United States v. Bethancourt

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit

9-6-1995

United States v Bethancourt
Precedential or Non-Precedential:

Docket 94-5670

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 UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

NO. 94-5670
____________

UNITED STATES OF AMERICA

v.

RODOLFO BETHANCOURT,
Appellant
____________

Appeal from the United States District Court
for the District of New Jersey
D.C. No. 94-cr-25-1

____________

Argued June 16, 1995

Before STAPLETON, MCKEE, and ROSENN, Circuit Judges

Opinion Filed September 6, 1995

____________

JEROME A. BALLAROTTO, ESQUIRE (Argued)
BRUCE L. THROCKMORTON, ESQUIRE
143 White Horse Avenue
Trenton, NJ 08610
Attorneys for Appellant

FAITH S. HOCHBERG
United States Attorney
KEVIN MCNULTY, ESQUIRE
ALLAN TANANBAUM (Argued)
Assistant U.S. Attorney
970 Broad Street
Newark, NJ 07102
Attorneys for Appellee

1
 ____________

OPINION OF THE COURT

____________

2
 ROSENN, Circuit Judge.

A federal grand jury indicted Rodolfo Bethancourt

("Bethancourt") and Reginaldo Haynes ("Haynes")1 for conspiracy

to import more than 500 grams of cocaine into the United States.

After a pretrial hearing, the United States District Court for

the District of New Jersey found that Bethancourt had knowingly

and voluntarily waived his Fifth Amendment rights and concluded

that a confession signed by Bethancourt would be admissible at

trial. The court also concluded that the discovery by the Drug

Enforcement Agency ("DEA") of $18,000 in cash at Bethancourt's

residence would be admissible at trial.

After trial, the jury found the defendant guilty. The

district court then sentenced Bethancourt to 121 months

imprisonment, five years supervised release and a $12,500 fine

pursuant to a total offense level of 32 under the United States

Sentencing Guidelines ("U.S.S.G."). Bethancourt timely appealed,

raising a number of issues relating to his trial and sentencing.2

1
Haynes was found incompetent to stand trial and ordered to
undergo psychiatric evaluation.
2
He claims that:

1. The district court abused its discretion by admitting his
confession into evidence.
2. The district court abused its discretion by admitting into
evidence the fact that the DEA found $18,000 at his
residence.
3. The prosecution engaged in misconduct during closing
arguments by vouching for government witnesses.
4. The district court erred in enhancing his sentence under
U.S.S.G. section D1.1(b)(2) for use of a non-commercial air
carrier.
5. The district court erred in enhancing his sentence under
U.S.S.G. section 3B1.1(c) for being a leader, organizer,
manager, or supervisor.

3
We affirm.

I.

The Government charged Bethancourt and Haynes with

conspiracy to import cocaine into the United States. Because of

his United States military service, Haynes had access to military

aircraft and he and Bethancourt planned that Haynes would obtain

a military flight to Panama. There, Haynes would pick up a kilo

of cocaine from a contact arranged by Bethancourt, return to the

United States, and deliver the cocaine to Bethancourt.

Accordingly, Haynes flew to Panama and obtained the kilogram of

cocaine. He then attempted to board a military aircraft for the

return flight to the United States, but was arrested before

departing.

After his arrest, Haynes cooperated with the

authorities. The DEA flew Haynes back to the United States and

he attempted to set up a meeting with Bethancourt. Initially, he

was unsuccessful, but after several attempts and one aborted

meeting, Haynes met with Bethancourt and delivered a package

containing fake cocaine. The DEA arrested Bethancourt

immediately thereafter. Following his arrest, the DEA advised

Bethancourt of his rights and had him sign a form in which he

consented to the search of his residence and automobile. When

the DEA searched his residence, they found $18,000 in cash under

his bed. None of this is disputed.

6. The district court erred in enhancing his sentence under
U.S.S.G. section 3C1.1 for obstructing justice.
7. His conviction violates double jeopardy.

4
 The DEA then interrogated Bethancourt. He initially

denied any involvement in the cocaine conspiracy, but eventually

admitted his involvement. After six hours of interrogation, he

signed a typewritten confession detailing the conspiracy. The

district court admitted Bethancourt's confession and the

discovery by the DEA of the $18,000 in cash in his house as

evidence at trial.

Bethancourt appeals the admission of the confession,

evidence of the discovery of $18,000 in cash under his bed, and

the district court's enhancement of his base offense level from

26 to 32. On appeal, he also argues that the prosecution's

rebuttal summation denied him due process and that in face of the

Government's seizure of the $18,000 in cash, this conviction

constitutes double jeopardy.

II.

Bethancourt initially argues that the trial court erred

by determining that he gave his confession voluntarily. This

court applies plenary review to a district court's determination

whether a confession was given voluntarily. Miller v. Fenton, 474

U.S. 104, 115-17 (1985); United States v. Harris, 44 F.3d 1206
(3d Cir.), cert. denied, 63 USLW 3772 (1995). "In determining

whether a confession was voluntary, we must satisfy ourselves

that the confession was the product of an essentially free and

unconstrained choice by its maker, that it was the product of a

rational intellect and a free will, and that the appellant's will

was not overborne." United States v. Swint, 15 F.3d 286, 289 (3d
Cir. 1994) (citation omitted). The central question is whether

5
the authorities coerced the defendant's confession; if not, then

the confession is voluntary. Id.

Bethancourt argues that his confession is clearly

involuntary. He contends primarily that he did not actually

"sign" his confession because he affixed a distorted "signature"

to the confession. He maintains that the distorted and false

"signature" demonstrated government coercion. He also asserts

that "[l]ogically, the only conclusion for this distorted

signature is that [he] did not want to voluntarily sign his name

to the document." He contends that "[i]f he openly refused to

sign the statement, the agents would have kept `working' on [him]

in an attempt to obtain the statement that they wanted." His

decision to distort his signature on the confession does not show

DEA coercion; on the contrary, it suggests that Bethancourt

already was planning to circumvent the consequences of his

confession.

Bethancourt testified at trial that he was handcuffed

during the interrogation and that the DEA agents' manner was

threatening. Conversely, the DEA agents who took the confession

testified that Bethancourt was not handcuffed, that they did not

threaten him, and that they gave him a meal during the

interrogation. The trial court concluded that the DEA agents

testified truthfully and that Bethancourt did not. Therefore,

the court adopted the DEA agents' version of the interrogation

and confession. We must do likewise because we will not review a

district court's credibility determination. Government of Virgin
Islands v. Gereau, 502 F.2d 914, 921 (3d Cir. 1974), cert.

6
denied, 420 U.S. 909 (1975). In face of the DEA agents' credited

testimony, Bethancourt's distorted signature does not warrant

reversal of the district court's finding that the DEA agents did

not coerce the confession.

The appellant also argues that his confession was

coerced because he did not sign it until nearly six hours after

his interrogation began. However, the DEA agents testified that

Bethancourt confessed to his involvement in the conspiracy after

about two hours of interrogation; typing and verifying the

content of the confession consumed the remainder of the time

before he signed it. The agents further testified that

Bethancourt reviewed the confession and that he made some changes

to it before signing it. Thus, the implication raised by the

defense that Bethancourt signed a government-produced confession

after six hours of badgering is disingenuous. The testimony

credited by the district court showed that the appellant actively

participated in the drafting and correction of his confession. He

admits that he initialed every paragraph and signed each page of

the confession after it was completed; he neither requested the

assistance of an attorney nor complained that he was being

coerced. Except for his testimony on his distorted signature,

Bethancourt does not point to any evidence showing that the DEA

agents forced him to sign an incorrect or coerced confession. We

therefore see no error in the trial court's admission of the

confession.

Appellant next argues that the district court abused

its discretion by allowing the Government to testify that it

7
found $18,000 in cash at his home. This court reviews a district

court's admission of evidence for abuse of discretion. United

States v. Pelullo, 964 F.2d 193, 199 (3d Cir. 1992); United

States v. Furst, 886 F.2d 558, 571 (3d Cir. 1989), cert. denied,

493 U.S. 1062 (1990).

Bethancourt contends that reference to the $18,000

found in his home was inadmissible because the Government did not

connect it with the charged offense. Therefore, he argues that

the money was irrelevant in this case. The district court found

that the $18,000 in cash hidden under Bethancourt's bed was

"clearly relevant concerning knowledge, intent and ability to

engage in narcotics transaction." The court also concluded that

"it's axiomatic that evidence concerning the possession or

expenditure of large amounts of currency is admissible where the

defendant is charged with a crime in which pecuniary gains [sic]

is the basic motive."

This court will only find an abuse of discretion "when

the action of the trial judge is clearly contrary to reason and

not justified by the evidence." Vizzini v. Ford Motor Co., 569

F.2d 754, 760 (3d Cir. 1977) (citations omitted). Here, the

trial court held a hearing regarding the admissibility of this

evidence, weighed the contrary arguments and concluded that

testimony concerning the discovery of $18,000 in cash under

Bethancourt's bed was relevant in supporting the Government's

charge. The trial judge's ruling is not "clearly contrary to

reason" and the appellant's argument has no merit.

8
 On a more serious note, Bethancourt contends that the

Government "tainted the fairness of the proceedings by vouching

for government witnesses in this case" and thus that his

conviction must be reversed. In considering this issue, we note

that it arises because the defense counsel initially qustioned

the credibility of the government witnesses in his summation to

the jury. Specifically, he challenged the truthfulness of

Special Agent Wagner's testimony relating to the taking of

Bethancourt's toll records and all the other information secured

from his residence. Defense counsel also argued that the

government agents typed up the confession and "they put stuff in

there that [Bethancourt] was never gonna agree to;" and that

faking his signature to the confession "tells you [the jury] that

in no way are they the statements, are they the words, are they

the concepts, or is that the confession of Rodolfo Bethancourt.

It's theirs and they tried to make it his."

Such an argument and direct challenge to the conduct of

the government agents required an appropriate response. The

defense on appeal strenuously argues that the response went far

beyond permissible legal parameters. The prosecution responded

that there was no basis to the defendant's argument, pointing out

the improbability of misbehavior by the government witness. The

prosecution reasoned: "For what, ladies and gentleman? He's

gonna risk his career? He's gonna risk his job? He's gonna risk

going to jail? For what? To lie to you on the stand, ladies and

gentleman? I submit not, ladies and gentleman." The prosecution

also argued that its witnesses "don't make up lies. And they

9
didn't lie here and they're not lying to you, ladies and

gentlemen, when they tell you what they did. And they're not

lying to you when they tell you that defendant, Rodolfo

Bethancourt, talked to them about the statement." The Government

acknowledges that these remarks may have been "ill-advised," but

contends that they were not prejudicial.

Defense counsel made no objection. Therefore, an

appellate court reviews the record for plain error. In order to

be plain error, an error must not only be "obvious," it must also

"have affected the outcome of the District Court proceeding."

United States v. Olano, 113 S. Ct. 1770, 1778-79 (1993). United

States v. Pungitore, 910 F.2d 1084, 1125-26 (3d Cir. 1990), cert.

denied, 500 U.S. 915 (1991). "[W]e may only reverse if we find

an error in the prosecutor's comments so serious as to `undermine

the fundamental fairness of the trial and contribute to a

miscarriage of justice.'" Pungitore, 910 F.2d at 1126.

We do not believe that the prosecution's rebuttal

constituted plain error. Defense counsel, who represented the

defendant at trial and on appeal, impressed us as articulate and

experienced. Yet, at the time of the prosecution's remarks, he

heard nothing in the Government's response warranting any

objection whatsoever. The prosecutor's isolated and marginal

comments in the course of a short rebuttal summation, which

followed an untainted closing summation, did not "undermine the

fundamental fairness of the trial and contribute to a miscarriage

of justice." At most, they were harmless error. Moreover, the

district court gave clear instructions to the jury. The court

10
specifically directed the jury's attention to the testimony of

the law enforcement officers, their credibility, and the weight

to be given it. The court instructed the jurors that they alone

should decide whether witnesses were credible and that the

testimony of a witness is not more or less believable because the

witness is an official.3

We have carefully reviewed the summations of counsel.

In light of the overwhelming evidence against the defendant and

3
The judge charged as follows:

You, the jurors, are the sole judges of the
credibility of all witnesses and weight and
effect of all evidence.

. . .

It is for you to say whether a witnesses
[sic] testimony at this trial is truthful in
whole or in part in light of the demeanor,
explanations, and all the evidence in the
case.

. . .

Now, you've heard the testimony of law
enforcement officers. The fact that a
witness may be employed by the federal
government as a law enforcement officer does
not mean that his testimony is necessarily
deserving of more or less consideration or
greater or lesser weight than that of it's
ordinary witness. At the same time its quite
legitimate for defense counsel to try to
attack the credibility of a law enforcement
witness on the grounds that his testimony may
be colored by a personal or professional
interest in the outcome of the case. It is
your decision after reviewing all of the
evidence whether to accept the testimony of a
law enforcement witness and to give that
testimony whatever weight, if any, you find
it deserves.

11
the instructions of the trial judge to the jurors that they were

the sole judges of the credibility of all witnesses and that the

government witnesses' testimony was not entitled to any greater

consideration because of their federal employment, the

prosecutor's two isolated comments were harmless and did not

contribute to a miscarriage of justice.

Bethancourt next disputes the two point enhancement to

his base offense level under U.S.S.G. section D1.1(b)(2). This

section provides that a court can enhance a defendant's

sentencing level: "If the defendant unlawfully imported or

exported a controlled substance under circumstances in which (A)

an aircraft other than a regularly scheduled commercial air

carrier was used to import or export the controlled substance."

This court reviews a district court's finding of fact

supporting an upward adjustment to a sentencing level for clear

error, but applies plenary review to a district court's

construction of the U.S.S.G. United States v. Hillstrom, 988 F.2d

448, 450 (3d Cir. 1993); United States v. Dixon, 982 F.2d 116,

119 (3d Cir. 1992), cert. denied, 113 S.Ct. 2371 (1993); United
States v. Badaracco, 954 F.2d 928, 933 (3d Cir. 1992).

The appellant contends first that the language "[i]f

the defendant unlawfully imported or exported" in section

D1.1(b)(2) shows that this section only applies to the person

actually transporting the drugs into this country and not to a

recipient of the drugs. The accuracy of this reading is

irrelevant, however, because the jury convicted the defendant of

conspiracy to import cocaine and he is liable for all the

12
foreseeable acts of his co-conspirator in furtherance of the

conspiracy. United States v. Price, 13 F.3d 711, 732 (3d Cir.),

cert. denied, 114 S. Ct. 1863 (1994); United States v. Collado,

975 F.2d 985, 997-98 (3d Cir. 1992); United States v. Carter, 576

F.2d 1061, 1064 (3d Cir. 1978).

Furthermore, Bethancourt argues that U.S.S.G. section

D1.1(b)(2) does not apply to him in this case, even if the

relevant conduct of a co-conspirator can trigger it, because

Haynes' use of a military aircraft was not foreseeable or in

furtherance of the conspiracy.

He cannot show, however, that Haynes' use of a military

aircraft was unforeseeable or that it was outside the scope of

his agreement with the conspiracy. Bethancourt knew that Haynes

was going to Panama on a military aircraft; it was certainly

foreseeable that Haynes would return on one as well.

Additionally, Haynes' use of a military aircraft is clearly in

furtherance of the cocaine conspiracy because it was an integral

part of the plan to import cocaine into the United States.

Therefore, the district court did not err when it enhanced

appellant's sentence under U.S.S.G. section D1.1(b)(2).

Bethancourt next disputes the two point enhancement to

his base offense level under U.S.S.G. section 3B1.1(c). This

section provides that: "Based upon the defendant's role in the

offense, increase the offense level as follows: . . . (c) If the

defendant was a leader, organizer, manager, or supervisor in any

criminal activity . . . increase by 2 levels."

13
 Bethancourt correctly notes that a 3B1.1(c) enhancement

is only appropriate if the defendant directed and controlled at

least one individual. United States v. King, 21 F.3d 1302, 1305

(3d Cir. 1994); United States v. Katora, 981 F.2d 1398, 1402 (3d

Cir. 1992). He argues that he exercised no control over Haynes,

that in fact Haynes controlled him and that "there is simply no

evidence to support the argument that [he] had control over

anyone."

The Government responds with a long list of evidence

contravening this contention. First, the telephone conversations

between Haynes and Bethancourt concerned only Haynes delivering

the cocaine to Bethancourt; it did not involve splitting profits

derived from the cocaine sale or selling the cocaine jointly.

Second, Bethancourt arranged for his contacts in Panama to supply

Haynes with a kilo of cocaine. Finally, Haynes testified that

Bethancourt was to pay him $500 for his services as a courier.

The court found Haynes' statement to be credible.4

These facts provide the preponderance of the evidence

necessary to justify an upward enhancement in appellant's

sentencing level as a "leader, organizer, manager, or

supervisor." See Badaracco, 954 F.2d at 935. We reject

Bethancourt's argument that the district court improperly

enhanced his sentence under U.S.S.G. section 3B1.1(c).

4
Determining the credibility of witnesses is uniquely within the
province of the trial court and this court will not review this
determination. Gereau, 502 F.2d at 921.

14
 Next, appellant attacks the two point enhancement of

his sentence under U.S.S.G. section 3C1.1. This section provides

that: "If the defendant willfully obstructed or impeded, or

attempted to obstruct or impede, the administration of justice

during the investigation, prosecution, or sentencing of the

instant offense, increase the offense level by 2 levels."

Bethancourt correctly notes that the defendant must

"wilfully" attempt to obstruct justice before the two point

enhancement applies. United States v. Shirk, 981 F.2d 1382, 1397

(3d Cir. 1992); United States v. Belletiere, 971 F.2d 961, 965

(3d Cir. 1992). He does not, however, even attempt to show that

the district court erred when it found that he intentionally gave

materially false testimony. The court concluded that Bethancourt

intentionally lied in an attempt to exclude a valid confession

and that this was an attempt to obstruct justice. The court

properly held that offering perjured testimony is an attempt to

obstruct justice. See U.S.S.G. section 3C1.1 Application Note

3(b). Therefore, Bethancourt's contention that the trial court

improperly enhanced his sentence for obstruction of justice has

no merit.

Finally, Bethancourt argues that his criminal

conviction violates double jeopardy because the Government seized

the $18,000 which it found under his bed. This issue is raised

for the first time on appeal and therefore has been waived.

United States v. Becker, 892 F.2d 265, 267-68 (3d Cir. 1989).
In any case, the double jeopardy argument is meritless.

The Government notes that the $18,000 was not seized through a

15
court proceeding, but rather administratively by the DEA.

Therefore, the seizure of the $18,000 is not relevant to the

criminal sentence before this court because the seizure was not

the result of any judicial direction or proceeding.

III.

In summary, we perceive no error in any of the district

court's evidentiary rulings or any denial of due process by the

prosecution's closing rebuttal summation. Moreover, the

appellant has not drawn our attention to any judicial proceeding

forfeiting the $18,000 discovered at his home. Thus, there is no

basis for his double jeopardy argument. Finally, we see no error

in the court's sentencing decisions.

Accordingly, the judgment of conviction and sentence of

the district court will be affirmed.

16
United States of America v. Rodolfo Bethancourt
NO. 94-5670

McKEE, Circuit Judge, concurring in part and dissenting in part.

I concur with the majority opinion except insofar as

the majority concludes that the prosecutor's remarks do not

constitute prejudicial plain error.

As my colleagues point out, the government concedes

that the challenged portion of the prosecution's rebuttal

summation was "ill-advised." Indeed, it was more. It was

unethical, unnecessary, and I believe it raises doubts about the

very verdict it sought to compel.

Failure to object to improprieties in a closing

argument precludes appellate review in all cases except where

`plain error' is established. United States v. Lawson, 337 F.2d

800, 807 (3d Cir. 1964), cert. denied, 380 U.S. 919 (1965). We

must "correct a plain forfeited error affecting substantial

rights, if the error `seriously affect[s] the fairness, integrity

or public reputation of judicial proceedings.'" United States v.
Olano, 113 S. Ct. 1770, 1779 (1993) (quoting United States v.

Atikinson, 297 U.S. 157, 160 (1936)). See FED. R. CRIM. P. 52(b).

The error here affects all three.

During his rebuttal address to the jury, Assistant

United States Attorney John P. Suarez, the prosecutor here,

responded to an attack upon a government agent's credibility by

arguing as follows to the jury: "[f]or what, ladies and

gentlemen? He's gonna risk his career? He's gonna risk his job?

17
He's gonna risk going to jail? For what? To lie to you on the

stand, ladies and gentlemen? I submit not, ladies and

gentlemen." That argument was forceful, responsive, and

absolutely proper. Mr. Suarez was asking the jury to reach a

common sense conclusion that the agent had too much to lose to

commit perjury merely to convict this defendant. It was the kind

of effective and logical response to an attack on an agent's

credibility that has been made in countless numbers of closing

arguments, and will be made in countless more.

However, Mr. Suarez was not content to let well enough

alone. He insisted upon gilding the lily. Having made his point,

he marched forward and assured the jury that government witnesses

"don't make up lies. And they didn't lie here and they're not

lying to you . . . when they tell you what they did. And they're

not lying to you when they tell you that defendant, Rudolfo [sic]

Bethancourt, talked to them about that statement." That argument

contains two serious improprieties. First, the prosecutor is, in

no uncertain terms, telling the jury as a matter of fact that the

particular witness didn't lie. Second, and I think even worse, he

is telling the jury that government witnesses don't lie as a

matter of policy.

In his opening statement, the defense counsel attacked

the credibility of government witnesses as follows:
You're going to hear the evidence and you're
going to decide whether or not what they say
happened happened . . . .
But I ask you, as the evidence comes in,
listen very carefully and determine whether
or not you accept what's on these transcripts

18
 as being the evidence in this case because
only you can make that determination. . . .
Listen to the evidence. All right?
Just listen to the evidence. Don't jump to
any conclusions here . . . .

Supp. App. at 58-63. Obviously, if the defendant was going to

put on a defense, the defense attorney had to attack the

credibility of the agent who took the defendant's statement. In

his closing, defense counsel attempted to raise a reasonable

doubt about the authenticity of the defendant's statement:
Is it reasonable for you to believe that
because his signature that was contained on
that statement was not his real signature but
it was a fake, it was a disguise, what do you
think happened? I'm gonna suggest to you
what you know from your common sense happened
here. They typed this stuff up, they put
stuff in
there that he was never gonna agree to and
they wouldn't leave him alone. He was there
for six hours. It's now midnight. How did
he get out of that room with these agents and
get to go to jail which was probably a better
place than sitting with them in that room
even though he got a chicken sandwich? You
know what he did, yeah, okay. And he forged
his signature. He faked it. What does that
tell you? That tells you that in no way are
they the statements, are they the words, are
they the concepts, or is that the confession
of Rudolfo [sic] Bethancourt. It's theirs
and they tried to make it his. This is not a
strange concept in the world. This kind of
attempts to put one thing on paper and get
somebody else to agree with it by signing
their name too it. This is an old story.
That's how he got out of that room. And
that's why Gus Lesnevich is so clear to you
that if Bethancourt wrote that on there it's
an intentional disguise. You take it from
there.

Supp. App. at 497-98 (emphasis added).

19
 The defense counsel sought to have the jury draw

certain conclusions from the testimony, and their own common

sense. That was entirely proper. Yet, even if the defense

attorney's argument had been improper, it does not justify the

kind of response that occurred here. The defense attack on the

credibility of the government agent called for an appropriate and

reasoned response. Mr. Suarez's rebuttal was neither. Over thirty

years ago this court stated:
A United States attorney in a criminal case
has an even greater responsibility than
counsel for an individual client. For the
purpose of the individual case he represents
the great authority of the United States and
he must exercise that responsibility with the
circumspection and dignity the occasion calls
for. His case must rest on evidence, not
epithet. If his case is a sound one his
evidence is enough; if it is not sound, he
should not resort to epithet to give it a
false appearance of strength.

United States v. Kravitz, 281 F.2d 581, 587 (3d Cir. 1960), cert.

denied, 364 U.S. 941 (1961) (emphasis added).

When Mr. Suarez assured the jury that government agents

"don't make up lies," and that they were not lying when they
testified in this case, there is no doubt that he was asserting

his personal opinion to the jury and, even worse, guaranteeing

that the United States does not allow its witnesses to lie. My

colleagues state:
We do not believe that the prosecution's
rebuttal constituted plain error. Defense
counsel, who represented the defendant at
trial and on appeal, impressed us as
articulate and experienced. Yet, at the time
of the prosecution's remarks, he heard
nothing in the Government's response
warranting any objection whatsoever. The

20
 prosecutor's isolated and marginal comments
in the course of a short rebuttal summation,
which followed an untainted closing
summation, did not 'undermine the fundamental
fairness of the trial and contribute to a
miscarriage of justice.' At most they were
harmless error.

Majority opinion at 9-10 (footnote omitted).

Over twenty years ago we addressed the problem of

prosecutorial indiscretion in closing statements. We were

obliged to "consider such errors because of their recurrence in

criminal trials and the consequent importance of emphasizing the

impropriety of such practices by prosecuting officers. " United
States v. LeFevre, 483 F.2d 477, 478 (3d Cir. 1973) (Seitz, J.).

We explained that "[w]e recognize the line between permissible

and impermissible comment is a thin one, and precision of

expression can be difficult. Nevertheless, we strongly

disapprove expressions of personal opinion by prosecutors on

credibility and guilt." Id. Although we did not find the

comments at issue in LeFevre to be sufficiently prejudicial to

constitute reversible error, we were careful to "emphasize that

the trial judge should be alert to each of these deviations from

professional norms. Since such comments have the clear potential

of adversely affecting the defendant's right to a fair trial, the

judge should take prompt action to correct them without relying

upon defense counsel to object." Id. at 480. Soon thereafter in

United States v. Homer, 545 F.2d 864 (3d Cir. 1976) (per curiam),

cert. denied, 431 U.S. 954 (1977), we deemed it necessary to

again comment upon the "rash and inappropriate" remarks of

21
prosecutors during closing arguments. In Homer, the court issued

the following scolding: "[i]n recent years we have had the

occasion to admonish counsel for thoughtless and inappropriate

remarks made in the course of heated and vigorously contested

trials. . . . [T]he comments are so grossly improper as to

prejudice a defendant and deny him a fair trial." Id. at 867.

We have repeatedly had to address this problem. See

United States v. Reilly, 33 F.3d 1396, 1421-23 (3d Cir. 1994);

United States v. DiLoreto, 888 F.2d 996, 999-1000 (3d Cir. 1989);

Government of the Virgin Islands v. Joseph, 770 F.2d 343, 348-51

(3d Cir. 1985); United States v. DiPasquale, 740 F.2d 1282, 1296-

97 (3d Cir. 1984); United States v. Scarfo, 685 F.2d 842, 848-49

(3d Cir. 1982); United States v. Gallagher, 576 F.2d 1028, 1041-

43 (3d Cir. 1978); United States v. Homer, 545 F.2d 864, 867-68

(3d Cir. 1976); United States v. Somers, 496 F.2d 723, 739-41 (3d

Cir. 1974); United States v. Schartner, 426 F.2d 470, 477-80

(1970). Even though we held in each of these cases except

Schartner that the particular statement did not constitute

reversible error, this history demonstrates that our oft repeated

refrain as to the impropriety and danger of such argument is

falling upon deaf ears.

Moreover, we recently addressed a rebuttal that was

nearly identical to the one before us here. In United States v.
DiLoreto, 888 F.2d 996 (3d Cir. 1989), the prosecutor told a

jury, "[w]e don't take liars. We don't put liars on the stand.
We don't do that." Id. at 999 (emphasis in original). We

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analyzed the likely effect of such a statement upon the jury's

deliberations as follows:
The remarks are better understood as meaning
that the government, as a matter of policy in
the prosecution of its cases, does not use
liars as witnesses. No explanation was
given, however, of how the government
ascertains the honesty or veracity of its
witnesses. Indeed, we have found nothing in
the record upon which the prosecutor could
have grounded his statement. . . . What the
jury was lead to do instead was merely to
infer that other information existed which
the government used to verify the credibility
of its witnesses prior to introducing their
testimonies at trial. . . .

The possibility that the jury engaged in
such deductive reasoning, prompted by the
government's vouching of its witnesses,
especially in light of the crucial nature of
the witnesses' credibility here, clearly
jeopardized the defendants' right to be tried
solely on the basis of the evidence presented
at trial.

Id. at 999-1000. Although this court subsequently decided that

the per se reversal rule of DiLoreto could not stand under United

States v. Young, 470 U.S. 1, 11-12 (1985), the analysis of the

impact of the closing remains valid.5

Furthermore, our sister courts of appeals have also met

with difficulty in stopping such abuse. In United States v.

Maccini, 721 F.2d 840, 846 (1st Cir. 1983), the court stated:

That despite our consistent warnings to
the Government we should still be called upon
to admonish against such conduct is
reprehensible per se because it constitutes a

5
See United States v. Zehrbach, 47 F.3d 1252 (3d Cir.)
cert. denied, 115 S. Ct. 1699 (1995).

23
 disregard to our directives. But
additionally it is particularly pernicious
because it results in an unnecessary waste of
judicial resources, both at the trial and
appellate level, by diversion and attention
to review of what by now should be understood
to be totally unacceptable conduct by those
who lay claim to representing the Government
of the United States.

Similarly, the Court of Appeals for the Second Circuit has noted:

"[a] few injudicious words uttered in the heat of battle by an

Assistant United States Attorney may undo months of preparation

by police, prosecutorial, and judicial officers." United States

v. White, 486 F.2d 204, 204 (2d Cir. 1973). See also United

States v. Modica, 663 F.2d 1173, 1182-83 (2d Cir. 1981) ("This

Court, in particular, has repeatedly expressed frustration at the

regular appearance on its docket of cases in which prosecutors

have delivered improper summations."); United States v. Drummond,

481 F.2d 62, 64 (2d Cir. 1973) (reversing conviction following

the third appeal involving improper summations by the same

prosecutor).

Here, given the effect that the rebuttal may well have

had upon the jury's deliberations, see DiLoreto, supra, and the

serious and repeated nature of this type of transgression, I do

not believe that the error was harmless, even despite the defense

attorney's failure to object, and the curative instruction given

by the attentive trial judge. See Fed R. Crim. P. 52(a). ("Any

error, defect, irregularity or variance which does not affect

substantial rights shall be disregarded.")

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 As noted above, I find our analysis of the nearly

identical statements in DiLoreto compelling insofar as we there

discussed the probable effect of such an argument upon the jury's

deliberations. When Mr. Suarez here vouched for the government

agents, (indeed all government witnesses) his comments were not

only prejudicial to Bethancourt, they also undermined the

fairness and integrity of the judicial proceedings. I do not see

how those remarks could have done anything other than corrupt the

deliberations to the point that this defendant could not have

received a fair trial. Moreover, since the prosecutor apparently

felt that the strength of his case required poisoning the

deliberative process, I can not say that the evidence against

this defendant was so "overwhelming" that the remarks were

irrelevant to the determination of guilt. Had the prosecutor

felt that the evidence was so compelling I assume he would not

have felt it necessary to resort to such an improper argument.

The reliability of the outcome of this trial, as well

as the public perception of fairness dictate that we conclude

that this error was not harmless and that it requires a new

trial. The essence of the Government's case was the testimony of

the agents who took the statement from the defendant. Under

those circumstances, the prosecutor's rebuttal can not be

dismissed as harmless error.

Although I continue to believe that Young clearly

prohibits a per se rule of reversal in cases such as this and

DiLoreto, this case would present a strong argument for just such
a rule if we were free to establish one. Despite our best

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efforts, some prosecutors continue to engage in behavior that can

only corrupt the judicial process and undermine the very

investigative and prosecutorial resources they seek to serve.

They apparently do so with little or no concern for the effect of

their actions upon the quality of justice, their positions as

officers of the court, or the real possibility of causing an

erroneous conviction. Yet, we continue to oblige their nonchalant

approach to justice by finding their transgressions to be

harmless.

Because such transgressions poison the deliberative

process, I must respectfully dissent from the reasoning of my

colleagues.

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