UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 98-4117

ROBINSON MONTANO-HEREDIA,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CR-95-221-A)

Submitted: November 3, 1998

Decided: December 1, 1998

Before WIDENER, MURNAGHAN, and MICHAEL,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Michael William Lieberman, Alexandria, Virginia, for Appellant.
Helen F. Fahey, United States Attorney, Patrick E. Deconcini, Assis-
tant United States Attorney, Thomas E. Booth, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Following a mistrial, a second jury convicted Appellant Robinson
Montano-Heredia of conspiracy to distribute and to possess with
intent to distribute cocaine hydrochloride and heroin, in violation of
21 U.S.C. §§ 841(a)(1), 846 (1994).1 The district court sentenced
Montano-Heredia to serve 121 months' imprisonment to be followed
by five years of supervised release. Montano-Heredia alleges various
instances of prosecutorial misconduct and contends the court abused
its discretion in denying his motion for a new trial. Finding no revers-
ible error, we affirm.

In reviewing a claim of prosecutorial misconduct, we must deter-
mine whether the conduct "so infected the trial with unfairness as to
make the resulting conviction a denial of due process."2 The test for
reversible prosecutorial misconduct generally has two components:
(1) that the prosecutor's remarks or conduct must in fact have been
improper and (2) that such remarks or conduct must have prejudi-
cially affected Montano-Heredia's substantial rights so as to deprive
him of a fair trial.3 We find that Montano-Heredia's claims fail in
light of these criteria.

With one exception, Montano-Heredia timely objected to the pros-
ecutor's remarks. For those remarks, we review the district court's
denial of the motion for new trial for abuse of discretion.4 After care-
fully considering Montano-Heredia's allegations of misconduct aris-
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1 Over defense objection, the court declared a mistrial after Montano-
Heredia's first trial because of a hung jury.
2 United States v. Morsley, 64 F.3d 907, 913 (4th Cir. 1995) (citations
and internal quotation marks omitted).
3 See United States v. Mitchell , 1 F.3d 235, 240 (4th Cir. 1993).
4 See United States v. Campbell , 977 F.2d 854, 860 (4th Cir. 1992).

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ing from the prosecutor's trial tactics, we find that the district court
did not abuse its discretion in denying the motion.

The evidence at trial demonstrated that between 1994 and 1995,
Montano-Heredia acted as a courier, delivering drugs and or money
in a cocaine trafficking organization headed by alleged co-conspirator
Alberto Espinoza. Other members of the organization, including
Espinoza, testified that Montano-Heredia was a knowing participant
in the illegal activities. In his defense, Montano-Heredia testified that
he was employed as a cook in Espinoza's restaurant. Although
Montano-Heredia acknowledged he carried cash and suitcases for
Espinoza when traveling either with Espinoza or on Espinoza's
behalf, he denied any knowledge of Espinoza's drug trafficking activ-
ities or that his trips were drug-related.

During its case-in-chief, the prosecutor asked Margaret Everett, a
case agent with the Drug Enforcement Agency, if Montano-Heredia
was ever seen in possession of cocaine. Everett responded affirma-
tively. Upon defense counsel's objection to this question and its
response, the court inquired whether Everett had personally seen
Montano-Heredia in possession of the drugs. When Everett answered
that she had not, the court sustained the objection, admonished the
prosecutor in open court, and instructed the jury to disregard that
information.

Further, while examining Paul Thaete, a local police officer
involved in the Espinoza investigation, the prosecutor began to ask a
question based on Thaete's training and experience. 5 Montano-
Heredia objected to this line of questioning because the Government
failed to comply with the court's pre-trial order denying its untimely
request to declare Thaete an expert witness, as he had been in the first
trial. Because the court's order permitted the Government to question
Thaete on any matter to which he testified during the first trial, the
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5 As part of his investigation, Thaete conducted surveillance of a hotel
room and observed Montano-Heredia and Espinoza accept delivery of
twenty kilograms of cocaine and retreat to Montano-Heredia's room in
the hotel. Thaete later observed Montano-Heredia, Espinoza, and others
leave the hotel with Montano-Heredia in possession of a suitcase which
was later seized and discovered to contain ten kilograms of cocaine.

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court excused the jury and held a bench conference to determine
whether Thaete had previously testified on the subject of the Govern-
ment's questions. Concluding that the question called for an expert
opinion, the court sustained the objection.

Montano-Heredia asserts that his right to a fair trial was prejudiced
by the prosecutor's examination of Everett and Thaete. We disagree.
Although the prosecutor's questions may have elicited inadmissible
evidence, the court sustained Montano-Heredia's objections to the
improper questions, promptly instructed the jury to disregard those
questions and their responses, and at one point, openly admonished
the prosecutor. We conclude that the court took appropriate and suffi-
cient steps in response to the prosecutor's improper questions and that
the court acted within its discretion in denying the motion for a new
trial.6

Montano-Heredia also claims he was entitled to a new trial based
upon the prosecutor's alleged misconduct during its rebuttal closing
argument. In his closing argument, defense counsel asserted that
Thaete had no idea what happened in the hotel room in which the
Government contended that, in Montano-Heredia's presence, the
cocaine was divided between two suitcases. Counsel argued that
Thaete tried to deceive the jury and urged them not to allow him to
"get away with it." In rebuttal, the prosecutor, calling the jury's atten-
tion to defense counsel's objections during Thaete's testimony,
argued that Thaete "had a strong suspicion of what was going on in
that hotel room when that cocaine first went in there. And he wanted
to tell you, defense counsel didn't want him to, though."

Montano-Heredia contends these comments constituted an imper-
missible argument that defense counsel was somehow trying to hide
the truth. The court sustained defense counsel's objection to the pros-
ecutor's argument and instructed the jury on their duty to consider
only admissible evidence, specifically adding that arguments of coun-
sel were not evidence. Again, we find that the court's curative instruc-
tions eliminated any possible prejudice.7
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6 See United States v. Harrison , 716 F.2d 1050, 1053 (4th Cir. 1983).

7 See Harrison, 716 F.2d at 1053.

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Lastly, Montano-Heredia points to the prosecutor's objecting dur-
ing the defense's opening statement as improper conduct.8 Because
counsel did not object at trial, we review this remark for plain error.9
Montano-Heredia does not establish how he was prejudiced by the
prosecutor's objection, asserting only that it demonstrates the prose-
cutor's attitude to win at all costs. We find no plain error in the
court's denying Montano-Heredia's motion for a new trial on this
basis.

Finding no abuse of the court's discretion in denying Montano-
Heredia's motion for a new trial, we affirm Montano-Heredia's con-
viction. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.

AFFIRMED
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8 The prosecutor objected after defense counsel told the jury he was
uncertain whether the Government would call an alleged co-conspirator
as a witness.
9 See United States v. Olano, 507 U.S. 725, 731 (1993).

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