
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2103        No. 92-2136                         JUAN ARRIETA-AGRESSOT, REGULO RIOS,                   JOSE ANTONIO BARROSO, ADALBERTO AGUILAR-EPIEYU,                             ADALBERTO MONCARIS-BERMODEZ,                              and DIEGO CALDAS-GONZALEZ,                               Plaintiffs, Appellants,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________        No. 92-2207                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                              ADALBERTO AGUILAR-EPIEYU,                                Defendant, Appellant.                                 ____________________        No. 92-2208                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                              ALBERTO MONCARIS-BERMODEZ,                                Defendant, Appellant.                                 ____________________        No. 92-2209                              UNITED STATES OF AMERICA,                                       Appellee,                                          v.                                JOSE ANTONIO-BARROSO,                                Defendant, Appellant.                                 ____________________        No. 92-2210                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                     REGULO RIOS,                                Defendant, Appellant.                                 ____________________        No. 92-2211                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                JUAN ARRIETA-AGRESSOT,                                Defendant, Appellant.                                 ____________________        No. 93-1946                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                DIEGO CALDAS-GONZALEZ,                                Defendant, Appellant.                                 ___________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                     [Hon. Carmen C. Cerezo, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Rafael  F.   Castro-Lang,  by  Appointment   of  the  Court,   for            ________________________        appellants Adalberto Aguilar-Epieyu and Juan Arrieta-Agressot.            Frank  D.  Inserni, by  Appointment of  the Court,  for appellants            __________________        Jose Antonio Barroso, Regulo Rios and Diego Caldas-Gonzalez.            Joseph C.  Laws, Jr., by Appointment  of the  Court, for appellant            ____________________        Adalberto Moncaris-Bermodez.            Ramon Garcia, by Appointment of the  Court, on brief for appellant            ____________        Regulo Rios.            Jeffrey M.  Williams,  by  Appointment  of the  Court,  Javier  A.            ____________________                                    __________        Morales  Ramos and  Indiano, Williams  & Weinstein-Bacal on  brief for        ______________      ____________________________________        appellant Juan Arrieta-Agressot.            Yolanda  A.  Collazo Rodriguez,  by Appointment  of the  Court, on            ______________________________        brief for appellant Diego Caldas-Gonzalez.            Carlos  A. Perez-Irizarry, Assistant  United States Attorney, with            _________________________  _________________________________        whom  Charles E.  Fitzwilliam, United  States  Attorney,  and Jose  A.              _______________________                                 ________        Quiles  Espinosa, Senior  Litigation Counsel,  were on  brief for  the        ________________        United States.                                 ____________________                                  September 8, 1993                                 ____________________                 BOUDIN, Circuit  Judge.  The six appellants in this case                         ______________            were  convicted  in  the district  court  in  Puerto Rico  of            possession of  marijuana with  intent to distribute  while on            board  a vessel  subject to  the jurisdiction  of the  United            States.    46 U.S.C.  App.    1903(a).   The  prosecutor made            inflammatory  remarks to the jury, and we cannot say that the            evidence made conviction inevitable.  We therefore vacate the            convictions and remand for further proceedings.1                 Appellants were  crew members  aboard  a fishing  vessel            named  the Jurango  Kiss, which  was intercepted by  the U.S.                       _____________            Navy and  accompanying U.S.  Coast Guard personnel  about 100            miles  off the  coast of  Colombia and  found to  be carrying            approximately 11,885 pounds of marijuana.  The government had            no direct evidence that  the crew members knowingly possessed            the marijuana with  intent to distribute, and  the success of            its case lay in persuading the jury beyond a reasonable doubt            that  the crew members must  have had the necessary knowledge            and  intent.  This task  was complicated by  the testimony of            Pedro Silvio  Croes-Vincente, the captain of  the vessel, who            was tried and convicted  along with the crew members  but has            not appealed.  Croes-Vincente testified that the crew members            came aboard the Jurango  Kiss just before the voyage  and did                            _____________            not know of the illicit cargo.                                             ____________________            1.  The appeals  from the  convictions are Nos.  92-2207, 92-            2208, 92-2209, 92-2210, 92-2211,  and 93-1946.  The remaining            appeals,  relating to the  petitions under  28 U.S.C.    2255            (Nos. 92-2103 and 92-2136), are dismissed as moot.                                         -4-                 Throughout his closing argument the prosecutor urged the            jury to  view this case as a battle in the war against drugs,            and the  defendants as  enemy soldiers.   During  his initial            closing remarks the prosecutor told the jury:                  When  the captain  .  .  .  and  the  rest  of  the                 defendants  departed  Colombia they  knew  what was                 inside  the boat.  They knew that the boat was full                 with bales  of marijuana,  and they had  no concern                 for  the youth.  They had no concern for the people                 that would  have used the  marijuana.  They  had no                 concern  for  the  people  that   would  have  been                 addicted by the use of marijuana.            In  his rebuttal  argument  the prosecutor  returned to  this            theme:    Nobody has the right to poison the people                      and poison our children.   I can tell you                      that I don't have an issue with that; but                      I know  the pain,  the suffering that  is                      brought into many families by the  use of                      drugs, by  the use  of marijuana,  by the                      addiction to marijuana.                 And  you know that.   You know that  that is a real                 problem.   And we are here today because we want to                 say no  to drugs.   We want  to say no  to what  is                 corrupting  and  disrupting  the  society,  because                 marijuana  not  only   disrupts  and  corrupts  our                 society  but  it  also  corrupts  and  disrupts any                 society in the world.            Later in his rebuttal, the government's lawyer continued:                  But thank God at  that time we had the  Coast Guard                 on board the [U.S.S.] SIMMS  . . . .    Because not                 only  they  are  [sic]  protecting  us;  they   are                 protecting  the  people,  they are  protecting  the                 youth, they are protecting other societies.                 That is why, ladies and gentlemen of the jury, they                 were in  the drug  interdiction.   To save  you all                 from the evil of drugs.  Because the defendants are                 not  soldiers  in  the  army  of  good.   They  are                 soldiers in  the army  of evil, in  the army  which                 only  purpose [sic]  is to  poison, to  disrupt, to                 corrupt.                                         -5-                                         -5-                 We think it is  crystal clear that inflammatory language            of  this ilk  falls well  outside  the bounds  of permissible            argument.  In United States v. Machor, 879 F.2d 945, 955 (1st                          _____________    ______            Cir.  1989),  cert. denied,  493  U.S. 1081,  1094  (1990), a                          ____  ______            prosecuting attorney in Puerto Rico  told the jury during his            closing statement that "[cocaine]  is poisoning our community            and our kids die because of this."  In United  States v. Doe,                                                   ______________    ___            860 F.2d 488,  494 (1st  Cir. 1988), cert.  denied, 490  U.S.                                                 ____   ______            1049 (1989), a prosecutor  from that same district argued  to            the jury that  marijuana is  "poison that  is destroying  our            children in our  schools [and]  is bringing an  end [to]  our            youth  .  . .  ."    In both  cases  we  sharply rebuked  the            prosecutor for making these  comments, because they "serve no            purpose other than 'to inflame the passions and prejudices of            the jury, and to  interject issues broader than the  guilt or            innocence of the accused.'"  Machor, 879 F.2d at 956 (quoting                                         ______            Doe, 860 F.2d at 494).2              ___                 Once again, we affirm  our view that such arguments  are            plainly improper.   It is  hard enough for  a jury to  remain            dispassionate and  objective amidst the tensions  and turmoil            of  a  criminal  trial, and  this  is  not  the occasion  for                                            ____________________            2.  We went on to hold  in Machor and Doe that  the comments,                                       ______     ___            though "totally unjustified," Doe,  860 F.2d at 495, did  not                                          ___            warrant reversal  because the evidence against the defendants            was  "very  strong,"     Machor,   895  F.2d   at  956,   and                                     ______            "overwhelming,"  Doe, 860 F.2d at 495,  and because in Machor                             ___                                   ______            the  remarks were  made in  rebuttal  to similar  comments by            defense counsel.                                           -6-                                         -6-            superheated  rhetoric  from the  government urging  jurors to            enlist in the war on  drugs.  The Seventh Circuit  appears to            have  approved references  to "society's  drug problem"  in a            prosecutor's  argument, although  milder in tone  and briefer            than  the remarks here.   See United States  v. Ferguson, 935                                      ___ _____________     ________            F.2d 1518, 1530-31 (7th Cir. 1991).  Still, it is remarkable,            in  light of Machor, Doe and a  slew of other recent cases in                         ______  ___            this  circuit,3 that  the  government defends  as proper  its            closing argument in this case.  However,  defense counsel  in            this  case  failed  to  object  to any  of  the  prosecutor's            remarks.  Courts of appeals are reluctant to entertain claims            of  error absent  timely  objections at  trial.   Most  trial            judges are leary of sua sponte interventions,  so the failure                                __________            to object usually precludes a curative instruction, a warning            about further  remarks, or some  form of amelioration.   And,            allowing  such  claims to  be raised  for  the first  time on            appeal may encourage strategic  decisions by trial counsel to            remain  mute in  the face  of error,  reserving an  issue for            appeal in the event of conviction.                                             ____________________            3.  E.g.,  United States v.  Moreno, 991  F.2d 943,  947 (1st                ____   _____________     ______            Cir. 1993) (reference in  closing argument to "protecting the            community  that  has  been  plagued  by  violence,  senseless            violence,  shootings and killings"  was "patently improper");            United  States v. Rodriguez-Cardona,  924 F.2d  1148, 1153-54            ______________    _________________            (1st Cir.) (improper reference  to "deadly trade of narcotics            trafficking"  and to  appellant's "evilness"),  cert. denied,                                                            ____  ______            112 S. Ct. 54 (1991).                                         -7-                                         -7-                 For these reasons, we will reverse a conviction where no            objection was  made at trial only  in the rare  case in which            the mistake rises to the level of "plain error."  See Fed. R.                                                              ___            Crim. P. 52(b);  Machor, 879 F.2d  at 955.   Most errors  are                             ______            plain  after  the event,  and the  phrase  is something  of a            misnomer:       "[t]he    plain-error   exception    to   the            contemporaneous-objection  rule is  to  be  'used  sparingly,            solely  in  those circumstances  in  which  a miscarriage  of            justice would  otherwise result.'"   United States  v. Young,                                                 _____________     _____            470  U.S. 1, 15 (1985)  (quoting United States  v. Frady, 456                                             _____________     _____            U.S.  152, 163 n.14 (1982)).  Reversal is appropriate only if            the  illegitimate argument  "so  poisoned the  well that  the            trial's  outcome  was likely  affected."    United States  v.                                                        _____________            Mejia-Lozano, 829 F.2d 268, 274 (1st Cir. 1987).              ____________                 In making  this post hoc  judgment, a crucial  factor is                                 ________            the weight  of  the  evidence of  the  defendants'  guilt  or            innocence.   See United  States v. Santana-Camacho,  833 F.2d                         ___ ______________    _______________            371,  373-74 (1st Cir. 1987).  We do  not in such a case take            the evidence in the light most favorable to the government or            assume that  credibility issues  were resolved in  its favor.            The jury  may well have  decided the issues  in favor of  the            government, but  that jury decision may itself  be tainted by            the improper remarks.  Thus we will look at the evidence as a            whole  and, despite the lack of objection, we will reverse if                                         -8-                                         -8-            the  error is manifest and  if there is  a substantial chance            that absent the error the jury would have acquitted.                  In this  case, a reasonable  jury could on  the evidence            offered have found the crew guilty beyond a reasonable doubt,            but there was  also evidence that made  acquittal a realistic            possibility.    At  trial,  the  government  proved  that  on            December 7,  1987,  the  U.S.S.  Simms  was  conducting  drug                                             _____            interdiction patrols  in the  Caribbean Sea when  it detected            the Jurango Kiss about 12 miles away, approximately 100 miles                ____________            north of Colombia.  A helicopter reported that the vessel was            fashioned  to look like a fishing ship but had no outriggers,            nets or fishing poles; that it did not display a registration            number; and that it was headed northbound toward the  passage            between the Dominican Republic and Puerto Rico.                 As the helicopter pilot  approached the Jurango Kiss for                                                         ____________            the second  time, he saw numerous  burlap- or plastic-wrapped            bales floating in  the water and, when  he got closer to  the            ship, saw a man  on the deck  throwing bales overboard.   The            pilot  also observed  that  the ship  had completely  changed            course  and was now  heading south.   After a  short time the            Simms   came   alongside   the  Jurango   Kiss   and,   after            _____                           ______________            unsuccessfully attempting radio  contact, a  small crew  from                                         -9-                                         -9-            the Simms boarded the suspect vessel  and ordered the captain                _____            and his seven crewmen to congregate on the upper deck.4                   The  captain of the Jurango Kiss claimed not to know the                                     ____________            vessel's country of  registry and was  unable to produce  any            documentation.  A protective sweep of the vessel revealed 146            bales containing a green leafy substance, most of  which were            stacked in plain  view below deck  in the ship's  compartment            and a  few of which were  on the deck.   Another 17 identical            bales were found floating  in the sea and brought  aboard the            Simms.   A field test  of samples of  the bales' contents was            _____            positive  for  marijuana.    Members of  the  boarding  party            described  the Jurango  Kiss as  dilapidated  and practically                           _____________            unseaworthy,  carrying little  by  way of  food or  clothing,            having sleeping quarters for only two persons and smelling of            marijuana.                  After  the  government  rested,  the  defendants  called            Croes-Vincente,  the  captain  of  the  Jurango  Kiss.    The                                                    _____________            captain, virtually  conceding his  own knowledge of  the drug            smuggling  operation,  told the  jury that  his crew  was not            involved.   He testified that six of his crewmen were brought            to the vessel shortly  before it departed by "the  people who            were running the  show."   The seventh was  recruited from  a            fishing vessel that  happened to  be in the  vicinity of  the                                            ____________________            4.  One  of the crew members pleaded guilty, leaving only the            captain and the six appellants to stand trial.                                         -10-                                         -10-            Jurango  Kiss on the morning of  its departure.  The crew did            _____________            not participate in  loading the  cargo, and did  not see  the            cargo  or even go below deck until after the vessel departed.            Croes-Vincente testified that the crewmen were never told the            nature  of   the  voyage,   and  explained  that   they  were            intentionally kept in the  dark "so they cannot talk  if they            get busted."                   Despite this testimony, the government's  evidence would            have been sufficient to  support a verdict of guilty  against            the crew  members in a trial  free from error.   A jury might            reasonably choose to  disbelieve the white-wash  testimony of            Croes-Vincente,  and infer  from the  circumstances  that the            crew  members  must have  known  of and  participated  in the            smuggling.  But  what a reasonable jury might have  done in a            trial free from  error is not  the issue.   The question,  at            least on direct appeal,  is whether the prosecutor's repeated            appeals  to  impermissible  considerations  might  well  have            altered   the   verdict,   thereby    affecting   appellants'            substantial rights.  In  this case, given the potency  of the            misstatements   and  the   presence  of   direct  exculpatory            testimony, we think that the answer is yes.                 In  arguing to  the contrary,  the government  says that            given  the  conspicuous stacks  of  bales  and the  smell  of            marijuana, anyone aboard must  have known that drug smuggling            was the task at hand.  But this evidence was  tempered by the                                         -11-                                         -11-            captain's testimony  that the crewmen were  hired and brought            aboard "the  moment that the boat was ready to leave" and had            no opportunity to view the cargo or inspect the ship prior to            setting sail.   The government also  stresses the jettisoning            of the cargo, but  the captain testified that he  ordered the            men  to  throw  the  bales  overboard  and  they were  merely            following his command.   In weighing the captain's testimony,            the  jury might also  have considered that  the testimony was            against the captain's own interest.5                   On occasion, we have declined to  find plain error where            the  prosecutor's  remarks  were  provoked   by  inflammatory            arguments by defendants' own counsel.  E.g., Machor, 879 F.2d                                                   ____  ______            at  956.  By and  large, defense counsels'  arguments in this            case  were brief  and confined  to legitimate  issues in  the            case.  Defendants' counsel did intimate during trial that the            Navy  and Coast Guard intimidated  the defendants with a show            of  weaponry and military force.   While that  theme may have            justified   the  prosecutor's   defense  of   the  government            officers, it did not  warrant his repeated references  to the            war  on  drugs, corruption  of  society  and "protecting  the            youth."  See Santana-Camacho, 833  F.2d at 375 (finding plain                     ___ _______________                                            ____________________            5.  By testifying  as he did the  captain certainly forfeited            the  benefit of any doubt  the jury might  have had regarding            his own participation.   The captain's sole defense  at trial            was that the  Jurango Kiss was  not a "vessel subject  to the                          ____________            jurisdiction  of the United  States," which is  an element of            the crime charged.  46 U.S.C. App.   1903(a).                                         -12-                                         -12-            error where prosecutor's remark "was not  made in response to            any improper statement made by the defense counsel").                   The district  court here read  the standard  instruction            informing  the  jury  that   arguments  of  counsel  are  not            evidence, and we have sometimes found that instruction enough            to  counteract  any  lingering  prejudice  from  an  improper            summation.   See, e.g., Mejia-Lozano, 829 F.2d at 274.  Here,                         ___  ____  ____________            however,  the  danger was  not so  much  that the  jury would            consider  the  prosecutor's  statements  to  be "evidence."              Rather, the  threat was  that the prosecutor's  remarks would            excite the jury, invite a partisan response, and distract its            attention  from the  only  issue properly  presented by  this                                 ____            case:  whether the  evidence  established  the crew  members'            guilt beyond a reasonable doubt.                 Although the  extent of  the prejudice is  the paramount            issue, we think  it necessary to say  that the nature  of the            misconduct also plays  a part  in our judgment.   Almost  any            argument made  in summation  can be described  as deliberate;            but the several paragraphs of 150-proof rhetoric in this case            overstep the bounds by  a wide margin.  Here,  the prosecutor            was inexperienced at the  time of trial, as he  candidly told            us at oral argument, and we  do not dwell further on personal            fault.  In fact, the  unhappy outcome in this case--including            the  expense of retrial, the waste of the trial court's time,            and the burden on  the appellants--is less a reproach  to the                                         -13-                                         -13-            individual  assistant  U.S.   attorney  than  to  those   who            superintend young prosecutors in the district in question.                 In sum, on review of the entire record, we are convinced            that  "the  prosecutor's   misstatement[s]  [were]  no   mere            incidental  embellishment  to  an  otherwise  powerful case."            Santana-Camacho,  833  F.2d  at  374.    Here,  the case  was            _______________            adequate but  not overwhelming,  and the  jury may have  been            swayed by the prosecutor's  impermissible rhetoric.  There is            ample basis for the  prosecutor's view that the drug  problem            facing  this  country  is  "corrupting  and  disrupting   the            society."   But  federal  prosecuting attorneys  ought to  be            mindful of the harm done when those in power ignore the rules            governing their own conduct while demanding strict compliance            from others.                   The convictions  are vacated and the  cases remanded for                                      _______                ________            further proceedings.                                         -14-                                         -14-
