U.S. v. Herrera, 75--1873
| Decision Date | 17 May 1976 |
| Docket Number | No. 75--1873,75--1873 |
| Citation | 531 F.2d 788 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Rafael HERRERA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Eastern District of Louisiana.
ON PETITION FOR REHEARING
Before GODBOLD, DYER and MORGAN, Circuit Judges.
Appellant Herrera is an alien, a citizen of Honduras. He was convicted of importing and possessing cocaine with intent to distribute. By an unpublished opinion we affirmed the conviction, saying:
The main emphasis on appeal is directed at oral argument by the prosecuting attorney which the government concedes was improper. The record does not disclose any objection by defense counsel, and we are not able to say that the improper statements rise to the level of plain error.
The most flagrantly improper statements were these, made in the government's final closing argument:
Ladies and gentlemen, I have listened intently to what Mr. Moore was stating to you, and I agree with a few things that he said, but one thing I must agree with him and impress upon myself at this time is that you here sitting here today, myself and everyone else in the room are fortunate, those of us who live in the greatest country in the world, and if you or I were in Mr. Herrera's shoes, in Honduras, I submit to you at this time that we would not have the benefit of the rights afforded to him in this country, those rights that he has afforded to him because of our great Constitution, and that what makes our country so great, and that is why you have a function and a role to do today, you as triers of the facts in this case, to do your public service.
Obviously, none of our agents who testified are seeking to destroy anything that this country of ours stands for. As a matter of fact, ladies and gentlemen, all of the witnesses that testified went out of their way to insure that Mr. Herrera was afforded the same rights as you and I would be, and the same rights that you and I would hope we would be afforded if we were on foreign soil, but that we know we would not. (Emphasis ours.)
Defense counsel approached the bench, and a bench conference was held but not reported by the court reporter. Presumably it was outside his hearing.
On petition for rehearing we permitted the appellant to supplement the record by affidavits of his two defense attorneys. The affidavits set out that in the conference one of the defense attorneys objected to the statements of the prosecutor which we have underlined above, and that the court overruled the objection on the stated grounds that defense counsel had 'waved the flag' and that the argument was proper rebuttal.
We called upon the government for a responsive affidavit. It has filed the affidavit of the prosecutor, who states that he recalls that a bench conference was held but that he is not able to recall what was said other than the trial judge's remark pertaining to waving the flag. The rational inference to be drawn is that the judge's remark was a response to something said by defense counsel, who had asked for the bench conference, concerning the prosecutor's statements. Under these circumstances we accept...
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