U.S. v. May

• Decision Date: 13 April 1995
• Docket Number: No. 92-1289,92-1289
• Citation: 52 F.3d 885
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Philip Scott MAY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 885

52 F.3d 885

UNITED STATES of America, Plaintiff-Appellee, v. Philip Scott MAY, Defendant-Appellant.

No. 92-1289.

United States Court of Appeals Tenth Circuit.

April 13, 1995.

Rehearing Denied May 23, 1995.

John M. Hutchins, Asst. U.S. Atty. (Henry L. Solano, U.S. Atty., Kathleen M. Tafoya, Asst. U.S. Atty., with him, on the brief), Denver, CO, for plaintiff-appellee.

Peter Goldberger (Alan Ellis, Pamela A. Wilk, Karen L. Landau with him, on the brief), of Law Offices of Alan Ellis, P.C., Ardmore, PA, for defendant-appellant.

Before ANDERSON and HOLLOWAY, Circuit Judges, and DOWNES, District Judge. ^*

DOWNES, District Judge.

This is a direct appeal by the defendant-appellant Philip Scott May from his conviction on each of five counts relating to the distribution of cocaine. The indictment charged May and Lisa Michelle Tarasiuk with conspiracy and attempt to commit offenses defined in 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 in violation of 21 U.S.C. Sec. 846, and charged May alone with possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2, and with carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c)(1). ¹

Appellant raises three issues on appeal: (1) whether the Government committed reversible misconduct in closing argument by attacking the integrity of defense counsel and commenting on the defendant's partial silence upon arrest; (2) whether the "cost-of-confinement" fine required by USSG 5E1.2(i) is unauthorized by the Sentencing Reform Act or unconstitutional under the Due Process Clause; and (3) whether the imposition of a fine in an unspecified amount is too vague to be valid.

Background

The criminal charges in this case stem from a "reverse sting" operation during which the co-defendant, Lisa Tarasiuk, attempted to buy a kilogram of cocaine from an undercover police officer outside of a bar in Denver, Colorado. May was arrested at the scene after the police seized a .45 caliber handgun from his person. II Supp.R. 54, 57. After his arrest, May consented to searches of his home, business and vehicles which resulted in the seizure of cocaine totalling over 220 grams. Over the course of that evening, May made several statements to the police which contained both contradictions and omissions. Ultimately, however, May acknowledged that he had taken money to the bar that night knowing Tarasiuk would use it to buy cocaine. II Supp.R. 28. May also stated that he had loaned Tarasiuk $24,000 in the month prior to his arrest for her to purchase cocaine and that he had taken the cocaine found in his business and house from Tarasiuk to hold as collateral against the large debt she owed him. II Supp.R. 20-21.

Tarasiuk testified at trial that she had previously worked for May as his secretary, and later as his office manager and bookkeeper at his business (Door & Trim). V R. 7-9. She had also begun an affair with him sometime during that employment. V R. 8. Tarasiuk further testified that May brought up the subject of selling cocaine. May told her that she needed to start making some money to support herself since she had lost her job at Door & Trim. V R. 17. According to Tarasiuk, May supplied her with the cocaine she was to sell until October 1991 when May directed her to get more cocaine from other sources. V R. 18-20, 30-31, 40-42. May testified at his trial, admitting that he had previously given Tarasiuk money to purchase cocaine, but maintaining that he had ceased his involvement with any drug transactions prior to the incident on October 29, 1991, and that he only participated in the October 29 transaction because he thought Tarasiuk's life was in danger. VI R. 4-12.

I Prosecutorial Misconduct

May defended against the conspiracy and attempt charges by arguing that he had withdrawn from the conspiracy prior to the transaction on October 29, 1991, and then participated again only because he believed Tarasiuk's life to be in danger if he did not. In his statements to authorities after he was arrested and advised of his rights, however, he did not mention the alleged withdrawal. In her closing argument, the prosecutor made the following comments with respect to the withdrawal defense:

Never once did [May] say [to the authorities], "[Y]ou know, on the 28th or the 27th, I actually got out of this deal. I stopped doing this, police. I--you know, I got out of this. That was never in any of [the previous] stories. Never once did he ever tell the police the story of a day or two before I got caught, I decided to get out. That story only came up today.

Now, on March 29th, he talked with Ken Coffey, and when he talked to Agent Coffey right after his arrest, he again repeated this story. He said, I was only trying to help Lisa. You know, she needed the money. I had fired her. I was trying to help her get some money. He didn't even say then that the day or two before he decided not to do it.

That has only come up now, now that he has a lawyer, now that he sees withdrawal as a legal defense. That's when that arose."

II Supp.R. 167-68. Appellant argues that such comments combine two fundamental forms of improper prosecutorial conduct: asking the jury to draw adverse conclusions from the defendant's omission of exculpatory facts from prior, post-Miranda warning statements; and attacking defense counsel by suggesting without a record basis that consultation with counsel is a likely source of false defense testimony.

Since trial counsel lodged no objection at trial to the prosecutor's comments, we review Appellant's claims of prosecutorial misconduct only for plain error. United States v. Linn, 31 F.3d 987, 993 (10th Cir.1994). "Plain errors are those errors that when viewed against the entire record 'seriously affect the fairness, integrity or public reputation of judicial proceedings.' " United States v. Wynne, 993 F.2d 760, 766 (10th Cir.1993) (quoting United States v. Bowser, 941 F.2d 1019, 1021 (10th Cir.1991) (quoting United States v. Young, 470 U.S. 1, 15-16, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985))).

A. Attack on Defense Counsel

The principal issue to be resolved is not whether the prosecutor's comments were inappropriate, but whether such comments constitute misconduct rising to the level of plain error. The Supreme Court has recognized that the distinction between acceptable and improper advocacy is not exact. United States v. Young, 470 U.S. 1, 7, 105 S.Ct. 1038, 1042, 84 L.Ed.2d 1 (1985). Nevertheless "counsel on both sides of the table share a duty to confine arguments to the jury within proper bounds ... [and] must not be permitted to make unfounded and inflammatory attacks on the opposing advocate." Id. at 8-9, 105 S.Ct. at 1042-43. To determine whether the prosecutor's comments constitute such an attack on defense counsel seriously affecting the fairness of defendant-appellant's trial, we must view the comments in the context of the entire record before the jury. Id. at 11, 105 S.Ct. at 1044; United States v. Pena, 930 F.2d 1486, 1491 (10th Cir.1991).

In his defense at trial, May attempted to explain the inconsistencies in his prior statements to the authorities. The government argues that the comment made by the prosecutor that the defendant was now asserting a new withdrawal defense at trial was a fair comment on the evidence presented. The government contends that the prosecutor was not attacking the credibility of defense counsel but rather was challenging the credibility of the defendant's defense. See United States v. Vera, 701 F.2d 1349, 1361 (11th Cir.1983). ² The government further contends that the prosecutor was merely stating at what point in the chronology of events the defendant told this "new story."

Defendant-appellant argues that there was no basis for suggesting that the withdrawal defense "only [came] up now, now that he has a lawyer...." In support of his argument that the prosecutor's comments constitute reversible misconduct, defendant-appellant cites first to Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). In Berger, the Supreme Court admonished the prosecuting attorney's improper suggestion that defense counsel "can twist the questions, ... can sit up in their offices and devise ways to pass counterfeit money." Id. at 88, 55 S.Ct. at 633. The Court determined that "while [the United States Attorney] may strike hard blows, he is not at liberty to strike foul ones.... [I]mproper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none." Id. Ultimately, the Supreme Court found that the prosecutor's argument prejudiced the defendant Berger, especially in light of the determination that the case against Berger was not strong. Id. at 89, 55 S.Ct. at 633. The Court also noted that "[Berger was] not ... a case where the misconduct of the prosecuting attorney was slight or confined to a single instance, but one where such misconduct was pronounced and persistent, with a probable cumulative effect upon the jury which cannot be disregarded as inconsequential." Id.

Defendant-appellant also relies on two opinions rendered by this Court. In United States v. Rios, 611 F.2d 1335 (10th Cir.1979), we held that the prosecuting attorney's assertion in rebuttal argument that important defense testimony was contrived by defense counsel's investigator, with no factual basis to justify such a charge, was an attack on defense counsel amounting to prejudicial error. ³ Id. at 1341-42. In reaching that holding, we relied on our earlier unpublished opinion in United States v. Siviglia, No. 76-1914 (10th Cir. 6/5/78). In Siviglia, the prosecuting attorney had argued that a witness had lied because defense counsel had told him to do so. We found that such comments constituted "gross prosecutorial misconduct requiring reversal of Siviglia's...