                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-26-1996

USA v. Molina-Guevara
Precedential or Non-Precedential:

Docket 94-5754




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

Recommended Citation
"USA v. Molina-Guevara" (1996). 1996 Decisions. Paper 81.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/81


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                    UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT


                             N0. 94-5754


                       UNITED STATES OF AMERICA

                                 v.

                       ARLEATHEA MOLINA GUEVARA

                                 Arleathea Molina-Guevara,
                                 Appellant



           On Appeal From the United States District Court
                   For the District of New Jersey
                (D.C. Crim. Action No. 94-cr-00304-3)


                       Argued January 24, 1996

      BEFORE:   STAPLETON, MANSMANN and LEWIS, Circuit Judges

                  (Opinion Filed September 26, 1996)




                                                       Faith S. Hochberg
                                                       Kevin McNulty
                                                       Amanda Haines (Argued)
                                                       Office of the U.S.
Attorney
                                                       970 Broad Street
                                                       Room 502
                                                       Newark, NJ 07102
                                                       Attorneys for Appellee

                                                       Jeffrey A. Bronster
(Argued)
                                                       DeCotiis, Philips &
Lundsten
                                                       103 Eisenhower Parkway
                                                       Roseland, NJ 07068
                                                       Attorney for Appellant
                       OPINION OF THE COURT




STAPLETON, Circuit Judge:

         Arleathea Molina-Guevara was convicted of importing,
and conspiring to import, more than 500 grams of cocaine. She
was sentenced to 84 months' imprisonment. On appeal, she
challenges her conviction and sentence on several grounds, two of
which we find meritorious. We agree that the district court
abused its discretion by refusing to grant a mistrial after the
prosecutor, in summation, (1) asserted that a government agent,
if called to testify would have given inculpatory information
about the defendant, and (2) improperly vouched for the
credibility of two government witnesses. We will reverse the
judgment of conviction and remand for a new trial.

                                I.
         The evidence adduced at trial was almost entirely
testimonial. The government had two key witnesses: Erick Palma,
an alleged co-conspirator who had pled guilty and had agreed to
cooperate with the government, and Special Agent Miriam Lugo of
the United States Customs Service. Ms. Molina-Guevara ("the
defendant") testified on her own behalf, denying any knowledge of
or involvement in the alleged drug conspiracy, and called no
other witnesses. The jury's decision, accordingly, rested on its
determination of the credibility of the defendant and the two
government witnesses.
         Prosecution witness Erick Palma testified that he, the
defendant, and the defendant's husband, Franklin Guevara
("Frank"), agreed to smuggle cocaine into the United States from
Puerto Rico. Palma testified that, in June 1994, he went to the
Guevaras' apartment at the defendant's direction and that the
three conspirators spent the afternoon and evening planning the
details of the drug trip. According to Palma's testimony, Frank
gave Palma most of the instructions and had evidently
masterminded the plot. At some point during this meeting,
however, the defendant told Palma that the trip would be to
Aruba, rather than to Puerto Rico. She gave him his ticket and
brought him an atlas to show him Aruba's location.
         The next day, the defendant and Frank, who ran a taxi
company, drove Palma to the airport. Frank repeated the
instructions, and sent Palma on his way to Aruba. Palma returned
to Newark Airport three days later as planned, with seven pounds
of cocaine in plastic bags taped to his stomach and legs. Agents
of the United States Customs Service randomly selected Palma for
examination and discovered the drugs.
         The Customs agents questioned Palma, and he confessed
that Frank had sent him to Aruba. He admitted that he had made
two prior such trips to obtain drugs for Frank and the defendant.
Palma told the agents that Frank had given him a pager number to
call on his arrival.
         The agents arranged, with Palma's consent, to record
Palma's telephone conversations, and had Palma call the pager
number. The defendant placed the first two calls in response to
Palma's page, and Frank placed the last three. The conversations
between Palma and the defendant were primarily about Palma's lack
of money and inability to get a taxi to give him a ride. Palma
testified that he and the defendant made coded references to the
drugs during their conversation. Frank ultimately told Palma on
the telephone that he would send a cab to pick Palma up. It was
the defendant who arrived at the Newark airport to retrieve
Palma. At that point, Customs Agent Miriam Lugo and Customs
Investigator Peter Edge arrested the defendant, read her her
rights and questioned her.
         Agent Lugo, the lead Customs agent, testified that the
defendant lied at first during the interrogation, giving a false
name, insisting that she was a taxi driver hired by a man she
knew only as Frank to pick up a fare, and denying any knowledge
of Palma or the drugs. Lugo testified that, after she had
discovered that the defendant had no driver's license, much less
a taxicab license, the defendant tearfully confessed that her
husband was Frank Guevara, that Palma was smuggling drugs into
the country for Frank, and that Frank had sent the defendant to
get Palma because the authorities would be easier on her if she
were arrested.
         The defendant told Lugo where Frank would be waiting
for them, and Lugo went to arrest Frank. Lugo saw Frank, but he
managed to escape, and remains a fugitive today.
         Lugo testified that the defendant told her that there
was a plastic bin in the Guevaras' closet where Frank kept drugs.
A subsequent search of the apartment confirmed the presence of
the bin, but it was empty.
         Agent Edge did not testify at trial.
         The defendant's case was primarily based on her own
testimony, during which she denied having told Agent Lugo that
she knew anything about any drugs--in the bin, on Palma, or as
any part of her husband's affairs. The defendant admitted that
she initially had lied about her name during Agent Lugo's
interrogation, but she insisted that she was no more than a
driver, sent by Frank to pick someone up at the airport, with no
knowledge of any drugs.
         Defense counsel's strategy was to discredit the
government witnesses at every turn, to suggest why Palma and Lugo
had motivation or reason to lie or to provide inaccurate
testimony, and to encourage the jury to believe that the
defendant had been wrongly accused only because Frank--the true
target of the government's efforts and the clear leader of the
conspiracy--had escaped and remained a fugitive from justice.
         In her initial summation, government counsel stressed
that the existence of a conspiracy to smuggle drugs was
acknowledged by both sides, as was the fact that the defendant
came to the airport to pick up Palma, an act which would have had
the effect of facilitating the conspiracy. The sole issue, the
government stressed, was whether the defendant knew about the
drugs, an issue that required the jury to choose between the
testimony of Palma and Lugo and the testimony of the defendant.
Counsel attempted to anticipate the argument of her adversary:
              The defense counsel would have you
         believe that the government case is a pack of
         lies. That Erick Palma lied, that Agent Lugo
         lied, but, of course, the defendant, herself,
         is telling the truth.

                             * * *

         You must pick through the words, the ideas,
         the rhetoric and decide who is telling the
         truth and who is not.

                             * * *

              When you think about the testimony and
         do your job; namely, determine the truth,
         there is truth in Erick Palma's testimony
         which is full of details which ring with
         truth.

              You hear the truth in Miriam Lugo's
         testimony. Her testimony was corroborated by
         subsequent events and by the extent and
         detail.

                             * * *

         If Mr. Palma had wanted to make up a big
         story in order to please the government,
         don't you think he'll make up a little better
         story?

              Think about it. If he was lying,
         wouldn't he have said it was this defendant
         who masterminded the deal, that it was she
         who bought the ticket, that it was she who
         handed him the ticket at the airport, it was
         she and not her husband who give him
         directions, instructions what to do in Aruba?

              He was delivering the drugs to this
         woman and not her husband.

              He didn't say those things because he
         told you the truth. The truth is that this
         defendant was a participant. Not the only
         participant. Maybe not the mastermind of the
         conspiracy. But a participant, nevertheless.

              Now, Mr. Bronster [defense counsel] not
         only attacked the credibility of Erick Palma,
         but of Agent Lugo as well. In fact, because
         of the strength of Miss Lugo's testimony, he
         really had nowhere else to go.

                              * * *

              Do you really think this agent made up
         all these details? If not, do you think she
         would make up one tidbit or two and add it to
         an otherwise truthful report?

              Why would she do it? She has absolutely
         no reason to lie. In fact, it is insulting
         to think the United States would put on such
         a witness. Her memory of the events is
         unimpeachable.

App. at 24, 25, 25, 27-28, 28-29.
         The prediction of government counsel, of course, came
to pass. Defense counsel, in his closing, attacked the
credibility of both Palma and Lugo:
         Now, yes, I am going to be arguing to you
         that Erick Palma's testimony was a pack of
         lies. I don't have any great concern about
         doing that. It is -- a little tougher is
         what I'm going to have to talk to you about
         Agent Lugo. Because some of the things I say
         to you and are going to submit to you, yes,
         in fact, she does have some reason in this
         case to lie. It is hard almost to use the
         word.

              She's an agent of the United States
         Government. Frankly, no matter what else I
         have said about her or will say about her in
         this courtroom, I have a lot of respect for
         her and the job that she does. She does a
         job that, God knows, I know I wouldn't be
         able to do.

                              * * *

              But the fact is, ladies and gentlemen,
         when she comes into this courtroom, when she
         sits on that stand, she's as human as any one
         of us. We'll talk more in detail later.

               Maybe you'll find that she   hasn't
         intentionally lied to you about    something.
         Maybe she has erred. Maybe she     has stretched
         or maybe you're going to decide    that she has
         lied.

App. at 36, 37.
         Defense counsel's argument with respect to Palma was
straightforward:
              Erick Palma was a man with a lot of
         problems. He gets caught with five bags of
         cocaine strapped to his body. Where has he
         got to go? He's got to give some help to
         somebody or he's got no way to help himself.

              Frank Guevara is gone. He's gone.
         Palma can't get on the witness stand and
         testify against Frank Guevara because there
         is no trial. The only thing of value he has
         is to come in and point a finger at her. The
         only bargaining chip he has.

              What motive does he have to do it? You
         heard from his testimony that under the
         statutes he was charged with he was facing up
         to 40 years.

App. at 41.
         Defense counsel's attack on the credibility of Agent
Lugo was more sophisticated:
         Agent Lugo has a very, very difficult job
         that she does. She has a very frustrating
         job. She works and works and works, along
         with her fellow agents, to stop this garbage
         that comes into the country. And for every
         one they catch, God knows how many get away.
         You can understand and accept the level of
         frustration that someone in her position
         would have.

              Now, along comes this case. A great
         bust. A great bust. I mean that sincerely.
         They get this guy coming in at the airport,
         all the stuff strapped to his body, and they
         nail him.

              Then they go the next step. They use
         him to try to get to the person who's
         masterminding the deal. They turn it around.
         They got the information. They find out it
         is Frank Guevara. Now they've got him. Now
         they've got a really big bust. They traced
         it back to the source.

                             * * *

              They go to arrest him. They go upstairs
         and he's gone. He slipped out again. Twice.
         He's never been found.
              Ladies and gentlemen, I'm asking you to
         put yourselves in Agent Lugo's position. How
         would you feel? How would you feel? You're
         out on the street risking your life to catch
         people like this and he slips away?
         (Slapping jury box.)

              She's got a right to be angry.   She's
         got the right to be frustrated.

              Then, to make things worse, after they
         catch this guy with seven pounds of cocaine
         strapped to his body, he ends up sitting on
         the witness stand trying to get probation for
         himself.

              So the guy who is carrying the coke is
         playing his deal. The guy who is
         masterminding it is gone.

              What did he do? What did he do? Maybe
         by now, maybe with all the frustration, maybe
         because she wants so badly to see people
         punished for importing this garbage, maybe by
         now she even believes that Arleathea Molina
         told her that she met him. I don't know. If
         you find that easier to accept than to have
         to say to yourselves she's lying, that's
         fine. I don't care. As long as you realize
         she's human, too.

App. at 55-56, 57-58.
         Government counsel, in accordance with standard
practice, got the last word. She knew that Agent Lugo's
testimony was the linchpin of her case and was quick to spring to
her defense:
              Ladies and gentlemen, before I get into
         the main part of my rebuttal argument here,
         there is something I have to talk to you
         about up front. A statement that Mr.
         Bronster made that I feel that I have to
         bring to your attention right away.

              He got up here during his opening and
         then just now and said or gave reason for you
         to believe that this agent lied. That is
         ridiculous. This agent did not lie to you.
         I don't see any evidence anywhere in this
         case, and you shouldn't, either, that this
         agent fabricated evidence, that she added to
         her report.

                             * * *
         Did Mr. Bronster ask a single question to
         Mrs. Lugo about fabricating her notes? No.
         . . .

              Did Mr. Bronster call another agent who
         was in the room at the time Miss Guevara gave
         her statement?

              Of course, Mr. Bronster has absolutely
         no obligation to put on a case, to get up
         here and say a word. It is my obligation,
         the government's obligation, to prove beyond
         a reasonable doubt that this defendant
         committed these crimes.

              But he has the ability to call. He may
         call. Did he call the agent in the room with
         Miss Lugo and ask questions about whether
         this defendant talked about drugs? Asked
         questions about whether Miss Lugo way lying
         in her testimony?

                             * * *

              Ask yourself why Mr. Bronster didn't
         call the other agent who was in the room. If
         he called that other agent, he'd have to
         argue not only that Erick Palma lied and not
         only that the United States agent lied, but
         that another United States agent lied.

App. at 67, 68, 69.
         Defense counsel made appropriate objections to the
government's rebuttal argument and moved for a mistrial. His
applications were denied.

                               II.
         The district court had jurisdiction under 18 U.S.C.
§ 3231, and we have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742.
         We review a district court's decision not to grant a
mistrial on the grounds that the prosecutor made improper remarks
in closing argument for abuse of discretion, United States v.
Gambino, 926 F.2d 1355, 1365 (3d Cir.), cert. denied, 502 U.S.
956 (1991), and, if error is found, we apply harmless error
analysis. United States v. Zehrbach, 47 F.3d 1252, 1264-65 (3d
Cir.) (en banc), cert. denied, 115 S. Ct. 1699 (1995). The
standard that we apply in our harmless error analysis depends on
whether the error was of constitutional proportions. United
States v. Zehrbach, 47 F.3d at 1265. If we find constitutional
error, we may affirm only if the error is harmless beyond a
reasonable doubt. Chapman v. United States, 386 U.S. 18, 24
(1962). If the error does not involve a violation of a
constitutional right, we may affirm so long as there is a "high
probability" the error did not contribute to the conviction.
United States v. Jannotti, 729 F.2d 213, 219-20 (3d Cir.), cert.
denied, 469 U.S. 880 (1984).

                               III.
         The government chose not to call Agent Edge as a
witness. Prior to the rebuttal, the issue of whether the
defendant had admitted knowledge of the conspiracy after her
arrest could have been resolved by the jury only by assessing the
relative credibility of the defendant and Agent Lugo. In her
rebuttal, however, government counsel represented to the jury
that Agent Edge, if called as a witness, would have corroborated
the testimony of Agent Lugo. Thus, as defense counsel pointed
out in his objection, the prosecutor made a representation as "to
what some agent who [was] never called would have said." App. at
69. The defendant insists that this representation violated her
rights under the Sixth Amendment to confront the witnesses
against her. We agree. We also agree that this representation
and other comments of the prosecutor improperly vouched for the
truth of Agent Lugo's testimony. We are unable to agree with the
government that this prosecutorial misconduct was either harmless
or improperly invited.

                                A.
         The Confrontation Clause of the Sixth Amendment is
violated when a prosecutor informs the jury that there is a
witness who has not testified, but who, if he had testified,
would have given inculpatory evidence. Hutchins v. Wainwright,
715 F.2d 512 (11th Cir. 1983), cert. denied, 465 U.S. 1071
(1984). That is precisely what occurred here. Contrary to the
government's suggestion, this is not a situation in which a
prosecutor did no more than ask the jury to draw an inference
from the failure of the defense to call a witness who could be
expected to support the defendant's position if it were truthful.
See, e.g., United States v. Keller, 512 F.2d 182, 186 (3d Cir.
1975); United States v. Kenny, 462 F.2d 1205, 1228 (3d Cir.),
cert. denied, 409 U.S. 914 (1972). The absent witness here was a
government agent whose relevant knowledge would be known to the
prosecutor, and the jury was told what the testimony would be;
this was thus not a case in which the jury was merely asked to
infer, based on all the circumstances, that the defense was privy
to the same information and decided not to elicit the testimony
because it was unfavorable.
                                B.
         A prosecutor may not properly vouch for the credibility
of a government witness. See, e.g., United States v. DiLoreto,
888 F.2d 996, 998-99 (3d Cir. 1989); United States v. Beatty,
722 F.2d 1090, 1097 (3d Cir. 1983). As the Supreme Court noted
in United States v. Young, 470 U.S. 1, 18-19 (1985):
         The prosecutor's vouching for the credibility
         of witnesses and expressing his personal
         opinion concerning the guilt of the accused
         pose two dangers: such comments can convey
         the impression that evidence not presented to
         the jury, but known to the prosecutor,
         supports the charges against the defendant
         and can thus jeopardize the defendant's right
         to be tried solely on the basis of the
         evidence presented to the jury; and the
         prosecutor's opinion carries with it the
         imprimatur of the Government and may induce
         the jury to trust the Government's judgment
         rather than its own view of the evidence.
         In United States v. DiLoreto, we held to be improper
vouching the following statement by the prosecutor: "We [the
government] don't take liars. We don't put liars on the stand.
We don't do that." 888 F.2d at 999. As we there explained:
         The remarks [suggest] that the government, as
         a matter of policy in the prosecution of its
         cases, does not use liars as witnesses. No
         explanation was given, however, of how the
         government ascertains the honesty or veracity
         of its witnesses. Indeed, we have found
         nothing in the record upon which the
         prosecutor could have grounded his statement.
         There must then have been some other
         evidence, unknown or unavailable to the jury,
         which convinced the prosecutor that his
         witnesses were not liars. Obviously, the
         defendants were not confronted with this
         extraneous evidence and afforded cross-
         examination, nor was the jury given an
         opportunity to engage in its own evaluation.
         What the jury was led to do instead was
         merely to infer that other information
         existed which the government used to verify
         the credibility of its witnesses prior to
         introducing their testimonies at trial.

Id.
         In this case, the prosecutor, in addition to
representing that Edge's testimony would corroborate that of
Lugo, told the jury that it was "insulting" and "ridiculous" to
think that the United States would put on a witness who would lie
and assured the jury that "[A]gent [Lugo] did not lie to you."
App. at 29, 67, 67. We believe the combined effect was to
suggest that the prosecutor knew more than the jury had heard and
that it should be willing to trust the government's judgment. It
follows that the prosecutor's comments violated our rule against
vouching.

                                C.
         Because the prosecution engaged in a course of conduct
that violated the defendant's rights under the Sixth Amendment,
we cannot allow the judgment against her to stand unless we can
say that the improper comments were harmless beyond a reasonable
doubt.
         As we have noted, the crucial issue for decision in
this case was whether the defendant knew about the drugs. The
prosecution and the defense respectively tendered inculpatory and
exculpatory interpretations of the coded language on the
telephone surveillance tapes and reasonable minds could differ
regarding their significance. Since there was no other tangible
evidence relevant to this issue, this left the jury with the task
of deciding whether to believe Palma and Lugo or the defendant.
With respect to the former, the defense advanced and developed
plausible theories as to why each of these witnesses might have
misrepresented the facts, intentionally in the case of Palma and
intentionally or unintentionally in the case of Agent Lugo. In
this context, it is not possible to affirm beyond a reasonable
doubt that there was no prejudicial effect from the prosecutor's
invocation of the testimony of the absent and uncrossexamined
Agent Edge or from her assurance to the jury that government
witnesses don't lie. Accordingly, defendant's conviction cannot
stand.

                                D.
         The government invokes the doctrine of invited error.
As we explained in United States v. Pungitore, 910 F.2d 1084,
1126 (3d Cir. 1990), cert. denied, 500 U.S. 915 (1991):
         The doctrine [of invited error] teaches that
         where a prosecutorial argument has been made
         in reasonable response to improper attacks by
         defense counsel, the unfair prejudice flowing
         from the two arguments may balance each other
         out, thus obviating the need for a new trial.
         Young, 470 U.S. at 12-13, 105 S.Ct. at 1045.
         We have interpreted the doctrine to mean that
         a prosecutor may neutralize improper defense
         arguments but may not rely on them as a
         "springboard" for the launching of
         affirmative attacks upon the defendants.
(citation omitted).
         We find the doctrine of invited error inapplicable here
because we can find no fault with defense counsel's conduct. His
defense, and his summation in particular, can accurately be
described as vigorous advocacy entirely appropriate for a case
that turned on the jury's assessment of the credibility of the
witnesses.

                               IV.
         The defendant mounts a number of other attacks on her
conviction. Having decided to reverse and remand for a new trial
for the reasons we have already given, it is appropriate for us
to address only those issues that are likely to arise again
during the remainder of the proceedings.
         The defendant contends that the district court erred in
refusing to order production by the government of Agent Lugo's
handwritten notes of her interview with the defendant, notes from
which the agent's final report was prepared. As the government
conceded before us, production of these notes was required by
Federal Rule of Criminal Procedure 16. Whether or not this
violation was harmless is now a moot issue. On remand, the notes
will be produced.
         The defendant also insists that the district court
erred in denying her a suppression hearing pursuant to Massiah v.
United States, 377 U.S. 201 (1964). In Massiah, the Supreme
Court held that the defendant's Sixth Amendment right to counsel
had been violated when incriminating statements were used by the
government at trial which it had deliberately elicited after the
defendant's indictment and in the absence of his counsel. Id. at
206-07. We find Massiah inapplicable here.
         The defendant and Palma exchanged eight letters while
both were in prison. As the defendant testified at trial, she
initiated the exchange because she believed Palma would testify
against her and she wanted to see if she could get information
that could be used to discredit him at trial. One of Palma's
letters was written after he had signed his cooperation agreement
with the government. The defense secured the admission of these
letters and elicited testimony regarding them during the defense.
It argued that the letters indicated Palma was testifying against
the defendant because she had rejected his sexual advances.
Having thus affirmatively used the letters, we conclude that the
defendant is not entitled to a hearing to determine whether they
should be suppressed.
                                V.
         We will reverse the judgment of the district court and
remand for a new trial.
