IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 26, 2008
No. 06-51685 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
FRANCISCO MENDOZA, JR.
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
Before KING, DeMOSS, and SOUTHWICK, Circuit Judges.
SOUTHWICK, Circuit Judge:
Francisco Mendoza, Jr. appeals his conviction on four counts of
importation and possession of marihuana with intent to distribute. Mendoza
challenges the sufficiency of the evidence and the fairness of the prosecutor’s
closing argument. These arguments provide no basis to disturb the judgment
of conviction or the sentence. We affirm.
I. Facts and Procedural History
In March 2006, the Defendant Mendoza crossed the border from Juarez,
Mexico into the United States in a truck driven by his cousin, Maria del Socorro
Castaneda-Mendoza (“Castaneda”). Customs and Border Protection (CBP)
Officer Aaron Fierro, stationed at the primary inspection area, was the first
No. 06-51685
agent to encounter the truck. Both occupants sought admission into the United
States; Mendoza identified himself as a United States citizen and Castaneda
presented a border crossing card. However, Castaneda could not produce
registration papers for the vehicle. She explained that Juarez police had taken
them away from her husband. Officer Fierro required that the truck undergo a
secondary inspection. At trial, Officer Fierro testified that Mendoza did not
appear to be nervous during the primary inspection.
CBP Officers Carlos Robles, Jr. and Saul Macias performed the secondary
inspection. Officer Robles testified that when the truck entered the secondary
inspection area, Castaneda appeared “pale and nervous.” Officer Robles
explained that “[a]ny person that’s going to be checked in the secondary vehicle
area, they’re going to be ready for that inspection.” But Mendoza was “just
slouched and leaned over against [the] passenger door.” This behavior led
Officer Robles to believe that Mendoza was pretending to sleep. On cross-
examination, Officer Robles testified that Mendoza did not appear to be nervous
during the secondary inspection.
Officer Macias testified that a drug-sniffing dog alerted to the truck’s front
bumper. An inspection revealed marihuana hidden in the front fender wells.
When the dog alerted, Officer Macias observed Mendoza sigh, his whole body
slumped, and he “put his head down in disbelief.” Officer Macias testified that
he had observed the same type of behavior in other suspects when they were
“caught with a load” of illegal drugs.
Immigration and Customs Enforcement (ICE) Agent Rafael Martinez was
present at the border when Mendoza and Castaneda were detained. After being
advised of their relevant constitutional rights, both suspects agreed to speak
with Agent Martinez. Agent Martinez recounted their statements during his
testimony at Mendoza’s trial.
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No. 06-51685
During her interview, Castaneda gave inconsistent accounts of the reasons
she was driving Mendoza in this truck. She first told Agent Martinez that her
cousin Mendoza had requested a ride to the border and that she had borrowed
the truck from her ex-husband. She then changed her story, explaining that she
had traveled to Mexico from El Paso, Texas, at Mendoza’s request, in order to
help him take a vehicle across the border. According to Castaneda, she drove
her boyfriend’s truck to a point near the border and then walked across the
border into Mexico to meet Mendoza. Agent Martinez corroborated this by
locating the boyfriend’s truck near the place where Castaneda said she had left
it. Castaneda said that, upon her arrival in Mexico, Mendoza and another
individual asked her to drive the truck across the border because it had Mexican
license plates and Mendoza (a United States citizen) would arouse suspicion if
he drove the truck. Castaneda said that Mendoza and the other individual gave
her a name and told her to tell the border inspectors that the vehicle was
registered to that person.
After interviewing Castaneda, Agent Martinez spoke with Mendoza, who
also provided inconsistent stories. Mendoza first offered essentially the same
story as Castaneda, stating that he had asked Castaneda for a ride to El Paso
and that the truck belonged to her ex-husband. Agent Martinez thought the
story seemed “rehearsed” and told Mendoza that he did not believe him. At this
point, Mendoza said that he would tell the truth if Agent Martinez would tear
up his notes from the initial statement. After Agent Martinez tore up the notes,
Mendoza stated that Castaneda had asked him to accompany her to El Paso to
do some shopping. When asked why he lied initially, Mendoza responded that
he thought it would be easy to lie.
In addition to these generally conflicting stories, Agent Martinez also
noted certain discrepancies within each story. As part of his first story, Mendoza
stated that he made telephone calls from a pay phone in El Paso to a friend in
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No. 06-51685
Juarez, Mexico, for 25 cents per call; but calls could not be placed from those pay
phones for less than 50 cents. Mendoza told Agent Martinez that he called a
friend on a cell phone and asked for a ride into Mexico; but the purported cell
phone number was not in service. Mendoza then stated that he traveled by bus
to meet his friend near the border; but the bus route seemed circuitous for
Mendoza’s purposes. As part of his second story, Mendoza stated that he had
driven his own vehicle into Mexico the day before and had stayed with his
girlfriend in Juarez; but Mendoza could not supply his girlfriend’s telephone
number. Mendoza also stated that he left his car with a friend before meeting
Castaneda; but he could not provide the friend’s last name and could not explain
why he would leave his car with a person whose last name he did not know.
Prior to trial, Castaneda pled guilty to conspiracy to import marihuana.
She agreed to testify against Mendoza. Castaneda’s trial testimony tracked the
second story that she told Agent Martinez: she had traveled to Mexico at
Mendoza’s request in order to help him “cross over a truck.” She testified that
Mendoza and his friend were both in the truck when she arrived at the meeting
place, that Mendoza told her the truck’s registration had been confiscated by
Mexican officials, and Mendoza told her to lie to the border officers regarding
truck ownership. She said that Mendoza went from sitting normally to
slouching against the door as the truck crossed the bridge to the border
checkpoint, then told her, “I don’t know anything,” as the officers were removing
them from the truck during the secondary inspection. Castaneda told jurors that
she understood this to mean that the truck had drugs in it.
Mendoza pled not guilty to the four charges against him; his trial strategy
was to contest his knowledge that marihuana was hidden in the truck. Mendoza
was convicted by a jury on each of four drug-related counts: conspiracy to import
50 kilograms or more of marihuana and of importation of 50 kilograms or more
of marihuana in violation of 21 U.S.C. §§ 952(a), 960(a)(1), & 960(b)(3); and
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No. 06-51685
conspiracy to possess with intent to distribute 50 kilograms or more of
marihuana and possession with intent to distribute 50 kilograms or more of
marihuana in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(C). The district court
sentenced Mendoza to a 66-month term of imprisonment and a six-year period
of supervised release for each count, but ordered that the sentences be served
concurrently. He was also ordered to pay a $1,000 fine. Mendoza’s appeal from
this conviction is before us today.
II. Discussion
A. Sufficiency of evidence
Mendoza argues that the evidence on each charge was insufficient. We
will affirm if “a reasonable trier of fact could find that the evidence establishes
guilt beyond a reasonable doubt.” United States v. Bell, 678 F.2d 547, 549 (5th
Cir. 1982) (en banc). The evidence and all reasonable inferences drawn from it
are to be viewed on appeal in the light most favorable to the government. Id.
“In addition, all credibility determinations are made in the light most favorable
to the verdict.” United States v. Moreno, 185 F.3d 465, 471 (5th Cir. 1999).
“The evidence need not exclude every reasonable hypothesis of innocence
or be wholly inconsistent with every conclusion except that of guilt, and the jury
is free to choose among reasonable constructions of the evidence.” United States
v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998). However, if the evidence
“gives equal or nearly equal circumstantial support to a theory of guilt or
innocence,” the Court should reverse because “under these circumstances a
reasonable jury must necessarily entertain a reasonable doubt.” United States
v. Ramos-Garcia, 184 F.3d 463, 465 (5th Cir. 1999) (citations and some internal
quotation marks omitted).
1. Element of knowledge
Mendoza was convicted on four charges: conspiracy to import marihuana,
importation of marihuana, and two counts of conspiracy to possess the
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No. 06-51685
marihuana with the intent to distribute. We will not detail each element of
these offenses because Mendoza challenges solely the sufficiency of evidence
regarding knowledge. “The knowledge element in a possession case can rarely
be established by direct evidence.” Ramos-Garcia, 184 F.3d at 465. “Knowledge
can be inferred from control of the vehicle in some cases; however, when the
drugs are hidden, control over the vehicle alone is not sufficient to prove
knowledge.” Id. In a hidden compartment situation, this Court requires other
circumstantial evidence “that is suspicious in nature or demonstrates guilty
knowledge.” United States v. Garza, 990 F.2d 171, 174 (5th Cir. 1993).
2. Evidence offered at trial
The government asserts that the jury’s verdict is supported by sufficient
circumstantial evidence of Mendoza’s guilty knowledge, namely: (1) Castaneda’s
testimony that Mendoza was in control of the truck when she met him in Mexico
and that she only drove the truck at his request; (2) Castaneda’s testimony that
Mendoza told her to lie to border authorities about the ownership of the vehicle;
(3) Mendoza’s statement, “I don’t know anything,” and Castaneda’s testimony
that she understood that to mean that there were drugs in the truck; (4)
Mendoza’s feigned sleep during the border crossing; (5) Mendoza’s reaction when
the drug-sniffing dog alerted to the truck; and (6) Mendoza’s inconsistent stories
and false statements to border authorities.
Mendoza argues that Castaneda’s testimony was unreliable in light of her
conflicting stories and false statements at the border. Mendoza also suggests
that her nervousness during the border inspection, as contrasted with his calm
demeanor, indicates that Castaneda – not Mendoza – knew about the marihuana
in the truck. However, these challenges go to the credibility of Castaneda’s
testimony. The jury was aware of Castaneda’s plea agreement with the
government and heard testimony regarding her inconsistent stories. The jury
is charged with determining whether testimony is credible and, if so, what
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No. 06-51685
weight it should be given. Our review assumes such determinations are made
in the light most favorable to the verdict and we will not second-guess the jury’s
decision on this basis. Evidence consisting entirely of testimony from
accomplices or conspirators is sufficient. United States v. Turner, 319 F.3d 716,
721 (5th Cir. 2003).
Mendoza next argues that his sighing and slumping in reaction to the
drug-sniffing dog’s alert, and his apparent sleeping when the truck was directed
to the secondary inspection, were just as indicative of innocence as guilt.
However, the jury could reasonably have inferred that this behavior was
suspicious. For example, the conversations, other noises and movements from
the primary to the secondary inspection sites might be found by jurors to make
it unlikely any passenger could be sleeping. Consistently, a CBP officer testified
that sleeping (or pretending to sleep) was unusual behavior for a person who has
been referred to the secondary inspection area at a border checkpoint. In
addition, Mendoza admitted that he initially lied to Agent Martinez. He also
provided inconsistent statements regarding his method of traveling to Mexico
and his reasons for accompanying Castaneda back into the United States. These
types of inconsistent statements “are well-recognized circumstantial evidence of
guilty knowledge.” United States v. Casilla, 20 F.3d 600, 606 (5th Cir. 1994).
“Upon reviewing this evidence, it is important to note that the sole inquiry
is not whether the jury’s verdict was ultimately correct but whether the jury
made a reasonable decision based upon the evidence introduced at trial.” United
States v. Pando Franco, 503 F.3d 389, 394 (5th Cir. 2007) (citing United States
v. Jaramillo, 42 F.3d 920, 923 (5th Cir. 1995)). Five witnesses testified at trial
and these witnesses described Mendoza’s suspicious behavior, conflicting stories,
and one witness placed him in control of the truck. While the circumstantial
evidence against Mendoza may be characterized as something less than
overwhelming, it was not insufficient as a matter of law.
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No. 06-51685
B. Prosecutor’s closing argument
Mendoza argues that the fairness of his trial was undermined during the
government’s closing argument, when the prosecutor asked the jury to take note
of Mendoza’s courtroom demeanor. Mendoza’s trial lasted for two days. The
defense presented no witnesses. Mendoza was present in the courtroom
throughout the trial but never testified.
The challenged section of argument was during the prosecutor’s rebuttal.
It followed defense counsel’s emphasizing in his closing argument that Mendoza
had been calm at the border. We set forth the relevant portion of the
prosecutor’s argument, emphasizing the remarks that Mendoza alleges were
improper and prejudicial:
[Prosecutor]: You can look at different people and decide how they
act. You can decide what nervousness is and who would get nervous
about what.
One thing you can say is, if I had wanted to appear nervous – if I
hide my facial features from you and just close my eyes, you can’t
tell if I’m darting my eyes back and forth, if I’m not looking at you
my carotid artery is not showing. Just by not looking at you allows
me to hide my features from you. So feigning sleep is a way to hide
nervous behavior.
And the other thing is you sat here for two days, and you’ve gotten to
look at the defendant. If you were in his seat, would you be as calm
as he has been for the last two days?
[Defense Counsel]: Your honor, may we approach? He’s testifying.
[Court]: I’ll overrule the objection. You may proceed.
[Prosecutor]: Ladies and gentlemen of the jury, I want to make sure
I’m clear about it. You have an inalienable right not to testify
against yourself. And I certainly want to make it clear – it’s in the
jury charge, and it’s one of your constitutional rights. He has an
absolute right not to testify.
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No. 06-51685
But you are allowed to look at him sitting there. You are allowed to
look at his demeanor, and that’s all I’m asking you to do.
Defense counsel objected at the prosecutor’s first mention of Mendoza’s
demeanor. This objection was overruled and the district court did not give any
instructions to the jury regarding these particular remarks.
Mendoza does not argue that the remarks constituted a comment on his
failure to testify. A prosecutor’s comment on a defendant’s “expressionless
courtroom demeanor” has been found not to be equivalent to a comment on his
failure to take the stand. Bishop v. Wainwright, 511 F.2d 664, 668 & n.5 (5th
Cir. 1975). Instead, Mendoza argues that the comment violated his right to
“have his guilt or innocence determined solely on the basis of evidence
introduced at trial, and not on grounds . . . not adduced as proof at trial.” Taylor
v. Kentucky, 436 U.S. 478, 485 (1978).
1. Propriety of commenting on a defendant’s non-testimonial demeanor
“Improper comments by a prosecutor may constitute reversible error
where the defendant’s right to a fair trial is substantially affected.” United
States v. Andrews, 22 F.3d 1328, 1341 (5th Cir. 1994). Appellate review of
claims that a prosecutor made an improper argument occurs in two steps. We
first analyze whether the prosecutor’s remark was legally improper. United
States v. Morganfield, 501 F.3d 453, 467 (5th Cir. 2007). If it was, we turn to
whether the remark “prejudiced the defendant’s substantive rights.” Id.
(quoting United States v. Insaulgarat, 378 F.3d 456, 461 (5th Cir. 2004)). We
take that first step now, then evaluate the effect of the error in the next section.
A prosecutor is confined in closing argument to discussing properly
admitted evidence and any reasonable inferences or conclusions that can be
drawn from that evidence. “A prosecutor may not directly refer to or even allude
to evidence that was not adduced at trial.” United States v. Murrah, 888 F.2d
24, 26 (5th Cir. 1989). “The sole purpose of closing argument is to assist the jury
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No. 06-51685
in analyzing, evaluating and applying the evidence.” United States v. Dorr, 636
F.2d 117, 120 (5th Cir. Unit A Feb. 1981).
The precedents that we have discovered from other circuits agree that
courtroom demeanor of a non-testifying criminal defendant is an improper
subject for comment by a prosecuting attorney.1 Of course, it is inevitable that
jurors will observe a defendant at counsel table during the course of a trial.
Some jurors may form opinions from these observations regardless of
instructions given them by the court.2 This is a natural consequence of a
defendant’s decision to exercise his right to be present at trial. See Faretta v.
California, 422 U.S. 806, 819 n.15 (1975). But the prosecutor may not elevate
these opinions that may arise with “no help from the court” to the status of
evidence which jurors should consider during their deliberations. United States
v. Wright, 489 F.2d 1181, 1186 (D.C. Cir. 1973).
Mendoza did not testify. His courtroom demeanor was not “in any sense
legally relevant to the question of his guilt or innocence of the crime charged.”
Id. The prosecutor’s comments were error.
2. Effect of error
(a) Standard of review
When a prosecutor’s improper remarks are claimed by a defendant to have
prejudiced his right to a fair trial, we have used a few different articulations of
our appellate role in reviewing the error. Regardless of the precise language, the
1
United States v. Schuler, 813 F.2d 978, 980-82 (9th Cir. 1987); United States v.
Pearson, 746 F.2d 787, 796 (11th Cir. 1984); United States v. Carroll, 678 F.2d 1208, 1209-10
(4th Cir. 1982); United States v. Wright, 489 F.2d 1181, 1186 (D.C. Cir. 1973). Without
explicitly so holding, these circuits have implied that such comments are error: Gomez v.
Ahitow, 29 F.3d 1128, 1136-37 (7th Cir. 1994); United States v. Gatto, 995 F.2d 449, 455-56
(3d Cir. 1993); Borodine v. Douzanis, 592 F.2d 1202, 1210-11 (1st Cir. 1979).
2
One dissenting judge argued that a jury’s consideration of an accused’s demeanor and
conduct at counsel’s table was proper evidence. Schuler, 813 F.2d at 983 (Hall, J., dissenting).
We disagree with that judge’s conclusion but refer to her analysis for its recognition of the
inevitability of jurors’ noticing courtroom demeanor and actions.
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No. 06-51685
goal is to determine if there is a meaningful risk that the verdict was improperly
affected by those remarks.
At times, we have distinguished review of prosecutorial misconduct under
our broad supervisory power over the trials conducted in federal district courts,
from our more circumscribed review authority over petitions for post-conviction
relief, which is limited to due process violations. E.g., Derden v. McNeel, 978
F.2d 1453, 1460 (5th Cir. 1992). This distinction explains some – but not all –
of the different standards of inquiry stated in opinions.
When prosecutor misconduct is reviewed on direct appeal from a criminal
trial, one of the earliest statements of the present test for reversal is this:
As the Supreme Court observed nearly a half century ago, the
prosecutor “may prosecute with earnestness and vigor-indeed, he
should do so. But while he may strike hard blows, he is not at
liberty to strike foul ones.” Berger v. United States, 295 U.S. 78, 88,
55 S. Ct. 629, 633, 79 L. Ed. 2d 1314 (1935). To determine whether
the prosecutor violated this rule, the reviewing court “must weigh
the degree to which the alleged improper argument may have
affected the substantial rights of the defendants.” United States v.
Rhoden, 453 F.2d 598, 600 (5th Cir. 1972). Pertinent factors
include: (1) the magnitude of the prejudicial effect of the statements,
(2) the efficacy of any cautionary instructions, and (3) the strength
of the evidence of defendant's guilt. Id.
United States v. McPhee, 731 F.2d 1150, 1152 (5th Cir. 1984). A more recent
statement of the three factors appears in United States v. Virgen-Moreno, 265
F.3d 276, 290-91 (5th Cir. 2001). It is the standard we apply to this appeal.
We do not view the prosecutor’s remarks in isolation but consider the effect
of those remarks in the context of the entire trial. Id. Underlying our
considerations is that a “criminal conviction is not to be lightly overturned on the
basis of a prosecutor’s comments standing alone.” Andrews, 22 F.3d at 1341.
The government initially argues that defense counsel’s objection was
insufficient to preserve the error for this Court’s review. Mendoza’s counsel
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No. 06-51685
stated simply that the prosecutor was testifying. The trial court was thereby
presented with a valid objection that the prosecutor was bringing before the
jurors a matter that had not been introduced as evidence, which no juror may
have observed, and which reflected the prosecutor’s opinion derived either from
his observations or simply his desire to persuade. We conclude that the objection
to the prosecutor’s remarks was sufficient to preserve the error for review.
Though the error was preserved, Mendoza still bears the “substantial
burden” of establishing that the error warrants reversal of his conviction.
Virgen-Moreno, 265 F.3d at 290. “The determinative question is whether the
prosecutor’s remarks cast serious doubt on the correctness of the jury’s verdict.”
Id. (quoting United States v. Iredia, 866 F.2d 114, 117 (5th Cir. 1989)).
The dissent characterizes the error as one violating a due process right to
have jurors base their verdict solely on the evidence introduced at trial. The
dissent would treat the prosecutor’s remarks as a violation of the due process
protections of the Fifth Amendment, akin to a remark regarding the defendant’s
post-arrest silence or request for counsel. E.g., United States v. Moreno, 185
F.3d 465, 472-73 (5th Cir. 1999). When analyzing whether constitutional error
requires reversal, we ask “whether the error was harmless beyond a reasonable
doubt.” Id.; see Chapman v. California, 386 U.S. 18, 21-24 (1967).3
The dissent’s view that a due process violation occurred arises from
language in Taylor v. Kentucky, 436 U.S. 478, 485 (1978). In Taylor, the
Supreme Court considered whether the due process clause of the Fourteenth
Amendment required a “presumption of innocence” instruction if requested by
the accused. 436 U.S. at 479. In the course of its analysis, the Court remarked
3
Although Mendoza quotes from the Supreme Court’s decision in Taylor v. Kentucky,
he never argues that this case should be reviewed under the “harmless beyond a reasonable
doubt” constitutional error standard. To the contrary, Mendoza argues that the proper
standard for reviewing the remarks is the one we are following – whether serious doubt was
cast on the correctness of the verdict due to the error.
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No. 06-51685
that “one accused of a crime is entitled to have his guilt or innocence determined
solely on the basis of the evidence introduced at trial, and not on grounds of
official suspicion, indictment, continued custody, or other circumstances not
adduced as proof at trial.” Id. at 485 (citing Estelle v. Williams, 425 U.S. 501
(1976)). The cited precedent held that an accused cannot be compelled to stand
trial in prison clothing. Williams, 425 U.S. at 503-06.
These precedents were concerned that even when law enforcement officers
and the prosecution found sufficient justifications for arrest and a trial for the
charged offenses, the presumption of innocence was the necessary starting
position for jurors. See Taylor, 436 U.S. at 484-85; Williams, 425 U.S. at 504.
Governmental views about guilt are reflected in arrest, indictment, and even in
a person’s being issued prisoner clothing. It is the trial court’s function to ensure
that jurors do not use those events and symbols as evidence. Taylor and
Williams do not transform any reference to matters not in evidence into a Fifth
Amendment violation. Consistently, this Court has reviewed a prosecutor’s
reference to facts not in the record under the non-constitutional error standard
that we apply today. E.g., United States v. Davis, 792 F.2d 1299, 1306-08 (5th
Cir. 1986). We find no precedent in which the harmless beyond a reasonable
doubt standard was applied to this kind of closing argument error.
This is not a case in which “the [Government] has denied a defendant the
benefit of a specific provision of the Bill of Rights, such as the right to counsel,
or in which the prosecutor’s remarks so prejudiced a specific right, such as the
privilege against compulsory self-incrimination, as to amount to a denial of that
right.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (citation omitted).
One point at which caselaw concerning constitutional error intersects with the
caselaw about review of improper closing arguments is when the prosecutor’s
remarks have “so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Id. at 643. Under the Donnelly test of
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No. 06-51685
pervading unfairness, an improper comment may become constitutional error,
but it is only the exceptional case in which that will occur.
(b) Analysis of prejudice
We now undertake the analysis necessary to determine if there was
prejudicial error. Mendoza’s jury was not instructed to disregard the comment
on his courtroom demeanor. Instead, the trial court’s overruling the objection
invited consideration of demeanor. Therefore, the strength of the inculpatory
evidence and the possible prejudice from the argument must be evaluated
without the ameliorating effect of a corrective from the court. Seriousness of the
error and strength of the inculpatory evidence are interrelated when we evaluate
if reversal is required. Depending on the weakness of the incriminating
evidence, relatively mild but erroneous comments can be reversible error, but a
case containing overwhelming evidence of guilt would be little affected by much
more egregious error in argument.
After the objection in the present case was overruled, the prosecutor
informed jurors that they were “allowed to look at him sitting there.” That
comment was certainly true and even unobjectionable in isolation – there is no
courtroom requirement that jurors avert their eyes from those not on the witness
stand. In context, though, the comment was an invitation for jurors to weigh as
evidence the calmness of the defendant at the counsel’s table.
Perceiving substantial prejudice from the prosecutor’s argument, Mendoza
directs us to a Ninth Circuit decision that reversed a conviction solely due to the
prosecutor’s improper reference to the defendant’s courtroom demeanor in
closing argument. United States v. Schuler, 813 F.2d 978, 983-84 (9th Cir. 1987).
The Schuler prosecutor made the following remark:
[W]hile Mr. Schuler was being interrogated by the two security
agents, Schuler made a number of racial comments about the
number of people he was going to kill, a number of sexual
comments. I noticed a number of you were looking at Mr. Schuler
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No. 06-51685
while that testimony was coming in and a number of you saw him
laugh and saw him laugh as they were repeated.
Id. at 979. The court characterized the prosecutor’s comments as “suggesting to
the jury that Schuler’s laughter was relevant apparently for the purpose of
showing that he was of bad character because he considered the charges of
threatening the life of the President to be a joke.” Id. at 980 (citing FED. R. EVID.
404(a)). The court concluded that “such comments in the absence of a curative
instruction, constitute a deprivation of the right to a fair trial.” Id. at 981.
Mendoza also argues that one of this Court’s decisions supports a reversal
of his conviction. United States v. Wicker, 933 F.2d 284 (5th Cir. 1991). In
Wicker, the prosecutor alleged during closing argument that the defendant had
laughed at testimony regarding his involvement in a bank fraud scheme. Id. at
290-91. Then-Chief Judge Clark, writing for the Court, discussed Schuler but
refused to reverse Wicker’s conviction. There had been no objection to the
remark at trial, which left the heavier appellate burden of plain error review;
the harmful effect of the remark was lessened when the district court gave a sua
sponte curative instruction. Id. at 291.
Mendoza argues that because he did object and did not receive a curative
instruction, a reversal is warranted under both Wicker and Schuler.
Weighing against reversal is that the remarks here were isolated and non-
inflammatory. They comprised only a small portion of what was said to be a
twenty-minute closing argument that covers fourteen transcript pages. Though
defense counsel’s objection was overruled, the prosecutor did not dwell on
Mendoza’s courtroom demeanor. We have quoted every reference to the point.
Mendoza’s alleged calmness in the courtroom was not mentioned before or after
this one incident. Generally, an improper argument that is isolated does not
warrant reversal of a criminal conviction. Hitt, 473 F.3d at 161-62.
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The government also suggests that the remarks were not inflammatory
because they touched upon an “arguably irrelevant” matter – Mendoza’s
calmness in the courtroom. Cf. United States v. Harms, 442 F.3d 367, 378 (5th
Cir. 2006) (defendant could not show that prosecutor’s comment “on an
essentially irrelevant matter” substantially prejudiced his rights). However,
Mendoza’s defense strategy included contrasting his calmness at the border with
Castaneda’s nervousness. In fact, the prosecutor’s remarks followed a closing
argument by defense counsel that stressed Mendoza’s calmness during the
border inspection. Neither trial counsel appeared to consider Mendoza’s ability
to remain calm during stressful situations irrelevant during closing arguments.
It is also of some importance that these remarks did not characterize
Mendoza in a demeaning way in an effort to convince jurors of his bad character.
For example, the remarks did not suggest that Mendoza was heartless or
without remorse. We have found only one federal circuit court opinion that
reversed a conviction based solely on the prosecutor’s remarks regarding the
defendant’s courtroom demeanor. See Schuler, 813 F.2d at 981.4 In Schuler, the
prosecutor risked inflaming jurors by implying that the defendant’s laughter was
indicative of a lack of remorse for the harm he had caused. In the same way that
“bad character” evidence is closely controlled by the evidentiary rules, efforts to
inflame jurors through argument that characterizes a defendant in the most
despicable manner will be seen as creating a high risk of prejudice. Federal Rule
of Evidence 404(a) excludes proof of bad character “not because it has no
4
The other cases addressing such remarks found that the cumulative effect of several
harmful errors warranted reversal, see Pearson, 746 F.2d at 796; Wright, 489 F.2d at 1187-95,
or the prosecutor’s comments were so egregious that multiple constitutional rights of the
defendant had been impugned. See Carroll, 678 F.2d at 1209-10 (finding that prosecutor’s
comments regarding defendant’s in-court consultation with his attorney violated Fifth
Amendment rights not to testify and not to be convicted except on the basis of properly
admitted evidence, and Sixth Amendment rights to counsel and jury trial).
16
No. 06-51685
probative value, but because it sometimes may lead a jury to convict the accused
on the ground of bad character deserving punishment irrespective of guilt.”
United States v. Anderson, 933 F.2d 1261, 1268 (5th Cir. 1991). Unlike the
inflammatory remarks regarding laughter, the prosecutor’s passing remarks
regarding Mendoza’s demeanor would not seemingly evoke guilty-because-of-
bad-character reasoning by jurors. This distinction does not make the comments
here any less erroneous, but it may make them less harmful.
We have just described our analysis of the kind of prejudice that has
caused, or not, reversal in the controlling precedents. “Reversal and remand is
the most effective sanction for prosecutorial misconduct,” but we are not free to
employ that sanction in every case. United States v. Jones, 839 F.2d 1041, 1049
(5th Cir. 1988). Reversal due to prosecutorial remarks does not flow inexorably
from a determination of error. Even where remarks may be categorized as
“reprehensible,” id., or “clearly inappropriate,” United States v. Lowenberg, 853
F.2d 295, 301 (5th Cir. 1988), we must still consider their legal impact. Our
power to reverse a criminal conviction for prosecutorial misconduct “does not
permit us to ignore the actual effect of the error.” Jones, 839 F.2d at 1050.
The remarks in Mendoza’s trial were not inflammatory. By calling on
jurors to recall the defendant’s calmness, the argument did not incite jurors
against Mendoza. The argument essentially was that Mendoza responded to the
stress of being tried for this serious crime, to being stopped at the border, and
perhaps to any other stressful situation with surprising calmness. Unless jurors
thereby believed that Mendoza’s calm courtroom demeanor proved he was calm
only when he was guilty and acted otherwise when he was innocent – and that
essentially silly point was not argued – at best the prosecutor revealed that
Mendoza was able either to be calm or feign calmness when useful.
As we noted before, the multi-part evaluation of an erroneous closing
argument – the magnitude of any prejudice, the likely effect of any cautionary
17
No. 06-51685
instruction, and the strength of the evidence – is to help us answer the central
question of whether the “prosecutor’s remarks cast serious doubt on the
correctness of the jury’s verdict.” Iredia, 866 F.2d at 117 (for non-constitutional
error). The prejudice from improper closing argument has to be evaluated in the
context of the entire trial. Virgen-Moreno, 265 F.3d at 290-91.
Applying those rules, we conclude that the prosecutor’s argument did not
invite jurors to accept that Mendoza’s calmness at the border before the drugs
were discovered was indicative of guilt. At worst, the prosecutor’s flawed effort
encouraged jurors to believe that Mendoza’s serial calmness was not proof of
either guilt or innocence. If the argument caused that belief, then the
prosecutor’s improper remarks undercut the defense argument that Mendoza’s
border calmness was suggestive of obliviousness to the presence of drugs.
However, there was substantial actual evidence that also rebutted that defense
argument. There was strong circumstantial evidence of Mendoza’s guilty
knowledge, including the testimony of three border officers who observed
Mendoza’s apparently feigned sleeping, and of one officer to whom Mendoza
admittedly lied. There was substantial evidence from Castaneda’s testimony
that Mendoza made the arrangements to get this truck, which was found to be
drug-laden, across the border; that he told her to lie about ownership; and that
he told Castaneda as they were being removed from the truck that “I don’t know
anything.” Jurors may well have found her testimony particularly damning.
For similar reasons, we conclude that the error did not “so infect[] the trial
with unfairness as to make the resulting conviction a denial of due process.”
Donnelly, 416 U.S. at 643. The difference between the due process standard and
one that considers the seriousness of doubt about the correctness of the jury’s
verdict, may be disputed. Regardless, when we measure the error with the
Donnelly ruler, we again conclude we should affirm.
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No. 06-51685
In summary, the prosecutor’s remarks were improper. They sought to
focus the jury’s attention on information that was not evidence. The remarks
drew an objection; the district court should have sought to cure any harm that
might have been caused. Of course, we cannot actually know what jurors made
of the argument, as the dissent notes. That is always the difficulty in evaluating
error for its potential to cause prejudice. Nonetheless, controlling caselaw
requires that we undertake this analysis and not just reverse because error
occurred. Even for constitutional error, the Supreme Court instructs us that
reversal is not required if the violation was harmless error in the context of the
entire trial. Arizona v. Fulminante, 499 U.S. 279, 306-08 (1991).
We conclude that the prosecutor’s isolated remarks did not violate any
constitutional rights. The remarks were error, but of less than constitutional
dimension. It is difficult for us to perceive that the argument had much impact
at all. Jurors would not likely have found Mendoza’s demeanor at trial to be
probative of anything. These remarks do not cast serious doubt on the verdict,
which was “obtained in an otherwise fair proceeding.” United States v. Young,
470 U.S. 1, 11 (1985).
We conclude that Mendoza was convicted based on admissible evidence in
a trial that was imperfect but in which the imperfections were harmless.
The judgment of conviction is AFFIRMED.
DeMOSS, Circuit Judge, dissenting:
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No. 06-51685
Mendoza was convicted because the jury determined that he had guilty
knowledge of the marihuana hidden in the fenders of the pickup truck driven by
Castaneda. At trial, the Government argued that Mendoza’s calm demeanor at
the border was circumstantial evidence of his guilty knowledge.1
In my opinion, the prosecutor’s comments during closing arguments
comparing Mendoza’s calm demeanor at the border with his calm demeanor in
the courtroom violated Mendoza’s Fifth Amendment due process right to have
his guilt or innocence determined solely on the basis of the evidence introduced
at trial.2 Mendoza preserved this error, the district court improperly overruled
his objection, and the district court did not give a cautionary instruction to the
jury. After this objection was overruled, the prosecutor reiterated that the jury
1
At trial, the Government’s witnesses testified that (1) Mendoza did not appear to be
nervous during the primary inspection, (2) he appeared to feign sleep when the pickup truck
entered the secondary inspection area, and (3) he did not appear to be nervous during the
secondary inspection (until a drug-sniffing dog alerted to the front bumper).
2
See Taylor v. Kentucky, 436 U.S. 478, 486 (1978) (referring to “the accused’s
constitutional right to be judged solely on the basis of proof adduced at trial”) (emphasis
added); see United States v. Schuler, 813 F.2d 978, 981 (9th Cir. 1987) (“We agree . . . that [the
prosecutor’s] comments in the absence of a curative instruction, constitute a deprivation of the
fifth amendment right to a fair trial.”) (emphasis added); see United States v. Carroll, 678 F.2d
1208, 1209-10 (4th Cir. 1982) (“It is clear that the prosecutor’s reference to the courtroom
behavior of the defendant was improper . . . . He also had a Fifth Amendment right not to be
convicted except on the basis of evidence adduced against him . . . . When, as here, the
prosecutor describes the courtroom behavior of a defendant who has not testified, and then
goes on to tell the jury that it may consider that behavior as evidence of guilt, the prosecutor
violates those rights.”) (emphasis added); see United States v. Gatto, 995 F.2d 449, 455 (3d Cir.
1993) (“When . . . the prosecutor comments in closing on defendant’s courtroom conduct
without any supporting evidence in the record, the defendant’s Fifth Amendment due process
rights to a fair trial and to be judged solely on the basis of evidence admitted at trial are
violated.”) (emphasis added); see Gomez v. Ahitow, 29 F.3d 1128, 1136 (7th Cir. 1994) (“The
prosecution may not, consistent with a defendant’s due process rights . . ., seek to obtain a
conviction by going beyond the evidence before the jury.”) (internal quotation marks omitted)
(emphasis added).
20
No. 06-51685
should consider Mendoza’s calm demeanor in the courtroom as evidence against
him.3
I.
I believe that these comments prejudiced Mendoza’s substantive rights
because the prosecutor’s improper comments related to the most contested issue
in the trial—Mendoza’s guilty knowledge of the hidden marihuana. Because the
prejudicial effect of these comments was compounded by the absence of a
cautionary instruction and the “less than overwhelming” evidence of guilty
knowledge, I must respectfully dissent from the majority’s refusal to reverse
Mendoza’s conviction and remand for a new trial. See United States v. Virgen-
Moreno, 265 F.3d 276, 290-91 (5th Cir. 2001).
II.
During closing argument, the prosecutor improperly compared Mendoza’s
calm demeanor at the border with his calm demeanor in the courtroom in an
effort to bolster the Government’s argument and discredit the defense’s
argument regarding Mendoza’s guilty knowledge.
The majority postulates that “[a]t best, the prosecutor’s flawed effort
encouraged a belief that Mendoza’s serial calmness was not proof of either guilt
or innocence.” I believe that the prosecutor’s comments suggest that Mendoza
acts calm in order to hide his guilt or nervousness. Alternatively, the
prosecutor’s comments might suggest that Mendoza is always calm, so his calm
3
Mendoza does not argue that the prosecutor’s comments were a comment on his failure
to testify. Although a prosecutor’s comment on a defendant’s “expressionless courtroom
demeanor” is usually not a comment on his failure to take the stand, see Bishop v. Wainwright,
511 F.2d 664, 668 & n.5 (5th Cir. 1975), it might be depending upon the content and context
of the statement. See Schuler, 813 F.2d at 981-82. In this case, I do not think the prosecutor’s
comment was a comment on Mendoza’s failure to take the stand because the prosecutor’s
“manifest intent” was to argue that Mendoza’s calmness in the courtroom was probative of his
guilty knowledge of the hidden marijuana. See United States v. Grosz, 76 F.3d 1318, 1326 (5th
Cir. 1996). The jurors would not construe the prosecutor’s comments on Mendoza’s calmness
in the courtroom as referring to his failure to testify. See Bishop, 511 F.2d at 668.
21
No. 06-51685
demeanor at the border is not probative of his innocence, contrary to the
argument of the defense. Reasonable jurors could have interpreted the
prosecutor’s comments either way; however, both arguments rely upon
inadmissible evidence to rebut a legitimate defensive theory, based on
admissible evidence, that was raised by Mendoza during his closing argument.
Regardless of the exact interpretation adopted by the jurors, we should not
assume the best-case scenario in our prejudice analysis. If Mendoza’s calm
demeanor in the courtroom was irrelevant to his guilt, or inconclusive, then the
prosecutor would not have made the argument and then repeated it after
Mendoza’s objection was overruled.
“A prosecutor may not directly refer to or even allude to evidence that was
not adduced at trial.” United States v. Murrah, 888 F.2d 24, 26 (5th Cir. 1989).
During closing arguments, Mendoza argued that his calm demeanor at the
border was indicative of lack of guilty knowledge when viewed in context with
Castaneda’s nervous demeanor at the border. In my opinion, Mendoza’s right
to a fair trial was substantially affected when the prosecutor argued that
Mendoza’s calm demeanor at the border was indicative of guilty knowledge when
viewed in context with Mendoza’s calm demeanor in the courtroom. The
prosecutor wrongfully attempted to neutralize the persuasive value of Mendoza’s
admissible comparison evidence—Castaneda’s nervous demeanor at the
border—with inadmissible comparison evidence—Mendoza’s calm demeanor in
the courtroom.
III.
Because the Government carries the burden of proof regarding the
knowledge element, I believe the prosecutor’s improper comments constituted
reversible error. In order to obtain a conviction, the Government was required
to produce evidence that was sufficient to prove the knowledge element beyond
a reasonable doubt. See United States v. Ortega Reyna, 148 F.3d 540, 544 (5th
22
No. 06-51685
Cir. 1998). Because we don’t know what circumstantial evidence the jurors
relied upon in arriving at their conclusions regarding the knowledge element, see
United States v. Garza, 990 F.2d 171, 174 (5th Cir. 1993), I believe the
prosecutor’s comments cast “serious doubt on the correctness of the jury’s
verdict.” See Virgen-Moreno, 265 F.3d at 290. The majority implies that other
circumstantial evidence of guilty knowledge was sufficient to convict, yet it
readily concedes that “we cannot actually know what the jurors made of the
[prosecutor’s improper] argument.” The majority hypothesizes that the improper
argument did not have much impact at all. Unfortunately, my crystal ball does
not work as well as theirs.
IV.
I disagree with the majority’s attempt to distinguish United States v.
Schuler by noting that the prosecutor’s improper comments were not related to
Mendoza’s bad character and were not inflammatory. The majority is correct in
arguing that bad character evidence is inherently inflammatory and creates a
high risk of prejudice. See United States v. Anderson, 933 F.2d 1261, 1268 (5th
Cir. 1991); FED. R. EVID. 404(a). Nevertheless, the prosecutor’s improper
comments in this case also created a high risk of prejudice because they related
to the most contested issue in the trial—Mendoza’s guilty knowledge of the
hidden marihuana. Although the prosecutor’s improper comments did not
suggest that Mendoza was “heartless or without remorse,” they did suggest that
he was guilty of the crimes charged.
In my mind, it is irrelevant that the prosecutor’s improper comments
related to Mendoza’s guilty knowledge of the hidden marihuana instead of his
bad character. Our prejudice analysis must focus on the risk that the improper
comments resulted in a wrongful conviction, not on the unsavory nature of those
comments standing alone. Although the prosecutor’s improper comments
probably would not evoke “guilty-because-of-bad-character” reasoning by the
23
No. 06-51685
jurors, they could easily have evoked “guilty-because-of-calm-demeanor”
reasoning. The Due Process Clause of the Fifth Amendment prohibits the
prosecutor from referring to any evidence that was not introduced at trial,
regardless of whether that evidence relates to bad character or guilty knowledge.
See Carroll, 678 F.2d at 1209 (where the prosecutor’s improper comments
related to the defendant’s discussion of bank surveillance photographs with his
trial counsel, not his bad character).
V.
According to the majority, an improper comment that is “isolated” does not
usually warrant reversal of a criminal conviction. See United States v. Hitt, 473
F.3d 146, 161-62 (5th Cir. 2006). Although the majority characterizes the
prosecutor’s improper comments as isolated statements contained within a
twenty-minute closing argument, the prejudicial effect of those comments is
magnified when one considers the prominent role that guilty knowledge played
“in the context of the entire trial.” See Virgen-Moreno, 265 F.3d at 290.
VI.
Demeanor evidence in drug possession cases has a protean quality and
dubious probative value. Indeed, we have previously recognized that “the
character of a defendant’s reaction to scrutiny at the border is a double-edged
sword for the defendant.” United States v. Ramos-Garcia, 184 F.3d 463, 466 (5th
Cir. 1999). We have stated that nervous demeanor can indicate guilty
knowledge, see United States v. Olivier-Becerril, 861 F.2d 424, 427 (5th Cir.
1988), calm demeanor can indicate guilty knowledge, see United States v. Resio-
Trejo, 45 F.3d 907, 913 (5th Cir. 1995), nervous demeanor is a normal reaction
to unusual circumstances and does not necessarily derive from an underlying
consciousness of criminal behavior, see United States v. Williams-Hendricks, 805
F.2d 496, 500 (5th Cir. 1986), and calm demeanor can provide equal
circumstantial support for a finding of guilt or innocence, see Ortega Reyna, 148
24
No. 06-51685
F.3d at 544. The only way to reconcile these conflicting statements is to conclude
that demeanor evidence is inconclusive unless viewed in the context of other
admissible circumstantial evidence indicating guilty knowledge. See Ramos-
Garcia, 184 F.3d at 466-67.
The prosecutor’s improper comments in this case exacerbated the pre-
existing problems associated with demeanor evidence by insinuating that
Mendoza’s calmness in the courtroom made his calmness at the border more
probative of guilty knowledge. The Government attempted to bolster its
admissible but weak circumstantial evidence of guilt with inadmissible and
irrelevant evidence. I agree with the majority that Mendoza’s courtroom
demeanor was not “in any sense legally relevant to the question of his guilt or
innocence of the crime charged.” United States v. Wright, 489 F.2d 1181, 1186
(D.C. Cir. 1973).
In this case, we don’t know whether admissible or inadmissible evidence
tipped the balance in favor of the Government and led the jury to conclude that
Mendoza’s calm demeanor was indicative of guilty knowledge. Although the
majority optimistically speculates that the jury did not seriously consider the
inadmissible evidence, our standard of review requires us to evaluate whether
the improper comments “cast serious doubt on the correctness of the jury’s
verdict,” not whether they conclusively undermined that verdict. See United
States v. Iredia, 866 F.2d 114, 117 (5th Cir. 1989). In my opinion, Mendoza
successfully carried the substantial burden of establishing that this error
warrants reversal of his conviction. See Virgen-Moreno, 265 F.3d at 290.
VII.
The majority criticizes me for characterizing the prosecutor’s improper
comments as constitutional error and for not applying the Chapman standard
of review: whether the constitutional error was harmless beyond a reasonable
doubt. See Chapman v. California, 386 U.S. 18, 24 (1967). Schuler, Carroll,
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No. 06-51685
Gatto, and Ahitow all explicitly state that this error is constitutional.
Furthermore, Schuler and Carroll applied a constitutional error standard of
review. See Schuler, 813 F.2d at 982 (applying the Chapman standard); see
Carroll, 678 F.2d at 1210 (applying the Fahy standard, which was the
predecessor to the Chapman standard). I discuss the Virgen-Moreno standard
in my dissent because I believe the error is reversible regardless of whether the
error is constitutional.
Although I believe that the prohibition on referring to evidence that was
not adduced at trial has constitutional origins, some cases indicate that the
prohibition is simply an exercise of the appellate court’s “supervisory powers
over federal trials” on direct review. See Borodine v. Douzanis, 592 F.2d 1202,
1211 n.6 (1st Cir. 1979); see also Berger v. United States, 295 U.S. 78, 84-85, 89
(1935); United States v. Hasting, 461 U.S. 499, 505 (1983); Willie v. Maggio, 737
F.2d 1372, 1390 (5th Cir. 1984). Two cases cited by the majority state that the
prosecutor’s comments were error without referring to the Constitution. See
United States v. Pearson, 746 F.2d 787, 796 (11th Cir. 1984); see United States
v. Wright, 489 F.2d 1181, 1186 (D.C. Cir. 1973). For our part, we have been less
than clear regarding where this prohibition originated, see, e.g., Murrah, 888
F.2d at 26, and we have previously relied on Virgen-Moreno’s non-constitutional
error standard when reviewing the prosecutor’s comments on facts not in
evidence. See, e.g., United States v. Davis, 792 F.2d 1299, 1306-08 (5th Cir.
1986).
Unlike a prosecutor’s comment on the defendant’s failure to testify, which
is a violation of the Self-Incrimination Clause of the Fifth Amendment, see
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974), a prosecutor’s comment on
facts not in evidence would fall within the category of a “generic due process
violation,” see Rogers v. Lynaugh, 848 F.2d 606, 608 (5th Cir. 1988), such that
26
No. 06-51685
there is no constitutional error unless the “prosecutor’s comments so infected the
trial with unfairness as to make the resulting conviction . . . a denial of due
process.” Id. (internal quotation marks omitted). In this circuit, “[t]he test
applied to determine whether a trial error makes a trial fundamentally unfair
is whether there is a reasonable probability that the verdict might have been
different had the trial been properly conducted.” Id. at 609 (internal quotation
marks omitted). In the context of prosecutorial misconduct, the error is
constitutional “if the prosecutor’s remarks evince either persistent and
pronounced misconduct or the evidence was so insubstantial that (in probability)
but for the remarks no conviction would have occurred.” Id. at 609 n.7 (internal
quotation marks omitted).
I do not believe that every comment on facts not in evidence is
constitutional error; Schuler and Carroll clearly focused on the content and
context of the improper statement. See Kirkpatrick v. Blackburn, 777 F.2d 272,
280 (5th Cir. 1985) (noting that it is less difficult for a defendant to show that a
trial error prejudiced his substantial rights than to show that the error abridged
his constitutional rights by rendering his trial fundamentally unfair). However,
based on the important role that demeanor evidence played in Mendoza’s trial,
I believe that there is a reasonable probability that the verdict might have been
different in the absence of the prosecutor’s comment and that this constitutional
error requires reversal.4 Compare Guidroz v. Lynaugh, 852 F.2d 832, 838 (5th
Cir. 1988), with Virgen-Moreno, 265 F.3d at 291 (both standards require
consideration of the strength of the evidence supporting the conviction). The
4
Because the defendant must show the harmfulness of the error to establish a
constitutional error, subsequent application of the Chapman harmless error test is
“superfluous” because “the error obviously could not then be shown to be harmless.”
Kirkpatrick, 777 F.2d at 280.
27
No. 06-51685
prosecutor’s comments, “in the context of the entire trial, were sufficiently
prejudicial to violate [Mendoza’s] due process rights.” Donnelly, 416 U.S. at 639.
VIII.
“This court has passed too many times on this kind of comment by
prosecutors to permit it to continue by allowing it to be brushed under the rug
under the harmless error doctrine.” United States v. Corona, 551 F.2d 1386,
1389 (5th Cir. 1977). “It is as much [the prosecutor’s] duty to refrain from
improper methods calculated to produce a wrongful conviction as it is to use
every legitimate means to bring about a just one.” Berger, 295 U.S. at 88. I
believe the prosecutor’s comments violated Mendoza’s Fifth Amendment due
process right to have his guilt or innocence determined solely on the basis of the
evidence introduced at trial. Mendoza properly preserved this error, and the
district court failed to give the requisite cautionary instruction. See Carroll, 678
F.2d at 1210 (“By allowing the prosecutor’s remarks to pass uncorrected, over
defense counsel’s objection, . . . the district court implied that the remarks were
unobjectionable.”). Fairness and justice require reversal and remand. For these
reasons, I respectfully dissent.
28