U.S. v. Mora, s. 87-1412

• Decision Date: 25 April 1988
• Docket Number: Nos. 87-1412,87-1419,87-1428 and 87-1861,s. 87-1412
• Citation: 845 F.2d 233
• Parties: 25 Fed. R. Evid. Serv. 949 UNITED STATES of America, Plaintiff-Appellee, v. Lazaro MORA, Defendant-Appellant, UNITED STATES of America, Plaintiff-Appellee, v. Jose DUARTE, Defendant-Appellant, UNITED STATES of America, Plaintiff-Appellee, v. Ruben FORCADE, Defendant-Appellant, UNITED STATES of America, Plaintiff-Appellee, v. Carlos AMADOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 233

845 F.2d 233

25 Fed. R. Evid. Serv. 949

UNITED STATES of America, Plaintiff-Appellee, v. Lazaro MORA, Defendant-Appellant, UNITED STATES of America, Plaintiff-Appellee, v. Jose DUARTE, Defendant-Appellant, UNITED STATES of America, Plaintiff-Appellee, v. Ruben FORCADE, Defendant-Appellant, UNITED STATES of America, Plaintiff-Appellee, v. Carlos AMADOR, Defendant-Appellant.

Nos. 87-1412, 87-1419, 87-1428 and 87-1861.

United States Court of Appeals Tenth Circuit.

April 25, 1988.

Peter John Orsi, Wichita, Kan., for defendants-appellants.

Robin D. Fowler, Asst. U.S. Atty. (Benjamin L. Burgess, Jr., U.S. Atty., with him on the briefs), for plaintiff-appellee.

Before LOGAN and McWILLIAMS, Circuit Judges, and BRATTON, District Judge. ^*

LOGAN, Circuit Judge.

Defendants Lazaro Mora, Jose Duarte, Ruben Forcade, and Carlos Amador were tried jointly and convicted of distributing cocaine, in violation of 21 U.S.C. Sec. 841(a)(1), and conspiracy to distribute cocaine, in violation of 21 U.S.C. Sec. 846. Although defendants' appeals were argued separately, their contentions overlap considerably, and we dispose of all the appeals in this opinion.

All four defendants advance the following arguments to invalidate their convictions: (1) the prosecutor during closing arguments improperly commented on defendants' post-arrest silence; (2) the district court abused its discretion by admitting a bag of cocaine into evidence when a proper chain of custody had not been established; and (3) prior bad act evidence was improperly admitted. Additionally, defendants Duarte and Forcade argue that the evidence was not sufficient to support their convictions, and defendants Mora and Duarte assert that the jury was not properly instructed on the burden of proof required to convict them on the conspiracy charge.

I

All defendants argue that the prosecutor in closing argument improperly commented on defendants' post-arrest silence, in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). They complain of the following statements made by the prosecutor:

"Consider also the fact that Sharlene Fischer [a coconspirator who had pleaded guilty] gave her statement after she was arrested. She didn't wait two months and talk to her attorney that would please me or please any other government attorney. She told what she knew right after she was arrested and Buckey Buckmaster [another coconspirator who had pleaded guilty] did so within a month.... So when you view their credibility, consider the fact that they've entered a plea agreement but consider whether or not they're corroborated and consider when they gave those statements or whether they waited months and months to think up a story and come in here and tell you.

"... Something I'd like to remind you of. Sharlene Fischer gave a statement that night."

IV Tr. 783-84, 837.

In United States v. Morales-Quinones, 812 F.2d 604 (10th Cir.1987), we stated that

"[t]he test for determining if there has been an impermissible comment on a defendant's right to remain silent at the time of his arrest is 'whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment' on the defendant's right to remain silent. United States v. Barton, 731 F.2d 669, 675 (10th Cir.1984). The court must look to the context in which the statement was made in order to determine the manifest intention which prompted it and its natural and necessary impact on the jury."

Id. at 613. This is the same test employed for the analogous situation of prosecutorial commentary on a defendant's failure to testify at trial. See United States v. Barton, 731 F.2d 669, 674 (10th Cir.1984). ¹

Viewing the prosecutor's statements in context, we conclude that neither were they "manifestly intended" to be a comment on defendants' post-arrest silence nor would the jury "naturally and necessarily" take them as such. "Manifest intent will not be found 'if some other explanation for [the prosecutor's] remark is equally plausible.' " Steele v. Taylor, 684 F.2d 1193, 1204 (6th Cir.1982) (quoting United States v. Robinson, 651 F.2d 1188, 1197 (6th Cir.)), cert. denied, 454 U.S. 875, 102 S.Ct. 351, 70 L.Ed.2d 183 (1981), cert. denied, 460 U.S. 1053, 103 S.Ct. 1501, 75 L.Ed.2d 932 (1983). See also United States v. Carrodeguas, 747 F.2d 1390, 1395 (11th Cir.1984), cert. denied, 474 U.S. 816, 106 S.Ct. 60, 88 L.Ed.2d 49 (1985); United States v. Rochan, 563 F.2d 1246, 1249 (5th Cir.1977). In the context of the trial, the prosecutor's purpose in making the first statement complained of appears to be a response to attacks on Fischer's and Buckmaster's credibility. The second reference to Fischer's post-arrest statement was to explain, in response to defense arguments that these coconspirators received more lenient treatment because they were white, why Fischer and Buckmaster were allowed to plead guilty to lesser charges. Although the prosecutor's argument indirectly alluded to the fact that defendants did not assert innocence after their arrest, such an incidental reference contained in a proper argument is not sufficient to justify reversal of defendants' convictions. Cf. United States v. Robinson, --- U.S. ----, ----, 108 S.Ct. 864, 870, 99 L.Ed.2d 23 (1988) ("It is one thing to hold, as we did in Griffin [v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) ], that the prosecutor may not treat a defendant's exercise of his right to remain silent at trial as substantive evidence of guilt; it is quite another to urge, as defendant does here, that the same reasoning would forbid the prosecutor from fairly responding to an argument of defendant by adverting to that silence").

In United States v. Sigal, 572 F.2d 1320 (9th Cir.1978), the Ninth Circuit rejected a claim similar to that advanced by defendants in the instant case. In Sigal, the prosecutor made the following statement: "But the point is, ladies and gentlemen, that he (a codefendant who pled and testified for the prosecution), unlike the defendants Baker and Sigal, came forward before the trial and admitted his guilt. He came forward and told us what he did." Id. at 1322 n. 1. The court held that this statement was a proper argument to bolster the credibility of the government's witness, id. at 1322 n. 2, and that when read in this context, the jury would not " 'naturally and necessarily take them to be comments on the failure of the accused to testify.' " Id. at 1322 (quoting United States v. Cornfeld, 563 F.2d 967, 971 (9th Cir.1977), cert. denied, 435 U.S. 922, 98 S.Ct. 1484, 55 L.Ed.2d 515 (1978)). We reach the same conclusion here.

II

Defendants argue next that the district court abused its discretion by admitting into evidence a plastic bag containing eight ounces of cocaine, identified as Government's Exhibit 2, when the government's chain of custody over the cocaine had been interrupted temporarily. Detective Jon Zumalt of the Wichita Police Department, intending to make an undercover cocaine purchase, received from defendant Amador a bag containing white powder. Zumalt conducted a field test to determine that the powder was cocaine and then signalled to surveilling officers to assist with arrests. As the officers arrived in unmarked cars, Buckmaster and defendants Amador and Duarte started to flee. Zumalt threw the bag against a chain link fence and pursued Amador. This occurred at approximately 7:44 p.m.

Officer James Whittridge, who arrived at the scene a short time later, testified that he retrieved the bag of white powder lying next to the fence. He kept the bag for a little over an hour while waiting for a forensics officer to photograph it. He then took it to the police station at approximately 9:08 p.m. and secured it in an evidence locker. Later that night Zumalt and Whittridge placed it in a standard evidence bag, and initialed and sealed both bags. Zumalt carried the cocaine to the police laboratory chemist who tested it.

At trial defendants presented a local television station's videotape of the events of the evening of the arrest. This videotape included footage showing the bag of white powder lying against the fence and, later, that or a similar bag at a different location on a lawn. Defendants argue that this videotape shows that the bag must have been moved from where Zumalt threw it before Whittridge arrived, and that the government therefore should have been required to prove that no one tampered with the powder. Defendants presented no evidence of tampering, nor did they call the cameraman who filmed the cocaine lying on the lawn to testify.

The district court granted that the videotape showed that the chain of custody had been interrupted, but the court nevertheless admitted the bag of cocaine. The court stated

"that there has been a showing, even though interrupted, of chain of custody, and if the defendants are in any way going to introduce evidence that might raise an issue of tampering, the court may--may reconsider the ruling, but at this moment, there has been a sufficient showing which would allow the court to accept this evidence; therefore, the objections are overruled. Exhibit[s] number 1 and number 2 [are] received through this witness and the other witnesses who have testified establishing the chain."

III Tr. 608.

This court, in United States v. Gay, 774 F.2d 368 (10th Cir.1985), set forth the standard for reviewing the trial court's admission of physical evidence:

"The criterion for admissibility is a showing that the physical evidence proffered is in substantially the same condition as when the crime was committed. The factors to be considered by the trial judge in deciding whether the criterion has been met include the nature of the article, the circumstances surrounding its preservation and custody, and the likelihood of intermeddlers having tampered with it. We will not overturn the trial court's determination...