PUBLISH

UNITED STATES COURT OF APPEALS

Filed 7/26/96

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

STEVE EDWARD GABALDON,

Defendant - Appellant.

No. 95-2223

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. CR-94-362-LH)

Stephen P. McCue, Assistant Federal Public Defender, Albuquerque, NM, for the

Defendant - Appellant.

Mary Catherine McCulloch, Assistant U.S. Attorney (John J. Kelly, United States

Attorney, with her on the brief), Albuquerque, NM, for the Plaintiff - Appellee.

Before KELLY, BRISCOE and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

We are asked to clarify the standard of appellate review for claimed prosecutorial

trial misconduct. Defendant Steve Edward Gabaldon appeals his conviction for burglary,

in violation of 18 U.S.C. §§ 1152 and 13 and N.M. Stat. Ann. § 30-16-3(A), and larceny,
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in violation of 18 U.S.C. §§ 1152 and 661. Mr. Gabaldon argues that the district court

should have granted his motion for a mistrial on the basis of three instances of

prosecutorial misconduct. We exercise jurisdiction under 28 U.S.C. § 1291. We affirm.

I

Ron and John Abeita, cousins, lived across the road from one another on the Isleta

Pueblo, south of Albuquerque, New Mexico. While working outside in the early evening

of November 23, 1993, Ron saw a car pull up to the front door of his cousin’s house,

about 150 yards away from him. A man got out and knocked on John’s door, walked to

his car and then back to the door, and then kicked in the front door and entered the house. 

Minutes later, Ron crossed the road and confronted the intruder outside the house. 

The two men spoke for about fifteen minutes. The stranger initially denied breaking into

the house but, when Ron noticed a television in his car, admitted to doing so. The man

returned the television, promised to pay for the damaged door, and drove away. Ron

immediately called the police. When Officer Randy Hanes of the Isleta Police

Department arrived, Ron described the man and his car, and gave Officer Hanes the car’s

license plate number. He described the burglar as between 5'6" and 5'8" tall, wearing

blue jeans and a Chicago Bulls jacket. Defense counsel argues that Defendant Gabaldon

is only 5'4", and three witnesses -- all relatives of the Defendant -- testified that Gabaldon

never wore blue jeans or team jackets.
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The police traced the car to the home of Defendant’s aunt, Darlene Williams, who

lived in Los Lunas, New Mexico. The car and its license plates matched Ron Abeita’s

description of the thief’s car, and the vehicle identification number was that of the car

registered with those plates. Defendant frequently stayed with his aunt for short periods,

did not own his own car, and had borrowed his aunt’s car on prior occasions. Darlene

Williams testified that she had not used the car that night, did not know whether the car

had remained where she parked it during the hours in question, and had a habit of leaving

the keys in the car. 

As a result of a tip from Williams’ brother Carl, the police showed Ron Abeita a

photo array which included Defendant’s picture. Ron chose Defendant’s photograph out

of the array.

A jury trial was held in the United States District Court for the District of New

Mexico. In court, the prosecutor made three statements to which Defendant objected

contemporaneously on grounds of prosecutorial misconduct:

(1) During voir dire of the jury: “There will also be evidence presented by

the government in this case that one of the witnesses that you’ll hear

actually saw part of the burglary and went over and talked with the

defendant.”

Tr. at 26.

(2) During the prosecution’s opening statement: “Mr. Ron Abeita will

testify, the government believes, that he has no doubt in his mind who it

was that broke into his cousin’s house. And the government, as well,

harbors the conviction that after you hear the evidence -- ” [At that point,

the prosecutor was interrupted by the defense’s objection]. 
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Tr. at 51.

(3) During the prosecution’s closing: “Again, the government believes that

the evidence demonstrates . . .” [Defense counsel again interrupted to

object].

Tr. at 220. To the first objection, the court responded, “Well, that’s -- why don’t you just

ask if any of them know the witness?” Tr. at 26. The court sustained the other two

objections. Before the case was submitted to the jury, Defendant’s counsel moved for a

mistrial on the basis of these statements. The court denied the motion, and the jury found

Defendant guilty on both counts of the indictment -- one count of burglary and one count

of misdemeanor larceny.

II

We address a threshold issue concerning the appropriate standard of review. 

Defendant frames the sole issue on appeal as whether “Mr. Gabaldon was denied a fair

trial by repeated instances of prosecutorial misconduct.” Appellant’s Br. at 9. He asserts

that “[a]n allegation of prosecutorial misconduct presents a mixed question of fact and

law reviewed de novo.” Id.; see, e.g., United States v. Ivy, 83 F.3d 1266, 1288 (10th Cir.

1996). Appellee frames the issue in a different way: “Whether the trial court properly

exercised its discretion when it denied appellant’s motion for a mistrial based on

prosecutorial misconduct.” Appellee’s Br. at 1. The government points out that we

review the denial of a motion for a new trial based on prosecutorial misconduct for abuse

of discretion. Id. at 10; see, e.g., United States v. Oles, 994 F.2d 1519, 1524 (10th Cir.
1 Appellee, citing precedent in which motion for a new trial has been made,

apparently assumes that a motion for a mistrial and a motion for a new trial are the same, or are

treated the same on appellate review. Although the Federal Rules of Criminal Procedure indicate

that they are different, see Fed. R. Crim. P. 26.3 (Mistrial); Fed. R. Crim. P. 33 (New Trial),

appellee is correct in suggesting that the standard of review in both cases is the same. See, e.g.,

United States v. Haar, 931 F.2d 1368, 1374 (10th Cir. 1991) (reviewing the denial of a motion

for a mistrial based on prosecutorial misconduct for abuse of discretion). 

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1993).1 At oral argument, the United States requested that we clarify the appropriate

standard of appellate review when, based on alleged prosecutorial misconduct, defendant

has both objected contemporaneously and unsuccessfully moved the district court for a

mistrial. We conclude that an abuse of discretion standard is appropriate.

When prosecutorial misconduct deprives a criminal defendant of a fair trial, the

defendant’s due process rights are violated, Greer v. Miller, 483 U.S. 756, 765 (1987),

and reversal is warranted, Berger v. United States, 295 U.S. 78, 89 (1935); United States

v. Lowden, 900 F.2d 213, 217 (10th Cir. 1990). When a defendant believes that

prosecutorial misconduct has occurred, he or she may move for a mistrial. See Haar, 931

F.2d at 1374. While the Federal Rules of Criminal Procedure offer little guidance on

when judges should grant mistrial motions, we have focused on “‘whether . . . [the

defendant’s] right to a fair and impartial trial was impaired.’” United States v. Torres, 959

F.2d 858, 860 (10th Cir.) (quoting United States v. Pinelli, 890 F.2d 1461, 1473 (10th Cir.

1989), cert. denied, 494 U.S. 1038 (1990)), cert. denied, 506 U.S. 882 (1992). The

defendant may also move for a new trial pursuant to Rule 33 of the Federal Rules of

Criminal Procedure. “The court . . . may grant a new trial to that defendant if required in
2 Defendant relies on United States v. Ramirez, 63 F.3d 937 (10th Cir. 1995), for

the proposition that when a defendant makes both a contemporaneous objection and a mistrial

motion, the court should employ de novo review. However, in Ramirez, the post-trial motion

was a motion to dismiss. Id. at 940. Although that motion was based on prosecutorial

misconduct and therefore may have been meant as a motion for mistrial but mislabelled as a

motion to dismiss, the opinion is inconclusive on this point and we decline to treat it as

controlling in cases where the defendant has moved for a mistrial. We have consistently held --

in handling cases where the defendant has moved for either mistrial or a new trial based on

prosecutorial misconduct -- that the appropriate standard of review is the abuse of discretion

standard. Evans, 42 F.3d at 593 (motion for new trial based on prosecutorial misconduct was

made); Oles, 994 F.2d at 1524 (same); United States v. Hartsfield, 976 F.2d 1349, 1354 (10th

Cir. 1992) (same), cert. denied, 507 U.S. 943 (1993); Haar, 931 F.2d at 1374 (motion for mistrial

based on prosecutorial misconduct); United States v. Novak, 918 F.2d 107, 108 (10th Cir. 1990)

(same); United States v. Butler, 904 F.2d 1482, 1486 (10th Cir. 1990) (same).

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the interest of justice.” Fed. R. Crim. P. 33. In other words, if after weighing the

evidence and the credibility of the witnesses, the court determines that “the verdict is

contrary to the weight of the evidence such that a miscarriage of justice may have

occurred,” it may grant the defendant’s motion. United States v. Evans, 42 F.3d 586, 593

(10th Cir. 1994) (quotation omitted). Both motions for mistrial and new trial call for an

examination of the prejudicial impact of an error or errors when viewed in the context of

an entire case. This court reviews the trial court’s ruling on such motions under an abuse

of discretion standard. See Haar, 931 F.2d at 1374; Evans, 42 F.3d at 593.2

Where there has been no motion for a mistrial or new trial, the district court has

not exercised its discretion, and therefore it is meaningless to look for an abuse of

discretion. In such cases, we merely review whether the conduct objected to was indeed

improper. Whether prosecutorial misconduct occurred is a mixed question of law and

fact, which we review de novo. See, e.g., United States v. Ivy, 83 F.3d at 1288. If we
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conclude that the conduct was improper, we then evaluate whether it warrants reversal. 

Id. We make this evaluation as follows:

A prosecutor’s improper statement to the jury is harmless unless there is

reason to believe that it influenced the jury’s verdict. In assessing whether

the misconduct had such an impact, we consider the trial as a whole,

including the curative acts of the district court, the extent of the misconduct,

and the role of the misconduct within the case . . . [T]o warrant reversal, the

misconduct must have been flagrant enough to influence the jury to convict

on grounds other than the evidence presented.

Id. at 1288 (quotations, citations and brackets omitted).

We hold that when the district court has denied defendant’s motion for a new trial

or for a mistrial, the defendant may not ignore this determination and seek de novo

appellate review of the court’s ruling on defense counsel’s prosecutorial misconduct

objection. Rather, the proper course is for this court to review the denial of defendant’s

motion under an abuse of discretion standard.

III

In the present case, Defendant objects to three statements made by the prosecutor. 

The first, the statement that “[t]here will also be evidence presented by the government in

this case that one of the witnesses that you’ll hear actually saw part of the burglary and

went over and talked with the defendant,” occurred during jury voir dire. Defendant

characterizes this as “attempt[ing] to argue the case stating Mr. Gabaldon’s guilt as a

fact.” Appellant’s Br. at 11. In the other two statements, one of which occurred during

the government’s opening statement and the other during closing, the prosecutor uttered
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the phrase “the government believes” when referring to the evidence. Defendant argues

that in doing so the prosecutor impermissibly “interject[ed] her personal belief” into the

trial. Appellant’s Br. at 3. Although the jury was instructed that the arguments of counsel

“are not evidence,” tr. at 46, 182, the court did not instruct the jury specifically regarding

these utterances.

As discussed above, prosecutorial misconduct may be so egregious as to warrant

reversal. Berger, 295 U.S. at 89. In Berger the Supreme Court stated:

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. . . . He 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.

. . . . 

It is fair to say that the average jury, in a greater or less degree, 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.

Id. at 88; see also United States v. Young, 470 U.S. 1, 18-19 (1984) (prosecutor’s

vouching for the credibility of witnesses and expressing personal opinion on defendant’s

guilt is improper). However, the statements to which Defendant objects here are far from

egregious. The first statement was particularly innocuous; beyond conclusory assertions

of impropriety, Defendant offers no authority for his claim that it warrants reversal. 

Furthermore, while we disapprove of a prosecutor personally vouching for the integrity of
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government witnesses, see United States v. Primrose, 718 F.2d 1484, 1493 (10th Cir.

1983), cert. denied, 466 U.S. 974 (1984), or asserting a personal conclusion that the

defendant is guilty, see United States v. Rios, 611 F.2d 1335, 1343 (10th Cir. 1979), the

impact of the second and third statements also appears negligible.

Even assuming an improper comment, “we cannot review this comment in a

vacuum.” United States v. Manriquez Arbizo, 833 F.2d 244, 247 (10th Cir. 1987).

[G]iven the myriad safeguards provided to assure a fair trial, and taking into

account the reality of the human fallibility of the participants, there can be

no such thing as an error-free, perfect trial, and . . . the Constitution does

not guarantee such a trial . . . . 

. . . [I]t is the duty of a reviewing court to consider the trial record as

a whole and to ignore errors that are harmless, including most constitutional

violations.

United States v. Hasting, 461 U.S. 499, 508-09 (1983); Manriquez Arbizo, 833 F.2d at

247-48.

The errors which occurred during this trial were minor ones, not warranting “the

drastic action of declaring a mistrial.” Torres, 959 F.2d at 860. The trial court minimized

the damage by sustaining objections and instructing the jury that the arguments of counsel

were not evidence. Defendant argues repeatedly that the prosecution built a weak case

resting solely on Ron Abeita’s testimony, and that the prosecutorial misconduct bolstered

that testimony and thus deprived him of a fair trial. However, even without this

bolstering, the evidence is quite strong. Abeita faced the burglar at close range for about

fifteen minutes, and described the man and car to Officer Hanes. His identification is
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supported by the fact that the license plates led the police to Darlene Williams’ car, and

by Abeita’s later selection of Defendant’s picture out of the photo array. The car was

available to Defendant during the period in which the burglary took place, and the

defense’s alibi evidence seems unconvincing. Considering the record in its entirety

including the prosecutor’s statements, we conclude that Defendant received a fair trial --

not a perfect trial, but overall a fair one. The district court did not abuse its discretion in

denying his motion for a mistrial.

AFFIRMED.