Case: 09-40658 Document: 00511519596 Page: 1 Date Filed: 06/23/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 23, 2011
No. 09-40658 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAIME AGUILAR,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas,
Before DAVIS, CLEMENT, and ELROD, Circuit Judges.
DAVIS, Circuit Judge:
In this direct criminal appeal, Defendant-Appellant Jaime Aguilar was
convicted following an adverse jury verdict of conspiracy to possess with intent
to distribute over 100 kilograms of marijuana and possession with intent to
distribute over 100 kilograms of marijuana. We conclude that the prosecutor’s
improper closing argument deprived Aguilar of a fair trial. We therefore vacate
the conviction and remand for a new trial.
I. Facts and Proceedings
Aguilar worked as an ambulance driver and certified emergency medical
technician (EMT) for Guardian EMS. On October 16, 2008, he arrived at the
border checkpoint on Highway 77 in Sarita, Texas, wearing his uniform and
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driving a company ambulance. His passenger, Diaz-Alonzo, was also in uniform.
Aguilar told the Border Patrol agent that they were going to Driscoll Children’s
Hospital in Corpus Christi, Texas, to pick up a patient. When a drug dog alerted
to the ambulance, it was referred to secondary inspection, where an agent found
that the back panel of a seemingly locked compartment gave way to reveal 388
pounds of marijuana. Aguilar and Diaz-Alonso were arrested, and Drug
Enforcement Administration (DEA) Agents Vincent and Minnick questioned
them.
Aguilar told the agents that Guardian’s owner, Jorge Pena, had assigned
him to transport a patient and informed him that he would be working with
Diaz-Alonso, a new attendant. Aguilar met Pena and Diaz-Alonso at the
ambulance and received instructions to go to Driscoll Children’s Hospital and
pick up a patient Aguilar had transported in the past. After Aguilar checked the
ambulance and filled out the equipment checklist, he and Diaz-Alonso headed
for Corpus Christi.
Agent Vincent called Driscoll Children’s Hospital and discovered that the
patient was not at the hospital. Vincent testified that when he confronted
Aguilar with the conflicting information, Aguilar became very emotional and
confessed. He told the agent that Pena told him (Aguilar) that he would be
carrying “something” in the ambulance and instructed him to “pretend like
nothing was in there.” Vincent testified that Aguilar admitted that he knew
“mota” (marijuana) was in the ambulance and that Pena planned to drive a
parallel route through the Falfurrias checkpoint and switch ambulances with
Aguilar and Diaz-Alonso after they went through the Sarita checkpoint. Agent
Vincent also testified that Aguilar said he was going to be “highly compensated”
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and that he needed the money because his mother had medical problems. There
was no recording of Aguilar’s interview, and he did not sign a written statement.
The Government presented evidence that suggested the ambulance was
not actually outfitted for a patient pick up as Aguilar claimed. This evidence
will be discussed below in more detail. Aguilar testified and maintained that he
had not confessed–the officers misunderstood him when he said that if he were
a drug dealer, he would be well compensated and able to afford insurance for his
mother.
Agent Minnick, a rebuttal witness for the Government, testified that she
was with Agent Vincent when Aguilar confessed, and she confirmed Agent
Vincent’s version of the confession.
II. Prosecutorial Misconduct
Aguilar argues that the prosecutor improperly bolstered or vouched for the
testimony of Agents Vincent and Minnick during (1) the Government’s direct
examination of the agents and (2) the Government’s rebuttal closing argument
and that the district court committed plain error in allowing the examination
and argument. We discuss these arguments below.
Aguilar argues first that the direct examination of Agent Vincent was
improper because the prosecutor bolstered Agent Vincent’s credibility by
engaging in a line of questioning tending to establish that Agent Vincent had no
motive to testify falsely. Agent Vincent made it clear that false testimony would
not advance his career and that he would be prosecuted and fired if he lied in
court. Aguilar argues that this error was compounded when the prosecutor
elicited testimony from Agent Minnick that Agent Vincent was honest,
hardworking, and ethical. According to Aguilar, the testimony the prosecutor
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elicited from Agent Minnick strongly suggested to the jury that the prosecutor
and Agent Minnick were personally endorsing Agent Vincent’s testimony as
truthful.
Aguilar also argues that the prosecutor improperly bolstered the
credibility of Agents Vincent and Minnick in the rebuttal portion of his closing
argument. Aguilar complains about the following portions of that argument:
The witnesses testified, both agents testified that there was no way
they were mistaken. This is not a case of any chance of being
mistaken. The only way that this could not, that he could not have
said that, that he could be not guilty, is if they’re not telling the
truth.
Now, if you’re going to find they’re not telling the truth, that would
be an alarming thing, I think you’ll agree. That would be something
that we would, we should be very upset about. But if you’re going
to find that, base it on evidence. Okay? What evidence is there?
Not the fact that he cried a lot, crocodile tears, but on evidence.
Is there any point in them lying? Why would the agents do that?
Why? They don’t know him. They’ve got nothing to gain. They’re
risking their careers. They risk going to jail. For what? A person
they don’t even know? With a medium-sized load of drugs? What’s
the point in that?
The Defense attorney talks about this is a sad deal, a sad deal for
Mr. Aguilar. Well, I agree with him it’s a sad deal, but it’s not a sad
deal for Mr. Aguilar. It’s a sad deal for this man right here and Ms.
Minnick, people who go out there every day and do their job, that
strive to be ethical. They strive to protect people like you and me.
They put their life on the line, protecting us and our kids. And what
do they get for it? They get to come into the courtroom and be called
a liar. That’s what they get for it. Big pat on the back, huh?
I submit to you, you know what the right thing to do here is, and I
know you’re going to do it.
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A. Standard of Review
Aguilar’s trial counsel did not object to the prosecutor’s comments, so we
review for plain error.1 To demonstrate reversible plain error, Aguilar must
show that (1) there was error, i.e., the prosecutor’s remarks were improper, (2)
the error was plain and obvious, and (3) the error affected his substantial rights.2
Even if Aguilar “could meet that burden, we still would have [the] discretion to
decide whether to reverse, which we generally will not do unless the plain error
seriously affected the fairness, integrity, or public reputation of the judicial
proceeding.”3 We examine each of these requirements below.
B. Propriety of the Prosecutor’s Conduct
With respect to the defendant’s argument that the prosecutor’s direct
examination of Agents Vincent and Minnick improperly bolstered their
testimony, the Government maintains that the questioning was proper because
the prosecutor did not give a personal opinion about their veracity.4 When we
consider the examination in light of the context in which it was conducted, we
agree with the Government that the examination was not improper. During
opening statements, the defense told the jury that “the evidence is going to show
[Aguilar] denied knowledge the whole time, unlike what the agents are going to
come here and say.” To rebut this suggestion that the agents would lie, the
1
United States v. Gracia, 522 F.3d 597, 599-600 (5th Cir. 2008).
2
See id. at 600.
3
Id.
4
See id. at 602 (finding it improper for a prosecutor to assert “his own credibility, or
that of the government, to bolster the credibility of a witness”).
5
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prosecutor was entitled to present evidence tending to show that Vincent had no
motive to lie. Vincent’s testimony that it would not benefit him or his career if
the person he arrested was convicted was permissible to make this point. The
prosecutor also asked what would happen if he lied in court, and Vincent replied
that he would be pursued for perjury and fired. This testimony was proper to
make the same point. When the defense suggests that a witness will lie, the
Government is entitled to show that the witness has no motive to lie.5
Aguilar also argues that the prosecutor improperly bolstered the agents’
credibility during the rebuttal portion of his closing argument (1) by telling
jurors that lying would jeopardize the agents’ careers and (2) by making an
improper emotional appeal that the agents would not lie because of their status
as agents.
The prosecutor in United States v. McCann stated in his closing argument
that the officers would not risk their lives and careers by lying in court.6 We
held that this was not error because the prosecutor simply referred to facts an
officer had testified to during trial.7 During his closing argument, the defense
counsel in McCann asserted that the police officers would not face any charges
or other repercussions if they committed perjury.8 In rebuttal, the prosecutor
5
See United States v. McCann, 613 F.3d 486, 495-96 (5th Cir. 2010) (The prosecutor in
McCann elicited testimony from a police officer that he (the officer) would be prosecuted for
perjury and fired if he lied under oath. This testimony was elicited to respond to defense’s
assertions that the officers would lie.); United States v. Garcia-Gracia, 324 F. App’x 286, 295
(5th Cir. 2009) (unpublished).
6
McCann, 613 F.3d at 494.
7
Id. at 495-96.
8
Id. at 497-98.
6
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argued that there was a need “to apologize to NOPD officers who wear
bulletproof vests because they have to worry about getting shot at on the street
and then they come in here in court and they get shot at again . . . they get
call[ed] liars.”9 This comment was found improper because it was an emotional
appeal to bolster the officers’ credibility by suggesting that the agents would not
lie because they are government agents.10
Because Aguilar’s counsel asserted that Agents Vincent and Minnick were
either lying or mistaken, the prosecutor was entitled to rebut the assertion.11
However, the prosecutor also had a responsibility not to go beyond the evidence
and to make his comments appropriate in scale.12 On direct examination, Agent
Vincent had testified that he would likely be prosecuted for perjury and fired if
he lied on the stand. Therefore, the prosecutor’s rhetorical question about
whether the agents would risk their careers, like that asked in McCann, did not
go beyond the evidence. However, the comment about Agents Vincent and
Minnick getting a sad deal when they “go out there every day and do their job
. . . . They strive to protect people like you and me. They put their life on the
line, protecting us and our kids. And what do they get for it? They get to come
into the courtroom and be called a liar,” crossed the line. This argument is
indistinguishable from the improper comment in McCann in which the
prosecutor said that there was a need to apologize to officers who risked their
9
Id. at 494.
10
Id. at 496.
11
See id. at 495.
12
United States v. Ramirez-Velasquez, 322 F.3d 868, 874-75 (5th Cir. 2003) (citing
United States v. Young, 470 U.S. 1, 12-13 (1985)).
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lives and then were called liars in court.13 This “was a largely emotional appeal
to the jury to credit the arresting officers’ testimony because they were police
officers.”14 Similarly, the comment by the prosecutor in Aguilar’s trial was an
improper emotional appeal that transmitted the message that the agents’
testimony should be believed because they were agents.
This error was also clear and obvious. As a recent panel of this court
observed, “the government has been cautioned repeatedly by this court against
making such arguments, yet we continue to face them on appeal.”15 By now, the
rules against bolstering should be clear to the Government. The prosecutor in
this case, in a rapid series of comments, referred to the agents’ positions as
government agents, then said it would be alarming if they were lying, they were
just doing their jobs, and they strive to be ethical.16 He then followed up with
13
See 613 F.3d at 494.
14
Id. at 496 (citing Gracia, 522 F.3d at 601).
15
United States v. Raney, 633 F.3d 385, 395 (5th Cir. 2011) (per curiam); see also
McCann, 614 F.3d at 496 (finding it improper to make an emotional appeal to credit officers’
testimony because they are officers); United States v. Pittman, 401 F. App’x 895, 899 (5th Cir.
2010) (unpublished) (finding improper bolstering where prosecutor stated that agents were
“just doing their job” and had no motive to lie); Gracia, 522 F.3d at 600-02 (finding it improper
for a prosecutor to rhetorically ask a jury whether agents would risk their careers by
committing perjury); Ramirez-Valesquez, 322 F.3d at 873-74 (finding improper the prosecutor’s
rhetorical question as to whether the officers had a reason to lie and throw away their
careers); United States v. Gallardo-Trapero, 185 F.3d 307, 319-21 (5th Cir. 1999) (finding it
improper to invoke “the aegis of a governmental imprimatur” to bolster witness credibility);
United States v. Crooks, 83 F.3d 103, 107 n. 15 (5th Cir. 1996) (finding it improper to make
appeal to passion or prejudice if calculated to inflame).
16
Although Minnick had testified that Vincent was ethical, the prosecutor went beyond
that evidence by offering his own opinion that both officers “strive to be ethical” and were just
doing their jobs. We commented on a similar series of inappropriate remarks in Gracia, noting
that the cumulative effect was particularly problematic. 522 F.3d at 600-03.
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the emotional appeal that the agents risk their lives for “us and our children”
and that it is a “sad deal” for them to be called liars. These remarks constituted
clear error because they improperly bolstered the credibility of the government
agents and cannot be excused as “mere rebuttal.” 17
C. Substantial Rights Analysis
The panel must next determine whether the error affected Aguilar’s
substantial rights.18 This is a high bar, and the determinative question is
“whether the prosecutor’s remarks cast serious doubt on the correctness of the
jury’s verdict.”19 To determine whether the outcome was affected, we consider
three factors: (1) the magnitude of the statement’s prejudice, (2) the effect of any
cautionary instructions given, and (3) the strength of the inculpatory evidence
other than the improperly bolstered testimony.20
1. Magnitude of prejudice.
As we discuss in more detail below, the only significant evidence the
government produced to show that Aguilar knew he was transporting marijuana
was Aguilar’s oral confession testified to by Agents Vincent and Minnick.
Because the agents’ testimony and their credibility were so critical, the
prosecutor’s improper bolstering of their credibility renders the prejudice high
on the magnitude scale. Significantly, there was no improper argument by the
17
See id. at 601-03; Pittman, 401 F. App’x at 899 (noting that the prosecutor’s remarks,
including his remark that the agents were just doing their jobs, went too far).
18
See Gracia, 522 F.3d at 603.
19
Id.
20
McCann, 613 F.3d at 496 (quoting Gallardo-Trapero, 185 F.3d at 320).
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defense, as there was in McCann, to counterbalance the prosecutor’s
misconduct.21
2. Cautionary jury instructions.
Although cautionary jury instructions can “purge the taint of a
prosecutor’s prejudicial comments,” general instructions only moderately reduce
the degree of prejudice of highly improper remarks.22 During defense counsel’s
closing argument, the district court informed the jury that “the remarks of the
attorneys are not evidence.” The district court gave no such instruction
following the prosecutor’s improper comments, but it did give the boilerplate
general instructions to the jury during the charge. We observed in McCann that
such generic instructions only moderately reduce any prejudice, and we find that
the generic instructions in this case failed to compensate for the error.
3. Strength of the inculpatory evidence.
In cases where the other inculpatory evidence is strong, a prosecutor’s
improper bolstering of witness credibility is unlikely to amount to a substantial
violation of the defendant’s right to a fair trial.23 In cases where there is little
or no evidence against the defendant apart from the improperly bolstered
testimony and where a credibility determination is of crucial importance, this
court has reversed and remanded for a new trial.24
21
See id. at 496-98 (determining that the defense counsel’s highly improper conduct
in telling jurors that the officers would not be prosecuted if they committed perjury acted as
a sufficient counterweight to the prosecutor’s improper comments).
22
Id. at 496-97.
23
Id. at 497.
24
Gracia, 522 F.3d at 604-06 (finding reversible plain error where, other than the
improperly bolstered testimony from government agents, there was no evidence against the
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In the instant case, the only significant issue at trial was whether Aguilar
knew he was transporting marijuana. There was little inculpatory evidence
other than the agents’ testimony that Aguilar admitted he knew the marijuana
was in the ambulance and that he expected to be well-compensated for
transporting it. The Government presented some circumstantial evidence
suggesting that Aguilar was aware that the patient-pickup story was a sham to
cover up the true purpose of the trip through the checkpoint. The oxygen
cylinder was in the wrong place and the regulator was empty, suggesting the
ambulance was ill-equipped to transport a sick patient. However, Aguilar
presented evidence from other ambulance drivers and a state compliance official
that ambulance providers routinely instruct their employees to turn off the
regulator in between patients as a safety precaution, thus causing the gauge to
read zero even though oxygen is available.
The Government also pointed out discrepancies on the patient order form
and equipment checklist, noting the mistake in the mileage, the misspelling of
the hospital’s name, and Agent Vincent’s testimony that there were no blood
pressure cuffs in the ambulance. Aguilar admitted that he filled out the
checklist that incorrectly reported the mileage, noting that it was 4:30 a.m., but
he disputed Vincent’s testimony about the absence of blood pressure cuffs,
testifying that he personally placed the cuffs in the unit. Aguilar also presented
evidence that it was his coworker, Diaz-Alonso, who misspelled the hospital’s
name.
defendant); United States v. Garza, 608 F.2d 659, 665-66 (5th Cir. 1979) (finding reversible
plain error where the prosecutor improperly bolstered his witnesses and the credibility
determination was “perhaps the most important problem facing the jury”).
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The Government further argued that Aguilar should have inspected the
seemingly locked compartment and discovered the marijuana if he had truly
been preparing for a patient transport. Aguilar presented evidence from an
EMT and an ambulance services compliance officer for the Texas Department
of State Health Services that EMTs were not expected to inspect such
compartments because they were for drugs that only paramedics could
distribute.
Finally, the Government produced evidence that, consistent with Vincent’s
version of Aguilar’s confession, a Guardian ambulance traveled a parallel route
through the Falfurrias checkpoint. However, Aguilar explained in his testimony
that Pena called while he and Diaz-Alonso were en route to Driscoll Children’s
Hospital and informed Diaz-Alonso that he (Pena) would be making a patient
pickup in San Antonio. Because a trip to San Antonio would require Pena to
travel through the Falfurrias checkpoint, the evidence that Aguilar believed
another Guardian ambulance traveled that route for a legitimate purpose
undermines the government’s argument on this point.
Except for the defendant’s alleged confession, the above evidence is the
only evidence the Government points to that supports the jury’s implicit finding
that Aguilar knew he was transporting marijuana. We do not find this
circumstantial evidence of Aguilar’s guilty knowledge persuasive when
considered in light of Aguilar’s explanations. The Government produced no
evidence that Aguilar was nervous at the checkpoint or that he gave
contradictory answers regarding his point of origin and destination or other
details of his trip, which are typical indicators of guilty knowledge by
transporters at checkpoints. Aguilar’s confession was neither recorded nor
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transcribed, and he vehemently denied ever confessing or having any knowledge
of the marijuana. Because there was no significant proof of his knowledge
absent the confession, the outcome of the trial depended on whether the jury
believed Aguilar on the one hand or Agents Vincent and Minnick on the other.25
In summary, we find the prosecutor’s rebuttal argument grossly improper
and indistinguishable from similar arguments we have found improper and the
subject of repeated warnings.26 We therefore find the error clear and obvious
and, given the critical role of the credibility of the agents in the determination
of defendant’s guilt, we find the error affected Aguilar’s substantial rights.
We may exercise our discretion to correct a plain error if it seriously affects
the fairness, integrity, or public reputation of the judicial proceedings in light of
the record as a whole.27 Under the circumstances of this case and in light of this
court’s repeated warnings to prosecutors, we decline to overlook this error. We
therefore vacate this conviction and remand for a new trial.
III. CONCLUSION
We VACATE Aguilar’s conviction and REMAND for new trial.28
25
This case was tried twice because the first trial ended in a mistrial when the jury was
unable to reach a verdict. It is impossible to know what dynamic actually created this result,
but it is an indication that this was a close case.
26
At oral argument, counsel for the Government (who tried the case) assured us that
he understood our warnings about improper bolstering. Counsel nevertheless continued to
maintain that there was nothing improper about his closing argument.
27
Gracia, 522 F.3d at 600.
28
Aguilar also argues that the evidence was insufficient to support his conviction
because the government failed to prove that he knew the type and quantity of drugs he
possessed. He acknowledges that this issue is foreclosed by United States v. Betancourt, 586
F.3d 303 (5th Cir. 2009), and he raises this issue to preserve it for review. Based on
Betancourt, we reject this argument.
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Aguilar also argues that the district court plainly erred in admitting “drug profile”
evidence and expert testimony from government agents. Our disposition of this case makes
it unnecessary to reach these issues.
14