United States v. Serrano, 74-1135.

• Decision Date: 27 June 1974
• Docket Number: No. 74-1135.,74-1135.
• Citation: 496 F.2d 81
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ralph SERRANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

496 F.2d 81 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Ralph SERRANO, Defendant-Appellant.

No. 74-1135.

United States Court of Appeals, Fifth Circuit.

June 27, 1974.

Paul P. Rao, Jr., New York City, for defendant-appellant.

Robert W. Rust, U.S. Atty., Miami, Fla., Mark S. Geraghty, Trial Atty., U. S. Dept. of Justice, Crim. Div., Narcotic & Dangerous Drug Section, Washington, D.C., for plaintiff-appellee.

Before GOLDBERG, GODBOLD and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

Serrano was convicted at a jury trial of conspiring to import heroin, in violation of 21 U.S.C. § 963. Serrano alleges in his appeal that four errors occurred at his trial: (1) that the circumstantial evidence of the conspiracy charged was insufficient for a conviction; (2) that the proof at trial materially varied from the charges in the indictment; (3) that the prosecutor made improper statements in his summation to the jury, which comments were plain error, and (4) that the government failed to disclose fully and timely an alleged agreement with an unindicted co-conspirator concerning that conspirator's testimony at trial, to the defendant's prejudice. After a careful review of the trial record and study of opposing briefs, this court finds that the first, second and fourth allegations of error on the part of the defendant-appellant are without merit. The prosecutor's summation, however, is found to have been improper and for that reason this case is reversed and remanded to the district court for a new trial.

The boundaries of propriety as to what can and cannot be included in a closing summation by a government prosecutor are very clearly drawn in this circuit. In United States v. Brown, 451 F.2d 1231 (1971), we considered this statement by a prosecutor:

"However, I would like to add that the attitude of Mr. Wilder on this assignment — the fact that he had never been in the Jacksonville area before; he never knew Mr. Hayes or Mr. Brown before he arrived here; the chances that he took, in the sense of being an undercover agent — he had no interest in this case, other than doing his job. And I personally feel he did a real good job. I feel that he was doing his duty to his country, and to the organization of which he was a member — and he was doing it to the best of his ability, and it was successful, in my opinion." (Emphasis supplied). Id. at 1235-1236.

Considering the above statement, the court, in Brown, made a clear inunciation of the law to be applied. Judge Tuttle stated:

. . . it is contended by the United States that this was harmless error and it should be overlooked. This court has passed too many times on this kind of comment by prosecutors to permit it to continue by allowing it to be brushed under the rug under the harmless error doctrine. See Gradsky v. United States, 5 Cir., 373 F.2d 706; Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321; McMillian v. United States, 363 F.2d 165 (5th Cir. 1966); Dunn v. United States, 307 F.2d 883 (5th Cir. 1962) and Steele v. United States, 222 F.2d 628 (5th Cir. 1955).

There is absolutely no justification for the reference to the danger undertaken by Wilder for working as

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