*1 Apprendi Jersey, v. New light 2348, 466, 120 S.Ct. 147 L.Ed.2d 530 U.S. (2000), challenges Garcia the constitu 1326(b)’s
tionality prior § treatment of felony
felony aggravated convictions sentencing factors rather than elements by that must be found offense
jury. is foreclosed Al This States,
mendarez-Torres v. United 224, 235, 118 S.Ct. 140 L.Ed.2d
U.S. (1995). See United States v. Pineda-
Arrellano, Cir.2007), — denied, U.S. -,
cert. 128 S.Ct. (2008).
For foregoing we AFFIRM imposed by sentence the district court. America,
UNITED STATES of
Plaintiff-Appellee, MENDOZA, Jr.,
Francisco
Defendant-Appellant.
No. 06-51685. Appeals, Court of
Fifth Circuit.
March *4 Paso,
Ruben P. (argued), Morales El TX, Defendanh-Appellant. for KING, Before DeMOSS and SOUTHWICK, Judges. Circuit SOUTHWICK, Judge: Circuit Mendoza, Francisco appeals Jr. his con- viction on four importation counts of possession of marihuana with intent to dis- tribute. Mendoza challenges the sufficien- cy of the evidence and the fairness of the prosecutor’s closing argument. ar- These *5 guments provide no basis disturb the judgment of conviction or the sentence. We affirm.
I. Facts and Procedural History In March the Defendant Mendoza Juarez, crossed the border Mexico into the in a by truck driven cousin, his Maria del Socorro Castaneda- (“Castaneda”). Mendoza Customs and (CBP) Border Protection Officer Aaron Fi- erro, primary stationed at the inspection area, agent was the first to encounter the truck. occupants Both sought admission States; into the United Mendoza identified himself as a United States citizen and Cas- presented taneda a crossing border card. However, Castaneda produce could not registration papers for the vehicle. She explained police that Juarez had taken away them from her husband. Officer Fi- required erro that the truck undergo secondary inspection. At Officer Fi- erro testified that Mendoza appear did not to be nervous during primary inspec- tion. Jr., H. Joseph Gay, Atty. Asst. U.S.
(argued), Lockwood, Antonio, Ellen A. Robles, San CBP Officers Carlos Jr. and TX, for Plaintiff-Appellee. performed Saul Macias secondary in- Castaneda, boyfriend’s truck she drove her testified Robles Officer spection. walked in- near the border then secondary point truck entered when the to meet the border into Mexico area, appeared “pale across Castaneda spection explained Agent Martinez corroborated Robles Mendoza. Officer and nervous.” truck near locating boyfriend’s to be going that’s “[a]ny person area, secondary vehicle said she had place where Castaneda checked inspec- that, ready upon for that her to be left it. Castaneda said they’re going “just Mexico, slouched another But Mendoza was Mendoza and tion.” arrival passenger against [the] over to drive the truck and leaned individual asked her Robles to led This behavior Officer it had Mexican door.” because across border (a pretending that Mendoza plates believe and Mendoza license cross-examination, Ro- citizen) Officer if sleep. suspicion On arouse he would States appear that Mendoza did testified bles said that drove the truck. Castaneda secondary inspec- during the nervous gave to be her and the other individual Mendoza tion. border and told her to tell the a name registered that the vehicle was inspectors drug- Macias testified
Officer that person. front to the truck’s sniffing dog alerted marihua- revealed bumper. inspection An Castaneda, Agent interviewing After wells. When in the front fender na hidden Mendoza, who also spoke with Martinez alerted, Macias observed dog Officer Mendoza inconsistent stories. provided body slumped, his whole sigh, essentially story the same first offered in disbelief.” head down “put he Castaneda, had asked Cas- stating that he that he had testified ob- Macias Officer El Paso and that the for a ride to taneda in other type of behavior the same served Agent belonged to her ex-husband. truck *6 “caught with a they were suspects when story seemed “re- thought Martinez drugs. illegal of load” that he did not and told Mendoza hearsed” Mendoza said point, him. At this believe Enforcement and Customs Immigration Agent truth if Mar- tell the that he would (ICE) present was Rafael Martinez Agent notes from the up tear his tinez would and Castane- when Mendoza at the border Agent After Martinez initial statement. of being advised After da were detained. notes, that stated Mendoza up tore rights, both constitutional their relevant accompany him to had asked Castaneda Agent Mar- speak to with suspects agreed shopping. Paso to do some to El her their Martinez recounted Agent tinez. initially, lied Mendoza why asked he When at Mendo- testimony during his statements thought it would that he responded trial. za’s easy to lie. interview, gave Castaneda During her conflicting generally these In addition to reasons she inconsistent accounts noted certain stories, Martinez also Agent in truck. She driving Mendoza story. part As within each discrepancies that her cousin Agent told Martinez first that he stated story, Mendoza of his first a ride to the bor- requested had Mendoza in pay phone from a calls telephone truck made borrowed the and that she had der Mexico, Juarez, for in El Paso to a friend changed She then her ex-husband. call; not be calls could per but 25 cents that she had traveled story, explaining her than for less pay phones those Paso, Texas, placed from at Mendo- El to Mexico from Agent Martinez told cents. Mendoza him take a 50 help in order to request, za’s phone a cell a friend on that he called According to the border. vehicle across Mexico; kilograms a ride into but or more of marihuana and of asked for importation kilograms not in of 50 phone cell number was or more of purported in then stated that he marihuana of 21 service. Mendoza violation U.S.C. 952(a), 960(a)(1), 960(b)(3); §§ & and con- by to meet his friend near the traveled bus spiracy border; possess to with intent to distribute the bus route seemed circu- but kilograms or more of marihuana and purposes. part itous for Mendoza’s As possession with intent to distribute 50 kilo- story, Mendoza stated that he his second grams in or more of marihuana violation of into had driven his own vehicle Mexico the 841(a)(1) (b)(1)(C). §§ 21 U.S.C. & day stayed girl- his before and had with Juarez; district court sentenced Mendoza to a 66- Mendoza could not friend but imprisonment month term of six- supply girlfriend’s telephone number. year period supervised for car release each Mendoza also stated he left his count, Castaneda; but ordered that the sentences be meeting with a friend before concurrently. served He was also ordered provide but he could not the friend’s last $1,000 pay a appeal fine. Mendoza’s explain why name and could not he would today. from this conviction person car is before us leave his with whose last name he did not know. II. Discussion pled guilty Prior to Castaneda A. Sufficiency conspiracy to import marihuana. She argues the evi agreed testify against Mendoza. Cas- charge dence on each was insufficient. We testimony taneda’s trial tracked the second will affirm if “a reasonable trier of fact story Agent that she told Martinez: she could find that the evidence establishes had traveled to Mexico at Mendoza’s re- guilt beyond a reasonable doubt.” United quest help in order to him “cross over a Bell, Cir. truck.” She testified Mendoza and 1982) (en banc). The evidence and all his friend were both in the truck when she reasonable inferences drawn from it are to meeting place, arrived at the that Mendoza appeal be viewed on light most told registration her the truck’s had been government. favorable Id. “In ad officials, confiscated Mexican and Men- dition, credibility all determinations are doza told her to lie to the border officers *7 made in light most favorable to the regarding truck ownership. She said that Moreno, verdict.” United States v. 185 Mendoza went from sitting normally to (5th Cir.1999). F.3d 471 slouching against the door as the truck bridge crossed the to the border check- “The evidence need not exclude point, her, then told “I don’t any- know every reasonable hypothesis of innocence thing,” as the officers were removing them wholly or be inconsistent with every con during secondary the truck in- except guilt, clusion that of jury and the is spection. jurors Castaneda told that she among free to choose reasonable construc this understood to mean that the truck had tions of the evidence.” United States v. drugs in it. (5th Ortega Reyna, 148 F.3d 543 Cir. 1998). pled guilty However, Mendoza not to the four if “gives the evidence him; charges against strategy his trial equal nearly equal was or sup circumstantial to contest his knowledge port theory innocence,” that marihuana to a of or in was hidden the truck. Mendoza was Court should reverse because “under these jury convicted on each drug- of four jury circumstances reasonable must nec conspiracy related counts: import essarily to 50 entertain a reasonable doubt.”
489 Ramos-Garcia, stories and false to inconsistent statements Cir.1999) (citations authorities. some border omitted). quotation internal marks argues Mendoza that Castane testimony in light
da’s was unreliable of knowledge 1. Element conflicting her and false stories statements suggests Mendoza the border. also on four was convicted Mendoza during the inspec her nervousness border marihuana, conspiracy import charges: tion, as contrasted with his calm demean- marihuana, and two counts importation of or, indicates that Castaneda —not Mendo possess the marihuana conspiracy za—knew the marihuana in the about We will not the intent distribute. with However, challenges go truck. these these offenses be detail each element of credibility testimony. of Castaneda’s solely the suffi challenges cause jury plea The was aware of Castaneda’s regarding knowledge. ciency of agreement government with the and heard possession in a knowledge “The element testimony regarding her inconsistent sto by direct rarely case can be established jury charged ries. The is with determin Ramos-Garcia, F.3d at evidence.” and, if ing testimony whether is credible “Knowledge can be inferred from so, weight given. what it should be Our cases; vehicle in some how control of the review assumes such determinations are ever, hidden, drugs are control when light made in the most to the favorable is not sufficient to over the vehicle alone second-guess verdict and we will knowledge.” In a hidden com prove Id. jury’s on this Evidence decision basis. situation, requires this partment Court entirely testimony from ac consisting “that is other circumstantial evidence sus complices conspirators is sufficient. picious in nature or demonstrates Turner, United States v. F.3d Garza, knowledge.” United States (5th Cir.1993). sighing argues Mendoza next slumping drug-sniff- reaction to the 2. Evidence at trial offered alert, ing dog’s apparent sleeping and his the truck was directed to the second- government asserts the when ary just were as indicative of jury’s supported by inspection, verdict is sufficient However, guilt. innocence as circumstantial evidence of Mendoza’s (1) namely: reasonably could have inferred that guilty knowledge, Castaneda’s suspicious. example, For testimony that Mendoza was control of behavior conversations, him in other noises and movements the truck when she met Mexico and secondary inspec- to the only primary that she drove the truck at his re from the *8 (2) testimony might by jurors be found to quest; Castaneda’s tion sites could unlikely any passenger her lie to authori make it Mendoza told to border (3) vehicle; sleeping. Consistently, a CBP officer tes- ownership ties about the of the (or statement, any sleeping pretending sleep) “I don’t tified that to Mendoza’s know testimony person that she was unusual behavior for a who has thing,” and Castaneda’s secondary inspection that there were referred to the understood to mean been (4) addition, truck; checkpoint. at a drugs feigned in the Mendoza’s area border (5) initially that he lied to during crossing; Men Mendoza admitted sleep border incon- drug-sniffing dog Agent provided Martinez. He also doza’s reaction when (6) truck; method of regarding and Mendoza’s sistent statements his alerted to the and who for can decide what nervousness is and his reasons traveling to Mexico what. get back into would nervous about Castaneda accompanying types These of inconsis- United States. is, say if I thing you can had wanted One cir- well-recognized “are tent statements my facial to nervous—if I hide appear knowledge.” cumstantial evidence just my you features from and close Casilla, darting my eyes, you can’t tell if I’m forth, looking if I’m not at eyes back and showing. not you my artery carotid is evidence, it reviewing this “Upon me looking you allows to Just inquiry note that the sole is important is my you. feigning features from So hide jury’s was ulti not whether the verdict sleep way is a to hide nervous behavior. jury made mately correct but whether upon the evi a reasonable decision based thing you other is sat here And the for at trial.” United States dence introduced days, you’ve gotten and to look at two Franco, v. Pando seat, you were in his the defendant. If Cir.2007) (citing States v. Jaramil you be calm as he has been would for (5th Cir.1995)). lo, Five days? the last two at trial and these wit witnesses testified honor, may Your we Counsel]: [Defense suspicious be nesses described Mendoza’s testifying. approach? He’s havior, stories, conflicting and one witness objection. I’ll You [Court]: overrule placed him in control of the truck. While may proceed. against Men the circumstantial gentlemen Ladies and something [Prosecutor]: be characterized as may doza jury, I sure I’m clear overwhelming, less than it was not insuffi want make right it. an cient as a matter of law. about You have inalienable testify yourself. And I against not to closing argument B. Prosecutor’s certainly want to make it clear—it’s in your jury charge, and it’s one of argues that the fairness of his rights. constitutional He has abso- during govern- trial was undermined testify. not to right lute closing argument, prose- ment’s when the cutor asked the to take note of Men- you allowed look at him But are doza’s courtroom demeanor. Mendoza’s sitting there. You are allowed to look at days. trial lasted for two The defense demeanor, asking all his that’s I’m presented no witnesses. Mendoza was you do. present throughout in the courtroom objected prosecu- Defense counsel at the trial but never testified. mention of demeanor. tor’s first challenged section of objection This was overruled and the dis- It fol- during prosecutor’s rebuttal. give any trict court did not instructions to emphasizing lowed defense counsel’s jury regarding particular these re- closing argument that Mendoza had been marks. calm at the border. We set forth the argu- portion
relevant argue that the Mendoza does not ment, emphasizing that Men- remarks remarks constituted a comment on his fail alleges improper prejudi- doza were testify. A comment on ure to *9 cial: “expressionless a defendant’s courtroom equiv You can look at different demeanor” has been found not to be
[Prosecutor]: they and decide how act. You alent to a comment on his failure to take people
491
Murrah,
24,
Wainwright, 511 United States v.
888 F.2d
Bishop
v.
26
stand.
(5th Cir.1989).
(5th
664,
“The
purpose
n.
In-
sole
of clos
F.2d
668 & 5
stead,
ing argument
is to assist the
in ana
argues that the comment
lyzing, evaluating
applying
the evi
right
guilt
to “have his
or
violated his
Dorr,
dence.” United States v.
636 F.2d
solely on the basis
innocence determined
(5th
Feb.1981).
A
Cir. Unit
introduced at
and not on
of evidence
proof
...
adduced as
at trial.”
grounds
not
precedents
that we have dis
478, 485,
Kentucky,
98
Taylor v.
436 U.S.
agree
covered from other circuits
(1978).
1930, L.Ed.2d 468
S.Ct.
56
courtroom
non-testifying
demeanor of a
criminal
improper subject
defendant is an
commenting
1.
on a de-
Propriety of
by
for comment
a prosecuting attorney.1
demeanor
non-testimonial
fendant’s
course, it
jurors
Of
is inevitable that
will
by a
“Improper
comments
observe a defendant at counsel table dur
prosecutor may constitute reversible error
ing
jurors may
the course of a trial. Some
trial
right
where the defendant’s
to a fair
form opinions from these observations re
substantially
is
affected.” United States v. gardless
given
by
of instructions
them the
(5th
Andrews,
1328,
22 F.3d
1341
Cir. court.2 This
consequence
is a natural
of a
1994). Appellate review of claims that a
right
defendant’s decision to exercise his
prosecutor
improper
made
present
be
at trial. See Faretta v. Califor
steps.
analyze
occurs in two
We first
nia,
806,
15,
2525,
422 U.S.
n.
819
95 S.Ct.
remark was le
whether
(1975).
prosecutor
2004)).
now,
step
take that first
then
We
testify.
Mendoza did not
His courtroom
evaluate the effect of the error in the next
any
legally
demeanor was not “in
sense
section.
question
relevant
of his
charged.”
innocence of the crime
Id. The
prosecutor
A
is confined
prosecutor’s comments were error.
closing argument
discussing properly
any
in
admitted evidence and
reasonable
error
Effect of
or conclusions that can
drawn
ferences
(a) Standard
review
prosecutor may
from that evidence. “A
directly
refer to or even allude to
prosecutor’s improper
When a
re
at trial.”
evidence that was not adduced
marks are claimed
defendant
have
Schuler,
978,
Douzanis,
1993);
1. United States v.
813 F.2d
980-
Cir.
Borodine v.
592 F.2d
1202,
(1st
1979).
1987);
Pearson,
(9th
1210-11
Cir.
Cir.
United States v.
787,
1984);
746 F.2d
Cir.
United
dissenting judge argued
jury’s
2. One
that a
Carroll,
States v.
1209-10
consideration of an accused’s demeanor
1982);
Wright,
Cir.
United
F.2d
States
proper
conduct at counsel’s table was
evi-
(D.C.Cir.1973).
explicitly
Without
Schuler,
J.,
(Hall,
dence.
prejudiced
of our
apply
appeal.
articulations
we
to this
different
used a few
Re-
reviewing the error.
role in
appellate
prosecu
do not view the
We
goal
the
language,
precise
of the
gardless
in isolation but consider the
tor’s remarks
meaningful
if there is a
is to determine
in
effect of those remarks
the context of
affect-
improperly
was
that the verdict
risk
con
Underlying
the entire trial.
Id.
our
remarks.
ed
those
“criminal
is
siderations is that a
conviction
times,
distinguished
have
review
we
At
lightly overturned on the basis of
not to be
misconduct under our
prosecutorial
of
prosecutor’s
standing
comments
alone.”
over the trials
power
supervisory
broad
Andrews,
493
and
in a
E.g.,
person’s being
prison-
for counsel.
even
issued
request
lence or
Moreno,
465,
clothing.
It
472-73 er
is the trial court’s function
v.
States
Cir.1999).
jurors
to ensure
do not use those
analyzing whether
When
symbols
events and
as
reversal,
Taylor
evidence.
requires
error
we
constitutional
any
do not transform
Williams
refer-
“whether the error was harmless be
ask
ence to matters not in evidence into a
Id.;
Chap
yond a reasonable doubt.”
see
Consistently,
Fifth Amendment violation.
18, 21-24,
California,
man v.
386 U.S.
87
this Court has reviewed a
ref-
(1967).3
824,
for See 436 U.S. (b) Analysis prejudice 1930; Williams, 98 S.Ct. U.S. analysis 1691. about now 96 S.Ct. Governmental views We undertake arrest, indictment, necessary preju- if there was guilt are reflected in to determine quotes contrary, argues proper Although from the Su- Mendoza reviewing preme Taylor Kentucky, the remarks is the one Court’s standard for decision following was argues that case be re- we are serious doubt he never should —whether beyond of the verdict due to viewed under the “harmless a reason- cast on the correctness To the error. able doubt” constitutional error standard. mony coming in- in and number jury was not dicial error. *12 laugh laugh him and saw him you the comment on his saw disregard structed Instead, trial they repeated. the were demeanor. courtroom objection the invited overruling court’s at 979. The court characterized Id. Therefore, the consideration of demeanor. “suggesting to prosecutor’s comments as evidence and inculpatory of the strength laughter was rele- that Schuler’s prejudice from possible showing of apparently purpose vant for the ameliorat- evaluated without the must be character because he that he was of bad from the court. of a corrective ing effect threatening the charges considered the of strength of of the error Seriousness joke.” a Id. at life of the President to be are interrelated inculpatory evidence 404(a)). The court (citing Fed.R.Evid. required. if reversal is when we evaluate that “such comments the ab- concluded the weakness of the incrimi- Depending on instruction, a of a curative constitute sence evidence, relatively mild but errone- nating right to a fair trial.” Id. deprivation error, but can be reversible ous comments at 981. overwhelming containing a case argues that one of this Mendoza also by much of would be little affected supports a reversal of his Court’s decisions egregious argument. error in more Wicker, conviction. United States objection in present After the case Wicker, In F.2d 284 overruled, ju- prosecutor informed was argu- prosecutor alleged during closing they “allowed to look at him rors were at laughed ment that the defendant had That comment was certain- sitting there.” in a testimony regarding his involvement unobjectionable in iso- ly true and even Id. at 290-91. Then- bank fraud scheme. requirement lation —there is no courtroom Court, Clark, Judge writing for the Chief jurors eyes their from those not avert discussed Schuler but refused to reverse context, though, on the witness stand. There had been no Wicker’s conviction. jurors an invitation for the comment was objection to the remark at which left weigh as evidence the calmness of appellate plain of error the heavier burden defendant at the counsel’s table. review; the harmful effect of the remark Perceiving prejudice substantial gave court was lessened when district prosecutor’s argument, Mendoza di- instruction. Id. at sponte a sua curative rects us to a Ninth Circuit decision that solely
reversed a conviction due to the argues that because he did prosecutor’s improper reference to the de- in- object did not receive a curative closing fendant’s courtroom demeanor in struction, a warranted under reversal is Schuler, argument. both Wicker and Schuler. (9th Cir.1987). The 983-84 prosecutor following made the re- Schuler Weighing against reversal is that mark: non the remarks here were isolated and
[Wjhile
only a
being
inflammatory. They comprised
Mr.
interro-
Schuler was
be a
gated by
security agents,
portion
the two
Schu-
small
of what was said to
twenty-minute closing argument
a
that cov
ler made
number
racial comments
transcript pages. Though de
people
go-
about the number of
he was
ers fourteen
overruled,
kill,
objection
com-
counsel’s
ing to
number of sexual
fense
you
prosecutor
I
did not dwell on Mendoza’s
ments.
noticed number
were
quoted ev-
that testi-
courtroom demeanor. We have
looking Mr. Schuler while
al-
point.
to the
of remorse for the harm he had
ery reference
caused.
way
In the same
calmness in the courtroom was not
“bad character” evi
leged
closely
dence is
controlled
the eviden
mentioned before or after this one inci-
tiary rules,
jurors
efforts
to inflame
Generally,
improper argument
dent.
through argument that characterizes a de
that is isolated does not warrant reversal
despicable
fendant
the most
manner will
Hitt,
a criminal conviction.
473 F.3d at
creating
high
be seen as
preju
risk of
161-62.
404(a)
dice. Federal Rule of Evidence
government
suggests
also
that the
*13
excludes proof of bad character “not be
inflammatory
remarks were not
because
value,
it
probative
cause
has no
but be
they
“arguably
irrele
upon
touched
it
may
jury
cause
sometimes
lead a
to
in
vant” matter —Mendoza’s calmness
ground
convict the accused on the
of bad
Harms,
courtroom.
States v.
United
Cf.
deserving punishment
character
irrespec
(5th Cir.2006) (defendant
442 F.3d
Anderson,
guilt.”
tive of
prosecutor’s
could not show that
comment
(5th Cir.1991).
933 F.2d
Unlike
essentially
“on an
irrelevant matter” sub
inflammatory
regarding
remarks
However,
stantially prejudiced
rights).
laughter,
prosecutor’s passing
remarks
strategy
Mendoza’s defense
included con
regarding Mendoza’s demeanor would not
trasting his calmness at the border with seemingly
guilty-because-of-bad
evoke
fact,
Castaneda’s nervousness.
reasoning by jurors.
eharacter
This dis
prosecutor’s
closing
remarks followed a
ar
tinction does not make the comments here
that
gument
defense counsel
stressed
erroneous,
any
may
it
less
but
make them
in
during
Mendoza’s calmness
the border
less harmful.
spection.
appeared
Neither trial counsel
just
have
our
We
described
ability
to consider Mendoza’s
to remain
analysis
prejudice
of the kind of
that has
during
calm
stressful situations irrelevant
caused,
not,
or
controlling
reversal
during closing arguments.
precedents.
“Reversal and remand is the
importance
It is also of some
that
prosecutorial
most effective sanction for
these remarks did not characterize Mendo misconduct,”
employ
we are not
to
but
free
demeaning way
za in a
in an effort to
every
that
sanction
case. United States
jurors
convince
of his bad character. For
Jones,
839 F.2d
Cir.
example,
suggest
the remarks did not
that
1988).
prosecutorial
Reversal due to
re
re
Mendoza was heartless or without
inexorably
marks
not
from a
does
flow
only
morse. We have found
one federal
re
determination
error. Even where
opinion
circuit
that
a con
court
reversed
may
categorized
“reprehensi
marks
as
be
solely
prosecutor’s
viction based
on the
id.,
ble,”
“clearly inappropriate,”
regarding
remarks
the defendant’s court
Lowenberg,
853 F.2d
Schuler,
room demeanor.
813 F.2d at
See
Cir.1988),
legal
we must still consider their
Schuler,
prosecutor
981.4 In
risked
a criminal
impact.
power
Our
to reverse
jurors by
inflaming
implying
prosecutorial
that the de
for
misconduct
conviction
laughter
permit
ignore
fendant’s
was indicative of a lack
not
us to
the actual
“does
Carroll,
addressing
(finding
4. The other cases
such remarks
See
Mendoza was guilty knowledge preju- I these comments that he had believe determined rights Mendoza’s substantive be- in the fenders of diced the marihuana hidden of When, here, against duced him.... witnesses testi- At the Government's (1) prosecutor describes the courtroom behavior appear did not to be fied that Mendoza testified, (2) and then inspection, of a defendant who has not during primary he nervous may consider pickup goes to tell the that it feign sleep truck on appeared to when area, prose guilt, the as evidence of secondary inspection and that behavior entered the (emphasis (3) rights.”) add during cutor violates those appear to be nervous he did not Gatto, 449, ed); (until drug-sniffing United States v. 995 F.2d secondary inspection a see ("When (3d 1993) prosecutor ... bumper). 455 Cir. dog to the front alerted closing defendant’s court comments in on 478, 486, supporting any evi Kentucky, conduct without Taylor 436 U.S. room 2. See v. record, 1930, (1978) (refer- the defendant’s dence in the L.Ed.2d 468 98 S.Ct. 56 Fifth process rights a trial right due ring Amendment to "the constitutional accused’s fair judged solely basis evidence proof and to be on the judged solely of adduced on basis of violated.”) added); (emphasis trial”) are admitted at trial (emphasis see United States Ahitow, 1128, Schuler, (9th Cir.1987) added); 29 F.3d v. see 813 F.2d Gomez ("The (7th 1994) prosecution may ("We prosecutor's] Cir. agree ... com- [the not, instruction, process due with a defendant's consistent ments in the absence of curative ..., by going rights a conviction seek to obtain deprivation amend- constitute a fifth (internal trial.’’) added); jury.”) beyond (emphasis the evidence right ment before fair added). omitted) Carroll, (emphasis quotation marks United States v. see ("It (4th Cir.1982) is clear that the 1209-10 argue prosecu- that the be- 3.Mendoza does not prosecutor’s to the courtroom reference were a comment on his fail- improper.... tor’s comments the defendant was havior of testify. Although prosecutor’s com- right ure not to be He also had a Amendment Fifth "expressionless defendant’s ad- ment on a except on the basis convicted evidence, on admissible that was improper comments based prosecutor’s cause the by in during closing argu- most contested issue raised Mendoza his related to the guilty knowledge Regardless interpreta- of the ment. of the exact trial —Mendoza’s jurors, prejudi- adopted Because the tion we should not marihuana. hidden prej- these comments was com- assume the best-case scenario our cial effect analysis. If cautionary of a udice Mendoza’s calm de- pounded by the absence the “less than overwhelm- meanor in the courtroom was irrelevant to instruction and inconclusive, knowledge, guilt, prosecu- I must then the ing” guilty evidence of majority’s argument re- tor would not made the respectfully dissent from the have objection repeated conviction and then it after Mendoza’s fusal to reverse Mendoza’s for a new trial. See United States was overruled. remand Virgen-Moreno, 290-91 may directly “A prosecutor refer to Cir.2001). or even allude to evidence that was not adduced at trial.” United States v. Mur-
II. rah, Dur- closing argument, prosecutor During ing arguments, closing argued improperly compared Mendoza’s calm de- that his calm demeanor at the border was meanor at the border with his calm de- guilty knowledge indicative of lack of when meanor in the courtroom in an effort to viewed in context with Castaneda’s ner- bolster the Government’s my opin- vous demeanor at the border. argument regarding discredit the defense’s ion, right Mendoza’s to a fair trial was guilty knowledge. Mendoza’s substantially prosecutor affected when the argued that calm demeanor at majority best, postulates that “[a]t the border was indicative of knowl- encouraged effort flawed edge when viewed context with Mendo- a belief that Mendoza’s serial calmness za’s calm demeanor in the courtroom. The was not proof of either or innocence.” prosecutor wrongfully attempted to neu- I believe that the comments *16 persuasive tralize the value of Mendoza’s suggest that Mendoza acts calm in order comparison admissible evidence—Castane- his or hide nervousness. Alterna- da’s nervous demeanor at the border— tively, prosecutor’s might the comments comparison with inadmissible evidence— calm, always that suggest Mendoza is so Mendoza’s calm demeanor in the court- calm at demeanor the border is not room. innocence, probative contrary of his to the ju- of the defense. Reasonable III.
rors interpreted prosecu- could have the however, way; tor’s comments either both Because the Government carries the arguments rely upon proof regarding inadmissible evidence burden of the knowledge element, legitimate theory, rebut a defensive I prosecutor’s improp- believe the usually argue courtroom demeanor” is not a com- cutor’s "manifest intent” was to that stand, ment on his failure to take the see Mendoza’s calmness in the courtroom was 664,
Bishop Wainwright,
probative
guilty knowledge
511 F.2d
668 &
of his
of the hid-
(5th Cir.1975),
Grosz,
might
depending
marijuana.
n. 5
it
den
See United States v.
upon
(5th Cir.1996).
ju-
content and context of the state-
76 F.3d
The
Schuler,
prosecutor’s
ment. See
IV. improper majority, to the According majority’s attempt to with the disagree I usually not does that is “isolated” comment States v. Schuler distinguish United criminal conviction. of a reversal warrant improper com- noting that the Hitt, See to Mendoza’s bad not related ments were ma- Although the 161-62 inflammatory. and were character im- characterizes the jority arguing that bad majority is correct in statements comments as isolated proper inherently inflamma- evidence is character *17 closing twenty-minute a within contained prejudice. high creates a risk tory and of those effect argument, prejudicial the Anderson, F.2d 933 States v. See United one considers magnified is when comments (5th Cir.1991); 1261, 1268 Fed.R.Evid. knowledge guilty role that prominent 404(a). Nevertheless, im- trial.” of the entire “in the context played in case also created comments proper 290. F.3d at Virgen-Moreno, 265 See they relat- high prejudice a risk of because in tri- issue to the most contested ed VI. the hid- guilty knowledge of al—Mendoza’s possession drug in Demeanor evidence Although marihuana. den and dubious protean quality has suggest cases comments not improper did Indeed, previ- we have value. probative or without re- was “heartless of a “the character recognized that ously morse,” that he was they did suggest scrutiny at the bor- reaction to charged. defendant’s the crimes guilty of 500 optimistically speculates sword for the defen that the did double-edged
der is Ramos-Garcia, seriously v. consider the inadmissible ev- States dant.” United (5th Cir.1999). idence, 463, requires 466 We have our standard of review us F.3d 184 improper demeanor can indicate to evaluate whether com- that nervous stated on knowledge, see United States v. Oli ments “cast serious doubt the correct- guilty (5th vier-Becerril, 424, verdict,” jury’s 427 Cir. ness of the not whether 861 1988), guilty they conclusively can indicate undermined that verdict. calm demeanor Iredia, States v. Resio- See United States v. 866 F.2d knowledge, see United (5th Cir.1989). Cir.1995), my opinion, ner 117 Men- Trejo, 45 F.3d successfully is a normal reaction to doza carried the substantial vous demeanor establishing and does not neces burden of that this error war- unusual circumstances sarily underlying of his conviction. derive from conscious rants reversal See Vir- behavior, gen-Moreno, criminal at ness of see United 265 F.3d Williams-Hendricks, 805 F.2d States Cir.1986), VII. and calm demeanor provide equal support can circumstantial majority The criticizes me for character innocence, finding guilt for a see izing prosecutor’s improper comments Ortega Reyna, only at 544. The as constitutional error and for not applying way conflicting to reconcile these state Chapman standard of review: whether ments is to conclude that demeanor evi the constitutional error was harmless be dence is inconclusive unless viewed yond a reasonable Chapman doubt. See context of other admissible circumstantial 18, 24, California, 386 U.S. S.Ct. indicating guilty knowledge. See (1967). Schuler, Carroll, L.Ed.2d 705 Gat
Ramos-Garcia,
vant question to the of his or inno- on referring to evidence that was not ad- cence charged.” of the crime duced at trial origins, has constitutional Wright, prohibition some cases indicate that the is (D.C.Cir.1973). *18 simply appellate exercise of the court’s case,
In this
we don’t
“supervisory powers
know whether
over federal trials” on
Douzanis,
admissible or
tipped
inadmissible evidence
direct review. See Borodine v.
(1st
1202,
Cir.1979);
the balance in favor of the Government
592 F.2d
1211 n. 6
see
and led
States,
78,
to conclude that
Berger
Mendo-
also
v.
295
United
U.S.
84-85, 89,
629,
za’s calm demeanor was indicative of
55 S.Ct.
501
1974,
nounced
or the evidence was so
every legitimate
just Berger, 295 U.S. S.Ct. one.” comments
629. I believe Fifth Amendment due
violated have his or innocence right to
process solely on the basis of the evi-
determined prop- at trial. Mendoza
dence introduced error,
erly and the district preserved give requisite cautionary
court failed to
Carroll,
instruction. See
(“By remarks to allowing uncorrected,
pass over defense counsel’s
objection, implied ... the district court unobjectionable.”).
that the remarks were justice require reversal and
Fairness reasons, respectfully
remand. For these I
dissent. America,
UNITED STATES
Plaintiff-Appellee, ROJAS-LUNA,
Arturo Defendant-
Appellant.
No. 07-40016. of Appeals, Court
Fifth Circuit.
March Harmon, Turner,
Mary Jane Lee James Atty., Houston, TX, Asst. U.S. for U.S. Marjorie Def., Meyers, A. Fed. H. Pub. Sokolow, Houston, TX, Michael for Defen- dant-Appellant.