U.S. v. Manriquez Arbizo

• Decision Date: 13 November 1987
• Docket Number: No. 86-2347,86-2347
• Citation: 833 F.2d 244
• Parties: 24 Fed. R. Evid. Serv. 352 UNITED STATES of America, Plaintiff-Appellee, v. Gregorio MANRIQUEZ ARBIZO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 244

833 F.2d 244

24 Fed. R. Evid. Serv. 352

UNITED STATES of America, Plaintiff-Appellee, v. Gregorio MANRIQUEZ ARBIZO, Defendant-Appellant.

No. 86-2347.

United States Court of Appeals Tenth Circuit.

Nov. 13, 1987.

Nancy Hollander, of Freedman, Boyd & Daniels, P.A., of Albuquerque, N.M., for defendant-appellant.

Presiliano A. Torrez, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., with him on the brief), Albuquerque, N.M., for plaintiff-appellee.

Before McKAY and TACHA, Circuit Judges, and ALLEY, ^* District Judge.

TACHA, Circuit Judge.

Defendant Gregorio Arbizo appeals from a jury verdict finding him guilty of possession of marijuana with intent to distribute, interstate travel in aid of racketeering, and aiding and abetting in violation of 21 U.S.C. Sec. 841(a)(1), 21 U.S.C. Sec. 841(b)(1)(B), 18 U.S.C. Sec. 1952(a)(3), and 18 U.S.C. Sec. 2. For the reasons set forth below, we affirm the conviction.

In January 1986 a New Mexico state police officer stopped an automobile driven by Fred Paul for a traffic offense. With the consent of Paul, the officer searched the vehicle and found approximately 150 pounds of marijuana loaded in several trash bags spread throughout the interior and trunk of the car. The officer arrested Paul, who decided to cooperate with the police in apprehending the supplier of the marijuana.

Paul told police he was hauling the marijuana for Arbizo. Paul said he picked up the marijuana from Arbizo in Tucson, Arizona, placed it inside a rented car, then drove to New Mexico where he was arrested.

At the instruction of the police, Paul called Arbizo in Tucson and told him the car's transmission had broken down in Moriarty, New Mexico. Paul explained that the car had to be towed into Albuquerque, leaving him stranded in a motel in Moriarty with the marijuana. Paul told Arbizo he would not leave the motel for fear the maid would discover the marijuana. ¹ Arbizo said he would leave Tucson to help Paul within an hour and a half. The police loaded the bags of marijuana into a room at the motel and waited.

Approximately ten hours later, shortly after two in the morning, Arbizo arrived by car accompanied by Leroy Michael. Arbizo and Michael entered the motel room, but Arbizo immediately came back outside to position the car so the trunk faced the motel door. Michael joined Arbizo in unloading the articles from the trunk of the car and placing them in the backseat. Then Arbizo, Michael, and Paul rapidly transferred the bags of marijuana from the motel to the trunk of the car. Six minutes after their arrival, as they were preparing to leave, Arbizo and Michael were arrested.

Arbizo and Michael were tried together. Both were charged with possession of marijuana with intent to distribute and interstate travel in aid of racketeering. Both counts charged the defendants with aiding and abetting under 18 U.S.C. Sec. 2. At trial, Paul testified Arbizo gave him the marijuana in Tucson on consignment; Paul was to pay Arbizo when Paul resold the marijuana. He testified at length about Arbizo's direct involvement in the transaction including initially discussing the deal with Paul by telephone, loading the bags into the car, spraying the car with disinfectant to mask the odor, and discussing the price Arbizo was to receive when Paul sold the marijuana. Arbizo declined to take the stand. He was convicted under both counts of the indictment. ²

Arbizo's appeal alleges: (1) the trial court erred in prohibiting the defendant from commenting in closing argument on the testimony of a witness, (2) the prosecutor argued facts and inferences outside the evidence, and (3) the court erred in instructing the jury on guilty knowledge.

I.

At the beginning of trial, the court ruled the United States could introduce evidence, through its informant Fred Paul, of previous marijuana transactions between Paul and Arbizo pursuant to Federal Rule of Evidence 404(b). Paul's testimony indicated that he and Arbizo had exchanged over one hundred phone calls between October 1984 and January 1986, the month of the arrest. Later, the trial court limited its original ruling by restricting the government to introducing only evidence of activities between Paul and Arbizo between November 1985 and January 1986. The government called Vicki Mason, the custodian of records for the telephone company, in an effort to corroborate Paul's testimony regarding the telephone calls. Because of the court's later ruling the government was not allowed to use Mason to corroborate any calls occurring before November 1985. Therefore, Mason could only verify seven phone calls between Paul and Arbizo during the period beginning in November 1985.

After Mason testified, the trial court admonished defense counsel that it would not allow the defense to use the limitation on the relevant dates and phone calls, and Mason's testimony, as a basis to impeach Paul's statements that over one hundred phone calls were made. Before closing argument, defense counsel asked the court's permission to comment on Mason's testimony. The court prohibited the defense from doing so in any manner.

Arbizo alleges this denial amounted to constitutional error, citing Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975). Herring held that absolute denial of the opportunity for closing summation is a denial of the defendant's sixth amendment rights. The Court in Herring emphasized, however, that trial judges retain broad discretion in limiting the scope of closing arguments. Id. at 862, 95 S.Ct. at 2555.

In the present case, the judge initially limited the scope of Mason's testimony in order to protect the defendant. The trial court's exclusion of defense's closing comment on Mason's testimony was consistent with its earlier ruling prohibiting the impeachment of Paul on this basis. Finally, the comment was excluded for purposes well within the court's discretion. We find the court did not abuse that discretion and thus committed no error.

II.

Arbizo claims the prosecutor argued facts and inferences outside the evidence during summation. While arguing that the evidence supported a conclusion that Arbizo was "calling the shots," the prosecutor said:

Now, you know, you're not supposed to listen to what the lawyers say--I mean, take it as evidence, but I think it's interesting to note that Ms. Hollander in cross examination of Mr. Paul, said you're a hauler of marijuana.

It seems to me that her question to Paul seemed to give--at least she had it in her mind that he wasn't the source of marijuana, he was the hauler of marijuana.

MS. HOLLANDER: Your Honor--

THE COURT: This is proper final argument, Ms. Hollander. Objection's overruled.

Arbizo alleges this statement by the prosecution argued facts which were not in evidence (defense counsel's state of mind) and it implied defense counsel believed Arbizo was guilty as a supplier of marijuana.

The prosecutor is allowed a reasonable amount of latitude in drawing inferences from the evidence during closing summation. United States v. Nolan, 551 F.2d 266, 274 (10th Cir.), cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191 (1977). This latitude, however, does not extend to improper suggestions, insinuations or assertions of personal knowledge. See Berger v. United States, 295 U.S. 78, 88-89, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935); see also Standards for Criminal Justice Sec. 3-5.8(a) (2d ed. 1980) ("It is unprofessional conduct for the prosecutor intentionally to ... mislead the jury as to the inferences it may draw."). The prosecutor's remark, referring to what defense counsel must have been thinking, placed an improper inference into the minds of the jurors and was clearly inappropriate.

However, we cannot review this comment in a vacuum. We are reminded by the Supreme Court that:

"[G]iven the myriad safeguards provided to assure a fair trial, and taking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and that the Constitution does not guarantee such a trial. ...

[We have] consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations....

United States v. Hasting, 461 U.S. 499, 508-09, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96 (1983).

Thus, we are limited in our review and we will not overturn the verdict on this basis "unless the misconduct 'was enough to influence the jury to render a conviction on grounds beyond the admissible evidence presented.' " United States v. Espinosa, 771 F.2d 1382, 1401 (10th Cir.) (quoting United States v. Dickey, 736 F.2d 571, 596 (10th Cir.1984), cert. denied, 469 U.S. 1188, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985)), cert. denied, 474 U.S. 1023, 106 S.Ct. 579, 88 L.Ed.2d 561 (1985). In the context of the entire record in this case, we find the prosecutor's comment was not so egregious as to influence the jury to convict Arbizo on evidence not in the record. The comment was singular and isolated. Further, the government put on substantial independent evidence of Arbizo's guilt and the trial court instructed the jury that the attorneys' arguments were not to be considered as evidence. See Espinosa, 771 F.2d at 1401. Arbizo was not prejudiced by the comment, and thus we will not reverse on this ground.

III.

Finally, Arbizo alleges error in the court's instruction to the jury on guilty knowledge. Count one of the indictment charged Arbizo with "knowingly and intentionally" possessing marijuana with intent to distribute. 21 U.S.C. Sec. 841(a)(1). The district court gave the following instruction explaining how "deliberate ignorance" itself may be circumstantial proof of the existence of the necessary scienter of knowledge of illegal conduct:

The element of knowledge may be satisfied by inferences drawn from proof that a defendant deliberately closed his eyes to what...