United States v. Patricia Hernandez

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-3854
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UNITED STATES OF AMERICA

PATRICIA HERNANDEZ,
Appellant
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Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 2-08-cr-00506-001)
District Judge: Honorable Lawrence F. Stengel
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Submitted Under Third Circuit LAR 34.1(a)
January 10, 2011

Before: RENDELL, AMBRO and FISHER, Circuit Judges.

(Opinion Filed: January 11, 2011)
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OPINION OF THE COURT
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RENDELL, Circuit Judge.

Appellant Patricia Hernandez seeks a new trial following a jury verdict finding her

guilty of one count of possession of a firearm by a convicted felon, in violation of 18

U.S.C. § 922(g)(1). She argues that the United States committed prosecutorial

misconduct by improperly stating during closing argument that Hernandez knew that she
could not possess a firearm, which allegedly rendered her trial fundamentally unfair and

deprived her of due process. For the following reasons, we will affirm.

Because we write solely for the benefit of the parties who are familiar with the

factual context and procedural history of this case, we will recite only the facts relevant to

our analysis. On April 3, 2008, police responded to a report of an individual with a gun

at a residence and arrived to find Hernandez near the doorway of the kitchen. When the

officers ordered Hernandez to show her hands, she reached into her pocket, removed a

shiny object, and tossed the object behind the kitchen doorway. The arresting officer

proceeded through the kitchen doorway and discovered an operable gun lying in a box of

cat litter.

At trial, the government presented its case and Hernandez offered one stipulation

regarding her whereabouts before the incident. During closing argument, Hernandez

objected to the following statement by the prosecutor:

So let’s freeze the picture right there. At that moment in time, what did the
defendant know? She knows that she is a convicted felon. She knows that
as a convicted felon, she can’t possess a firearm, and she knows that she
has a firearm sitting in her pants pocket.
(Appendix 8.) Hernandez timely objected, asserting that the inference drawn as to her

purported knowledge was not in the record and improperly highlighted her decision not

to testify.

The District Court initially responded that the statement appeared to be a

permissible inference based on Hernandez’s conduct at the time of arrest, but proceeded

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to instruct the jury on the issue in its closing instruction. The Court specifically noted

that Hernandez’s decision not to testify was her right and could not be considered in any

way in the jury’s deliberation. Furthermore, the Court advised that Hernandez’s state of

mind was not directly in the record, and that the government’s closing invited the jury in

its discretion to draw an inference about Hernandez’s state of mind based on her conduct.

Finally, the Court instructed that the government’s closing should not be construed as a

comment upon Hernandez’s decision not to testify.

The jury returned a verdict of guilty.

Discussion 1

Hernandez argues that the prosecutor made prejudicial comments during her

closing argument that warrant the grant of a new trial. Specifically, she challenges the

government’s inference that she “knew” that she was not permitted to carry a firearm as

being unsupported by the evidence presented at trial. She contends that the inference

impermissibly prejudiced the jury, as it suggested that the prosecutor possessed

undisclosed evidence which could not be presented to the jury. Hernandez emphasizes

that the closing statements were particularly prejudicial since the only issue at trial was

knowledge of possession of the firearm. We disagree.

The question of whether prosecutorial comments “so infected the trial with

unfairness as to make the resulting conviction a denial of due process” is a narrow one,

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The District Court had jurisdiction over this criminal case by virtue of 18 U.S.C.
§ 3231. This Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291.

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Darden v. Wainwright, 477 U.S. 168, 181 (1986), and “our case law punishes the

government by granting a new trial . . . only if the defendant was prejudiced by the

remarks in question,” United States v. Helbling, 209 F.3d 226, 241 (3d Cir. 2000).

As an initial matter, we are not convinced that the prosecutor’s statement

regarding Hernandez’s alleged knowledge was improper. We have consistently held that

a “prosecutor is entitled to considerable latitude in summation to argue the evidence and

any reasonable inferences that can be drawn from that evidence.” United States v. Lee,

612 F.3d 170, 194 (3d Cir. 2010) (quoting United States v. Werme, 939 F.2d 108, 117 (3d

Cir. 1991)). Here, the District Court observed at the time of the prosecutor’s remarks that

“the argument can be based on an inference drawn from her behavior, in addition to her

knowledge that she has, at least, one felony conviction.” (Supp. App. 176-77.) The

prosecutor’s inference was not unreasonable in light of the evidence actually presented at

trial demonstrating Hernandez’s conduct at the time of her arrest and prior criminal

history. Accordingly, Hernandez has not demonstrated that the District Court abused its

discretion by allowing this statement.

Even if the prosecutorial conduct had been improper, however, it did not prejudice

Hernandez. “‘In determining prejudice, we consider the scope of the objectionable

comments and their relationship to the entire proceeding, the ameliorative effect of any

curative instructions given, and the strength of the evidence supporting the defendant’s

conviction.’” Helbling, 209 F.3d at 241 (quoting United States v. Zehrbach, 47 F.3d

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1252, 1265 (3d Cir. 1995)). Where, as here, the error is non-constitutional, “we will

affirm ‘when it is highly probable that the error did not contribute to the judgment.’” Id.

(quoting Gov’t of Virgin Islands v. Toto, 529 F.2d 278, 284 (3d Cir. 1976)).

First, the evidence presented by the United States in support of Hernandez’s

conviction for possession of a firearm in violation of Section 922(g) was substantial. The

government adduced consistent testimony from several witnesses – including a civilian

and two police officers – who directly observed Hernandez in possession of a weapon,

satisfying the government’s burden of proof. Second, the District Court provided an

extensive curative instruction, ameliorating any potential prejudice. The Court directed

the jury that it alone would decide what inferences to draw based on the evidence in the

record, and reminded the jurors on several occasions that statements by attorneys did not

constitute evidence. (Supp. App. 195-96.) Moreover, the Court clearly told the jury that

any remarks in the closing argument pertaining to Hernandez’s state of mind only invited

the jurors to make their own inferences based on Hernandez’s conduct, and were not to

be construed as a comment on Hernandez’s decision not to testify.

Finally, the relationship of the objectionable comments to the entire proceeding

was notably limited in scope. As stated, the government did not need to prove

Hernandez’s knowledge of the law, but only her possession of a weapon. See § 922(g).

Having advanced sufficient evidence to prove the latter element, the prosecutor’s

subsequent remarks regarding Hernandez’s knowledge of the unlawfulness of her

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behavior was unnecessary to a finding of guilt. Additionally, “this statement was brief

and isolated” within the larger evidentiary presentation. See United States v. Weatherly,

525 F.3d 265, 273 (3d Cir. 2008) (finding it “highly unlikely that [disputed] statement

had any influence on the jury” where brief remark was part of extensive transcript). “[I]f

our review of the record convinces us that the jury would have convicted the defendant

even had it not been exposed to the allegedly improper prosecutorial comments, we must

conclude that no actual prejudice accrued.” United States v. Liburd, 607 F.3d 339, 345

(3d Cir. 2010) (quoting Gov’t of Virgin Islands v. Joseph, 770 F.2d 343, 350 (3d Cir.

1985)). Here, we are convinced that that the jury would have convicted Hernandez

regardless of the prosecutor’s disputed remark. See Helbling, 209 F.3d at 241.

Accordingly, we find that the District Court did not abuse its discretion in denying

Hernandez’s request for a new trial.

Conclusion

For the foregoing reasons, we will affirm the District Court’s decision.