United States v. Curet
670 F.3d 296
1st Cir.2011Background
- Gomes was convicted in October 2008 on one count of conspiracy to distribute cocaine base and two distribution/aid-and-abet counts under 21 U.S.C. § 846 and § 2, related to crack cocaine transactions with Alex Curet.
- The government's theory: Gomes acted as driver and lookout for Curet in two drug sales, one on September 25, 2007, and another on October 3, 2007, with a cooperating witness (CW) handling and transferring crack cocaine.
- In the September sale, the CW wore hidden recording equipment, the exchange occurred in a car Gomes drove, and Gomes was videotaped in the driver's seat; defense claimed Gomes merely provided a ride and sought parking.
- In the October sale, the CW drove the car with hidden cameras; Fitzgerald testified Gomes left a car Gomes drove, spoke with the CW, and shielded the sale from view; surveillance indicated Gomes monitored the transaction.
- Gomes did not testify; his defense sought to impeach Fitzgerald with an expert witness (Richard Egan) who questioned Fitzgerald's view; the government presented a strong case tying Gomes to the scene and the surveillance conduct.
- The jury found Gomes guilty on all counts and the district court sentenced him to 78 months; Gomes appealed alleging improper prosecutorial vouching during cross-examination and closing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the cross-examination of Egan vouching the witness | Gomes argues the prosecutor vouched for Fitzgerald by implying credibility. | Gomes contends the questions framed as explaining basis to doubt Fitzgerald amounted to vouching. | Not vouching; questions were interrogative, not the prosecutor's personal belief. |
| Whether unpreserved closing remarks constituted plain error | Gomes asserts the closing's vouching statement was error despite no prior objection. | Gomes argues the remarks improperly vouched for the government's witness and affected the outcome. | Harmless error; the strong evidence against Gomes and lack of private knowledge claims reduce impact. |
| Whether the rebuttal closing's asserted opinion amounted to improper vouching | Gomes claims the prosecutor expressed personal belief about Fitzgerald and Gomes's guilt. | Gomes argues the statement conveyed private knowledge and credibility unfit for jurors. | Not plain error; the context did not imply the prosecutor had private knowledge, and any potential harm was limited. |
Key Cases Cited
- Castro-Davis, United States v., 612 F.3d 53 (1st Cir. 2010) (prosecutor vouching requires personal belief or urging jury to credit government's evidence)
- Perez-Ruiz, United States v., 353 F.3d 1 (1st Cir. 2003) (prosecutor cannot impart personal belief about witness credibility)
- Santana-Pérez, United States v., 619 F.3d 117 (1st Cir. 2010) (prosecutor vouching considerations and limitations on impeachment context)
- Gentles, United States v., 619 F.3d 75 (1st Cir. 2010) (prohibition on personal credibility appeals by prosecutor)
- Flores-De-Jesús, United States v., 569 F.3d 8 (1st Cir. 2009) (vouching considerations in First Circuit)
- Olano, United States v., 507 U.S. 725 (U.S. 1993) (plain error standard for unpreserved issues)
- Manning, United States v., 23 F.3d 570 (1st Cir. 1994) (assessing risk of harm from government coloration of testimony)
- Thiongo, United States v., 344 F.3d 55 (1st Cir. 2003) (distinguishing questions from improper vouching)