U.S. v. Rochan

• Decision Date: 01 December 1977
• Docket Number: No. 76-3162,76-3162
• Citation: 563 F.2d 1246
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jean Charles ROCHAN, Andre Ethier and Serge Brochu, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1246

563 F.2d 1246

UNITED STATES of America, Plaintiff-Appellee, v. Jean Charles ROCHAN, Andre Ethier and Serge Brochu Defendants-Appellants.

No. 76-3162.

United States Court of Appeals Fifth Circuit.

Dec. 1, 1977.

R. Emmett Harris, Uvalde, Tex. (Court-appointed), for Rochan.

Curtis D. Glover, Paul D. Eaton, Dallas, Tex., for Ethier & Brochu.

Jean Charles Rochan, pro se.

John Henvey, William M. Walls, Dallas, Tex., for defendants-appellants.

Jamie C. Boyd, U. S. Atty., LeRoy Morgan Jahn, Robert S. Bennett, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

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

Before WISDOM, GEWIN and AINSWORTH, Circuit Judges.

WISDOM, Circuit Judge:

A jury convicted Serge Brochu, Andre Ethier, and Jean Charles Rochan, defendants/appellants, on a five-count indictment charging them with federal offenses related to the importation of marijuana into this country from Mexico. ¹ On appeal, the appellants raise a number of issues, only two of which need be discussed. (1) They contend that statements by the prosecutor and the trial judge constituted comment on their failure to testify. (2) They contend that transcripts of consensual tape recordings used to aid the jury in listening to the tapes were inadmissible because the stenographer who transcribed them did not authenticate them. We find that these and other contentions are without merit. We affirm.

I.

On November 11, 1975, Rochan attempted to drive 175 pounds of marijuana across the border into Eagle Pass, Texas. Customs agents searched his station wagon, found the marijuana, arrested Rochan, and placed him in the Val Verde County Jail. Three days later, William Garles, an unindicted co-conspirator who was later to become the government's chief witness in this case, was arrested on an unrelated alien transportation charge and placed in the jail with Rochan. There, Rochan told Garles of the circumstances of his arrest that he had been arrested because he had failed to follow orders by attempting the crossing at a time and place contrary to his instructions. Rochan also told Garles that he felt he needed to redeem himself for his mistake. Rochan solicited Garles's help in obtaining a new attorney and in smuggling marijuana from Mexico. Garles agreed to help Rochan in both respects. On December 12, 1975, from the Val Verde County Jail, Rochan telephoned Brochu, ² who wired $5,000 to Rochan in care of Garles's wife. Mrs. Garles was to use this money for her husband's bail and to pay Rochan's attorney. When Garles was released on bail, he called Brochu in Ottawa, Canada, to say that he was out of jail.

On January 2, 1975, Brochu called Garles to pick him up at the San Antonio Airport. There, Garles met Ethier as well as Brochu. The three discussed plans to buy a car suitable for smuggling marijuana and to hire a driver for the border crossing. On January 6, Garles and Ethier bought a late model station wagon in Houston for cash. Garles and Ethier hired Jesse Juarez, an indicted co-conspirator who fled the jurisdiction before trial, to drive the car. Brochu financed these operations by a second Western Union money order to Mrs. Garles in the amount of $5,000.

On January 9, Garles became a government informer. To check on his story, agents of the Drug Enforcement Administration had him telephone Ethier. The conversation, which was tape-recorded, consisted of a discussion of the conspiracy's current project, making Juarez and his family look more presentable so that their appearance would not arouse suspicions in Customs agents. Upon Brochu's return to San Antonio, DEA agents observed him dining with Garles and Ethier and later inspecting the car they had bought. He knocked on the side of the left rear quarter panel and then knelt down to look under that part of the station wagon.

As the next step of the conspiracy, Brochu, Garles, and Juarez met in Mexico City and arranged to load the car with marijuana. Juarez successfully drove the car across the border. Garles obtained possession of the car and delivered it to DEA agents, who inspected it and found 100 pounds of marijuana. Garles left the agents and drove to an apartment in Richardson, Texas; Ethier had rented it for six months as a halfway house for the storage of marijuana. Ethier, however, feared that the house was not safe, and ordered the return of the marijuana to San Antonio.

A few days later, Brochu arrived in Texas. Garles met him at the Fort Worth-Dallas Airport and drove him to the rented house in Richardson. There, on January 24, 1976, DEA agents arrested Brochu and Ethier. After being warned of his rights, Brochu stated that there was nothing wrong with marijuana and that even from jail he would cause thousands of pounds of marijuana to be brought into this country.

II.

The appellants contend that statements made at trial by the prosecutor and the trial judge constituted comment on failure to testify, a violation of their right to remain silent under the fifth amendment. We disagree.

After the prosecutor, Mr. Bennett, had listed some of the evidence for the United States in his first closing argument, the following exchange occurred in the presence of the jury:

(Mr. Bennett): . . . Now ladies and gentlemen of the jury, what did we hear from the defense in this case? Well, we heard that Mr. Rochan was a model prisoner. We heard that if he is allowed outside of jail

MR. GLOVER (counsel for Ethier): Your Honor, I would like to respectfully interject an objection here to the remark, "What did we hear from the defense in this case", as being an allusion or an indirect reference to the failure of the Defendants to testify.

A few moments later, still in the presence of the jury, the colloquy continued:

MR. HARRIS (counsel for Rochan): What he said is, "What have we heard from the defense? " We heard that . . . "

THE COURT: Well, the only thing we have heard from the defense was this one witness, which I interpreted him to mean he was a model prisoner. I'll overrule the objection. The only thing I have heard about Mr. Rochan from your last witness who was a jailer was that he was a model prisoner. Now, he may not have used that word, but that's just the inference I think that counsel is drawing from what he said. Well, be sure that you confine your remarks to what this witness said. I think that may be the complaint they are making. All right, go ahead, you may proceed.

We hold that neither the trial judge nor the prosecutor improperly commented on the defendants' failure to testify. ³ To reverse for improper comment by the prosecutor, we must find one of two things: that "the prosecutor's manifest intention was to comment upon the accused's failure to testify" or that the remark was "of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify". United States v. Ward, 5 Cir. 1977, 552 F.2d 1080, 1083, quoting Samuels v. United States, 5 Cir. 1968, 398 F.2d 964, 968, cert. denied, 1969, 393 U.S. 1021, 89 S.Ct. 630, 21 L.Ed.2d 566. The same two-pronged test applies to comments made by the trial judge. Davis v. United States, 5 Cir. 1966, 357 F.2d 438, 441.

A. The Prosecutor's Remarks.

1. Manifest Intention to Comment.

We cannot find that the prosecutor manifestly intended to comment on the defendants' failure to testify, if some other explanation for his remark is equally plausible. In Samuels v. United States, 5 Cir. 1968, 398 F.2d 964, 968, we declined to reverse when we found it "very possible" that the prosecutor's statement was "merely inadvertent". See also United States v. Wilson, 5 Cir. 1974, 500 F.2d 715, 721. In United States v. Ward, 5 Cir. 1977, 552 F.2d 1080, 1083, we approved a prosecutor's remarks when they were "more likely" intended for a proper purpose to refer to the defendants' failure to produce "evidence of any kind . . . to rebut the inference of knowledge that naturally follows from the possession of recently stolen property" than to comment on the defendants' failure to take the stand. In the instant case, the prosecutor's rhetorical question "What did we hear from the defense?" could have been intended as a transition in the prosecutor's summarization of the evidence. At the time he made the statement, the government's attorney had been describing his own case, and was shifting his focus. That appropriate motivation seems at least as likely as a manifest intention to comment.

2. Effect on the Jury.

We think the defendants here have not shown that the jury necessarily construed the prosecutor's remark as a comment on their failure to testify. In earlier cases this Court has been slow to find a necessarily improper understanding on the part of the jury. In Samuels v. United States, 5 Cir. 1968, 398 F.2d 964, 967-68, we found that the jury did not necessarily construe improperly the remark "G. L. Samuels (the defendant) does not want to talk about these facts." We found that the prosecutor meant to use the name of the defense lawyer rather than that of the defendant, and that "The context in which it was made indicates that the remark was directed to the argument of counsel and not to the defendant's failure to testify." In United States v. Toler, 5 Cir. 1971, 440 F.2d 1242, 1243, we considered a government attorney's statement in a prosecution for filing a false medical claim for Social Security benefits. The prosecutor said "at no time has he (the defendant) denied filing it". We found that this case was a comment "not on defendant's failure to testify, but rather on the uncontradicted state of the evidence". Id. at 1243.

We hold that the jury in the instant prosecution could reasonably have construed the prosecutor's rhetorical question as a transitional device. We do not approve of this language but the question we face is not whether the remark was proper, but whether the jury would necessarily interpret it...