U.S. v. Santiago

• Decision Date: 13 October 1992
• Docket Number: Nos. 90-2180,90-2199,s. 90-2180
• Citation: 977 F.2d 517
• Parties: UNITED STATES of America, Plaintiff-Appellee and Cross-Appellant, v. Jerry SANTIAGO, Defendant-Appellant and Cross-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 517

977 F.2d 517

UNITED STATES of America, Plaintiff-Appellee and Cross-Appellant, v. Jerry SANTIAGO, Defendant-Appellant and Cross-Appellee.

Nos. 90-2180, 90-2199.

United States Court of Appeals, Tenth Circuit.

Oct. 13, 1992.

Rehearing Denied Jan. 26, 1993.

Robert J. Gorence, Asst. U.S. Atty., William L. Lutz, U.S. Atty., Albuquerque, N.M., with him on the brief), for plaintiff-appellee and cross-appellant.

William D. Fry, Asst. Federal Public Defender, Las Cruces, N.M., for defendant-appellant and cross-appellee.

Before LOGAN and BRORBY, Circuit Judges, and CARRIGAN, District Judge. ¹

CARRIGAN, District Judge.

Defendant Jerry Santiago appeals his conviction and sentence for one count of mail fraud in violation of 18 U.S.C. § 1341. He argues that the prosecutor's comments during closing argument were so prejudicial as to require a new trial. He further asserts that his exclusion from the district judge's ex parte examination of a juror violated his right to be present at all stages of the trial. In addition, both parties appeal aspects of the district court's sentencing decisions.

I. BACKGROUND.

In 1989, Santiago was a United States Customs Service enforcement officer in New Mexico who handled dogs used to interdict drug smuggling at the Mexican border. The dogs were kept at a shelter in Deming, New Mexico. Santiago was acquainted with a dog shelter employee, Phillip Finley, who at times worked as a Customs Service informant. The evidence at trial established that, after several conversations with Finley, Santiago agreed to a scheme in which Finley would take and destroy Santiago's car, a Suzuki Samurai, and Santiago would report to the police and his insurance company that it had been stolen.

Finley informed the Customs Service of the scheme. On June 18, 1989, Santiago delivered the car to Finley. That exchange was witnessed by a Customs Service investigator who thereafter took possession of the car.

The next day Santiago reported to the police that his car had been stolen. On July 10, 1989, he mailed to his insurer, State Farm Insurance Company (State Farm), an affidavit claiming $11,000 for his "stolen" car. ² Because the Customs Service had informed State Farm of Santiago's scheme, no insurance money was ever paid. The Samurai's "blue book" value was $4,800 which constituted the highest amount State Farm would have paid under its policy.

At trial Santiago admitted that he had attempted to defraud his insurance company, but asserted the defense of entrapment. He was convicted by a jury, and was sentenced to thirty-six months probation.

II. PROSECUTORIAL MISCONDUCT.

Santiago argues that the prosecutor made several improper comments during his closing argument that justify reversing his conviction. This court will overturn a jury verdict based on a prosecutor's comments if they "were enough to influence the jury to render a conviction on grounds beyond the admissible evidence presented." United States v. Dickey, 736 F.2d 571, 596 (10th Cir.1984). We conclude that the prosecutor's remarks in the instant case did not rise to that level.

Santiago first contends that the following excerpt from the prosecution's closing argument demonstrates that the prosecutor was improperly vouching for his case:

PROSECUTOR: "I want to close in a second and I just want to touch on one thing. It's something that the defendant said while he was on the stand. And it struck me as more than ironic. He said when he went to Wallace Chevrolet and saw that red Camaro, it was fate. 'They had the color I wanted. I wanted this brand new car. It was fate.'

Well, fate doesn't make someone a criminal. You don't do criminal actions because of fate. You do them because of your own free will and volition. In this country, or anywhere, things don't just happen. You have a choice. You have a choice to do something right or do something wrong.

In this case the defendant decided he wanted that car and despite being charged to uphold the law, he was going to commit a fraud to do it. He staged the theft and it was very clear it was his choice and it wasn't fate.

He's trying to avoid responsibility for that action whether he calls it fate now or tries to blame it on Mr. Finley. 'It's still not my responsibility that all this stuff took place. Even though I know what the law is, given my prior background in law enforcement.'

DEFENSE COUNSEL: 'I object to that comment. It's vouching for his own argument.'

THE COURT: 'Excuse me. Go ahead with your argument.' " (Tr. Vol. IV, p. 371-72).

The trial judge instructed the jury that "any statements, objections or arguments made by the lawyers are not evidence in the case.... What the lawyers say is not binding on you." (Jury Instruction No. 7, Doc. 31).

Because Santiago objected to this claimed misconduct, we first determine whether the conduct was, in fact, improper. United States v. Ellzey, 936 F.2d 492, 498 (10th Cir.1991) (quoting United States v. Lonedog, 929 F.2d 568, 572 (10th Cir.1991) cert. denied, --- U.S. ----, 112 S.Ct. 164, 116 L.Ed.2d 129 (1991)). If we hold that it constituted prosecutorial misconduct, we must determine whether it warrants reversal. Id. Prosecutorial misconduct:

"does not warrant reversal if it was harmless error.... 'A non-constitutional error is harmless unless it had a substantial influence on the outcome or leaves one in grave doubt as to whether it had such effect.' ... In determining whether the misconduct affected the outcome, we consider: 'the curative acts of the district court, the extent of the misconduct and the role of the misconduct within the case as a whole.' " Lonedog, 929 F.2d at 572 (citations omitted).

In our view the quoted remarks of the prosecutor were not improper. Indeed it is difficult to see how the questioned comments could be characterized as prosecutorial "vouching" for the evidence. The comments were not unreasonable in light of the evidence, and even if they had been improper, their effect would have been negated by the court's instruction that a lawyer's argument is not evidence upon which a conviction may be based. Absent evidence to the contrary, it is presumed that juries follow the trial court's instructions. See Lonedog, 929 F.2d at 576.

Because Santiago did not object to the other statements that allegedly constituted prosecutorial misconduct, we may reverse based on those comments only if they resulted in plain error. United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985); Lonedog, 929 F.2d at 570. "Plain error is 'fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.' " Lonedog, 929 F.2d at 570 (emphasis in original).

The first closing argument statement asserted to be plain error was:

"After you've prosecuted cases, there is a saying that if the law is not on your side you argue the facts. If the facts aren't on your side you argue the law ... If neither the law nor the facts are on your side, the only thing left is to point the finger at the Government and see if you can make someone else look worse than you are and perhaps someone will buy that.

And I submit that that's exactly how in this case the defense is because you've got a guy like Mr. Finley. If you make him bad enough you can shift your attention away from what he did as a law enforcement officer." (Tr. Vol. IV, p. 371.)

Santiago challenges this statement, arguing that by denigrating the entrapment defense, the prosecutor implied his personal belief that the defendant was guilty and that the defendant's counsel believed his client was guilty.

Because the defendant admitted that he had attempted to defraud his insurance company, the primary issue at trial was whether, as he maintained, he had been entrapped. While the prosecutor's isolated comment on his personal experience may not have been relevant, we conclude that it did not constitute plain error. That statement alone did not imply that by choosing to assert the defense of entrapment, defense counsel had indicated his belief that his client was guilty. Moreover, by referring to the affidavits Santiago had submitted to the police and his insurance company, in which he had claimed that his car had been stolen, the prosecutor properly responded to the defense raised by emphasizing Santiago's voluntary participation in the crime.

Finally, Santiago challenges the prosecutor's comments in rebuttal argument, ³ claiming that the comments misconstrued the law regarding the entrapment defense and the burden of proving it. We perceive no error. Read in context, we find those statements consistent with the district court's entrapment defense instructions whose legal accuracy is not here attacked. The prosecutor's references to Santiago's former status as a law enforcement officer did not misstate the law or burden of proof, but rather were fair comments on the evidence produced at trial.

III. EXCLUSION OF DEFENDANT FROM THE TRIAL COURT'S EX PARTE

INTERVIEW OF JUROR.

During defense counsel's closing argument, a juror became ill and had to be excused. Santiago initially objected to using the only alternate juror because during voir dire she allegedly had heard another prospective juror comment that the entrapment defense was ridiculous. Based on his concern that counsel's presence during an examination of the juror could be counterproductive, ⁴ the district judge denied Santiago's attorney's request to voir dire the alternate juror, but allowed the parties an opportunity to submit proposed questions.

The district judge then questioned the alternate juror on the record in his chambers outside the presence of the defendant and the attorneys. After satisfying himself that the juror could render an unbiased verdict, the judge allowed the juror to leave his chambers, invited the attorneys into chambers and had the court reporter read back to them his examination of the juror. Santiago's attorney then stated:

"Your Honor,...