UNITED STATES of America, Appellee, v. Efrain MATIAS, Defendant, Appellant.
No. 11-2489.
United States Court of Appeals, First Circuit.
Jan. 18, 2013.
Before TORRUELLA, HOWARD and THOMPSON, Circuit Judges.
HOWARD, Circuit Judge.
After a nine-day trial, a jury in the District of Massachusetts convicted Efrain Matias of attempted possession of at least five kilograms of cocaine with the intent to distribute.1 He was sentenced to twenty years in prison and ten years of supervised release. Matias presses two claims on appeal. First, he argues that the district court erroneously allowed the prоsecution to introduce evidence that after his arrest, law enforcement agents discovered roughly $45,000 in a storage locker that he rented. Second, he asserts that the prosecutor‘s closing argument contained improper comments that added up to a violation of his right to a fair trial. Finding no error, wе affirm.
I. Factual Background
We recount the facts surrounding Matias‘s arrest and conviction, which are largely undisputed, in the light most consistent with the jury‘s verdict. United States v. Valerio, 676 F.3d 237, 244 (1st Cir.2012).
In late 2007, Drug Enforcement Administration (“DEA“) agents in Massachusetts received word from fellow agents in California that Matias wanted to buy a large quantity of cocaine to sell in the Worcester area. This information came from a cooperating witness in San Diego, Jose Luis Ruiz. The agents in Worcester already had information that Matias was a large-scale marijuana trafficker.2 Ruiz had been involved in many of Matias‘s marijuana deals.
Beginning in December 2007, DEA agents monitored telephone conversations between Matias and Ruiz, during which the two discussed details of a рlan for Matias to purchase cocaine. In March 2008, Ruiz introduced Matias to DEA undercover agent Anthony Roberto-known to Matias only as “Tony“-who was posing as Ruiz‘s drug courier. Tony and Matias eventually agreed that Tony would deliver ten kilograms of cocaine to Matias in Massachusetts.
After an aborted attempt at consummating the deal in March, Tony and Matias agreed to meet on April 15, 2008, at the Greendale Mall in Worcester, not far from Matias‘s house. Tony told Matias that he and another man (undercover DEA Agent Paul Gazzara) would bring nineteen kilograms of cocaine, with an asking price of $17,000 per kilogram. DEA agents conducting surveillance saw Matias drive into the mall parking lot and then briefly meet with Tony inside the mall. Gazzara arrived in an undercover DEA van to meet the pair after they emerged from inside the mall. The van contained ersatz cocaine that was packaged to look authentic and stored in a hidden compartment. Matias looked inside the van, and, apparently satisfied, told Tony that he was going to get the money to make the purchase later that day at the same mall. A few hours later, Matias returned to the Greendale Mall, albeit in a different vehicle. Upon meeting up with Tony, Matias told him that he only wanted to buy one kilogram of cocaine, test it, and then purchase the
Despite the uncompleted April deal, Matias continued discussions with Ruiz about buying cocaine. Eventually, Ruiz agreed to drive from California to Massachusetts with cocaine to make the deal personally with Matias. On June 25, 2008, Ruiz, along with his “supplier” (in reality undercover DEA agent Raphael Romero) met with Matias in an Auburn, Massachusetts, restaurant. Matias agreed to buy twenty-two kilograms of cocaine. He was to pay $18,000 per kilogram for the first ten kilograms, and $17,500 each for the remaining twelve. Romero agreed to a cash payment for the first ten kilograms, and to “front” Matias the rest, with payment to be made within three days. Matias told Romero that he would likely pay the remainder sooner, because he expected to re-sell the cocaine quickly. He also spoke of future deals with Romero. They agreed to complete the deal later that day at a nearby hotel where Ruiz and Romero were staying.
After the meeting, Matias switched into a different car and drove home. He eventually drove to a clothing store that he owned, later emerging with two plastic bags that each contained a shoebox full of cash. He then met Ruiz and Romero at a Starbucks cafe near their hotel. Matias gave Romero a suitcase that he had retrieved from his car, which contained over $214,000, considerably more than the $180,000 that Romero was expecting to receive. Matias explained that he preferred to pay for twelve kilograms immediately, so that he would only owe Romero for the remaining ten kilograms. Upon seeing the money, Romero signaled to other DEA agents, who promptly arrested Matias.
Following the arrest, DEA agents executed search warrants at Matias‘s clothing store and at a storаge locker that Matias rented in Sterling, Massachusetts, a town roughly fifteen miles from Worcester. They found approximately $45,000 in cash in the storage locker. Matias has never disputed that he rented the locker and that the cash belonged to him.
Prior to trial, Matias gave notice that he would assert an entrapment defense. Matias claimed that he only got involved in a cocaine deal-as opposed to his usual practice of dealing only marijuana-because Ruiz had plied him with a story that Ruiz and his family faced violent retribution from a drug associate after a robbery.
II. The Cash in the Storage Locker
At trial, in addition to the government‘s evidence аbout the seizure of cash from the storage locker, Matias testified in his own defense, and conceded that the money seized from the storage locker was his. He also admitted that cash had been seized from him before, and that he used storage lockers to hide drug proceeds from law enforcement.
At the close of evidence, the trial judge ruled that the evidence of Matias‘s marijuana dealing-including the storage locker cash-was relevant to rebut the entrapment defense, as it was probative of Matias‘s predisposition to engage in the charged crime. See United States v. Djokich, 693 F.3d 37, 47 (1st Cir.2012) (“After the defendant has made [a] threshold showing, the burden shifts to the government to prove ... that either the defendant was not wrongfully induced or the defendant had a predisposition to engage in such conduct absent the inducement.“).3
Next, although he does not cite to
III. Prosecutor‘s Closing Argument
Matias claims on appeal that several statements within the government‘s closing argument were improperly prejudicial and violated his right to a fair trial. We review de novo whether the prosecutor‘s remarks were improper, United States v. Appolon, 695 F.3d 44, 65 (1st Cir.2012), but to constitute reversible error, the remarks had to be both inappropriate and prejudicial. United States v. De La Paz-Rentas, 613 F.3d 18, 25 n. 2 (1st Cir.2010). The degree of prejudice depends on “the totality of the circumstances, including the severity of the misconduct, the prosecutor‘s purpose in making the statement (i.e., whether the statement was willful or inadvertent), the weight of the evidence supporting the
Referring to Matias‘s entrapment defense, the prosecutor posed two rhetorical questions to the jury: 1) “[W]hen you consider predisposition, if somebody-tomorrow morning you wake up-drops 22 kilograms of cocaine on yоur front doorstep, would you have any idea how to distribute it?“; and 2) “Have you ever wrapped money in dryer sheets?” Matias argues that both statements improperly permitted the jurors to substitute their own personal experiences for the government‘s burden of proving its case beyond a reasonable doubt. We disagrеe.
Matias cites no authority to support this claim, and we note that it does not qualify as a so-called “Golden Rule” argument, in which a prosecutor improperly suggests to jurors that they put themselves in the shoes of a victim. See United States v. Kirvan, 997 F.2d 963, 964 (1st Cir.1993) (observing that “golden rule” cases do not apply where jurors are asked to put thеmselves in place of an eyewitness in order to reconstruct a scene). Nor did the prosecutor “encourage the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence.” United States v. Moreno, 947 F.2d 7, 8 (1st Cir.1991) (quotation marks omitted) (observing that asking jurors to put themselves in defendant‘s place to assess veracity of claim that she was unaware of roommate‘s drug dealing was an appropriate appeal to common sense in weighing all the evidence).
Viewed in their proper context, the comments were not improper. The prosecutor аsked the jurors to use common sense judgment in response to Matias‘s defense that he was entrapped-a defense which necessarily requires a finding that he was not predisposed to commit the charged crime. As such, the government was entitled to illustrate the implausibility that a person who bought twenty-two kilograms of cocaine which he said he could quickly sell, and who understood the drug trade to the extent that he had previously wrapped drug money in dryer sheets to conceal any odor, was not predisposed to engage in the alleged transaction. See, e.g., United States v. Abreu, 952 F.2d 1458, 1470-71 (1st Cir.1992) (finding no impropriety where prosecutor rhetorically asked during closing, “When you left your house this morning, did you leave $23,000 on the bed? Did you leave $2,500 in the headboard of your bed? Did you leave $500 in the kitchen drawer? Did you leave $26,000 in your apartment when you left this morning?“).
Next, and again without citing any authority, Matias argues that the prosecutor usurped the jury‘s function as the arbiter of credibility by calling Matias‘s version of events “an incredible story ... it‘s a clever story, but it‘s just that, a story, because it doesn‘t add up” and subsequently arguing that Matias was trying to deceive the jury. This claim lacks merit. Matias, testifying in his own defense, claimed that he was entrapped by the government, and that he only pretended to buy drugs from Ruiz because Ruiz said his family wаs being threatened. Where, however, as here, “a defendant puts his credibility at issue by testifying, the prosecution can comment on the implausibility of his testimony....” United States v. Isler, 429 F.3d 19, 27 (1st Cir.2005). That is what occurred. The government, in response to Matias‘s central theme, introduced evidence that Matias was an experienced marijuana dealer with expertise in deceiving law enforcement, who neither asked Ruiz whether his family was still in danger at the time of the twice-delayed deal nor attempted to “help” Ruiz by simply
Matias next argues that the prosecutor improperly said that Matias portrayed himself as “a family man ... who pumps tons and tons of marijuana into the community and a few kilograms of cocaine” and then queried the jury, “Is that a family man?” Matias argues that this was only an emotional appeal to thе jury and an irrelevant ad hominem attack. But he provides neither authority nor argument to support his contention that the comment requires reversal. In light of Matias‘s defense-that he had feigned interest in a drug deal because he was concerned for Ruiz‘s family-the statement was a fair comment on the inconsistency of Matias‘s defense and the contrary evidence about his actions.
Matias‘s final claim is that the prosecutor‘s description of Matias‘s defense as “insulting” warrants reversal. The comment came as the prosecutor was recounting Matias‘s evidence, which included testimony from his accountant about his non-drug inсome: “Why did he choose to call an accountant? ... To make himself look like a legitimate businessman? I suggest to you, ladies and gentlemen that this was nothing short of deception ... and even somewhat insulting.” Although a suggestion to the jury that it should be insulted will in some circumstances have the potential to cause impermissible сonsideration of issues beyond the evidence, context is important. Here, Matias‘s defense included the possibility that his sole source of income was legitimate, even though he testified to extensive marijuana dealing. In context, the statement was not improper as a shorthand for “insulting to the jury‘s intelligence.” Seе Obershaw v. Lanman, 453 F.3d 56, 66 (1st Cir.2006) (holding, in a habeas proceeding, that prosecution‘s statement during summation that a defense claim was “an insult to your intelligence ... as jurors” could reasonably be seen as a comment based on the evidence where the state court described the comment as a “rhetorical flourish, undoubtedly recоgnizable to the jury as such.” (citing Commonwealth v. Obershaw, 435 Mass. 794, 762 N.E.2d 276, 289 (2002))).
Affirmed.