U.S. v. Miranda

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: Before BROWN, Chief Judge, TUTTLE and HILL; JAMES C. HILL
• Citation: U.S. v. Miranda, 593 F.2d 590 (5th Cir. 1979)
• Decision Date: 12 April 1979
• Docket Number: No. 77-5814,77-5814
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fernando MIRANDA, Defendant-Appellant.

Page 590

593 F.2d 590

UNITED STATES of America, Plaintiff-Appellee, v. Fernando MIRANDA, Defendant-Appellant.

No. 77-5814.

United States Court of Appeals Fifth Circuit.

April 12, 1979.

Marc Cooper, Lawrence E. Besser, Donald I. Bierman, Miami, Fla., for defendant-appellant.

Jack V. Eskenazi, U. S. Atty., R. Jerome Sanford, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BROWN, Chief Judge, TUTTLE and HILL, Circuit Judges.

JAMES C. HILL, Circuit Judge:

In this case we examine appellant Miranda's claim ¹ that the prosecutor's reference in closing argument to his coconspirator's conviction on less evidence than that presented against appellant deprived him of a fair trial. We find merit to Miranda's contention and reverse and remand his case for a new trial.

I.

After an earlier attempt at importation had to be aborted, Fernando Miranda and his coconspirators decided to land a boatload of marijuana on the evening of January 30, 1976, at Bella Vista Point on Biscayne Bay, near Coral Gables, Florida. This attempt was foiled by the efforts of a Coral Gables police officer who discovered the conspirators' Ryder rental truck while on a routine patrol that evening. As the officer approached the truck, he detected the odor of marijuana and heard people in the truck speaking in Spanish. Suddenly he heard people running out of the truck. The officer pursued these people into the dense mangrove area surrounding the Bay; three suspects were subsequently apprehended by the officer in an adjacent swamp. Investigating officers later found some twenty-three tons of marijuana in the surrounding area.

An investigation of this incident, conducted primarily by the Coral Gables Police Department, culminated with an indictment being issued against five individuals for offenses arising out of the Bella Vista importation scheme. Some thirteen months later, on August 11, 1977, a superceding indictment was issued charging Miranda and others with conspiracy to import marijuana in violation of 21 U.S.C. § 963; importation of marijuana in violation of 21 U.S.C. § 952(a) and 18 U.S.C. § 2; possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and possession of a firearm during the commission of a felony in violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2.

Miranda was tried alone. He was convicted on all four counts and sentenced to consecutive sentences of four years for the conspiracy to import charge, three years and six months for both the possession with intent to distribute and the importation charges, and two years for the possession of a firearm charge. Miranda now brings this appeal, arguing, among other things, that the prosecutor's prejudicial comments during closing argument deprived him of a fair trial.

II.

Jose Pedro Perez was a coconspirator of Miranda's and prior to Miranda's trial was tried and convicted of substantially the same offenses ² as Miranda. Following his conviction, and while awaiting sentencing, Perez became a fugitive. After seven months, he turned himself in and cooperated with the government, becoming the key witness in Miranda's trial.

Miranda objects to the prosecutor's final argument, in which he suggested to the jury that they should find Miranda guilty because an earlier jury had found Perez guilty of the same offenses ³ on substantially less evidence. In the introduction to his closing argument, the prosecutor made the following statement:

You recall that Mr. Perez was indicted prior and tried back in October of 1976.

At that time, of course, we didn't have the benefit of his testimony. He had entered a plea of not guilty and went to trial and was found guilty of a conspiracy charge, of a possession with intent to distribute marijuana charge, of the importation of marijuana charge, and of the possession of the firearms charge.

But I think you will also recall, if you can recall the testimony as it came out, at no time did we ever show that Perez was either on the scene at Bella Vista Point or that he actually handled any marijuana or that he actually possessed any firearm except at the time that he actually purchased the firearm on January 28, 1976.

Yet, he was found guilty based upon the evidence that we presented at that time.

Now, in the trial of Mr. Fernando Miranda, we have the benefit of Mr. Perez' testimony. We were able to lay out to you what we had primarily circumstantial evidence of before. And this came in the form of Mr. Perez' direct testimony of Fernando Miranda's involvement in the conspiracy. . . .

And in the peroration to his closing argument in rebuttal, the prosecutor reiterated these comments:

Now, as I said before, Jose Pedro Perez is not on trial.

But at that time, approximately a year ago, thirteen months, he was, and Mr. Osmond said: 'He came into court and pled not guilt(y). And at that time, he was presumed innocent, and the burden of proof was on the government to prove him guilty.'

And he sat at that table where Frank Miranda is sitting right now.

And I would suggest to you, that thirteen months later, on the same offense, Frank Miranda sitting where Jose Pedro Perez was, that he is charged with four counts in this indictment. Perez was found guilty of four counts in the indictment.

And I'm asking you to return a verdict of guilty as to Fernando Miranda as to the four counts of the indictment.

We agree with appellant that the clear import of the prosecutor's argument was that the jury should convict appellant because an earlier jury had convicted his coconspirator of the same charges on much less evidence. We reject as specious the government's attempt to characterize the prosecutor's argument as involving simply a "colorfully drawn" analogy between Perez and Miranda; instead, we deal here with an overzealous prosecutor who has deprived the defendant of a fair trial by deliberately urging the jury on two occasions to use evidence for a prohibited purpose.

The Supreme Court has spoken of the important duties of a prosecutor in this area:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935).

We feel that a foul blow has been struck here, one which has affected the substantial rights of the defendant and requires a new trial free of such prejudicial comments.

Our cases clearly establish that a defendant is entitled to have the question of his guilt determined upon the evidence against him, not on whether a codefendant or government witness has been convicted of the same charge. ⁴ United States v. Fleetwood, 528 F.2d 528 (5th Cir. 1976); United States v. Davis, 487 F.2d 112 (5th Cir. 1973), Cert. denied, 415 U.S. 981, 94 S.Ct. 1573, 39 L.Ed.2d 878 (1974); Babb v. United States, 218 F.2d 538 (5th Cir. 1955); Leroy v. Government of Canal Zone, 81 F.2d 914 (5th Cir. 1936). This rule of exclusion is founded upon the notion that a codefendant's guilty plea or conviction with respect to similar or identical charges has only slight probative value on the question of the defendant's guilt, but is extremely prejudicial. United States v. Corona, 551 F.2d 1386, 1388 (5th Cir. 1977); United States v. Hansen, 544 F.2d 778, 780 (5th Cir. 1977). Miranda had a right to benefit from the rule prohibiting the use of the convictions of his coconspirator to prove his guilt and the prosecutor denied him that right by urging the jury to consider Perez' convictions as substantive evidence of Miranda's guilt. See United States v. Garber, 471 F.2d 212 (5th Cir. 1972).

Not only did the prosecutor improperly urge the jury to consider Perez' convictions as proof of Miranda's complicity in the importation scheme, but his argument is also improper because it is based on evidence not in the record. See United States v. Corona, 551 F.2d 1386 (5th Cir. 1977); Hall v. United States, 419 F.2d 582 (5th Cir. 1969). In urging the jury to convict Miranda, the prosecutor emphasized that Perez was convicted on evidence which was largely circumstantial, whereas the evidence against Miranda was direct in nature, thus implying that the evidence was much stronger against Miranda. This argument was clearly improper because nothing was introduced at Miranda's trial to show what had been proved at Perez' trial.

Our conclusion that the prosecutor's comments were improper does not end our analysis, however. As the government correctly points out, this case must be judged according to the "plain error" standard set forth in Fed.R.Crim.P. 52(b) because Miranda's counsel never objected to the prosecutor's argument. An objection is required because a prompt objection by counsel will allow the trial court to take appropriate action to cure the error, usually by giving limiting instructions to the jury. See United States v. Fleetwood, 528 F.2d 528, 535 (5th Cir. 1976); United States v. King,505 F.2d 602, 605 (5th Cir. 1974). Accordingly, we may reverse the conviction only if the prosecutor's indiscretions seriously affected the substantial rights of the accused. United States v. King, 505 F.2d 602, 605 (5th Cir. 1974); Fed.R.Crim.P. 52(b).

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