U.S. v. Gonzalez-Gonzalez

• Decision Date: 08 January 1998
• Docket Number: GONZALEZ-GONZALE,D,No. 96-2280,96-2280
• Citation: 136 F.3d 6
• Parties: UNITED STATES of America, Appellee, v. Manuelefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 6

136 F.3d 6

UNITED STATES of America, Appellee, v. Manuel GONZALEZ-GONZALEZ, Defendant, Appellant.

No. 96-2280.

United States Court of Appeals First Circuit.

Heard Jan. 8, 1998.

Decided Feb. 5, 1998.

Laura H. Parsky, Trial Attorney, Washington, DC, with whom John C. Keeney, Acting Assistant Attorney General, Washington, DC, and Theresa M.B. Van Vliet, Chief of the Narcotics and Dangerous Drugs Section, Department of Justice, Miami, FL, were on brief, for appellee.

Lawrence E. Besser, Miami, FL, for appellant.

Manuel Gonzalez-Gonzalez on brief pro se.

Before LYNCH, Circuit Judge, COFFIN and CYR, Senior Circuit Judges.

LYNCH, Circuit Judge.

Manuel Gonzalez-Gonzalez was convicted of a major drug smuggling and money laundering conspiracy based in Puerto Rico. Gonzalez' defense at trial was that such a conspiracy did exist, but that he was not part of it. Gonzalez now argues through counsel that an admittedly improper definition of reasonable doubt argued by the prosecutor in closing requires a new trial, as does a jury instruction on the effect of a guilty plea by a co-defendant. Gonzalez also filed a brief pro se, arguing that the district court erred for other reasons in denying his motion for a new trial. We affirm.

I.

Gonzalez was charged on November 2, 1994 with conspiracy to possess with intent to distribute cocaine and marijuana, possession with intent to distribute marijuana, possession with intent to distribute cocaine, importation of marijuana and cocaine, and aiding and abetting in the laundering of monetary instruments. After a nineteen-day trial, the jury found Gonzalez guilty as charged. Gonzalez was sentenced on September 20, 1996 to life imprisonment and was fined.

Because this appeal involves admittedly improper remarks by the prosecutor, and because the verdict could have been tainted by these remarks, we do not consider the facts in the light most favorable to the jury's verdict. Our description of the facts is "designed to provide a balanced picture of the evidence appropriate for determining whether the remarks were harmless or prejudicial." United States v. Hardy, 37 F.3d 753, 755 (1st Cir.1994). See Arrieta-Agressot v. United States, 3 F.3d 525, 528 (1st Cir.1993).

Several witnesses testified that they belonged to Gonzalez' drug smuggling and money laundering operation. This extensive testimonial evidence was corroborated by tape recorded conversations, surveillance photographs, passport entries, travel records, and telephone records. Ricardo Rivero ("Rivero") testified that Gonzalez recruited him to retrieve and repackage 900 pounds of marijuana imported from Colombia in 1991. Rivero testified that Gonzalez stored cocaine and marijuana at a house belonging to Manuel Garrido, which other witnesses, a co-defendant and an FBI agent, subsequently confirmed.

Gonzalez transported 125 kilograms of cocaine from Puerto Rico to New York for distribution with help from Rivero. Gonzalez also hired Roberto Garraton-Rivera and Alberto Maysonet to transport cocaine. Garraton testified that Gonzalez came to his house to deliver cocaine to Maysonet. Garraton and Maysonet traveled to New York in August of 1991 to deliver cocaine to Gonzalez. While in New York, Gonzalez instructed Ricardo on how to distribute the cocaine and resolved a dispute over payment for the drugs. After the success of this deal, Gonzalez purchased several cars before returning to Puerto Rico.

Witnesses described other drug transactions in 1992. Co-defendant Luz Marina-Giraldo testified that she helped Gonzalez import 6,500 pounds of marijuana into Puerto Rico. Gonzalez stored the marijuana at a stash house and sold it in Puerto Rico. Rivero also testified about that marijuana shipment. According to Rivero, Gonzalez supervised the unloading and transportation of the marijuana.

Both Rivero and Marina-Giraldo testified that Gonzalez was involved in transporting 300 kilograms of cocaine from St. Martin to Puerto Rico in 1992. These witnesses also testified about a major shipment of cocaine and marijuana Gonzalez had imported from Colombia to Puerto Rico in September of 1992. Part of this shipment was seized by the police.

Several witnesses testified that they helped Gonzalez' cousin, Augustin Rivero ("Augustin"), import 625 kilograms of cocaine in November of 1992. Ricardo Rivero testified that Gonzalez supplied a motor for a boat to help bring in the shipment. Roberto Sierra-Rivera, a paid informant, testified that Gonzalez provided surveillance for this shipment, which was later sold in Puerto Rico and New York. Sierra-Rivera testified that Gonzalez and Augustin agreed that each time one of them brought in a load of cocaine, the other would be given 10 kilograms of cocaine or $100,000. There was also testimony about later cocaine smuggling operations conducted by Gonzalez' cousin Augustin.

Angel Santiago-Mora, a cooperating witness, and Martin Suarez, an FBI agent, testified that Gonzalez and his associates often delivered money to them to be laundered. On several separate occasions Gonzalez delivered hundreds of thousands of dollars to them. Other people closely connected to Gonzalez also delivered substantial sums of money to be laundered.

The government also presented tape recordings of conversations between Gonzalez and his associates in which Gonzalez admitted his involvement in drug smuggling and distribution. This evidence was supplemented by tapes of Gonzalez' associates referring to Gonzalez' involvement in drug trafficking.

Gonzalez testified and denied it all.

II.

Gonzalez argues that he was deprived of his Sixth Amendment right to a jury trial because in the prosecutor's closing argument the prosecutor said:

[Y]ou heard [defense counsel] say at the end of his argument, that there was reasonable doubt as to whether he was or was not and I am going to tell you something, you will listen to the instructions from the judge as to what reasonable doubt is--it is something very simple. If in your mind you think that he was a member of the organization, and in your heart, you feel that he was a member of the organization, then he was a member of the organization, and you say so with your verdict. Don't let yourselves be confused by the definition of reasonable doubt.

The government appropriately concedes that the prosecutor's remarks incorrectly defined reasonable doubt. Because there was no objection to these remarks (which the defendant concedes), we apply a plain error standard of review. See United States v. Crochiere, 129 F.3d 233, 237 (1st Cir.1997); United States v. Taylor, 54 F.3d 967, 972-73 (1st Cir.1995). The "decision to correct the forfeited error [is] within the sound discretion of the court of appeals, and the court should not exercise that discretion unless the error 'seriously affect[s] the fairness, integrity or public reputation of the judicial proceedings.' " United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993) (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985)).

Gonzalez relies on a series of cases holding that jury instructions which misstate the reasonable doubt standard require a new trial. He argues that the prosecutor's comments on reasonable doubt are the "functional equivalent" of jury instructions, especially since the prosecutor followed his incorrect definition with a statement that the jury should not be confused by the definition of reasonable doubt. Gonzalez argues that the prosecutor essentially told the jury to ignore the judge's instructions on reasonable doubt and to follow his "mind and heart" test instead. We start with the latter contention.

The remark, "Don't let yourselves be confused by the definition of reasonable doubt" is ambiguous, and could have at least three meanings. It could mean "Don't be confused by the definition that I, the prosecutor, have just told you." It could mean, "Don't be confused by the definition you hear from either lawyer." And it could mean, "Don't be confused by the definition you hear from the judge," with the implication that the prosecutor's definition governs.

In context, the third meaning is by far the least likely of the three. ¹ The prosecutor prefaced his remarks by telling the jury to listen to the judge's instructions, and his statement that the jury should not be confused by the definition of reasonable doubt is subject to benign interpretation. Furthermore, the prosecutor concluded his argument by stating, "You will listen to the instructions of the Honorable Judge, as he explains them to you, you will decide what the facts in this case were [and] you will apply the law...." The prosecutor's own comments went a long way toward curing any understanding of the comment as an admonition to ignore the court's instruction.

The problem with the prosecutor's error was obviated by the court's instructions on reasonable doubt, which Gonzalez concedes were correct, as well as the court's admonition to the jurors that instructions on the law come only from the court, and not from counsel.

We flatly reject Gonzalez' argument that a misstatement of the law by a prosecutor should be treated the same way as a misstatement of law by the judge. No juror would mistake a prosecutor for a judge. Our law assumes that the jurors follow jury instructions and thus that they followed the judge's, not counsel's, definition of reasonable doubt. See United States v. Rivera-Gomez, 67 F.3d 993, 999 (1st Cir.1995) ("[O]ur system of trial by jury is premised on the assumption that jurors will scrupulously follow the court's instructions."); Refuse & Envtl. Sys., Inc. v. Industrial Serv. of Am., Inc., 932 F.2d 37, 40 (1st Cir.1991) ("A basic premise of our jury system is that the jury follows the court's instructions."). That assumption is especially so here, since the prosecutor also told the jury to listen to the judge.

Whether the prosecutor's remarks amount to plain...