U.S. v. Morris

• Citation: 568 F.2d 396
• Decision Date: 24 February 1978
• Docket Number: No. 76-2403,76-2403
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Laurel Joan MORRIS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 396

568 F.2d 396

UNITED STATES of America, Plaintiff-Appellee, v. Laurel Joan MORRIS, Defendant-Appellant.

No. 76-2403.

United States Court of Appeals, Fifth Circuit.

Feb. 24, 1978.

Gerald H. Goldstein, San Antonio, Tex., Edward A. Mallett, Houston, Tex., for defendant-appellant.

Jamie C. Boyd, U. S. Atty., LeRoy M. Jahn, James W. Kerr, Jr., Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GODBOLD, TJOFLAT, and HILL, Circuit Judges.

HILL, Circuit Judge:

The appellant was convicted on one count of conspiracy to transport and two counts of transporting illegal aliens. 18 U.S.C. § 371 & 8 U.S.C. § 1324(a) (2). She received a sentence of three years on each count, with one of the substantive counts to run consecutively with the other two counts. The acts of transporting were observed on the United States side of the Mexican border by federal agents who had received an informant's tip.

In this appeal appellant raises two issues: (1) whether the district court erred by refusing to grant appellant's motion for disclosure of the informant's identity or by refusing to conduct an in camera inquiry to determine the necessity of such disclosure; (2) whether the closing argument of the prosecutor, which appellant contends expressed his personal belief that appellant was guilty, was so prejudicial as to warrant reversal of appellant's conviction.

I. Disclosure of the Informant.

Before trial, appellant filed a motion for disclosure of the informant's identity, which sought in the alternative ". . . to require the production of said informant for the Court's interrogation in camera . . . ." In support of her motion, appellant filed an affidavit in which she stated that the informant was an eye and ear witness to the offense, and that the informant could testify as to the appellant's appearance during the period of the alleged offense, a factor which would lend credence to and corroborate her defense of duress and coercion by a co-defendant and Government witness, Willie Garles (a/k/a Jose Baez-Sanchez).

The trial judge after ascertaining the views of counsel ruled that no disclosure or in camera hearing was required. He did, however, state that he would reconsider his ruling if the evidence produced at trial necessitated such action. Apparently the trial judge concluded as the trial progressed that no disclosure or hearing was needed as his previous ruling remains unchanged.

Application of the informant's privilege must be determined on a case-by-case basis. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1956):

We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors. 353 U.S. at 62, 77 S.Ct. at 628.

Public policy forbids disclosure of the identity of an informer except where it is essential to the defense. Scher v. United States, 305 U.S. 251, 254, 59 S.Ct. 174, 83 L.Ed. 151 (1938); United States v. Toombs, 497 F.2d 88, 92 (5th Cir. 1974).

In this case, appellant contends that the informant could have provided testimony essential to her defense of duress. Indeed, the informant's privilege is somewhat limited, and disclosure will be required where it may be "relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause . . . ." Roviaro, supra, 353 U.S. at 60-61, 77 S.Ct. at 628. In her affidavit in support of the Motion to Require Disclosure of Government Informer, the appellant stated as follows:

That the Government also acknowledges that said informant was an eye and ear witness to the offense herein charged in particular describing the appearance of the Defendant and co-Defendant, their location at the Hotel San Louis (sic), in Piedras Negras, Republic of Mexico, and of necessity overhearing conversations regarding the purpose of Co-Defendant Jose Baez-Sanchez.

That if said informant were produced by the Government to testify, said informant would exculpate the Defendant and testify that the Defendant did not participate in any such negotiations, conversations, nor indicate her acquiescence in same nor was she present at same, all making such informant's disclosure relevant and material for the defense herein.

The government's theory was that, as part of the conspiracy, appellant and the co-defendant were together at the hotel in Mexico for the purpose of ascertaining the reason for a delay in appearance of the aliens who were to be transported. Appellant asserts that she made the trip to Mexico under duress and that the informer's testimony concerning her appearance and demeanor at the hotel would have tended to support this duress defense.

The Mexican hotel occurrence was only one event in the overall scenario. During trial the testimony of both prosecution and defense witnesses established appellant as a participant in more central events. The value to the appellant of having the testimony of a person who saw her in the hotel in Mexico was slight. Under the balancing test established in Roviaro, and weighed against the public interest in maintaining sources of information, the refusal to require identity of the informer was not error.

II. The Closing Argument of Government Counsel.

The appellant contends that the prosecutor made certain remarks during his closing argument which prejudiced her case before the jury in such a manner that a new trial should be granted. The first remark challenged by the appellant is a comment by the prosecutor to the effect that the appellant had brought perjurious testimony for the jury's consideration. The defense counsel objected to the comment, the objection was sustained, but a motion for mistrial based upon the remark was denied.

The appellant next objects to statements in which the prosecutor allegedly expressed his own personal belief about her guilt. The prosecutor stated as follows:

Quite apart from Mr. Garles' testimony, there is the testimony from the aliens and there is the testimony from the Government officers who have no interest in this case other than seeing that they are upholding their sworn duty to see that the laws are not violated and that individuals such as Mrs. Morris who violate these Federal laws are brought to justice.

Following defense counsel's objection to the comment, the court instructed the jury as follows:

Well bear in mind, members of the jury, that you can only follow the evidence that you have heard in this case. That's what I'll instruct you. What these lawyers say to you as I have said to you is not evidence. It is merely their conclusions, their beliefs on what the evidence shows, what they think you should do and the inferences you may draw from it. . . .

The appellant objects to four other separate remarks which allegedly indicated the prosecutor's personal belief that the appellant was guilty. ¹

Counsel's improper statements in summation is a continuing problem in this Court in civil and criminal jury trials. The purpose of summations is for the attorneys to assist the jury in analyzing, evaluating, and applying the evidence. It is not for the purpose of permitting counsel to "testify" as an "expert witness." The assistance permitted includes counsel's right to state his contention as to the conclusions that the jury should draw from the evidence. Therefore, an attorney's statements that indicate his opinion or knowledge of the case as theretofore presented before the court and jury are permissible if the attorney makes it clear that the conclusions he is urging are conclusions to be drawn from the evidence. See, e. g., United States v. McDowell, 539 F.2d 435, 438 (5th Cir. 1976); United States v. Wayman, 510 F.2d 1020, 1028 (5th Cir.), cert. denied, 423 U.S. 846, 96 S.Ct. 84, 46 L.Ed.2d 67 (1975); United States v. Dawson, 486 F.2d 1326, 1331 (5th Cir. 1973). In this function, the attorney is expected to perform as an advocate, and it is not improper for him to urge upon the jury that his side of the issue be found to have been established beyond question (though objectivity might demand some less favorable conclusion).

This Court has repeatedly held, however, that an attorney may not say anything to the jury implying that evidence supporting the attorney's position exists but has not been introduced in the trial. It follows that an attorney may not express his personal opinion concerning the merits of the case. He may, as stated, urge a conclusion based on the evidence. United States v. Diharce-Estrada, 526 F.2d 637, 641-42 (5th Cir. 1976); McMillian v. United States, 363 F.2d 165, 168-69 (5th Cir. 1966); Dunn v. United States, 307 F.2d 883, 886 (5th Cir. 1962). An attorney may not express his own opinion as to the credibility of witnesses. United States v. Herrera, 531 F.2d 788, 790 (5th Cir. 1976); United States v. Velasquez,496 F.2d 1009, 1012 (5th Cir. 1974); United States v. Martinez, 466 F.2d 679, 683 (5th Cir. 1972), cert. denied, 414 U.S. 1065, 94 S.Ct. 571, 38 L.Ed.2d 469 (1973); United States v. Lamerson, 457 F.2d 371, 372 (5th Cir. 1972). He may not state that he could have called additional witnesses whose testimony would have supported his version of the case, Ginsberg v. United States, 257 F.2d 950, 954-55 (5th Cir. 1958); Nalls v. United States, 240 F.2d 707, 709-11 (5th Cir. 1957), and he may not imply that the government would not have brought the case unless the defendant were guilty. United States v. Lamerson, 457 F.2d 371, 372 (5th Cir. 1972); United States v. Brown, 451 F.2d 1231, 1234-36 (5th Cir. 1971...