     Case: 09-40967 Document: 00511291931 Page: 1 Date Filed: 11/12/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         November 12, 2010

                                       No. 09-40967                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,
v.

BOBBY CASWELL PITTMAN,

                                                   Defendant-Appellant.




           Appeal from the United States United States District Court
                        for the Southern District of Texas
                           USDC No. 2:09-CR-375-ALL


Before DeMOSS, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       This case, in which Defendant-Appellant Bobby Caswell Pittman appeals
his conviction after a jury trial on two counts of smuggling aliens in violation of
8 U.S.C. § 1324(a)(1)(A)(ii) & (1)(B)(ii), involves a determination of plain error
where the government, contrary to established law, engaged in improper cross-
examination and improper rebuttal closing argument. Because we find that the
evidence of Defendant-Appellant’s guilt is overwhelming, we find that



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 09-40967

Defendant-Appellant’s rights were not substantially affected by the prosecutor’s
errors, and accordingly we affirm the judgment of the district court.
      On or about April 22, 2009, around 10:00 p.m. Defendant-Appellant Bobby
Caswell Pittman was stopped at the primary inspection lane of the United
States Border Patrol checkpoint in Falfurrias, Texas, and Border Patrol agents
found five illegal aliens inside the otherwise empty trailer of his truck. Agent
Eduardo E. Ybarra then arrested Pittman and found approximately $4,103 in
cash folded in his front shirt pocket. Pittman waived his rights under Miranda
v. Arizona, 384 U.S. 436 (1966), and signed a form stating that he understood his
rights and agreed to discuss what happened, though he refused to make a
written statement. According to the trial testimony of Agent Ybarra, Agent
Romualdo Barrera, and Agent Rodolfo Hernandez, Pittman confessed to
agreeing to transport five aliens to Victoria, Texas, at a rate of $700 per person.
Pittman, in his alleged confession, explained that a man approached him at the
Academy Sports (“Academy”) store truck lot and offered him payment in return
for his transporting five illegal aliens. Pittman accepted the offer and allowed
the aliens to enter the trailer. Pittman then secured the trailer doors and placed
a seal on them.
      Two of the five undocumented aliens found in the trailer testified at trial
that smugglers had delivered them to the Academy store and loaded them into
the trailer. They also stated that they had not understood the post-arrest
statements that they signed and that the Border Patrol agents had enticed them
to sign the statements regardless. Donald Walker, a loss prevention manager
from Academy’s corporate office, also testified at trial and explained that
Academy employees, not the truck drivers, load the returns and place the seal
on the trailer doors, as the truck drivers are not supposed to have any seals, and
moreover, Academy employees never place seals on empty trailers.



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                                  No. 09-40967

      Pittman testified in his own defense and denied having agreed to transport
the aliens and denied having confessed as much to the Border Patrol agents.
Pittman instead testified that when the smuggler approached him, requesting
that he transport aliens, he refused and entered the Academy store to escape the
smuggler. Upon Pittman’s return, the smuggler reiterated his offer, which
Pittman again rejected. Pittman then spot-checked the trailer, retrieved an
extra seal that he knew was inside the trailer, shut the trailer doors, and put the
seal on the trailer to prevent the smuggler from tampering with the trailer.
Pittman explained that he carried $4,103 because he had planned to buy a car
in Wharton, Texas, that morning, but had later discovered that the car was
already sold.
      On cross-examination the prosecutor asked Pittman if the agents had lied
about each of the facts to which they testified that contradicted Pittman’s
testimony and asked Pittman a total of five times whether the agents were lying.
Pittman refused to say that the agents were lying, and instead explained that
the agents “got some things mixed up” perhaps because the checkpoint was busy
that night. During rebuttal closing argument, the prosecutor stated:
     [T]he defense here is that everybody’s lying. Everybody in the world is in
     a grand conspiracy and they’re all liars, except Mr. Pittman. He’s the one
     truthful person. All the law enforcement officers, even that material
     witness, even people from Mexico, everybody’s lying. Liars, liars, liars.
     Me, I’m the honest person. Now I’m the honest person. It’s a grand
     conspiracy.
The prosecutor then posited:
      Why should you believe the officers are lying? I don’t know. Why would
      they lie? Risk their careers, commit perjury, for what? A big bonus? A
      raise? No. They’re just doing their job. They don’t get anything out of it.
      What reward do they get for helping us out? They get to come in here and
      be called liars. Isn’t that a great deal?

      The jury found Pittman guilty on both counts, and the district court
sentenced him to a 48-month prison term. Pittman timely filed a notice of

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                                   No. 09-40967

appeal.   Pittman contends that during cross-examination the prosecutor
improperly questioned him about whether government witnesses lied in their
testimony, and that during rebuttal closing argument the prosecutor improperly
bolstered government witnesses’ testimony and improperly asked the jury to
enforce the law to protect community values, and that these missteps together
resulted in an unfair trial that warrants reversal of his conviction and remand
for a new trial.
      Because Pittman did not object to the prosecutor’s remarks at trial, this
court reviews for plain error. Under our plain error standard Pittman can
prevail only if he can show that the prosecutor’s remarks amounted to (1) an
error, (2) that was clear or obvious, and (3) that affected Pittman’s substantial
rights.   See United States v. Olano, 507 U.S. 725, 732-37 (1993).              “The
determinative question in our inquiry is ‘whether the prosecutor’s remarks cast
serious doubt on the correctness of the jury’s verdict.’”          United States v.
Thompson, 482 F.3d 781, 785 (5th Cir. 2007) (quoting United States v.
Virgen-Moreno, 265 F.3d 276, 290 (5th Cir. 2001)). “In answering this question,
we consider ‘(1) the magnitude of the prejudicial effect of the prosecutor’s
remarks, (2) the efficacy of any cautionary instruction by the judge, and (3) the
strength of the evidence supporting the conviction.’” Id. (quoting United States
v. Guidry, 456 F.3d 493, 505 (5th Cir. 2006) (internal citation omitted)). Even
if a defendant-appellant shows substantial error, “we still would have discretion
to decide whether to reverse, which we generally will not do unless the plain
error seriously affected the fairness, integrity, or public reputation of the judicial
proceeding.” United States v. Gracia, 522 F.3d 597, 600 (5th Cir. 2008).
      This court has repeatedly held that a prosecutor’s questioning a defendant-
appellant about the veracity of the government’s witnesses is “inappropriate,”
United States v. Williams, 343 F.3d 423, 437-38 (5th Cir. 2003), and the
government concedes that the prosecutor’s questioning of Pittman during

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                                        No. 09-40967

cross-examination regarding whether Border Patrol agents were lying
constituted clear or obvious error. Appellee Br. at 20.
       This court has also often found that telling jurors that in order for them
to believe a witness they would have to believe in a government conspiracy is
error that is clear and obvious. See Gracia, 522 F.3d at 601-02 (deeming clear
and obvious error a prosecutor’s opining that in order to believe the defendant,
the jury would necessarily have to believe in a government conspiracy); United
States v. Herrera, 531 F.2d 788, 790 (5th Cir. 1976) (finding objectionable
prosecutor’s statement that to believe the defendant’s theory the jury had to find
that the government’s witnesses and the prosecutor conspired with each other).
Additionally, we have condemned a prosecutor’s reliance on the authority of the
federal government to bolster a government witness in closing argument and
have found that it is plain error. See Gracia, 522 F.3d at 601 (“A prosecutor may
argue fair inferences from the evidence that a witness has no motive to lie, but
cannot express a personal opinion on the credibility of witnesses.”); United States
v. Gallardo-Trapero, 185 F.3d 307, 320 (5th Cir. 1999) (holding it is “pernicious”
for a prosecutor to rely on the authority of the federal government to “‘impart an
implicit stamp of believability to what the prosecutor says’”) (quoting United
States v. Goff, 847 F.2d 149, 163 (5th Cir. 1988)). It is clear that both of these
improprieties occurred in this case.1 The prosecutor improperly bolstered the
Border Patrol agents’ credibility and relied on facts outside of the record when
he argued that the defense theory required the jury to find “a grand conspiracy”


       1
         Pittman also argues that the prosecutor’s statement that “[a]lien smuggling laws are
no good if we don’t have people like you to enforce it,” and exhorting the jury to “do the right
thing,” improperly requested that the jury enforce the law to protect community values, rather
than decide the facts. In this circuit, however, “[i]t is well-settled that, unless the prosecutor
intended to inflame, ‘an appeal to the jury to act as the conscience of the community is not
impermissible.’” United States v. Ruiz, 987 F.2d 243, 249 (5th Cir. 1993) (citation omitted).
As there is no indication that the comments were designed to inflame the jury, we do not find
the prosecutor’s statements regarding the role of the jury to be clear or obvious error.

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                                   No. 09-40967

and that the Border Patrol agents should be believed because they “were just
doing their job” and had no reason to lie.
      We are unconvinced by the government’s argument that the prosecutor’s
comments were proper because they drew reasonable inferences from the
testimony and properly responded to defense counsel’s closing argument “theme”
that the agents were lying.      First, there was no evidence to support the
prosecutor’s assertion that the government’s witnesses were “just doing their
job,” his suggestion that they had no reason to risk their careers and lie, or his
remark that the only way that the jury could believe Pittman was to find that
there was a governmental conspiracy against him.            Next, a prosecutor is
permitted to present arguments in response to the defense’s closing and may
even bolster the credibility of witnesses, but only if done specifically to rebut
assertions by defense counsel. See United States v. Thomas, 12 F.3d 1350, 1367
(5th Cir. 1994). The prosecutor’s response must be weighed against defense
counsel’s statement and must be of appropriate scale. See United States v.
Ramirez-Velasquez, 322 F.3d 868, 874-75; United States v. Taylor, 210 F.3d 311,
318-19 (5th Cir. 2000) (finding that even though defense counsel suggested that
government witnesses committed perjury, the prosecutor erred by arguing
beyond mere rebuttal of that argument). Defense counsel took great care in his
closing argument to say that “Mr. Pittman does not want to call the agents
liars,” and instead asked the jurors to conclude that the agents made “a huge
mistake,” though soon afterward, according to the transcript, he said that the
agents were “lying.” Given defense counsel’s care in his closing argument in
explaining that officials were mistaken, not lying, a single later mention that the
officials lied on the report was not sufficiently egregious to permit the prosecutor
to respond by going outside of the evidence to bolster the agents’ credibility by
explaining that they were “just doing their job,” insinuating that they had no
reason to risk their careers and lie, and that to believe Pittman the jury would

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                                  No. 09-40967

have to believe there was a conspiracy. At most, defense counsel made a single
reference to the agents lying; it was not the theme of the closing, which focused
on asking the jury to believe Pittman’s story. As such, the prosecutor went too
far in rebutting defense counsel’s closing argument. The statements that the
prosecutor made during closing argument bolstering the credibility of
government witnesses amounted to clear error.
      Ameliorating the government’s improper argument and cross-
examination and their resultant prejudice is the fact that the district court
instructed the jury that the lawyers’ questions and arguments were not
evidence, and told the jury that it was the jury’s responsibility to determine
the credibility of witnesses. Juries are presumed to follow the court’s
instructions, and there was no indication here that this jury did not. See
Gracia, 522 F.3d at 604 (explaining that generalized jury instructions served,
“if only moderately, to reduce the degree of prejudice” resulting from the
prosecutor’s improper remarks).
      Were this a close case, the jury instruction itself would not be sufficient
to reverse the prejudicial effect of the prosecutorial misconduct. However, the
jury instruction, combined most importantly with the overwhelming evidence
against Pittman, convinces us that the error did not affect Pittman’s
substantial rights. Where there are “numerous witnesses, pieces of evidence,
and issues placed before the jury,” this court has declined to “say that the
prosecutor’s statements overshadowed what had come before and unduly
prejudiced the Appellants’ case.” Gallardo-Trapero, 185 F.3d at 320-321.
Where the government’s evidence of the defendant’s guilt is strong, a
prosecutor’s improper remarks regarding witness credibility do not amount to
a substantial violation of the defendant’s right to a fair trial. See United
States v. Fields, 483 F.3d 313, 360 (5th Cir. 2007).



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                                 No. 09-40967

      In this case, even without the contested issue of Pittman’s confession,
there was substantial and compelling evidence of Pittman’s guilt. First, there
was no dispute that Pittman transported the five illegal immigrants in his
truck. Next, the Border Patrol agents seized $4,103 in cash from Pittman’s
pocket, and the smuggling of the five aliens would have earned him $3,500,
thus he had an unusually large amount of cash that corresponded with a sum
he would have earned by smuggling the aliens. Pittman admitted that he put
a seal on a trailer that did not contain any merchandise from Academy, which
violated Academy’s policy that only Academy employees put seals on trailers
and only if the trailers contain merchandise. Additionally, statements in
Pittman’s own testimony were inconsistent with his not knowing there were
people in his trailer. Pittman testified that he “spot checked the trailer” and
did not notice anyone inside, explaining, he “didn’t get inside the trailer with
a flashlight on, because it was getting dark,” yet he had obviously
contemplated the possibility that the smuggler would put the aliens in the
trailer without his permission as he testified that he put the seal on the
trailer so that he would be able to “see if somebody tamper[ed] with that
truck” and “know, you know, hey, somebody’s in the truck.” R. at 295.
Moreover, though it was night, Pittman testified that a portion of the trailer
was lit because the nearby loading dock had lights. After the smuggler asked
Pittman to transport the aliens, Pittman purportedly went shopping for bike
parts for his daughter, though he had already been waiting at the Academy
store for nearly two hours. Additionally, the smuggler’s behavior of putting
the aliens into the trailer without Pittman’s knowledge would have been
irrational as the smuggler would likely have no way of getting paid (one alien
testified he had not paid the smuggler for his services at all and the other had
made only partial payment) as he did not know where Pittman was headed
with the trailer. More problematically, the trailer did not open from the

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                                  No. 09-40967

inside, and thus the aliens would have no way of getting out of the trailer
once the trailer arrived at Pittman’s final destination.
      In light of this evidence, this case does not present a situation like that
in Gracia where, “absent the jury’s crediting of the agents’ testimony, [the
defendant-appellant] could not have been found guilty beyond a reasonable
doubt on the paucity of other evidence.” Gracia, 522 F.3d at 604 (explaining
that other than the improperly bolstered testimony from government agents
there was no significant evidence against the defendant). Here, as in United
States v. Ramirez-Velasquez, substantial evidence of guilt in the form of
inconsistencies in the defendant’s testimony and circumstantial evidence
warrant affirming the conviction. 322 F.3d at 875.
      For the aforementioned reasons, the judgment of the district court is
AFFIRMED.




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