U.S. v. Pena

• Decision Date: 18 April 1991
• Docket Number: 89-2314,Nos. 89-2294,s. 89-2294
• Citation: 930 F.2d 1486
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Irma PENA, Defendant-Appellant, Cross-Appellee.

Page 1486

930 F.2d 1486

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Irma PENA, Defendant-Appellant, Cross-Appellee.

Nos. 89-2294, 89-2314.

United States Court of Appeals, Tenth Circuit.

April 18, 1991.

David N. Williams, Asst. U.S. Atty. (William L. Lutz, Acting U.S. Atty., with him on the briefs), Albuquerque, N.M., for plaintiff-appellee, cross-appellant.

Ralph C. Binford, Deming, N.M., for defendant-appellant, cross-appellee.

Before HOLLOWAY, Chief Judge, EBEL, Circuit Judge, and NOTTINGHAM ^*, District Judge.

NOTTINGHAM, District Judge.

A jury found Defendant Irma Pena guilty of possession with intent to distribute less than 50 kilograms of marijuana, in violation of 21 U.S.C. Sec. 841(a)(1) and 21 U.S.C. 841(b)(1)(D) (1988). Since the offense occurred on April 30, 1989, the district court applied the federal sentencing guidelines in effect on that date and determined that the applicable guideline range specified a prison term of 27 to 33 months. See U.S.S.G. Sec. 2D1.1(a)(3) (1988), found at United States Sentencing Commission, Guidelines Manual (1988 ed.). The district court departed downward from this range, however, because of Pena's "unique family responsibility" and other circumstances. Pena was placed on probation for a term of five years, a special condition of probation being that she serve six months in a community treatment center.

Pena appeals the district court's judgment, arguing that the district court erred by: (1) denying a motion for a mistrial based upon improper remarks by the prosecutor during closing argument; (2) failing to give Pena's requested instruction submitting to the jury the issue of whether she was a "minor" or "minimal" participant in the offense; (3) failing to give Pena's requested "identity" instruction; and (4) failing to give Pena's requested instruction regarding the lesser-included-offense of simple possession. The government cross-appeals the district court's sentence, arguing that the district court erred when it departed downward from the applicable guideline range. The government also claims that, even if a downward departure was permissible, the degree of departure was unreasonable. We reject all of the parties' contentions and affirm the district court's judgment and sentence.

FACTS

On April 30, 1989, United States Border Patrol Agents Adam Monsibaiz and Robert Johnson stopped a car, driven by Pena, at a border checkpoint near Truth or Consequences, New Mexico. Monsibaiz approached the occupants to conduct a routine citizenship inquiry. Pena appeared nervous, she stuttered, and she clenched the steering wheel. Monsibaiz smelled air freshener coming from the car. Consequently, Monsibaiz and Johnson directed the vehicle to a secondary inspection site.

Monsibaiz and Johnson asked the occupants to step out of the vehicle. They also requested permission to search the vehicle, and Pena consented. Inside the car, Monsibaiz smelled marijuana. Under the rear passenger seat, Monsibaiz discovered 66 pounds of marijuana. United States Customs Officer James Hughes subsequently arrived and took possession of the car and marijuana.

Pena did not own the car. Agent Hughes discovered a title in the name of "Marcos Perez" in the car, but the agents were never able to locate Perez. At trial, Pena and her sister, a passenger in the car, testified that they were driving to Belen, New Mexico to visit another sister, who was ill. Since Pena's car was not working well, they testified, a man named Frederico Gonzales loaned Pena the car. This car, driven by Pena, was the car that contained the marijuana. The crux of Pena's defense was that she and the other occupants did not know anything about the marijuana hidden under the back seat of the borrowed car.

ANALYSIS

I. IMPROPER CLOSING ARGUMENT BY THE GOVERNMENT

Pena argues that certain remarks of the prosecutor during trial and closing argument were so prejudicial as to deny her a fair trial. During cross-examination, the following exchange occurred between Pena and the government prosecutor, Mr. Williams:

Mr. Williams: Did you call for Frederico [the person who allegedly loaned Pena the car]?

Ms. Pena: I kept looking, twice the same day, Sunday night. I went twice to see if he was there. Then I finally found him.

Mr. Williams: And you told him--

Ms. Pena: I told him I was real angry with him. He said, "I didn't know nothing."

....

Mr. Williams: Did you go to the police and say, "Look, I know a man that broke the laws of the United States. They got a car full of dope, I know where he lives. I can take you right to him, he caused my sister and me to be arrested?"

Ms. Pena: No, I didn't.

Mr. Williams: Didn't you think that was something you ought to tell the police about?

Ms. Pena: Yes.

Mr. Williams: Why didn't you tell the police?

Ms. Pena: I was confused. I came over here to see Mr. Rosas and I went to talk to my lawyer and then they sent me to El Paso to Federal Court to talk every week, so I figured that was enough.

R. Vol. III at 104-105.

During his closing, the prosecutor then commented on the testimony as follows:

Then, according to the testimony, after she is released she goes and warns the man. She does not tell the police. Failure to report a felony is a felony in itself.

R. Vol. III at 131-132 (emphasis supplied). Pena objected and, at a sidebar conference, moved for a mistrial. The district judge responded:

Well, I think you can argue for the point of illustrating his theory that her story may have been fabricated. I think that's the point of what he is trying to do.

Id.

Pena alleges that the prosecutor's comments were improper and that a new trial is required, because she was accused of a crime--misprision of a felony--for which she was not indicted. The government strenuously insists that the remarks amounted to nothing more than proper comment on Pena's credibility. We conclude that a portion of the prosecutor's remarks were improper but that the impropriety does not require reversal or a new trial.

As we have recognized, a prosecutor's summation may appropriately suggest to the jury what inferences it ought to draw from the evidence in the case. E.g., United States v. Manriquez Arbizo, 833 F.2d 244, 247 (10th Cir.1987); United States v. Nolan, 551 F.2d 266, 274 (10th Cir.1977), cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191 (1977). See also United States v. Perez, 493 F.2d 1339, 1343 (10th Cir.1974). Pena acknowledged that she had attempted to contact the person who loaned her the car and that she had not gone to the police. The prosecutor was thus entitled to question her story by suggesting that a reasonable person who had been innocently driving a car containing marijuana placed there by another would have helped the police locate the person who put her in this situation, instead of trying to contact the person herself.

The prosecutor, however, did not stop there; instead he gratuitously suggested that Pena's failure to contact the police was "a felony in itself." Placing aside the issue of whether this expansive interpretation of the federal misprision statute is correct, the suggestion was improper for at least three related reasons. First, it was calculated to mislead the jury by insinuating that the jury's evaluation of Pena's story could properly include consideration of the fact that the story itself revealed another crime. See United States v. Manriquez Arbizo, 833 F.2d at 247 (prosecutor cannot place improper inference into the minds of jurors). Second, it injected into the case an extraneous issue concerning criminal conduct of which Pena was not accused and which was not relevant for any purpose. Cf. Fed.R.Evid. 404(b). Third, it was calculated to inflame the jury's passions by implying that (in the prosecutor's opinion, at least) Pena had committed yet another crime. See 1 ABA Standards for Criminal Justice Sec. 3-5.8(b), (c) (2d ed. Supp.1986) (prosecutor should not express his opinion concerning guilt of defendant or use arguments calculated to inflame jury's passions).

Having determined that the prosecutor's remarks were improper, we must next consider whether the impropriety requires a new trial. To determine whether a defendant has been denied a fair trial, "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, 509, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96 (1983). Thus, we will not overturn a conviction on account of improper argument by the prosecutor "unless the prosecutor's 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.), cert. denied, 474 U.S. 1023, 106 S.Ct. 579, 88 L.Ed.2d 561 (1985) (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]. See also United States v. Manriquez Arbizo, 833 F.2d at 248. Consistent with Hasting, the question of whether the improper comment has deprived defendant of a fair trial is answered by viewing the improper remark against the backdrop of the entire record before the jury. United States v. Espinosa, 771 F.2d at 1401.

Several circumstances support our conclusion that the prosecutor's improper comment does not require a new trial. The comment was singular and isolated. See United States v. Manriquez Arbizo, 833 F.2d at 248. At the sidebar conference during which defendant moved for a mistrial, the district judge warned the prosecutor to move on to something else in his argument, and the prosecutor complied. R.Vol. III at 133. While the judge did not tell the jury that the comment was improper or instruct that it be disregarded (as he might properly have done), he did instruct the jury--twice--that the statements and arguments of counsel were not evidence....