*1 America, STATES UNITED
Plaintiff-Appellee, TORRES, Defendant-Appellant.
No. 85-2046. Appeals, States Court Circuit.
Seventh 14, 1987.
Argued Jan. 15, 1987.
Decided Jan.
430 Torres,
The accompanied defendant Garcia, Antonio advised Fernandez that his home, gun still but he would return shortly. According with it to Torres’ later agent,1 confession to an ATF after Torres and away Fernandez, Garcia walked they (Fer- discussed “how could rob Parenti, Chicago, 111., Philip plain- C. for nandez).” When Torres and Garcia re- tiff-appellee. Fernandez, turned to Torres informed Fer- nandez gun that he had the now with him Castillo, (U.S. Atty. U.S. Ruben Asst. but hesitated to consummate the sale for Valukas), Office, Atty., Atty’s U.S. Anton police he feared the nearby. Torres 111., defendant-appellant. Chicago, for convinced Fernandez drive around the
corner to a place more secluded and to time, remain in his car. At this Fernandez requested gun Torres to hand over the allow him inspect it. CUDAHY, COFFEY, Before and Fernandez Torres followed and Garcia
FLAUM, Judges. Circuit around the parked corner and Torres his motorcycle approximately fifty feet from COFFEY, Judge. Circuit Fernandez’s car. While Torres remained appeals Israel Torres his conviction be- cycle, near his Garcia and a third man Shadur, fore the Honorable Milton I. Unit- approached Fernandez.2 The other man ed for States District Court the Northern pulled Fernandez, gun a held it Illinois, Division, District of Eastern for head, his and ordered Fernandez turn robbery, aiding conspiracy, and abetting over his money. ripped Antonio Garcia and conversion of property. gold chains and medallions from Fernan- We affirm. neck, grabbed dez’s and $255 U.S.
government funds that Fernandez had in
pocket.
his
As the ATF surveillance team
arrived, Antonio
and
Garcia
the man hold-
The defendant Torres was convicted for
ing
fled on foot. Torres was ar-
his alleged participation in
robbery
of a
rested
sitting
while
on his motorbike.
government agent of the Bureau of Alco-
charged
Torres was
and
hol,
indicted
with
(“ATF”),
Tobacco and Firearms
Eduar-
conspiracy to
Fernandez,
rob Fernandez of
do
United
during
which occurred
property,
States’
in violation of
meeting
18
agent
had
U.S.C.
arranged with
2112;
robbery
Fernandez,
and
purpose
Torres for the
purchasing
§§
violation
(Torres)
(hold-
of 18
U.S.C.
and
handgun.
.357
At the meeting
§
“to
§
ing an aider
look
and
princi-
Fernandez
on a
abettor liable as a
over”
street corner in
pal);
Chicago,
converting
July
Illinois on
$255.00
States’
Torres
funds,
observed
wearing
violation of 18 U.S.C.
gold
Fernandez
§§
641;
gold medallions,
deadly
chains and
weapon
assault with a
believed
viola-
carrying
111;
large
using
Fernandez was
tion of 18
sum
U.S.C.
a fire-
§
of money.
felony
Fernandez was
arm to
electronically
(robbery)
commit a
in viola-
924(c).
wired to record and transmit his
tion of
conversa-
18 U.S.C.
found
§
tion to the AFT
working
conspiracy,
surveillance team
Torres guilty
robbery,
with him.
acquitted
conversion. The
Torres of
challenge
1. Torres
government attempted
prove
does not
the trial
court’s ad-
at trial
Enrique
mission
Antonio
of the oral
Garcia was
Garcia's broth-
confession.
jury acquitted Enrique
er. The
Garcia.
weapon
argues
deadly
felony
with a
acquittal
assault
of assault with a
deadly
a firearm.
weapon
robbery
and conviction for
are inconsistent
in that
“taking by
judgment against
court entered
threat
necessary
or force”
support
for
June
conversion of
conviction
robbery
could
have been
government property and sentenced him to
*3
accomplished by
the use of the
which
years
imprisonment, and
of
seven
seven
formed the basis for the assault with a
years imprisonment concurrently for rob-
deadly weapon charge against
him.
bing
conspiracy
On the
Fernandez.
to rob
argues
Torres
jury
since the
concluded
charge, Torres
years
was sentenced to five
assault,”
there was no “forceable
there
upon
probation,
commence
his release
could
“taking
not have
a
been
or
threat
from confinement.
words,
force.”3 In other
because the rob-
bery of
II
Fernandez involved the
a
use of
firearm,
jury
acquit-
should have either
presents
appeal.
Torres
four issues on
robbery
ted Torres of
under
2112 and
§
Initially,
questions
sufficiency
he
of
924(c)(1)
robbery
armed
under
and force-
§
robbery
of
evidence
convict him
able
deadly weapon
assault with a
under
Next,
conspiracy
argues
he
to rob.
111, or
guilty
found him
of armed rob-
§
government’s closing
improp-
(§ 924(c)(1)),
bery
forceable assault with a
interjected
personal
erly
“prosecutor’s
111),
deadly weapon (§
and robbery under
office,
opinion,
weight
his oath of
and the
Although
2112.
Torres concedes
“a
§
prestige
of the United States Attor-
criminal
convicted
defendant
on
Office____” Finally,
ney’s
appeals
he
(may)
count
attack that
not
conviction
seven years
trial court’s sentence of
con-
because it was inconsistent with
jury’s
robbery
finement
conviction con-
count,”
verdict
acquittal
of
another
tending that the
on improper
court relied
Powell,
57,
United States v.
469 U.S.
105
information.
471, 473,
(1984),
S.Ct.
area, persuaded pos- Chicago Fernandez that he Cronen, Police Officer kno»ving Therefore, gun sessed a to sell. ease, based the weakness in this they up come upon icing case, all of the facts and circumstances and on the the confession. thereto, Now, applicable confession, the law we hold even the govern- as the claims, there was insuffi- ment ... even their own ver- sion, cient evidence to sustain his conviction for Israel does not admit to seeing even robbery merit. But, is without they ... ... do claim that he produced “any evidence from which ripped ration- said he agent off this They ... beyond al” conclude get would a reason- they didn’t his consent taped when Torres was guilty aiding able doubt that him they undercover get didn’t abetting5 robbery of Fernandez. They consent then. didn’t need his con- sent to take a They confession. didn’t Closing Argument 2. Government’s get all these simple things, obvious and tape transcript because a ... would Torres contends that the Government’s demonstrate what really Israel said and closing argument improper contained they They don’t want it. needed a con- prejudicial require remarks that reversal of case____ fession juice up a weak closing arguments his conviction. The oc- Your entitled to better evidence in the cupied seventy pages more than of the trial America____” United States of transcript, by objections and were marked following both sides. The sections of Garcia’s counsel continued the attack on closing argument are relevant to our prosecutors’ integrity in ar- analysis of Torres’ claim: gument: Torres’ counsel: “The Parenti, Mr. Garcia’s Counsel: “And Deutsch, Mr. government perceives the weakness ... horror, nightmare of being [Torres], their case so wrongly accused of a serious crime is came with a few items ... enough, bad but to be convicted on the [N]ow, sometime the truth comes word of one testimony *6 you’ve got out cross-examination and you can call it what who— hope you to ability bring to have the to you prepared, want—was practiced, was talked, out. And we I cross-examined interviewed, for nine hours. Fernandez and he by was rehearsed Now long heard how this we incident government—” you If took. start at North Avenue and Mr. “Objection Prosecutor: Conway, Western, end, way all the to the at the that, your honor.” most it took a half an hour. What in objection “The is sus- God’s require name would this man to be The Court: you tained. Mr. Parenti prepared know that’s for nine hours? He can come characterization____ inaccurate in here say now and long. ‘It took this hear, part instructions, will I’m convinced of pre- that.’ He’s been perfectly that it is proper lawyer for pared for nine hours.” interview a witness in preparation for responded: you may proceed.” trial. Now Prosecutor: “Let me ad- Castillo, Mr. “Thank you, Your Hon- Mr. Parenti: thing dress one first. [Defense counsel] want, you or. Call it what spent eight he preparation about nine hours of [t]alked or nine hours these Assistant U.S. Agent Everyone Fernandez. has a Attorneys, going reviewing over and here, duty duty, of our as Assistant testimony. you Call that what want. Attorneys, prepare United States is to ****** Agent our witnesses. Fernandez told aids, abets, counsels, commands, punishable princi- 5. An aider or abettor is as a ed States or pal 2(a), commission, provides procures punisha- under 18 U.S.C. § which induces or its against principal.” "[w]hoever commits an offense the Unit- ble as a
435
prejudicial
you,
three different
times. were so
that the defendant
he testified
hearings. A victim of deprived
Three different
of a fair trial. United States v.
crime,
in here
Peco,
798,
he came
and testified
(7th Cir.1986);
784 F.2d
805
duty
And our
is to talk to
three times.
1419,
Hattaway,
United States v.
witnesses, and,
duty
if
those
our
takes us
(7th Cir.1984);
Zyls-
v.
North,
to the corner of Washtenaw
tra,
(7th Cir.1983).
F.2d
incident,
then that’s
and the scene of
this
As
court wrote in United States ex
do,
find out what the facts
what we
Lane,
rel. Crist v.
we were ... unduly prejudiced cutor’s remarks telling why? know truth____ Because are defendant, probable we focus on “the very important. oath is [0]ur prosecutor’s response effect would day we took that oath that was the jury’s ability judge have on the the evi- lives, important day in our most context, fairly. In dence defense coun- going that oath we’re violate conduct, sels’ as well as the nature of the type perjured putting any testimo- prosecutor’s response, is relevant.” Unit- ny in this case.” Young, ed States v. 470 U.S. 105 S.Ct. Honor, “Objection, Your Mr. Parenti: 1038, 1045, (1985).6 Further- L.Ed.2d personalization Attorney.” of the U.S. more, “it is well settled law [that] *7 “Objection is sustained. Court: the defense counsel makes remarks where disregard that.” will government closing that invite the rebuttal, may, in respond, prosecutor the determining prose if
The test for would otherwise closing requires enter into areas which cutor’s statement reversal improper argument.” constitute of a conviction is whether the remarks United 757, Marzone, (7th concurring Contrary v. F.2d 763 Cir. 6. to the assertion in the States 782 1986), opinion "separate explains, is I do not fail to the issue of the the invited doctrine concerning prejudicial prosecutor's inquiry propriety that of the the of the remarks from impact prosecutor’s of the statements: the doc- effect of those remarks on the fairness of the “merely recognizes impact prosecutor’s that the trial." I do not condone the trine the misbehavior should be clear from the fact that defendant may comments as analyze prejudicial impact counsel aroused proceed the be less if the defendant’s Thus, jury against prosecutor.” it is Lane makes clear the necessary the had the defendant. Since begin analyzing prejudicial ques- the im- prosecutor’s culpability that the tion, the examining pact prosecutor’s conduct inquiry the effect of of the the focus of the is on trial, the entire that conduct in the context of the conduct on this arguments and counsel should not of both the whether the should or Further, United for the defendants. have made the comment. as 436 1075, Reagan,
States attorney’s 694 F.2d obligations ethical as a member of also United States v. Perez- Cir.1982). the bar: See Leon, 866, (7th Cir.1985) F.2d government perceives “The the weak- (“Where counsel refers to evi- ness in their ease against the defense [Torres], so record, came government dence the with a outside the few [N]ow, items ... sometime the truth may respond have to with an only comes out in cross-examination and normally improp- would be considered you’ve got hope you to have the ability Taylor, er.”); United States v. 728 F.2d bring talked, it out. And we I cross- (7th Cir.1984) (“It is settled examined Fernandez and he was re- jury, circuit that their summations to the government hearsed the —” prosecutors respond argu- are entitled to The thrust of defense counsels’ attack on counsel”). ments articulated the prosecutors was that McPhee, See also United States v. 731 F.2d provided had their witnesses with the testi- (5th Cir.1984) (“Pertinent mony trial, not as the they gave (1) magnitude factors include: concurring opinion speciously asserts to di- statements, (2) prejudicial effect of the rect “attention repetition to the effect instructions, efficacy any cautionary and have had on the witness’s recollection of (3) strength of the evidence of defend- excerpts events.” The referred to from Thus, guilt”). “[ajlthough ant’s inflamma- (at transcript pages 433-35, supra) tory argument may grounds for rever- make clear that Torres’ counsel continually sal, government should not be restrict- suggested throughout his closing argu- ed to a sterile recitation of uncontroverted government ment that the per- had offered Scott, facts.” United States v. jured testimony through witnesses who (7th Cir.1981). “rehearsed,” “practiced,” “pre- case, present In the defense counsels in- pared” addition, for nine hours. government sinuated and accused the charged prosecutors had offered a providing testimony Fernandez with “his” “juiced up”7 confession. These statements suggested and thus concerning prosecutor rehearsing, prac- perjured had offered testimony ticing in violation preparation were made on four phrase “juiced up” implies including “juicing the mouths of its witnesses— up” testimony concerning some manner added to the con- Torres’ confes- convincing. fession to make it more viewing closing argu- The con- sion. when curring opinion asserts that because defense ments in the entire context of defense counsels' suggestion arguments, counsel’s Attorney’s that Torres’ confession was the United States inter- "juiced up” specifically pretation does not refer to the of defense counsels statements con- Attorney cerning hearsed,” "juiced up” United States but rather mentions confession and "re- "prosecution” "government," "prepared” "practiced” testimony and the Attorney attacking integrity interpret- as could not have his own was not unreason- personal ed defense counsel’s statement as a able. The continued references of defense "eight prosecu- prosecutor’s integrity. counsel to the or nine hours” indictment of the I am at spent "rehearsing,” "preparing” "prac- tors a loss to understand who else he could have ticing" interpreted, its referring witness cannot be con- “prose- been to—the is the trary concurring opinion, to the assertion of the "government” pro- cution” and the in a criminal suggesting anything pros- ceeding. other than that "the prosecutors It was the who were re- provided ecutor sponsible Fernandez with a false preparing presenting version perjury? of events.” Is “government’s" Further, this not an accusation of concurring case. *8 opinion ignores the fact Further, that the earlier attacks concurring opinion the asserts that prosecution concerning "rehearsing,” on the "proper response" the to the continued accusa- "preparing” “practicing” its witnesses "for tions defense counsel after the trial court had eight specific or nine hours” made reference to reprimanded defense counsel "was further ob- Attorney. the United States Defense jection by prosecutor.” counsel’s proper response the The prosecutors "juiced accusation that the offered a was for the trial court to admonish defense up” continuing confession must be ignore considered in the con- counsel for an order of the prosecu- going text as defense counsels’ that the claim so far as to hold counsel in con- court— tempt spent "eight organizing they persist unjustified, tors or nine hours” in such should thoughts putting unprofessional minds of and words in and unethical conduct. separate judge occasions after obligations sus- professional of his oath in re- government’s objection tained the as fol- butting the defense charge counsel’s lows: knowingly he perjured introduced testimo- ny. objection West, “The Mr. As in sustained. Parenti United States v. 670 F.2d you Cir.1982), that’s an inaccurate know character- ization.” counsel, not the government, “[d]efense put first ruling court, spite by integrity But of this the trial of the United Attorney’s defense counsel continued to insinuate that Office in [by issue government’s preparation commenting of its wit- that ‘the Government intimi- witnesses, nesses was dishonest: dated its cajoled them into testifying favorably want, government, for the you Call it what “[Torres’ Counsel] and, fact, government’s “purchased” their testimo- spent he [the witness] eight ny.’]. government’s or nine hours with these The response Assistant Attorneys going reviewing U.S. over and invited and within the of proper bounds testimony. you argument.” Call that what want.” Id. at 689. The responding Torres’ counsel pros- went to accuse the comments were not “fight intended to fire concocting ecution of Torres’ confession: fire,” practice we condemned in Mazzone, government per- simply attempt were by
“[Torres’ counsel] ceives the weakness in their prosecutor case explain propriety against [Torres], they so come his conduct and to undo some of the dam- items____ with a few I cross-examined age done inappropri- defense counsels’ Fernandez and he was rehearsed ate and unprofessional conduct. As the government____[the government] know- Fifth explained: Circuit ing case, weakness come “In arguments of defense counsels’ icing ease, the confes- the Government’s witnesses were sion____ They needed a confession to coached, programmed, intimidated, case____” juice up a weak vouching statements Garcia’s counsel also integrity attacked the asserting witnesses and their bravery prosecution, accusing govern- responses. prosecutor ar- fair rehearsing, practicing ment of prepar- gued they programmed were not as dem- ing its witnesses which the mistakes, onstrated their human properly interpreted as an accusation that by their testimony exculpated some perjured had offered testi- of the defendants. Defense counsel ar- mony: gued that the Government had intimidat- horror, nightmare being “And the response, prose- ed its witnesses. wrongly accused of a serious crime is argued just opposite, cutor enough, bad but to be convicted on the might subject witnesses to as much or witness, word of one on the testimony of more intimidation at home.” you can call it what who— Saenz, United States v. prepared, practiced, want—was (5th Cir.1984), rehearing denied 752 F.2d interviewed, for nine hours.” denied, States, cert. Solis v. United clearly These comments were intended to — U.S.-, 105 S.Ct. 87 L.Ed.2d jury’s passion arouse the and ire (1985) added) (footnotes (emphasis and thus invited omitted). us, In the case before where holding from the under our defense counsel accused the Mazzone. “preparing,” “rehearsing,” “practic- ing” “juicing up” prosecutor responded if its witnesses and a de- confession, case, fendant’s should believe that to be the counsel’s con- acquit outrageous it should Torres. The duct is much more than was pointed sincerely accepted out how the conduct reviewed in As in Saenz. *9 Saenz, prosecutor’s response though here was But even counsel for both defend- response” “a in of defense coun- ants suggest fair continued to in direct contra- government. sels’ scurrilous attacks on the vention of the trial court’s order that the suggested government that the Defense counsel testi- had induced Fernandez to tes- had, than mony tify of Fernandez was less credible nothing he the court did able Fernandez was not prior recount enforce its order and insulate the accuracy complete every with and exact attorneys from further unwar- robbery. For example, detail about ranted attacks and scurrilous insinuations: testify was unable to as to the Fernandez want, you Call it what “[Torres’ Counsel] driving on make of car he was the date government’s spent eight [the witness] robbery. prosecutor argued The or nine hours with these Assistant U.S. testimony agent that the of Fernandez con- Attorneys going reviewing over and every cerning each and detail the rob- testimony. Call you what want.” perfect bery was not because it was testi- ****** on vouch for the pistol, despite ed tification. used in the F.2d mony based on “the and that his example, first explain his own assignment although that this was personal inexperience was hold-up credibility special training as an undercover officer unsure whether the Cir.1980), knowledge truth,” and he was a revolver or a Agent of witnesses based was evident. on Fernandez’s Bright, court stat- went on iden- gun For not juice up a weak government____[the government] know- ing sion---- Fernandez and he with a few ceives the weakness “[Torres’ Counsel] [******] weakness They icing items____ [Torres], case____” needed a confession to was rehearsed The this I cross-examined so government per- case, case, they in the confes- their come come case up horror, not And the “that does mean the can- “[Garcia’s Counsel] nightmare being wrongly argue not that the fair inference accused from serious presented enough, crime is bad but the facts to be is that witness has lie____ witness, convicted on no the word of one on reason The is testimony obliged you to sit while quietly character who— can call prepared, it what witnesses; assaults are made on want—was he is practiced, interviewed, argue fairly entitled to nine credibility.” their hours.” It is prose- evident the record that the The court nothing objection sustained an point cutor did more than out to govern- of defense counsel to the agent that the witness was new ment’s credible, closing argument assertion inexperienced obligations attorney pre- ethical of an unprofessional to the attacks of both attorney clude perjured from offering Torres’ and Garcia’s counsel. testimony in evidence: parties frequent objections Both made very important. oath is The day “[0]ur during arguments. the other’s The we took that oath that most judge trial government’s sustained the ob- important lives, day our we’re jection on one occasion to the defense coun- going by putting to violate oath sel’s statement that the “re- any testimony type perjured in hearsed,” “prepared” “practiced” its case.” witness and thus insinuated that government had perjured offered testimo- record immedi- reflects court ny: ately disregard the jury admonished following language: statements sustained, objection is
“[Trial Court] Parenti, you Mr. “Objection know that’s an inaccu- sustained. will disregard rate characterization.” that.” *10 Although the trial should have moni- court COMMENT * * * * * * closing arguments tored the of defense carefully, especially counsel more in view False Evidence of the fact that each of the defense counsel When lawyer evidence that a knows in tandem continued their insidious attack provided to be false is by person who (four times) more the integrity on of the client, is not the the lawyer must re- spite prosecutor previous of the court’s fuse regardless to offer it of the ruling direct contrary. order to the It client’s wishes. interesting though is to note that the court Rule 3.4 Opposing Fairness to Party agree did attorney with defendant’s and Counsel prosecutor admonished the and directed the lawyer A shall not: disregard the statement when the (b) EVIDENCE, FALSIFY COUNSEL prosecutor mentioned his oath of office. A OR ASSIST WITNESS TO prosecutor’s TESTIFY comments about his obli- FALSELY, ...” gations professional as a certainly proper. prosecutor it is evident the could very important. oath is day “[0]ur referring not have been to his federal oath we took that oath that was the most of office since professional unlike his oath important lives, day in our and we’re not incorporates which the Code of Profession- going by putting to violate that oath on al Responsibility’s proscriptions against
perjured testimony.” perjured testimony, his United States At- torney’s else prosecutor How would a answer oath makes per- no reference to repeated jured scurrilous insinuation testimony. four times The concurring opinion’s after an suggestion admonition the court? It is prosecutor transcript clear from the whether the “oath” “only referred to his fellow Assistant Unit- closing arguments referred to in the Attorney” ed States when “other members pro- oath of office or his present bar in the courtroom” [were] However, fessional oath. based only could have been refer- record and a review of attorney’s Code ring office, to his oath of unconvincing. of Professional Responsibility as well as Since, there were other members of the bar Attorney’s Assistant United States present courtroom, in the the in- oath, argument in appeal, briefs tegrity Attorneys of the United States the “oath” referred to was convinced am put counsel, in issue there was prosecutor’s professional oath as a no reason for the to make his member trial bar. The Assistant general. a defense of the bar in Attorney’s office, United States oath of logical reading A of the record discloses given pursuant which is to 28 U.S.C. there is not a shred evidence to establish 452, 454, no contains reference to offer- §§ support an inference in concurring ing perjured testimony. opinion’s claim that the refer- Whereas the Model Rules “placed of Profession- ence to inappro- his oath him in the emphatically al Conduct provide: priate role of a witness.” The
Rule 3.3 Candor Toward the Tribunal accurately described the manner in which (a) A lawyer shall not knowingly: he reviewed the testimony of each of his witnesses respective
(4) witnesses be- OFFER THAT THE EVIDENCE judge explained fore trial. As the trial LAWYER KNOWS TO BE FALSE. jury, IF A LAWYER MA- HAS OFFERED
TERIAL perfectly proper lawyer EVIDENCE AND COMES “it is for a FALSITY, TO KNOW OF THE preparation ITS interview a witness in trial,” LAWYER TAKE SHALL REASON-
ABLE REMEDIAL MEASURES. attorney question, and an who does not prepare
rehearse and
his witnesses before
guilty.
properly prepared
trial is not
for trial. But
But
held
the court
no reversible
*11
to
defense counsel continued
insinuate that
error had been committed because
improperly prepared
had
defense,
directly
had
...
attacked
“[t]he
its witnesses:
prosecutor’s integrity maintaining
you want,
itCall what
“[Torres’ Counsel]
prosecution,
and had accused the
[government’s
spent eight
witness]
prosecutor
abusing
system.”
or nine
these
hours with
Assistant U.S.
Saenz,
Quoting
“[t]hese sive to the defense’s counsel directly insinuations.” asked.’ Defense at- credibility tacked the of the Govern- attorney To hold that an accused of induc- ment’s witnesses: ing perjured testimony explain cannot merely doing he was evidence in what ethical attor- can’t recall the this first ney notes, required preparation taking you and I do case ladies, concept expect trial would who undermine of fair- these have been sick, ness which system underlies the American who didn’t make mental nota- Indeed, tion, in justice. States v. who know how to write don’t Saenz, supra, names, remember, their prosecution went so far remember minds, without suggest only prosecuted very clearly in their that it racially something happened a sation that
coaching, that ago. motivated.” year-and-a-half programmed, the result ing that and statements, ber around down, they sure have some I am [*] rise to reversible not credible the a lot of but I will here. Those the witnesses’ [*] these and the direct attacks while trying things. [*] personal not to be rebuttal prosecutor’s tell to knock error. [*] folks can remem- testimony was attacks on the sharp minds condoned, intimidation, [*] anybody thing, *12 alleg- [*] do the defense ment, tage to the Puerto ferred to the fense only inference six motivated—that ecution Garcia, Torres, different occasions defendants’ concurring opinion completely ignores counsels’ of Torres and Garcia was defendants and witness. The counsels’ continual references Puerto Rican or Latin heri- that can be drawn from de- Rican or Latin heritage counsel repeated they were agent Fernandez. On during closing argu- was unnecessarily comments about singled heritage racially out for pros- re- arguments light they Hispanic. defense counsels’ were prosecution In witnesses were in that the Government’s Defense counsel’s intimidated, coached, programmed, stated: vouching for statements years ago, About 200 Counsel] “[Torres’ bravery asserting their his witnesses and fought for freedom from our forefathers ar- responses. fair were tyrannical reign could ex- tyranny, and a as dem- programmed gued they were not if country in the Government ist this mistakes, and by their human onstrated jail people, willy-nilly arrest and could testimony exculpated some by their happened trial. It’s a fair without counsel ar- Defense of the defendants. this world. around intimidat- had gued that the Government in guy named Adolf Hitler There was a response, prose- ed its witnesses. Ayatollah Khomeini Germany, our friend opposite, that argued just the cutor Iran, Muammar Gad- and the infamous subject to as much or might be witnesses him. Libya. You’ve heard of dafi at home.” more intimidation 1775, through October of April But 939-940, (footnotes
Saenz, F.2d at happened, just it’s not really this omitted). make Rather than citations books, fought an armed history we of their of defense counsels a hero Britain to free from Great revolution unprofessional con- questionable and highly things pris- from like debtor’s ourselves does, I believe both duct as the concurrence representation and on, taxation without repri- attorneys should have been defense fought men And a lot of tyranny. falsly continuing to accuse the for manded fought and died died, Americans lot of (on testimony using perjured prosecutor of our freedom. occasions) they separate after four Henry, Patrick a man named Remember admonished, in defiance of the trial direct liberty give me death.’ How me sustaining pros- 'Give previous order judge’s Hale, hanged by was Nathan who objection. about ecution’s British, regret T I have but prose contends that the Torres also my country.’ lose for life to his Puerto Rican heri reference to cutor’s revolution, fortunately, wonWe argument. The concur tage improper that revolution main tenet of assertions at ring opinion accepts Torres’ of In- Declaration freedom. Witness noting: face value July, 1776. ‘We Fourth dependence. obviously improper remark was “[t]his to be these truths hold heritage was because the self-evident ’ equal. Even are created all men con- the remark be irrelevant. Nor can Enrique Garcia. response’ an accu- as an ‘invited doned thought ment of disregard architects constitutional this the citi- that the ultimate buffer between should comment. It be noted that zens Government immediately and the court the prosecu- admonished your up peers, made of American Indi- despite tor the fact that defense counsel Americans, ans, only true black had repeated made references the heri- Americans, Americans, Italian Puerto tage of the defendants and witnesses dur- Americans, that wouldn’t find a Rican ing closing argument. Where defense guilty man unless believed the counsel suggest usually that minorities end proof him guilty Government’s showed case, side of a criminal beyond a reasonable doubt. was not inappropriate for the proof? Special What’s the Government’s point out that repre- minorities are also Fernandez, Forte, Agent Eddie the Cu- sented on prosecution (agent the side of the Miami, ‘Hey, bro, ban brother Castillo). Fernandez and Prosecutor It is happening?’ what’s interesting note partici- that four of the [******] pants in trial scenario were of Latin Puerto Rican American on the fense in his Ave.” He’s a Cuban-American man con wife and kids. ami, to Rican can man. cago. Maybe some brother. One con man to One Latin brother contrast counsel, [******] somebody, introductory phrase during money Israel’s it was broad friends out of this daylight a chance this prosecutor merely a Puerto Israel wouldn’t want to buzzing constant Cuban to another Latin with guy, him on North Rican-Ameri- guy repetition all another____ to from from his Puer- help closing the outcome of the trial.” The evidence stated to of de- Chi- Mi- get Torres’ marks whelmingly can Torres and gard dence, including Torres’ confession and his they were Puerto Ricans. Since the evi- acts in inappropriate times) of prosecution’s ment not Fernandez, and Prosecutor Castillo. The sations referred to above cia, heritage heritage to their constitutional concerning *13 —the guilt, furtherance of the government’s defense counsel that the only Garcia, supports would in view of the statement defendants Torres and Gar- fabricated the his oath and Puerto Ri- prosecutor’s never but did so without re- the jury’s verdict of main certainly “suffice to alter rights robbery, repeated (at case closing re- least six was not govern- agent accu- over- argument he was a Puerto Rican clearly establishes that the defendant was American: prejudiced by not remarks. “First, American, as a Puerto Rican I Each of Torres’ Garcia’s defense coun- history quarrel have no lecture sel continually raised the issue of the given has us.” Mr. Parenti offering perjured testimony Government’s [Objection] descriptive adjectives, e.g., “practic- with Well I understand but I “[The Court] ing,” “rehearsing,” “preparing” its suppose, again, once that’s rhetorical “juicing up”8 witnesses also con- get device. It’s unfortunate that we closing argument fession. Mr. Castillo’s kind of matter introduced in the case on response for the was thus a Castillo, stick, either Mr. side. will closing arguments of the defense coun- will, if you as it deals (prosecutor’s) sel and his reference to the with the issue.” nothing “oath” other than an invited was repeated response transcript quoted to the accusations demonstrates that the judge bending respective jury defense counsel. Since the over for the backward immediately acquitted charges, defendants of all is incon- jury instructed the Garcia at the alleged time of the remarks prejudicial com- ceivable that 8. See supra. note (b) unprofessional conduct for a prejudiced defendant Torres It
could have
personal
Garcia,
lawyer
express
belief or
especially
the defendant
opinion in his or her client’s innocence or
government witness testi-
the same
since
opinion
personal belief or
in the truth or
Garcia, agent
against both Torres
fied
evidence,
falsity
any testimony or
or
Fernandez,
counsel accused
whom defense
person
crime
another
attribute the
prepared, practiced and rehearsed
giving
warranted
unless such an inference is
testimony. As
court noted
Saenz:
the evidence.
jury
not inflamed is dem-
“That
(c)
argu-
lawyer should
make
A
that one defendant
the fact
onstrated
passions
ments
calculated
inflame
charges and three
acquitted on all
prejudices
jury.
or
of the
least
acquitted
defendants
other
(d)
lawyer
argu-
A
should refrain from
charge.
to us that the
This indicates
ment
would divert the
which
carefully weighed the evidence
its
the evi-
duty to decide
case on
defendant, acquitting when
against each
by injecting
dence
issues broader than
This re-
evidence was insufficient.
guilt
innocence of the accused
or
logical approach to the delibera-
flects a
controlling
making
under
or
law
tions,
passion
preju-
inconsistent with
predictions
consequences
dice.”
jury’s verdict.”
F.2d at 942-43.
alleged improper
prosecution’s
Where the
Brack,
reserved for robbed with a There is violent substantial Torres, history gun Mr. have a evidence in record that Torres and Gar- of some plan involvement ... what I cia discussed the to rob Fernandez. find most trou- is every blesome Torres and to take you offense that Garcia intended cash Fernandez, you portray somebody jewelry person are involved in a from doing. were; plain else’s larger It do not much than Torres con- certainly proper remarks were un- an isolated to move to Fernandez vinced reply doctrine of deal; alleged der the invited complete their place to a defense counsels’ innuendo that sale of meeting was the of the purpose perjured testimony. offered been hardly have Torres could gun, thus Further, judge’s ruling the trial immediate produced surprised that a was disregard judge instruction that the robbery. The trial used in the that is remarks of counsel for the inference required to draw an precludes holding overwhelming the defendants evidence for contrary to this mistake, compro- prejudicial Finally, error. we hold that the merely “through 477, Powell, court did not its discretion mise, lenity,” 105 S.Ct. at trial abuse sentencing years Torres to seven verdict. reached inconsistent sentencing robbery conviction. trial court’s sen- judge that the trial We hold statutory evi- is within the limits and uncontroverted tence considered the properly accomplished properly on accurate information based robbery dence firearm, dangerous presented court. use of a deadly weapon. Accordingly, we convic- affirm Torres’ conspiracy, within and sentences for rob- is well tions seven-year sentence
This
bery,
and conversion.
fifteen-year statutory limit.9
prior
a one-time convict but
was not
FLAUM,
Judge, concurring.
Circuit
in-
record
loser with a criminal
three-time
use,
includ-
drug
one which also
volving
opinion except
join
majority
I
in all of
Furthermore,
of a
the use
firearm.
2,
ed
II,
which discusses Torres’
section
thirty-
serving a
presently
Torres was
improper argument
one of
claim of
felony probation
possession
month
agree
Judge Coffey’s
I
prosecutors.
robbery.
time of the Fernandez
at the
LSD
remarks
conclusion that
Torres has failed to demonstrate
Since
in an
trial.
do not
did not result
unfair
or unreli-
improper
relied on
the trial court
however,
agree,
that those remarks
exercising
information in
its discretion
able
arguments.
by defense counsel’s
invited
sentencing,
sentence is
and because the
discussing
improper
In
limits,
statutory
appellate
our
within
claims,
sepa-
Judge Coffey
not to
chooses
an end.”.
is “at
review of Torres’ sentence
prose-
propriety
the issue
rate
1300,
Madison, 689 F.2d
v.
States
United
of the effect
remarks
cutor’s
denied,
Cir.1982),
(7th
459 U.S.
cert.
of Torres’
fairness
remarks
those
754,
(1983)
oath De- perjury. of accusation
sponse to an SHEVLIN, accu- Ronald D. however, no such counsel, made Tyler, Hester E. fense Glyn Ramage, Delegates attention sation; merely directed to the he Counties, Twelve wit- had on the Southwestern may have Illinois repetition effect District Council of Laborers’ the extent To Interna- events. ness’ recollection America, tional Union of North govern- AFL- accused counsel defense CIO, Plaintiffs-Appellees, rehearsing the wit- by misconduct ment criticized properly ness, court the trial foundation. as without remarks those legitimately counsel Although trial Southern Association, Illinois Builders prepa- trial effects possible mention Intervening Plaintiff-Appellant, recollection, or she aon witness’ ration miscon- charges of unfounded must avoid case, I do not believe In this Hugo SCHEWE, duct. Manager Business implied that counsel Southwestern Illinois District Council false version awith Fernandez provided Laborers’ International Union of America, AFL-CIO, North events.4 and Wilbur view, Although, my Freitag, Trustee, Defendants-Appellees. be to his oath cannot reference improper No. 86-1212. I neverthe- response, an invited considered deprive Torres that it did not conclude less United States Appeals, Court of and, remark was brief The of a fair trial. Seventh Circuit. Mazzone, repeated. was not unlike those Sept. 24, Submitted 1986.* immediately instructed court The trial Decided Jan. 1987. While that disregard the remark. more have been perhaps could instruction request not counsel did
vigorous, defense instruction.5
more extensive argued into his own to take matters 3. instead chose has case Even the balanced; rather, it should these remarks hands. proclaimed only that the asserts honesty jury acquitted I also note that the Torres’ co- counsel’s response the defense acquitted defendant and Torres on two of the falsi- had been Torres’ confession assertion charged. five counts with which he was pp. Appellee’sBr. at 14-15. fied. meaning of that verdict has been debated my make a by any parties 4. It intent to majority opinion means is not and discussed in the quoted passages counsel. of defense “hero" connection with another issue. In the context 439, readily indicate Coffey, supra issue, by Judge however, suggests of this to me that the argument was counsel’s much of defense attempt sepa- did to evaluate each count helpful jury. perhaps to the irrelevant rately. that, repri- despite court's the trial true It is also mand, * imply Although argument originally mis- continued to oral sched- defense counsel 24, 1986, preparing September parties its wit- uled for waived conduct objec- and, appeal accordingly, proper was further nesses. oral prosecutor in this prosecutor. The record. briefs and tion submitted