UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2103
No. 92-2136
JUAN ARRIETA-AGRESSOT, REGULO RIOS,
JOSE ANTONIO BARROSO, ADALBERTO AGUILAR-EPIEYU,
ADALBERTO MONCARIS-BERMODEZ,
and DIEGO CALDAS-GONZALEZ,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
No. 92-2207
UNITED STATES OF AMERICA,
Appellee,
v.
ADALBERTO AGUILAR-EPIEYU,
Defendant, Appellant.
No. 92-2208
UNITED STATES OF AMERICA,
Appellee,
v.
ALBERTO MONCARIS-BERMODEZ,
Defendant, Appellant.
No. 92-2209
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE ANTONIO-BARROSO,
Defendant, Appellant.
No. 92-2210
UNITED STATES OF AMERICA,
Appellee,
v.
REGULO RIOS,
Defendant, Appellant.
No. 92-2211
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN ARRIETA-AGRESSOT,
Defendant, Appellant.
No. 93-1946
UNITED STATES OF AMERICA,
Appellee,
v.
DIEGO CALDAS-GONZALEZ,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
Before
Selya, Cyr and Boudin,
Circuit Judges.
Rafael F. Castro-Lang, by Appointment of the Court, for
appellants Adalberto Aguilar-Epieyu and Juan Arrieta-Agressot.
Frank D. Inserni, by Appointment of the Court, for appellants
Jose Antonio Barroso, Regulo Rios and Diego Caldas-Gonzalez.
Joseph C. Laws, Jr., by Appointment of the Court, for appellant
Adalberto Moncaris-Bermodez.
Ramon Garcia, by Appointment of the Court, on brief for appellant
Regulo Rios.
Jeffrey M. Williams, by Appointment of the Court, Javier A.
Morales Ramos and Indiano, Williams & Weinstein-Bacal on brief for
appellant Juan Arrieta-Agressot.
Yolanda A. Collazo Rodriguez, by Appointment of the Court, on
brief for appellant Diego Caldas-Gonzalez.
Carlos A. Perez-Irizarry, Assistant United States Attorney, with
whom Charles E. Fitzwilliam, United States Attorney, and Jose A.
Quiles Espinosa, Senior Litigation Counsel, were on brief for the
United States.
September 8, 1993
BOUDIN, Circuit Judge. The six appellants in this case
were convicted in the district court in Puerto Rico of
possession of marijuana with intent to distribute while on
board a vessel subject to the jurisdiction of the United
States. 46 U.S.C. App. 1903(a). The prosecutor made
inflammatory remarks to the jury, and we cannot say that the
evidence made conviction inevitable. We therefore vacate the
convictions and remand for further proceedings.1
Appellants were crew members aboard a fishing vessel
named the Jurango Kiss, which was intercepted by the U.S.
Navy and accompanying U.S. Coast Guard personnel about 100
miles off the coast of Colombia and found to be carrying
approximately 11,885 pounds of marijuana. The government had
no direct evidence that the crew members knowingly possessed
the marijuana with intent to distribute, and the success of
its case lay in persuading the jury beyond a reasonable doubt
that the crew members must have had the necessary knowledge
and intent. This task was complicated by the testimony of
Pedro Silvio Croes-Vincente, the captain of the vessel, who
was tried and convicted along with the crew members but has
not appealed. Croes-Vincente testified that the crew members
came aboard the Jurango Kiss just before the voyage and did
not know of the illicit cargo.
1. The appeals from the convictions are Nos. 92-2207, 92-
2208, 92-2209, 92-2210, 92-2211, and 93-1946. The remaining
appeals, relating to the petitions under 28 U.S.C. 2255
(Nos. 92-2103 and 92-2136), are dismissed as moot.
-4-
Throughout his closing argument the prosecutor urged the
jury to view this case as a battle in the war against drugs,
and the defendants as enemy soldiers. During his initial
closing remarks the prosecutor told the jury:
When the captain . . . and the rest of the
defendants departed Colombia they knew what was
inside the boat. They knew that the boat was full
with bales of marijuana, and they had no concern
for the youth. They had no concern for the people
that would have used the marijuana. They had no
concern for the people that would have been
addicted by the use of marijuana.
In his rebuttal argument the prosecutor returned to this
theme: Nobody has the right to poison the people
and poison our children. I can tell you
that I don't have an issue with that; but
I know the pain, the suffering that is
brought into many families by the use of
drugs, by the use of marijuana, by the
addiction to marijuana.
And you know that. You know that that is a real
problem. And we are here today because we want to
say no to drugs. We want to say no to what is
corrupting and disrupting the society, because
marijuana not only disrupts and corrupts our
society but it also corrupts and disrupts any
society in the world.
Later in his rebuttal, the government's lawyer continued:
But thank God at that time we had the Coast Guard
on board the [U.S.S.] SIMMS . . . . Because not
only they are [sic] protecting us; they are
protecting the people, they are protecting the
youth, they are protecting other societies.
That is why, ladies and gentlemen of the jury, they
were in the drug interdiction. To save you all
from the evil of drugs. Because the defendants are
not soldiers in the army of good. They are
soldiers in the army of evil, in the army which
only purpose [sic] is to poison, to disrupt, to
corrupt.
-5-
We think it is crystal clear that inflammatory language
of this ilk falls well outside the bounds of permissible
argument. In United States v. Machor, 879 F.2d 945, 955 (1st
Cir. 1989), cert. denied, 493 U.S. 1081, 1094 (1990), a
prosecuting attorney in Puerto Rico told the jury during his
closing statement that "[cocaine] is poisoning our community
and our kids die because of this." In United States v. Doe,
860 F.2d 488, 494 (1st Cir. 1988), cert. denied, 490 U.S.
1049 (1989), a prosecutor from that same district argued to
the jury that marijuana is "poison that is destroying our
children in our schools [and] is bringing an end [to] our
youth . . . ." In both cases we sharply rebuked the
prosecutor for making these comments, because they "serve no
purpose other than 'to inflame the passions and prejudices of
the jury, and to interject issues broader than the guilt or
innocence of the accused.'" Machor, 879 F.2d at 956 (quoting
Doe, 860 F.2d at 494).2
Once again, we affirm our view that such arguments are
plainly improper. It is hard enough for a jury to remain
dispassionate and objective amidst the tensions and turmoil
of a criminal trial, and this is not the occasion for
2. We went on to hold in Machor and Doe that the comments,
though "totally unjustified," Doe, 860 F.2d at 495, did not
warrant reversal because the evidence against the defendants
was "very strong," Machor, 895 F.2d at 956, and
"overwhelming," Doe, 860 F.2d at 495, and because in Machor
the remarks were made in rebuttal to similar comments by
defense counsel.
-6-
superheated rhetoric from the government urging jurors to
enlist in the war on drugs. The Seventh Circuit appears to
have approved references to "society's drug problem" in a
prosecutor's argument, although milder in tone and briefer
than the remarks here. See United States v. Ferguson, 935
F.2d 1518, 1530-31 (7th Cir. 1991). Still, it is remarkable,
in light of Machor, Doe and a slew of other recent cases in
this circuit,3 that the government defends as proper its
closing argument in this case. However, defense counsel in
this case failed to object to any of the prosecutor's
remarks. Courts of appeals are reluctant to entertain claims
of error absent timely objections at trial. Most trial
judges are leary of sua sponte interventions, so the failure
to object usually precludes a curative instruction, a warning
about further remarks, or some form of amelioration. And,
allowing such claims to be raised for the first time on
appeal may encourage strategic decisions by trial counsel to
remain mute in the face of error, reserving an issue for
appeal in the event of conviction.
3. E.g., United States v. Moreno, 991 F.2d 943, 947 (1st
Cir. 1993) (reference in closing argument to "protecting the
community that has been plagued by violence, senseless
violence, shootings and killings" was "patently improper");
United States v. Rodriguez-Cardona, 924 F.2d 1148, 1153-54
(1st Cir.) (improper reference to "deadly trade of narcotics
trafficking" and to appellant's "evilness"), cert. denied,
112 S. Ct. 54 (1991).
-7-
For these reasons, we will reverse a conviction where no
objection was made at trial only in the rare case in which
the mistake rises to the level of "plain error." See Fed. R.
Crim. P. 52(b); Machor, 879 F.2d at 955. Most errors are
plain after the event, and the phrase is something of a
misnomer: "[t]he plain-error exception to the
contemporaneous-objection rule is to be 'used sparingly,
solely in those circumstances in which a miscarriage of
justice would otherwise result.'" United States v. Young,
470 U.S. 1, 15 (1985) (quoting United States v. Frady, 456
U.S. 152, 163 n.14 (1982)). Reversal is appropriate only if
the illegitimate argument "so poisoned the well that the
trial's outcome was likely affected." United States v.
Mejia-Lozano, 829 F.2d 268, 274 (1st Cir. 1987).
In making this post hoc judgment, a crucial factor is
the weight of the evidence of the defendants' guilt or
innocence. See United States v. Santana-Camacho, 833 F.2d
371, 373-74 (1st Cir. 1987). We do not in such a case take
the evidence in the light most favorable to the government or
assume that credibility issues were resolved in its favor.
The jury may well have decided the issues in favor of the
government, but that jury decision may itself be tainted by
the improper remarks. Thus we will look at the evidence as a
whole and, despite the lack of objection, we will reverse if
-8-
the error is manifest and if there is a substantial chance
that absent the error the jury would have acquitted.
In this case, a reasonable jury could on the evidence
offered have found the crew guilty beyond a reasonable doubt,
but there was also evidence that made acquittal a realistic
possibility. At trial, the government proved that on
December 7, 1987, the U.S.S. Simms was conducting drug
interdiction patrols in the Caribbean Sea when it detected
the Jurango Kiss about 12 miles away, approximately 100 miles
north of Colombia. A helicopter reported that the vessel was
fashioned to look like a fishing ship but had no outriggers,
nets or fishing poles; that it did not display a registration
number; and that it was headed northbound toward the passage
between the Dominican Republic and Puerto Rico.
As the helicopter pilot approached the Jurango Kiss for
the second time, he saw numerous burlap- or plastic-wrapped
bales floating in the water and, when he got closer to the
ship, saw a man on the deck throwing bales overboard. The
pilot also observed that the ship had completely changed
course and was now heading south. After a short time the
Simms came alongside the Jurango Kiss and, after
unsuccessfully attempting radio contact, a small crew from
-9-
the Simms boarded the suspect vessel and ordered the captain
and his seven crewmen to congregate on the upper deck.4
The captain of the Jurango Kiss claimed not to know the
vessel's country of registry and was unable to produce any
documentation. A protective sweep of the vessel revealed 146
bales containing a green leafy substance, most of which were
stacked in plain view below deck in the ship's compartment
and a few of which were on the deck. Another 17 identical
bales were found floating in the sea and brought aboard the
Simms. A field test of samples of the bales' contents was
positive for marijuana. Members of the boarding party
described the Jurango Kiss as dilapidated and practically
unseaworthy, carrying little by way of food or clothing,
having sleeping quarters for only two persons and smelling of
marijuana.
After the government rested, the defendants called
Croes-Vincente, the captain of the Jurango Kiss. The
captain, virtually conceding his own knowledge of the drug
smuggling operation, told the jury that his crew was not
involved. He testified that six of his crewmen were brought
to the vessel shortly before it departed by "the people who
were running the show." The seventh was recruited from a
fishing vessel that happened to be in the vicinity of the
4. One of the crew members pleaded guilty, leaving only the
captain and the six appellants to stand trial.
-10-
Jurango Kiss on the morning of its departure. The crew did
not participate in loading the cargo, and did not see the
cargo or even go below deck until after the vessel departed.
Croes-Vincente testified that the crewmen were never told the
nature of the voyage, and explained that they were
intentionally kept in the dark "so they cannot talk if they
get busted."
Despite this testimony, the government's evidence would
have been sufficient to support a verdict of guilty against
the crew members in a trial free from error. A jury might
reasonably choose to disbelieve the white-wash testimony of
Croes-Vincente, and infer from the circumstances that the
crew members must have known of and participated in the
smuggling. But what a reasonable jury might have done in a
trial free from error is not the issue. The question, at
least on direct appeal, is whether the prosecutor's repeated
appeals to impermissible considerations might well have
altered the verdict, thereby affecting appellants'
substantial rights. In this case, given the potency of the
misstatements and the presence of direct exculpatory
testimony, we think that the answer is yes.
In arguing to the contrary, the government says that
given the conspicuous stacks of bales and the smell of
marijuana, anyone aboard must have known that drug smuggling
was the task at hand. But this evidence was tempered by the
-11-
captain's testimony that the crewmen were hired and brought
aboard "the moment that the boat was ready to leave" and had
no opportunity to view the cargo or inspect the ship prior to
setting sail. The government also stresses the jettisoning
of the cargo, but the captain testified that he ordered the
men to throw the bales overboard and they were merely
following his command. In weighing the captain's testimony,
the jury might also have considered that the testimony was
against the captain's own interest.5
On occasion, we have declined to find plain error where
the prosecutor's remarks were provoked by inflammatory
arguments by defendants' own counsel. E.g., Machor, 879 F.2d
at 956. By and large, defense counsels' arguments in this
case were brief and confined to legitimate issues in the
case. Defendants' counsel did intimate during trial that the
Navy and Coast Guard intimidated the defendants with a show
of weaponry and military force. While that theme may have
justified the prosecutor's defense of the government
officers, it did not warrant his repeated references to the
war on drugs, corruption of society and "protecting the
youth." See Santana-Camacho, 833 F.2d at 375 (finding plain
5. By testifying as he did the captain certainly forfeited
the benefit of any doubt the jury might have had regarding
his own participation. The captain's sole defense at trial
was that the Jurango Kiss was not a "vessel subject to the
jurisdiction of the United States," which is an element of
the crime charged. 46 U.S.C. App. 1903(a).
-12-
error where prosecutor's remark "was not made in response to
any improper statement made by the defense counsel").
The district court here read the standard instruction
informing the jury that arguments of counsel are not
evidence, and we have sometimes found that instruction enough
to counteract any lingering prejudice from an improper
summation. See, e.g., Mejia-Lozano, 829 F.2d at 274. Here,
however, the danger was not so much that the jury would
consider the prosecutor's statements to be "evidence."
Rather, the threat was that the prosecutor's remarks would
excite the jury, invite a partisan response, and distract its
attention from the only issue properly presented by this
case: whether the evidence established the crew members'
guilt beyond a reasonable doubt.
Although the extent of the prejudice is the paramount
issue, we think it necessary to say that the nature of the
misconduct also plays a part in our judgment. Almost any
argument made in summation can be described as deliberate;
but the several paragraphs of 150-proof rhetoric in this case
overstep the bounds by a wide margin. Here, the prosecutor
was inexperienced at the time of trial, as he candidly told
us at oral argument, and we do not dwell further on personal
fault. In fact, the unhappy outcome in this case--including
the expense of retrial, the waste of the trial court's time,
and the burden on the appellants--is less a reproach to the
-13-
individual assistant U.S. attorney than to those who
superintend young prosecutors in the district in question.
In sum, on review of the entire record, we are convinced
that "the prosecutor's misstatement[s] [were] no mere
incidental embellishment to an otherwise powerful case."
Santana-Camacho, 833 F.2d at 374. Here, the case was
adequate but not overwhelming, and the jury may have been
swayed by the prosecutor's impermissible rhetoric. There is
ample basis for the prosecutor's view that the drug problem
facing this country is "corrupting and disrupting the
society." But federal prosecuting attorneys ought to be
mindful of the harm done when those in power ignore the rules
governing their own conduct while demanding strict compliance
from others.
The convictions are vacated and the cases remanded for
further proceedings.
-14-