                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      January 10, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,
                                                         No. 05-2121
 v.                                                 (D.C. No. CR-04-852 )
                                                          (D .N.M .)
 A LEJA N D RO ESPIN O ZA ,

          Defendant - Appellant.



                              OR D ER AND JUDGM ENT *


Before KELLY, EBEL, and HO LM ES, Circuit Judges.




      Defendant-Appellant Alejandro Espinoza challenges his conviction for

conspiracy to possess with intent to distribute methamphetamine in violation of

21 U.S.C. § 846. After a jury trial, M r. Espinoza was convicted and sentenced to

240 m onths imprisonment to be followed by five years supervised release. On

appeal, M r. Espinoza challenges his conviction on four grounds: (1) the district

court abused its discretion in refusing to reopen the case so that M r. Espinoza

could present additional evidence, (2) the government violated M r. Espinoza’s


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Fifth Amendment rights by eliciting testimony about his decision to remain silent

after arrest, (3) the district court abused its discretion in denying M r. Espinoza’s

motion for a mistrial based on certain comments made by the government during

an objection, and (4) the cumulative errors made during trial require reversal for a

new trial. W e have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.



                                     Background

      During December 2003 and January 2004, Grant County, New M exico

deputies set up two controlled methamphetamine purchases from Debra James.

M s. James was arrested and agreed to cooperate with law enforcement. M s.

James told deputies that her supplier was “M iguel M anzo,” a man whom deputies

later learned was actually M r. Espinoza. Deputies then recorded a series of

telephone conversations betw een M s. James and M r. Espinoza in which the two

discussed methamphetamine sales and the proceeds from those sales. Eventually,

M s. James set up a meeting with M r. Espinoza in order to deliver money to him

that she owed from a previous methamphetamine purchase. W hen M r. Espinoza

arrived to pick up the money, deputies arrested him.

      At trial, M s. James testified that she had purchased methamphetamine from

M r. Espinoza for her personal use beginning in September 2003. M s. James

testified that she eventually allowed M r. Espinoza to store methamphetamine at

her house and that she ultimately began delivering methamphetamine for M r.

                                          -2-
Espinoza. M s. James testified that she also received money from a street-level

methamphetamine distributor named “Johnny,” which she deposited into a bank

account controlled by M r. Espinoza. M s. James testified that M r. Espinoza

supplied her with the methamphetamine that she sold to the deputies.

      During the cross-examination of M s. James, M r. Espinoza’s counsel asked

whether M r. Espinoza drove a 1999 Dodge Durango pickup. The prosecutor

objected stating: “Defendant is trying to elicit testimony that should come from

the defendant through this witness.” Aplt. Br., tab 2, at 177. W hen the district

court asked counsel the point of the question, counsel explained that he sought to

show that M r. Espinoza had sold the truck and had a lot of money from the sale.

The prosecutor then reiterated: “Exactly, Your Honor. That is testimony from the

defendant, if he chooses to testify, not to testify for the defendant through the

testimony of this witness.” Id. The district court overruled the government’s

objection.

      The government later called another witness, Drug Enforcement

Administration Agent Jacinto Flores. Agent Flores testified that when M r.

Espinoza was arrested, he possessed two driver’s licenses–one bearing the name

Alejandro Espinoza and another bearing the name M iguel M anzo. Agent Flores

also testified that shortly after the arrest, he advised M r. Espinoza that it would be

in his best interest to cooperate. The prosecutor then asked, “A nd what was his

response to that question?” Aplt. Br., tab 3, at 184. Agent Flores answ ered: “H is

                                          -3-
response to me was that I sounded like those detectives in the last case he had in

California, and he still wound up being screwed. He said he wanted a law yer this

time.” Id. Defense counsel did not object at this point.

      After the government rested, M r. Espinoza moved for a mistrial alleging

prosecutorial misconduct based on the comments made by the prosecutor

follow ing the objection made during M s. James’s cross-examination and also

based on Agent Flores’s reference to M r. Espinoza’s prior conviction. M r.

Espinoza argued the objection improperly commented on a prior case in which he

was involved. The district court denied the motion.

      Subsequently, based on representations by defense counsel, the district

court announced that M r. Espinoza had decided not to call any witnesses. The

district court’s announcement prompted an outburst by M r. Espinoza: “You’re

going to give me life without the possibility of parole, and you’re not going to

allow my side to be heard.” Aplt. Br., tab 5, at 217. The district court then

excused the jury and reprimanded M r. Espinoza. The district court then recessed

to allow M r. Espinoza to consult with defense counsel. W hen court reconvened,

defense counsel stated that he may have erred in failing to call Officer Larry

Lutonsky as a witness. Defense counsel asked leave to call Officer Lutonsky. In

support of this request, defense counsel stated:

      W ell, I believe from the Discovery that my client pointed out to me
      today that there was marijuana found in the house w hen–in D ebra
      James’ house after it was searched. And I believe this witness is the

                                     -4-
       witness who took that marijuana into–into evidence; that I believe
       Debra James said on the witness stand that there was no marijuana in
       the house.

Id. at 225.

       The government objected to the motion to reopen, describing M r.

Espinoza’s outburst as “tactical” because even if M r. Espinoza felt he could not

voice his objections through counsel, he could have leveled his complaint well

before the jury entered the courtroom. Id. The government also noted that

ample discovery had been provided to counsel. The district court denied the

motion to reopen, stating that extending the trial would disrupt its calendar. The

district court also suggested that Officer Lutonsky’s testimony would only have

limited impeachment value. The district court also agreed that M r. Espinoza’s

outburst appeared to be calculated.

       During closing rebuttal, the prosecutor remarked:

       There is absolutely no evidence, whatsoever, that the [defendant] or
       Debra James was dealing in marijuana or cocaine. As a matter of
       fact, the only time those words were ever uttered in this trial came
       out of the mouth of M r. W right [defense counsel], and nobody else.
       And you are warned–I mean, instructed what the lawyers say,
       including myself, is not testimony, it’s just argument and shouldn’t
       be considered to [sic] you as fact.

II R. Supp. at 31.

       Following the government’s rebuttal, the district court instructed the jury

that “[t]he law does not require the defendant to prove his innocence or produce

any evidence at all, and no inference, whatever, may be drawn from the election

                                         -5-
of the defendant not to testify.” Id. at 7. The district court further instructed: “I

have ordered stricken from the record the testimony of Agent Flores regarding

the conversation he had with the defendant, after the defendant’s arrest, about the

defendant’s prior involvement with the authorities in California. Don’t consider

any testimony or other evidence which has been stricken in reaching your

decision.” Id. at 4.

      M r. Espinoza was subsequently convicted.



                                      Discussion

I.    The M otion to Reopen

      W e review the denial of a motion to reopen the evidence for abuse of

discretion. M orsey v. Chevron USA, Inc., 94 F.3d 1470, 1477 (10th Cir. 1996).

A district court abuses its discretion only if its decision is “arbitrary, capricious,

whimsical, or manifestly unreasonable.” United States v. Atencio, 435 F.3d

1222, 1236 (10th C ir. 2006). Even if a district court abuses its discretion, we

will not reverse if the error is harmless. United States v. Turner, 285 F.3d 909,

914 (10th Cir. 2002).

      As we noted in United States v. M ontgomery, 620 F.2d 753, 757 (10th Cir.

1980), the “trial court has some interest in seeing that justice is done and in

seeing that all the facts are presented.” Against this backdrop, we find

instructive those factors the Third Circuit has relied upon in deciding whether a

                                          -6-
district court abuses its discretion in denying a motion to reopen the evidence.

United States v. Coward, 296 F.3d 176 (3d Cir. 2002). In Coward, the court

considered the following factors: (1) the timeliness of the motion, (2) the

character of the testimony, (3) the effect of granting the motion, (4) the

reasonableness of the excuse for failing to present the evidence prior to resting,

and (5) whether belated receipt of the evidence would mark it with distorted

importance, prejudice the other party’s case, or preclude the other party from

adequately addressing it. Id. at 181. Application of these factors in the instant

case demonstrates that the district court did not abuse its discretion.

      First, although the motion was made shortly after the district court

announced that the defense had concluded its case, the timing of the motion was

suspect because M r. Espinoza was present in court when his counsel informed

the court that he did not expect to call any witnesses. Aplt. Br., tab 4, at 189.

Thus, M r. Espinoza could not have been totally surprised when his counsel rested

the following day without calling any witnesses.

      Second, the character of the testimony to be offered by Officer Lutonsky at

best w as cumulative, as well as collateral, impeachment evidence, which would

ordinarily be inadmissible under Fed. R. Evid. 608(b). At trial, M r. Espinoza’s

counsel stated that the purpose of Officer Lutonsky’s testimony was to impeach

M s. James, who had testified that no marijuana had been found when the police

searched her house. Aplt. Br., tab 5, at 224, III R. at 164. W hile M r. Espinoza’s

                                         -7-
appellate counsel argues that Officer Lutonsky’s testimony was “substantive”

and supported M r. Espinoza’s theory that he only supplied M s. James w ith

marijuana and not methamphetamine, this purpose was not advanced before the

trial court. M r. Espinoza’s counsel tried to develop such a theory in the cross-

examination of M s. James but was unable to do so. III R. at 162, 178-79.

      M r. Espinoza’s trial counsel extensively cross-examined and impeached

M s. James on numerous points. These included: (1) that she stood to receive

significant benefits from her cooperation with the government, (2) that she had

admitted prior marijuana and methamphetamine use, (3) that she had multiple

suppliers of methamphetamine, albeit for personal use, (4) that she was

terminated by her employer for violating company policies, and (5) that she

failed to inform the police about methamphetamine later found in her home.

Allowing Officer Lutonsky to testify would have simply added another point of

impeachment among many.

      Third, reopening the trial would have delayed the proceedings and

disrupted the district court’s already busy calendar. M r. Espinoza requested a

weekend continuance so he could locate Officer Lutonsky. This would have

delayed closing arguments and jury instruction from Friday, January 21, 2005 to

M onday, January 24, 2005. It would have also disrupted another trial the district

court was set to begin the following week.

      Fourth, it appears that trial counsel was aware of the nature of Officer

                                         -8-
Lutonsky’s probable testimony given discovery prior to trial. Aplt. Br., tab 5, at

225. Thus, it appears that defense counsel made a reasonable tactical choice to

forego this evidence until his client suggested otherw ise at the close of the trial.

Such a deliberate choice is not a sufficient excuse for failing to offer testimony

prior to the close of evidence.

      Finally, we do not think that the late receipt of this evidence would have

prejudiced the government or prevented the government from addressing it, or

that the jury would have placed undue importance on it.

      Because most factors militate against reopening the evidence, we conclude

that the district court did not abuse its discretion. Our conclusion in this case

does not mean, however, that district courts should view motions to reopen with

skepticism. To the contrary, when the burden is not significant, and assuming

the admissibility of the proposed evidence, prudence suggests that district courts

should lean towards granting motions to reopen so that the parties have a full

opportunity to be heard.

II.   The Testimony About M r. Espinoza’s Right to Remain Silent

      M r. Espinoza argues that the government violated his Fifth Amendment

rights when Agent Flores testified about M r. Espinoza’s decision to remain silent

immediately after his arrest. W e generally apply harmless error review when the

government improperly references a defendant’s decision to exercise his Fifth

Amendment rights. See United States v. Lauder, 409 F.3d 1254, 1261 (10th Cir.

                                          -9-
2005). However, when a defendant fails to offer a contemporaneous objection to

such an impermissible comment, we review for plain error. United States v.

Toro-Pelaez, 107 F.3d 819, 826-27 (10th Cir. 1997). Under the plain error

standard, a defendant must show: (1) that the district court committed error, (2)

that the error was plain, (3) that the error affected his substantial rights, and (4)

that the error “seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” United States v. Gonzales-Huerta, 403 F.3d 727, 732

(10th Cir. 2005) (en banc). To show that an error affected substantial rights, a

defendant must typically demonstrate that the outcome of the proceedings was

affected. Id.

      In this case, M r. Espinoza failed to object to Agent Flores’s testimony on

the basis that the testimony violated his Fifth Amendment rights, so our review is

for plain error. The government concedes that the first two prongs of the plain

error standard are met because, under established law, “once a defendant invokes

his right to remain silent, it is impermissible for the prosecution to refer to any

Fifth Amendment rights which defendant exercised.” Lauder, 409 F.3d at 1261.

The government strenuously argues, however, that M r. Espinoza cannot show

that Agent Flores’s statement affected his substantial rights.

      In determining whether an error affects substantial rights, we apply the

same factors considered in harmless error analysis, except that the burden falls to

the defendant. See U nited States v. Olano, 507 U.S. 725, 734 (1993). Thus, w e

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must consider:

      (1) the use to which the prosecution puts the silence, (2) who elected
      to pursue the line of questioning, (3) the quantum of other evidence
      indicative of guilt, (4) the intensity and frequency of the reference,
      and (5) the availability to the trial judge of an opportunity to grant a
      motion for mistrial or to give curative instructions.

Lauder, 409 F.3d at 1261.

      As to the first factor, it is not clear that the government put Agent Flores’s

statement to much use at all. Agent Flores was called principally to testify

regarding M r. Espinoza’s use of the alias “M iguel M anzo” and his possession of

two different driver’s licenses. This testimony was important to the

government’s case because M s. James said she knew M r. Espinoza as “M iguel

M anzo.” W hile counsel for the government did ask the question that prompted

Agent Flores’s testimony regarding M r. Espinoza’s decision to remain silent, it

does not appear that the government tried to use the testimony as substantive

evidence of guilt.

      Furthermore, we are convinced from our review of the briefs and record,

that a significant quantity of other evidence indicated M r. Espinoza’s guilt,

including the testimony of M s. James, recorded phone conversations between M r.

Espinoza and M s. James, bank records of cash deposits into M r. Espinoza’s bank

account, and the fact that M r. Espinoza was arrested at a prearranged meeting to

collect a drug debt. This evidence, without the implication created by Agent

Flores’s testimony, was more than enough for a reasonable jury to convict M r.

                                        - 11 -
Espinoza and surely dictated the outcome of the case.

       Additionally, the reference to M r. Espinoza’s choice to remain silent was a

singular incident which was not repeated nor subsequently commented upon by

the prosecution. And, the district court struck this portion of A gent Flores’s

testimony from the record sua sponte, ordering the jury to disregard it. W e

presume the jury followed this instruction. See United States v. Cherry, 433

F.3d 698, 702 (10th Cir. 2005). For these various reasons, we conclude that M r.

Espinoza has failed to show Agent Flores’s testimony affected his substantial

rights. Accordingly, M r. Espinoza has failed to satisfy the plain error standard.

III.   The M otion for M istrial

       W e review the district court’s denial of M r. Espinoza’s motion for a

mistrial based on prosecutorial misconduct for abuse of discretion. United States

v. Caballero, 277 F.3d 1235, 1242 (10th Cir. 2002). A district court “may

appropriately grant a mistrial only when a defendant’s right to a fair and

impartial trial has been impaired . . . .” Id. 1 W e affirm the district court because

we find there was no prosecutorial misconduct.




       1
          M r. Espinoza argues that our review should be de novo because the
district court denied the motion for a mistrial because of an error of law –namely
that it mischaracterized defense counsel’s failure to object as invited error. Aplt.
Br. at 32. Based on the record, it appears the district court rejected the motion for
mistrial because the government engaged in no misconduct. Aplt. Br., tab 5, at
204-05. Regardless, because we conclude there was no misconduct on the part of
the government, w e w ould affirm under either standard of review.

                                         - 12 -
      M r. Espinoza argues that counsel for the government engaged in

misconduct because, during an objection, he “said essentially that counsel was

attempting to obtain testimony from the witness that should come from the

defendant,” and that “[t]his was a comment on M r. Espinoza’s right not to testify

[that] violated his Fifth Amendment rights.” Aplt. Br. at 30. In determining

whether a prosecutor’s remarks are in fact a comment on a defendant’s right not

to testify, we ask “whether the language used by the prosecution was manifestly

intended or was of such 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.

Nelson, 450 F.3d 1201, 1213 (10th Cir. 2006). “[M ]anifest intent will not be

found if some other explanation for the prosecutor’s remark is equally plausible.”

Id. Additionally, “[t]he question is not whether the jury possibly or even

probably would view the remark in this manner, but whether the jury

necessarily would have done so.” Id.

      In this case, there is no evidence that the prosecutor “manifestly intended”

to comment on M r. Espinoza’s failure to testify. The prosecutor’s remarks came

during a colorable objection to questions posed by defense counsel. It is quite

plausible, if not probable, that the prosecutor made the comments because he was

objecting to a perceived attempt by defense counsel to introduce impermissible

hearsay evidence. Indeed, although it overruled the prosecutor’s objection, the

district court ordered M s. James to answer only those questions to which she

                                        - 13 -
possessed personal knowledge. This isolated statement made during an objection

simply is not misconduct. 2

IV.    The Cumulative Effect of the “Errors”

       M r. Espinoza also argues that there is cumulative error requiring reversal.

Cumulative error analysis “aggregates all the errors that individually have been

found to be harmless, and therefore not reversible, and it analyzes w hether their

cumulative effect on the outcome of the trial is such that collectively they can no

longer be determined to be harmless.” United States v. Apperson, 441 F.3d

1162, 1210 (10th Cir. 2006). Given that we have found only one error in this

case (A gent Flores’s testimony about M r. Espinoza’s decision to remain silent)

we will not reverse on grounds of cumulative error. See W orkman v. M ullin,

342 F.3d 1100, 1116 (10th Cir. 2003) (noting that cumulative error analysis

requires at least tw o errors).

       A FFIR ME D.

                                       Entered for the Court

                                       Paul J. Kelly, Jr.
                                       Circuit Judge




       2
         Even if the prosecutor’s comm ents were misconduct, they did not affect
the fairness of the proceedings. The district court gave an adequate instruction on
M r. Espinoza’s right to remain silent, the remarks were extremely limited, and
they played little role in the case as a whole. See United States v. Gabaldon, 91
F.3d 91, 95 (10th Cir. 1996).

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