U.S. v. Gonzalez Vargas

• Decision Date: 24 June 1977
• Docket Number: No. 75-1480,75-1480
• Citation: 558 F.2d 631
• Parties: UNITED STATES of America, Appellee, v. Miguel GONZALEZ VARGAS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 631

558 F.2d 631

UNITED STATES of America, Appellee, v. Miguel GONZALEZ VARGAS, Defendant, Appellant.

No. 75-1480.

United States Court of Appeals First Circuit.

Argued Feb. 8, 1977.

Decided June 24, 1977.

Michael D. Ratner, New York City, with whom Margaret L. Ratner, New York City, was on brief, for defendant, appellant.

Mervyn Hamburg, Atty., Dept. of Justice, Washington, D. C., with whom Julio Morales Sanchez, U. S. Atty., San Juan, P. R., and Sidney M. Glazer Atty., Dept. of Justice, Washington, D. C., were on brief, for appellee.

Before COFFIN, Chief Judge, VAN OOSTERHOUT ^* and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

This appeal arises out of the same circumstances described in United States v. Lespier, 558 F.2d 624 (1st Cir. 1977), issued this day. Appellant's selective service prosecution was the occasion for the courtroom disturbance, which was followed by the melee, assaults on deputy marshals, lineup, identifications, and prosecutions relevant both to Lespier and the instant case. Appellant was indicted for assaulting two of the deputies. His case, originally consolidated with those of the five defendants in Lespier, was continued because of appellant's physical condition and took place two weeks after the trial of the five.

We have disposed of two of the issues appellant raises in Lespier : the validity of the lineup and of the initial arrests. There remain three issues peculiar to this case: the propriety of the prosecutor's summation, the correctness of the court's limitation of cross-examination on identification procedures, and the prosecution's alleged failure to turn over exculpatory materials.

The major issue that concerns us is the nature of the prosecutor's summation. While very brief, taking about three pages of transcript, his major argument contained no fewer than four affirmations of personal belief. On the first occasion he said, "I don't believe that there is any doubt that the Defendant did strike at these two persons." Defense counsel asked to approach the bench and objected preventively; that is, he did not move for a mistrial but urged that while it would be proper to make an analysis of the facts, " personal beliefs as considered by the Court time and time again (have been held) to be objectionable." The court responded, "I think it is not improper argument. It is what he understands has been proven."

A few moments later the prosecutor, referring to a defense witness' admission that a policeman, who she said had threatened her, did not strike her, said "I believe this also proved the caliber of the law enforcement officers that were there that day." Eight lines of transcript later, the prosecutor said, "I personally believe that I have proven the case of the United States much more beyond a reasonable doubt as the law requires but beyond any doubt." And, after one intervening sentence, "I personally believe that the United States has proven to you that the Defendant did strike these 2 people without just provocation. Thank you very much."

In his rebuttal argument the prosecutor returned to his favorite verb with "What happened was, and I believe the testimony there in Court to prove it, that there was a demonstration and these 2 Marshals were hit by the Defendant."

Of course we reverse. We do so unhappily, because the trial was otherwise a good trial. The court gave every consideration to appellant and his counsel. And the prosecutor, during the examinations, lived up to high standards. Three days of time of court, jurors, counsel, witnesses, and court personnel were wasted by the unthinking phrasing of a few moments, in utter disregard of our constant admonitions against a representative of the United States throwing his personal convictions into the balance. Greenberg v. United States, 280 F.2d 472, 475 (1st Cir. 1960); Kitchell v. United States, 354 F.2d 715 (1st Cir. 1966); Patriarca v. United States, 402 F.2d 314 (1st Cir. 1968); United States v. Cotter, 425 F.2d 450, 453 (1st Cir. 1970); United States v. Miceli, 446 F.2d 256 (1st Cir. 1971); DeChristoforo v. Donnelly, 473 F.2d 1236, 1238 & n. 1 (1st Cir. 1973). See also American Bar Association, Code of Professional Responsibility and Code of Judicial Conduct, as amended, August 1976, Rule 7-106, pp. 36-C, 37-C.

Appellee, to its discredit, argues that the prosecutor's remarks were rendered of no consequence by (1) the fact that the remarks did not suggest that extrinsic evidence of guilt existed; (2) the voir dire had purged the venire of any jurors who might favor...