REVISED APRIL 15, 2008
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 31, 2008
No. 07-40245
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
APOLINAR GRACIA, JR.
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:06-cr-00006-2
Before WIENER, BARKSDALE, and OWEN, Circuit Judges.
WIENER, Circuit Judge:
Defendant-Appellant Apolinar Gracia, Jr. traveled across the border
bridge between Matamoros and Brownsville as a passenger in a car driven by an
older female friend. The car contained approximately fifty kilograms of cocaine
hidden in a false floor. A jury convicted Gracia on four related drug counts.
Convinced that, during rebuttal closing argument, the government improperly
bolstered its key witnesses, the agents who heard Gracia’s unrecorded
confession, and that this bolstering constituted reversible plain error, which
seriously affected the fairness, integrity, and public reputation of those
proceedings, we reverse Gracia’s conviction and remand his case for a new trial.
No. 07-40245
I. FACTS AND PROCEEDINGS
In December 2005, Gracia was a passenger in a gold Chevrolet Impala
when it was stopped at the Brownsville and Matamoros (“B&M”) International
Bridge while crossing into Texas from Mexico. Driving the car was Oralia
Valenzuela-Montoya, an older woman with whom it appears Gracia had a close,
platonic relationship. When the Treasury Enforcement Communication System
(“TECS”) generated a “hit” on the Impala’s license plate number, indicating that
the car might contain illegal narcotics, border patrol agents referred the car to
a secondary inspection area, where a detection dog alerted to the presence of
drugs. Further investigation revealed a sophisticated hidden compartment in
the floor of the vehicle which held forty-four packages containing a total of fifty
kilograms of cocaine with an estimated street value of at least $500,000.
Gracia and Valenzuela-Montoya were escorted to separate interview rooms
in which they were detained by agents. Some time later, the pair was formally
placed under arrest after the discovery of the cocaine. Thereafter, at
approximately 3:30 a.m., Agent Richard Perez began questioning Gracia
following his waiver of his Miranda rights. At trial, Agent Perez testified that,
from the beginning, Gracia agreed to provide the agents with a statement.
Although Gracia had continued to deny that he knew the quantity or type of
drugs contained in the Impala, he acknowledged he had been stopped and
detained on this occasion because of a problem with either cocaine or marijuana
in the Impala, and that he was to have received $1,000 for accompanying
Valenzuela-Montoya in the Impala when it crossed the B&M Bridge.
Despite these disclosures by Gracia, Agent Perez believed that Gracia was
“not being entirely truthful,” so he had Valenzuela-Montoya brought into
Gracia’s interview room. According to Agent Perez, Valenzuela-Montoya urged
Gracia “to tell the whole truth, so the agents could help them.” Gracia contends
that Valenzuela-Montoya also communicated a message to him through head
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No. 07-40245
nods and eye signals, although the agents who were present dispute this
account. Valenzuela-Montoya was then removed from Gracia’s interview room.
According to the agents, Gracia was noticeably moved by Valenzuela-
Montoya’s visit, and volunteered that a man named Gerardo or Geraldo had
made an arrangement with Gracia to transport the cocaine-laden Impala to
Houston once it had cleared the border. Gracia provided details to Agent Perez
about the history and method of the smuggling operation in which he had
participated. The agents neither obtained a written statement from Gracia nor
recorded his utterances. They did seize $1,000, but from Valenzuela-Montoya,
not Gracia.
Early in 2006, Gracia was indicted in the Southern District of Texas on
four counts: (1) conspiracy to possess with intent to distribute more than five
kilograms of cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A);
(2) possession with intent to distribute more than five kilograms of cocaine in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1); (3) conspiracy to import more
than five kilograms of cocaine in violation of 21 U.S.C. §§ 963, 952(a), and
960(b)(1); and (4) importation of more than five kilograms of cocaine in violation
of 21 U.S.C. §§ 952(a) and 960(b)(1). In March 2006, Gracia proceeded to jury
trial, at the conclusion of which the jury returned a verdict of guilty on all four
counts. A year later, the district court sentenced Gracia to concurrent terms of
imprisonment of 168 months on each of the four counts, and concurrent five-year
terms of supervised release on each. Gracia timely filed a notice of appeal.
II. ANALYSIS
Gracia contends that three instances of prosecutorial misconduct at trial
constitute grounds for reversal: The prosecutor’s (1) references to Valenzuela-
Montoya’s guilt; (2) comments on Gracia’s silence in custody and decision not to
testify; and (3) bolstering of the agents’ testimony during rebuttal closing
argument. For the reasons set forth below, we agree that the prosecutor’s
3
No. 07-40245
bolstering of the agents’ testimony constituted reversible plain error. As we
reverse and remand on this basis, we do not address whether the prosecutor’s
references to Valenzuela-Montoya’s guilt and comments on Gracia’s silence also
constitute independent or cumulative grounds for reversal.
A. Standard of Review
Gracia’s trial counsel did not contemporaneously object to the prosecutor’s
comments regarding the agents’ testimony,1 so we apply the plain error standard
of review.2 To demonstrate reversible plain error, Gracia had to show that (1)
there is error; (2) it is plain; and (3) it affected his substantial rights.3 Even if
he could meet that burden, we still would have discretion to decide whether to
reverse, which we generally will not do unless the plain error seriously affected
the fairness, integrity, or public reputation of the judicial proceeding.4
1
United States v. Mares, 402 F.3d 511, 515 (5th Cir. 2005). Gracia speciously asserts
on appeal that he did, in fact, object to three of the government’s four allegedly improper
statements. After the prosecutor voiced two of his allegedly improper statements and before
voicing allegedly improper statements three and four, Gracia did raise an objection. Gracia
did not object, however, on the basis of improper witness bolstering, but because the facts
introduced were not in evidence. Gracia’s sole objection was thus completely non-topical, viz.,
unrelated to improper witness bolstering, and non-contemporaneous with all but one of the
government’s allegedly improper statements. For purposes of our determination of the
applicable standard of review, Gracia did not make a valid contemporaneous objection to the
government’s allegedly improper statements. See United States v. Gallardo-Trapero, 185 F.3d
307, 322 n.7 (5th Cir. 1999) (holding that plain error review applied because defendant’s
attorney’s objection, although raised, was based on topic unrelated to matter on appeal).
2
We apply plain error review to allegedly improper comments for which there was no
objection, as in the instant case. United States v. Fields, 483 F.3d 313, 360 (5th Cir. 2007)
(citing Gallardo-Trapero, 185 F.3d at 321). In contrast, the trial court’s admission of objected-
to comments are reviewed for abuse of discretion, which involves two steps: (1) we must first
decide whether the prosecutor made an improper remark and (2) if an improper remark was
made, we must determine whether the remark affected the substantial rights of the defendant.
Id. at 358 (citing United States v. Insaulgarat, 378 F.3d 456, 461 (5th Cir. 2004), cert. denied,
No. 07-6395, 2008 WL 114089 (U.S. Jan. 14. 2008)).
3
United States v. Jones, 484 F.3d 783, 792 (5th Cir. 2007) (citing Mares, 402 F.3d at
520).
4
Mares, 402 F.3d at 520 (citing United States v. Cotton, 535 U.S. 625, 631 (2002)).
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No. 07-40245
B. Merits
Gracia points to four remarks by the prosecutor that bolstered the
credibility of the agents who interviewed him. First, the prosecutor expressed
his opinion to the jury that the agents were “very, very credible” witnesses
(“Statement One”). Second, the prosecutor asked the jurors rhetorically whether
they thought that an agent “who has worked as a law enforcement agent for
many years, that is his career, that is his chosen life, a man from this area, a
man with a family, do you think that he would throw all that away by taking
this stand and taking an oath and lying to you to get Mr. Gracia”; and whether
the agents “would put their careers and criminal prosecution on the line for
committing the offense of aggravated perjury” (“Statement Two”). Third, the
prosecutor told the jury: “I’m going to ask you to respect their efforts as law
enforcement officials and to believe the testimony that they offered” (“Statement
Three”). Fourth, the prosecutor admonished the jurors that, to acquit Gracia,
they would have to believe that the agents “got out of bed” on the day they
arrested Gracia and decided that this was “the day that [they] were going to
start [a] conspiracy to wrongfully convict Mr. Gracia” (“Statement Four”).
Gracia insists that these remarks constituted reversible plain error. The
government concedes that Statements One and Three may have been improper,
but nevertheless contends that all four statements were harmless error.
1. All four of the prosecutor’s statements were errors.
We first turn to the question whether the statements at issue constituted
error, defined as “deviation from a legal rule.”5 When we do, we conclude that
each remark highlighted by Gracia indisputably was an improper, or erroneous,
deviation from a legal rule. The Supreme Court’s decision in Berger v. United
States makes clear that a personal assertion by a prosecutor of a government
5
Gallardo-Trapero, 185 F.3d at 322.
5
No. 07-40245
witness’s credibility is impermissible.6 The American Bar Association’s
standards for prosecutors echo this sentiment: “The prosecutor should not
express his or her personal belief or opinion as to the truth or falsity of any
testimony or evidence or the guilt of the defendant.”7 The government may not
cloak a witness in its “protective mantle.”8 A prosecutor may argue fair
inferences from the evidence that a witness has no motive to lie, but cannot
express a personal opinion on the credibility of witnesses.9
As the government concedes, it is impermissible per se for a prosecutor to
offer personal assurances to the jury that government witnesses are telling the
truth, as in Statement One,10 or to tell the jury that law enforcement witnesses
should be believed simply because they were doing their job, as in Statement
Three.11
6
295 U.S. 78, 88 (1935) (“It is fair to say that the average jury . . . has confidence that
these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully
observed. Consequently, improper suggestions, insinuations, and, especially, assertions of
personal knowledge are apt to carry much weight against the accused when they should
properly carry none.”); see also United States v. Young, 470 U.S. 1, 18-19 (1985) (“The
prosecutor’s vouching for the credibility of witnesses and expressing his personal opinion
concerning the guilt of the accused pose two dangers: such comments can convey the
impression that evidence not presented to the jury, but known to the prosecutor, supports the
charges against the defendant and can thus jeopardize the defendant’s right to be tried solely
on the basis of the evidence presented to the jury; and the prosecutor’s opinion carries with it
the imprimatur of the Government and may induce the jury to trust the Government’s
judgment rather than its own view of the evidence.”).
7
ABA Criminal Justice Section Standards, Argument to the Jury, Standard 3-5.8.
8
Gallardo-Trapero, 185 F.3d at 320.
9
Id.
10
Berger, 295 U.S. at 88; see also Hodge v. Hurley, 426 F.3d 368, 378-80 (6th Cir. 2005)
(holding that two statements by prosecutor commenting on veracity of two key witnesses,
including remark that one of witnesses and her family were “absolutely believable” were
improper and constituted plain error).
11
United States v. Brown, 451 F.2d 1231, 1236 (5th. Cir. 1971) (court reversed
conviction because prosecutor improperly remarked in closing argument that he thought
agent/witness did “a real good job” and “was doing his duty to his country”).
6
No. 07-40245
Although the government does not concede that Statements Two and Four
were errors, we cannot meaningfully distinguish the prosecutor’s admittedly
improper remarks and those that the government does not concede were errors.
All four statements urge conviction based not on the objective evidence before
the jury or its independent judgment of the witnesses’ credibility, but on
something uniquely within the prosecutor’s knowledge. We have held it
improper for a prosecutor to ask a jury the rhetorical question whether federal
agents would risk their careers to commit perjury, as in Statement Two.12 We
have deemed improper an unequivocal statement by a prosecutor that, for the
jurors to believe the defense’s account, they would have to believe in a
government conspiracy, as in Statement Four.13 The subject remarks of Gracia’s
prosecutor share the same basic flaw: A prosecutor’s impermissible assertion of
12
Gallardo-Trapero, 185 F.3d at 319-21 (court found improper closing argument in
which prosecutor asked “do you think that agents for the federal government and a prosecutor
for the federal government, for the United States of America, are going to risk their career and
get on the stand . . . and commit perjury and risk their career. It’s not going to happen, ladies
and gentlemen.”); see also United States v. Goff, 847 F.2d 149, 165 (5th Cir. 1988) (prosecutor’s
statements invoking “the dignity of his oaths and office as well as the sanctity of state and
federal governmental agencies in order to persuade the jury that they should find appellants
guilty . . . were impermissible”). Cf. United States v. Martinez-Larraga, 517 F.3d 258, 265, 271
(5th Cir. 2008) (holding that it was not improper for prosecutor to ask jury why government
agents “would . . . get up here and try to make up lies or make up suggestions,” and remind
jurors that agents “were there,” and were “telling you what they saw.” The court stated that,
“[u]nlike the remarks at issue in Gallardo-Trapero, the prosecutor’s remarks did not imply that
because they are government agents, the witnesses would not lie. They also do not imply that
as a general rule, federal law enforcement agents tell the truth in court . . . . The prosecutor
simply suggested that the jury should infer from the facts that the agents did not have a
reason to lie.”) (internal citation omitted). We note that Statement Two is more similar to the
statements at issue in Gallardo-Trapero than those in Martinez-Larraga, as it implied that,
because “they are government agents, the witnesses would not lie.” Id.
13
Goff, 847 F.2d at 164 (“The prosecutor further suggested that in order to find
appellants not guilty, the jury would have to believe that several governmental agencies and
even perhaps federal judges had engaged in a malevolent and illegal conspiracy to convict
them. This also was improper argument . . . . Confronted with such argument, jurors could be
expected to feel that in order to find appellants innocent they would have to abandon
confidence in the integrity of government.”) (citing United States v. Dorr, 636 F.2d 117, 119-21
(5th Cir. 1981); United States v. Herrera, 531 F.2d 788, 790 (5th Cir. 1976)).
7
No. 07-40245
his own credibility, or that of the government, to bolster the credibility of a
witness. As we held in United States v. Gallardo-Trapero, “it is particularly
improper, indeed, pernicious, for a prosecutor to seek to invoke his personal
status as the government’s attorney or the sanction of the government itself as
a basis for convicting a criminal defendant.”14 As the “power and force of the
government tend to impart an implicit stamp of believability to what the
prosecutor says,”15 — here, that the agents were credible witnesses — all four of
the prosecutor’s statements constituted error.
2. The prosecutor’s errors were plain.
We next turn to the question whether the prosecutor’s errors were plain,
which we define as “clear and obvious.”16 The government urges us to put the
prosecutor’s remarks in the context of counsel for Gracia’s earlier innuendo that
the agents were less than forthcoming. We agree that the magnitude of the
prejudicial effect of the prosecutor’s remarks should not be weighed in a vacuum,
and we recognize that the trial record contains statements by counsel for Gracia
indirectly implying that the agents might not be altogether truthful.17 Thus, the
prosecutor’s attempts to vouch for the agents’ credibility should be seen as a
14
185 F.3d at 319-20.
15
United States v. Garza, 608 F.2d 659, 663 (5th Cir. 1979) (quoting Hall v. United
States, 419 F.2d 582, 583-84 (5th Cir. 1969)).
16
United States v. De Jesus-Ojeda, 515 F.3d 434, 445 (5th Cir. 2008) (citing United
States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)).
17
In reference to one of the agents, counsel for Gracia noted in his closing argument
that “even when we[] . . . have no incentive to lie, it’s human nature . . . . You’re a witness for
the government. You tend sometimes to recall things a little differently” (Record at 487). Soon
after, Gracia’s attorney re-emphasized this the-agents-are-lying theme: “And sometimes even
after they [the agents] take an oath in court to swear to tell the truth, they still say something
that was not true. And they’ll swear by it, but it wasn’t true” (Id. at 488). Later in his closing
argument, Gracia hammered home his assertion that the agents were not telling the truth:
“I’m just telling you that people who testify sometimes testify to what they think they
remember, but it’s not what they remember” (Id. at 490).
8
No. 07-40245
response to Gracia’s effort to discredit the agents. We weigh the magnitude of
the prejudice resulting from the prosecutor’s obviously improper statements in
this context.
Nevertheless, the context in which each of the prosecutor’s improper
remarks must be tested is also shaped by his other three improper remarks.
Just as we must evaluate the prosecutor’s statements in the context of Gracia’s
earlier attempts to suggest that the agents could be prevaricating, we cannot
separately consider each of the prosecutor’s erroneous remarks in a framework
that excludes his other near-simultaneous, similar attempts to bolster the
credibility of the agents. Although we recognize that, “in assessing prejudice,
occurrences of prosecutorial misconduct ordinarily must be viewed
individually,”18 the four remarks about which Gracia cries foul occurred within
minutes of each other during the prosecutor’s rebuttal closing argument. In this
instance, the cumulative effect of these proximate comments was greater than
the sum of its parts. The prejudicial effect of the prosecutor’s statements thus
must be weighed in pari materiae. Our analysis would be deficient if we were
simply to assess the isolated prejudice resulting from each error standing alone,
without temporally and substantively connecting each remark to the prosecutor’s
witness-bolstering efforts in his rebuttal closing argument.
When we review the prosecutor’s remarks within this context, we conclude
that his errors were clear and obvious. The four at-issue statements were
neither isolated nor limited, but were cumulative components of a single
diatribe, indisputably geared toward bolstering the agents’ testimony, and thus
constituting plain error.
3. The prosecutor’s statements affected Gracia’s substantial rights.
18
United States v. Fields, 483 F.3d 313, 358 (5th Cir. 2007) (citing United States v.
Wicker, 933 F.2d 284, 292 (5th Cir. 1991); United States v. Iredia, 866 F.2d 114, 118 (5th Cir.
1989)) (emphasis added).
9
No. 07-40245
This case ultimately turns on the third step in our analysis — whether the
prosecutor’s improper statements affected Gracia’s substantial rights. This step
“sets a high bar.”19 “The determinative question is whether the prosecutor’s
remarks cast serious doubt on the correctness of the jury’s verdict.”20
Gracia contends that the prosecutor’s remarks did so by placing the
government’s weighty imprimatur on the only evidence linking him to a crime,
i.e., the agents’ testimony. The government counters that even if the
prosecutor’s statements were legally improper and thus erroneous, they were
harmless, i.e., Gracia’s substantial rights were not affected, thereby preventing
the statements from rising to the level of reversible plain error.21
To determine whether the prosecutor’s errors affected Gracia’s substantial
rights, we first examine the effect of the court’s cautionary instructions. The
district court did help to mitigate the prejudicial effect of the prosecutor’s
violations somewhat by generically instructing the jury that it was their “duty
to base [their] verdict solely upon the evidence without sympathy or prejudice,”
that they “must consider only the evidence presented during the trial,” to
“[r]emember that any statements, objections or arguments made by the lawyers
are not evidence . . . ,” and to remember that “[w]hat the lawyers say is not
binding . . . .” “We presume that such instructions are followed unless there is
an overwhelming probability that the jury will be unable to follow the
instruction and there is a strong probability that the effect of the improper
19
Id.
20
United States v. Holmes, 406. F.3d 337, 356 (5th Cir. 2005) (internal quotation marks
and citations omitted).
21
See FED. R. CRIM. P. 52(a) (“Any error, defect, irregularity, or variance that does not
affect substantial rights must be disregarded”); see also United States v. Jones, 839 F.2d 1041,
1050 (5th Cir. 1988) (“Proper supervision requires us at least to balance the need to protect the
integrity of federal trials against the practical interest in giving finality to an accurate and fair
verdict; we cannot by our supervisory power reverse a conviction for trial error that was
harmless.”).
10
No. 07-40245
statement is devastating.”22 Gracia is correct, of course, that the court could
have crafted more subjectively detailed instructions geared toward mitigating
the prejudicial effect of these particular erroneous remarks, but we do not agree
that it is invariably impossible to purge the taint of a prosecutor’s prejudicial
comments with merely generic cautionary instructions. The generalized
instructions the court gave to the jury did serve, if only moderately, to reduce the
degree of prejudice of the tainted remarks.
This brings us to the next element of our consideration, i.e., the strength
or weakness of the government’s case against the defendant. Even crediting the
district court’s cautionary instructions, we are convinced that the prosecutor’s
statements, considered as a whole, prejudicially affected Gracia’s substantial
rights when viewed in comparison to the dearth of other evidence of Gracia’s
guilt. Simply put, other than the agents’ testimony, there is none. Gracia’s
alleged confession was neither recorded nor transcribed. The sophisticated
hidden compartment containing the drugs beneath the floor of the car would not
have been apparent to an unknowing passenger. The $1,000 seized by the
agents was taken from Valenzuela-Montoya, not from Gracia. Gracia’s
purported contact in Houston (Gerardo or Geraldo) was never located. Although
Gracia did try to make himself gag by putting his fingers down his throat during
the early stages of his detention at the B&M Bridge, guilty knowledge cannot be
presumed, as the government urges, from such a tertiary circumstantial fact,
especially given the fact of Gracia’s serious health problems which require
frequent dialysis treatments. Neither can guilty knowledge be inferred from the
fact that Gracia did not appear surprised or upset when the agents told him that
they had discovered drugs in the Impala. Indeed, if Gracia had appeared upset
or surprised, the government would likely have urged us to infer guilty
22
United States v. Gallardo-Trapero, 185 F.3d 307,321 (5th Cir. 1999) (internal
quotation marks and citations omitted).
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No. 07-40245
knowledge from that, too.23 The simple reality of this case is that Gracia’s
conviction turned entirely on the jury’s evaluation of the credibility of the agents
who interviewed him at the B&M Bridge. Plainly put, absent the jury’s crediting
of the agents’ testimony, Gracia could not have been found guilty beyond a
reasonable doubt on the paucity of other evidence.
The prosecutor’s imprudent statements unacceptably placed the
government’s weighty stamp of approval on the only evidence indicating Gracia
knew of the cocaine in the Impala’s floor, viz., the agents’ testimony. The
cumulative prejudice resulting from the prosecutor’s four erroneous statements
in quick succession clears the high bar necessary to affect Gracia’s substantial
rights and thus to constitute reversible plain error when viewed in the context
of the minor mitigating effect of the generic cautionary instructions and the
dearth of evidence of guilt other than the bolstered testimony of the agents.
The prejudice resulting from the prosecutor’s comments seriously affected the
fairness, integrity, and public reputation of Gracia’s judicial proceeding.
The case law is replete with examples of improper witness bolstering by
prosecutors found to be reversible plain error. In United States v. Garza, for
example, we held that a prosecutor’s repeated vouching for the credibility of
witnesses constituted reversible plain error.24 In United States v. Corona, we
held that a prosecutor’s statement that he was “proud of” one of the
government’s witnesses affected the defendant’s substantial rights and
constituted reversible plain error.25 In addition to this court, other circuit courts
23
United States v. Zapata-Ibarra, 223 F.3d 281 (5th Cir. 2000) (Wiener, J., dissenting)
(criticizing the attribution of guilt from any number of opposite factors).
24
608 F.2d 659, 665 (5th Cir. 1979) (court reversed conviction on plain-error review,
holding that “we think it beyond question that the prosecutor’s improper comments, taken as
a whole, affected substantial rights of the defendant”).
25
551 F.2d 1386, 1389 (5th Cir. 1977) (“As we have stated above the government
concedes that it was error for counsel to vouch for this government witness. However, it is
12
No. 07-40245
have held similar instances of witness bolstering to be reversible plain error.26
We acknowledge that, more often than not, we have held instances of
witness bolstering by prosecutors to be error but have gone on to find such error
harmless rather than reversing the jury conviction of a defendant.27 The instant
contended by the United States that this was harmless error and it should be overlooked. 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.”)
(internal citations omitted).
26
See, e.g., Hodge v. Hurley, 426 F.3d 368, 378-79 (6th Cir. 2005) (“The prosecutor’s
numerous statements on witness credibility — often unsupported by any rational justification
other than an assumption that [defendant] was guilty — cannot avoid suggesting to the jury
that the prosecutor knows something they do not. Moreover, because these statements by the
prosecutor were not coupled with a more detailed analysis of the evidence actually adduced at
trial, they convey an impression to the jury that they should simply trust the State’s judgment
that [the government’s witness] was a credible witness and that the defendant’s witnesses
were non-credible, if not perjurious. This misconduct is especially prejudicial in this case given
the extent to which the jury’s determination as to [the defendant’s] guilt or innocence hinged
almost entirely on the credibility of [the defendant] and [the government’s witness.”); United
States v. Francis, 170 F.3d 546, 549 (6th Cir. 1999) (prosecutor’s statements that government
witnesses were credible because they would not jeopardize plea agreements were reversible
error because no adequate curative instructions were given and evidence of defendants’ guilt
was not overwhelming); United States v. Manning, 23 F.3d 570, 572-75 (1st Cir. 1994)
(prosecutor’s statement that government witnesses could not lie on stand was reversible error
because case turned on whether government witnesses or defendant testified truthfully, no
curative instructions were given, and other misconduct occurred); United States v.
Dispoz-O-Plastics, Inc., 172 F.3d 275, 287 (3d Cir. 1999) (prosecutor’s appeal to jurors’ common
sense in vouching for credibility of government witnesses was reversible error because it likely
had substantial effect on trial outcome); United States v. Cotnam, 88 F.3d 487, 500 (7th Cir.
1996) (prosecutor’s repeated vouching for credibility of key witness was reversible error
because vouching was prejudicial to defendant and evidence of defendant’s guilt was not
overwhelming); United States v. Kerr, 981 F.2d 1050, 1052-54 (9th Cir. 1992) (prosecutor’s
vouching for credibility of four government witnesses was reversible error because witnesses’
testimony was crucial to prosecutor’s argument, curative instructions did not neutralize harm
of statements, and evidence connecting defendant to conspiracy was only indirect); United
States v. Eyster, 948 F.2d 1196, 1207 (11th Cir. 1991) (prosecutor’s vouching for credibility of
key witness was reversible error because undermining credibility of witness was essential to
defense and reasonable probability existed that but for prosecutor’s improper comments
outcome of proceeding would have been different).
27
See, e.g., United States v. Fields, 483 F.3d 313, 360 (5th Cir. 2007) (“Neither
statement is so grave, however, that it risked prejudicing substantially the jury’s deliberations.
In light of the court's instructions and the strength of the evidence against Fields, Fields has
not shown that either remark casts doubt on the correctness of the jury’s verdict.”) ; Gallardo-
Trapero, 185 F.3d at 320-21 (5th. Cir. 1999) (“We conclude that the prosecutor’s remarks
13
No. 07-40245
matter is distinguishable from the cases in which we have refused to reverse
convictions, however, because of the degree of the prosecutor’s violations in
comparison to the dearth of evidence of Gracia’s guilty knowledge. As Gracia
could not have been convicted without the agents’ testimony, we cannot conclude
that the prosecutor’s bolstering constituted an unprofessional but harmless
attempt to right the scale and rebut defense counsel’s earlier veiled innuendo
that the agents might be less than fully truthful. In this case, the jury’s
determination of guilt or innocence hinged entirely on whether Gracia had
knowledge of the hidden drugs and that, in turn, hinged entirely on the
credibility of the agents. The relative strength of the government’s case is
telling. The prosecutor’s plainly erroneous statements led the jury to substitute
the government’s credibility assessment of its own agents for the jurors’
independent credibility call, thereby casting serious doubt on Gracia’s guilty
verdict. We are convinced that, under the discrete facts of this case, the
prosecutor’s remarks affected Gracia’s substantial rights and seriously affected
the fairness, integrity, and public reputation of his trial.
III. CONCLUSION
Witness bolstering is particularly injurious when, as here, it involves the
testimony of the only witnesses (and virtually the only inculpatory evidence)
against a defendant. The testimony of the agents was the only evidence tending
to prove Gracia’s knowledge of the presence of drugs in the car’s secret
compartment. We cannot permit the prosecutor’s remarks to be swept under the
rug by the broom of the harmless error doctrine. In this case, a slap-on-the-wrist
in obiter dicta will not suffice. The unmistakable misconduct in the bolstering
during closing argument did not prejudicially affect the substantive rights of the defendants
. . . . Given the strident advocacy on both sides of this case and the numerous witnesses, pieces
of evidence, and issues placed before the jury, we cannot say that the prosecutor’s statements
overshadowed what had come before and unduly prejudiced the Appellants’ case. In addition,
the district court helped to mitigate any prejudicial effect by instructing the jury to base their
decision solely upon the testimony and evidence presented . . . .”).
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No. 07-40245
of the government’s witnesses at Gracia’s trial is precisely the type of conduct
that cannot be condoned. It re-affirms the ageless wisdom of Berger:
The United States Attorney is the representative not of an ordinary
party to a controversy, but of a sovereignty whose obligation to
govern impartially is as compelling as its obligation to govern at all;
and whose interest, therefore, in a criminal prosecution is not that
it shall win a case, but that justice shall be done.28
As Gracia’s prosecutor did not heed Berger’s admonition, he must be held
accountable for wrapping his witnesses in the government’s cloak of veracity and
invoking his personal status as the government’s attorney to assure the jury of
the credibility of those agents.
We hold that the prosecutor’s statements constituted reversible plain
error, which seriously affected the fairness, integrity, and public reputation of
Gracia’s judicial proceeding. Gracia’s conviction is therefore REVERSED and
his case is REMANDED to the district court for a new trial.
28
Berger v. United States, 295 U.S. 78, 88 (1935).
15