument, the prosecutor responded to these comments by enlarging upon his original themes:

And he (defense counsel) said something else that kind of irritated me at one point. He said that he hoped an innocent man was not found guilty. I have been doing this kind of work for a long time. He's a defense lawyer, and I told you while ago that I thought Rudy Gonzales over here was a professional man. And I think these Drug Enforcement Administration people are professionals. And I think the record of being able to move from one job to another job and staying in that work as long as they have indicates that they are professionals. He talks about motive. I think their motives are pure as the driven snow. Their motives are to get out and make this world a better place to live in. A better place to live in, and I'll tell you they don't have to fabricate to do it because there is enough wrong going on and there is enough corruption going on out there that if you just go out and walk around the streets and know what you are looking at and looking for you just bump right into it. You don't have to frame anybody.

And, ladies and gentlemen, if I thought that I had ever framed an innocent man and sent him to the penitentiary, I would quit. Now, I resent the innuendoes that I would stand up here and try to send an innocent man to the penitentiary, and that's what it was. I resent that because it's simply not true because, believe you me, there is presently enough work to do without fooling around with innocent people. Plenty enough. All over the place.

Defendant challenges these remarks as improper closing argument which substantially prejudiced his right to a fair trial. We agree. ¹

A criminal trial provides a neutral arena for the presentation of evidence upon which alone the jury must base its determination of a defendant's innocence or guilt. Attorneys for both sides, following rules of evidence and procedure designed to protect the neutrality and fairness of the trial, must stage their versions of the truth within that arena. That which has gone before cannot be considered by the jury except to the extent it can be properly presented at the trial and those things that cannot properly be presented must not be considered at all.

The role of the attorney in closing argument is "to assist the jury in analyzing, evaluating and applying The evidence. It is not for the purpose of permitting counsel to 'testify' as an 'expert witness.' The assistance permitted includes counsel's right to state his contention as to the conclusions that the jury should draw from the evidence." United States v. Morris, 568 F.2d 396, 401 (5th Cir. 1978). (emphasis in original) To the extent an attorney's closing argument ranges beyond these boundaries it is improper. Except to the extent he bases any opinion on the evidence in the case, he may not express his personal opinion on the merits of the case or the credibility of witnesses. See, e. g., United States v. Rodriquez, 585 F.2d 1234, 1243-44 (5th Cir. 1978); United States v. Morris, supra, 568 F.2d at 401; Hall v. United States, 419 F.2d 582, 585-87 (5th Cir. 1969). Furthermore, he may not suggest that evidence which was not presented at trial provides additional grounds for finding defendant guilty. See, e. g., United States v. Morris, supra, 568 F.2d at 401; Hall v. United States, supra, 419 F.2d at 587; Gradsky v. United States, 373 F.2d 706, 710 (5th Cir. 1967). ²

It is particularly improper, even pernicious, for the prosecutor to seek to invoke his personal status as the government's attorney or the sanction of the government itself as a basis for conviction of a criminal defendant.

The power and force of the government tend to impart an implicit stamp of believability to what the prosecutor says. That same power and force allow him, with a minimum of words, to impress on the jury that the government's vast investigatory network, apart from the orderly machinery of the trial, knows that the accused is guilty or has non-judicially reached conclusions on relevant facts which tend to show he is guilty.

Hall v. United States, supra, 419 F.2d at 583-84. The Supreme Court emphasized the special responsibility and status of the government's attorney in Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1934). Justice Sutherland, writing for the Court, stated:

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...