U.S. v. Solivan

• Decision Date: 06 August 1991
• Docket Number: No. 90-5500,90-5500
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rosalba SOLIVAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1146

937 F.2d 1146

UNITED STATES of America, Plaintiff-Appellee, v. Rosalba SOLIVAN, Defendant-Appellant.

No. 90-5500.

United States Court of Appeals Sixth Circuit.

Argued Jan. 24, 1991.

Decided July 5, 1991.

Rehearing Denied Aug. 6, 1991.

Louis DeFalaise, U.S. Atty., Lexington, Ky., Frederick A. Stine, V, Asst. U.S. Atty., Covington, Ky., for plaintiff-appellee.

Robert Alan Rosenblatt, Miami, Fla., for defendant-appellant.

Before KEITH and MILBURN, Circuit Judges, and CONTIE, Senior Circuit Judge.

KEITH, Circuit Judge.

Defendant-appellant, Rosalba Solivan ("defendant") appeals from her March 28, 1990, judgment and sentence resulting from the sale of cocaine. For the following reasons, we REVERSE.

I.

A.

Terry and Lorraine Brown (collectively "the Browns") became Drug Enforcement Administration ("DEA") informants in July 1988, subsequent to Terry Brown's arrest for the purchase of one kilogram of cocaine from Pepe (defendant's former boyfriend) and defendant on March 8, 1988.

On February 13, 1989, while in custody, the Browns began making a series of DEA controlled, tape recorded, telephone calls to defendant. The first call concerned the delivery of three to five kilograms of cocaine to northern Kentucky and the price of the cocaine. During a subsequent telephone conversation, defendant informed the Browns that the price would be $19,500 per kilogram of cocaine. The series of recorded telephone conversations, which took place over the following weeks, detailed defendant's involvement in the narcotics industry, the problems she encountered locating cocaine, and how she planned to fill the Browns' order for four kilograms of cocaine.

On March 19, 1989, defendant flew to Cincinnati from Miami to complete the transaction. The Browns met her at the airport and transported her to the Holiday Inn in Covington, Kentucky, where they rented a room. Shortly thereafter, Francisco Gomez ("Gomez") arrived at the hotel. Gomez had driven the cocaine from the New York City area to Covington. Terry Brown, Gomez and defendant went outside to Gomez' vehicle, retrieved the four kilograms of cocaine, brought it back to the hotel room, and examined it. DEA agents then entered the hotel room and arrested Gomez and defendant.

B.

On April 12, 1989, defendant and Gomez were indicted on seven counts, including conspiracy to distribute cocaine, in violation of 21 U.S.C. Sec. 846; attempt to distribute cocaine, in violation of 21 U.S.C. Sec. 846; interstate travel to facilitate narcotics activity, in violation of 18 U.S.C. Sec. 1952; and use of a telephone to facilitate narcotics activity, in violation of 21 U.S.C. Sec. 843(b). Gomez pled guilty to all charges on September 11, 1989. Defendant pled not guilty. Her trial commenced September 12, 1989, and concluded September 19, 1989.

At trial, during closing argument, the Assistant United States Attorney ("Assistant U.S. Attorney" or the "prosecutor") made the following remarks:

[Assistant U.S. Attorney]: What you're listening to is a wholesale distributor of narcotics, cocaine discuss her business affairs and complain about her busy schedule, the lack of good product and the trouble she's having getting this stuff up here now. And I'd submit to you, folks, that she's been caught now. And I'm asking you to tell her and all of the other drug dealers like her--(defense counsel's objection and Court's response omitted)--[t]hat we don't want that stuff in Northern Kentucky and that anybody who brings that stuff in Northern Kentucky and ...

The Court: Don't continue the comment until I rule on it.

[Defense counsel]: Objection.

[Assistant U.S. Attorney]: Oh, okay. I'm sorry.

The Court: Ready to break off?

[Assistant U.S. Attorney]: Just that, ladies and gentlemen....

Transcript at 767-68 (emphasis added). The court did not immediately admonish the jury, but instead declared a recess. Out of the presence of the jury, the court allowed defense counsel to state his objection to the prosecutor's comment on closing. Defense counsel at that time also moved for a mistrial based on the prosecutor's highly prejudicial comments. The court sustained the objection but denied the motion for a mistrial. ¹ The court stated that it would admonish the jury when court resumed, which it did, stating:

At the conclusion ... certain remarks were made in the closing argument of the prosecutor to which the Court has sustained an objection and will admonish you not to consider them. Do not consider any urgings by the prosecutor to send messages to anybody. We're not here to send messages to anybody. We're here to try this defendant's case.

It's our duty to try--try this defendant's case based on the evidence in this case and the law in this case and not with concern about anybody else. The Court reiterates its instructions that if the evidence establishes beyond a reasonable doubt that the defendant is guilty of the offense as charged or any of them its your duty to convict. If the United States fails to meet that burden, it's your duty to acquit. Don't worry about anybody else or send anybody any messages. We're concerned with this one case to try [defendant] on the evidence in it.

Transcript at 768.

The jury returned a verdict of guilty on all counts. On March 28, 1990, defendant was sentenced to 151-months imprisonment. Defendant filed a timely notice of appeal on March 28, 1990.

II.

A.

On appeal, defendant argues that, during closing argument, the prosecutor made improper and prejudicial statements which deprived her of a fair trial. Defendant contends that the prosecutor's argument constitutes reversible error because the resulting prejudice was not cured by the district court's subsequent admonition to the jury. The prosecutor's remarks, defendant argues, were prejudicial because they improperly appealed to the community conscience and interest of the jurors in ridding society of drug dealers. The prosecutor counters that its comments, if improper, were cured by the district court's admonition.

B.

We review the district court's denial of defendant's motion for a mistrial for abuse of discretion. See Illinois v. Somerville, 410 U.S. 458, 462-64, 93 S.Ct. 1066, 1069- 70, 35 L.Ed.2d 425 (1973); United States v. Cordell, 924 F.2d 614, 617 (6th Cir.1991) (citing United States v. Levy, 904 F.2d 1026, 1030 (6th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 974, 112 L.Ed.2d 1060 (1991)).

In the case before us, the question of whether the district court abused its discretion in turn depends on whether the conduct of the prosecutor constitutes reversible error. Cf. United States v. Alloway, 397 F.2d 105, 113 (6th Cir.1968) (no abuse of discretion shown in denying motion for a mistrial where prosecutor's argument was not found to warrant reversal). In making this determination, we consider whether there was misconduct. If there was misconduct, we must determine whether the misconduct was harmless. See United States v. Bess, 593 F.2d 749, 756-57 (6th Cir.1979) (determining first that the conduct complained of, the prosecutor's statement of personal belief of the defendant's guilt, constituted error and then determining that such conduct constituted reversible error).

Thus, this Court must determine whether defendant's right to a fair trial was prejudiced by improper prosecutorial conduct. There are instances where a "single misstep" on the part of the prosecutor may be so destructive of the right to a fair trial that reversal is mandated. See Pierce v. United States, 86 F.2d 949 (6th Cir.1936). We realize that such instances may be rare, but we believe this case exemplifies a single misstep so destructive to defendant's right to a fair trial that it constitutes reversible error.

C.

1.

This Circuit has many times expressed itself fully on the issue of misconduct of government counsel in the prosecution of criminal cases. Our decisions in this area have recognized the standard of conduct imposed upon the prosecution of federal crimes as enunciated in Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). See, e.g., Bess, 593 F.2d at 756-57. In Berger, the Supreme Court considered an instance of prosecutorial misconduct involving both improper cross examination of witnesses and improper argument to the jury in a prosecution for conspiracy to utter counterfeit notes. Berger, 295 U.S. at 79-80, 55 S.Ct. at 629-30. The Supreme Court found that the prosecutor's conduct rose to the level of prejudicial misconduct because his argument to the jury was undignified and intemperate. The argument was found to have contained improper insinuations and assertions calculated to mislead the jury. Id. at 85, 55 S.Ct. at 632. Because the jury will normally place great confidence in the faithful execution of the obligations of a prosecuting attorney, improper insinuations or suggestions are apt to carry more weight against a defendant than such statements by witnesses. The Supreme Court stated the following in asserting that the conduct of government prosecutors must meet a high standard:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with vigor--indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Id. at 88-89, 55 S.Ct. at 633.

Thus, it is the duty of the prosecutor to advance the government's cause with force and persuasiveness....