UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4117

ROBINSON MONTANO-HEREDIA,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Senior District Judge.

(CR-95-221-A)

Submitted: November 3, 1998

Decided: December 1, 1998

Before WIDENER, MURNAGHAN, and MICHAEL,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Michael William Lieberman, Alexandria, Virginia, for Appellant.

Helen F. Fahey, United States Attorney, Patrick E. Deconcini, Assistant United States Attorney, Thomas E. Booth, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Following a mistrial, a second jury convicted Appellant Robinson

Montano-Heredia of conspiracy to distribute and to possess with

intent to distribute cocaine hydrochloride and heroin, in violation of

21 U.S.C. §§ 841(a)(1), 846 (1994).1 The district court sentenced

Montano-Heredia to serve 121 months' imprisonment to be followed

by five years of supervised release. Montano-Heredia alleges various

instances of prosecutorial misconduct and contends the court abused

its discretion in denying his motion for a new trial. Finding no reversible error, we affirm.

In reviewing a claim of prosecutorial misconduct, we must determine whether the conduct "so infected the trial with unfairness as to

make the resulting conviction a denial of due process."2 The test for

reversible prosecutorial misconduct generally has two components:

(1) that the prosecutor's remarks or conduct must in fact have been

improper and (2) that such remarks or conduct must have prejudicially affected Montano-Heredia's substantial rights so as to deprive

him of a fair trial.3 We find that Montano-Heredia's claims fail in

light of these criteria.

With one exception, Montano-Heredia timely objected to the prosecutor's remarks. For those remarks, we review the district court's

denial of the motion for new trial for abuse of discretion.4 After carefully considering Montano-Heredia's allegations of misconduct aris-

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1 Over defense objection, the court declared a mistrial after MontanoHeredia's first trial because of a hung jury.

2 United States v. Morsley, 64 F.3d 907, 913 (4th Cir. 1995) (citations

and internal quotation marks omitted).

3 See United States v. Mitchell , 1 F.3d 235, 240 (4th Cir. 1993).

4 See United States v. Campbell , 977 F.2d 854, 860 (4th Cir. 1992).

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ing from the prosecutor's trial tactics, we find that the district court

did not abuse its discretion in denying the motion.

The evidence at trial demonstrated that between 1994 and 1995,

Montano-Heredia acted as a courier, delivering drugs and or money

in a cocaine trafficking organization headed by alleged co-conspirator

Alberto Espinoza. Other members of the organization, including

Espinoza, testified that Montano-Heredia was a knowing participant

in the illegal activities. In his defense, Montano-Heredia testified that

he was employed as a cook in Espinoza's restaurant. Although

Montano-Heredia acknowledged he carried cash and suitcases for

Espinoza when traveling either with Espinoza or on Espinoza's

behalf, he denied any knowledge of Espinoza's drug trafficking activities or that his trips were drug-related.

During its case-in-chief, the prosecutor asked Margaret Everett, a

case agent with the Drug Enforcement Agency, if Montano-Heredia

was ever seen in possession of cocaine. Everett responded affirmatively. Upon defense counsel's objection to this question and its

response, the court inquired whether Everett had personally seen

Montano-Heredia in possession of the drugs. When Everett answered

that she had not, the court sustained the objection, admonished the

prosecutor in open court, and instructed the jury to disregard that

information.

Further, while examining Paul Thaete, a local police officer

involved in the Espinoza investigation, the prosecutor began to ask a

question based on Thaete's training and experience. 5 MontanoHeredia objected to this line of questioning because the Government

failed to comply with the court's pre-trial order denying its untimely

request to declare Thaete an expert witness, as he had been in the first

trial. Because the court's order permitted the Government to question

Thaete on any matter to which he testified during the first trial, the

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5 As part of his investigation, Thaete conducted surveillance of a hotel

room and observed Montano-Heredia and Espinoza accept delivery of

twenty kilograms of cocaine and retreat to Montano-Heredia's room in

the hotel. Thaete later observed Montano-Heredia, Espinoza, and others

leave the hotel with Montano-Heredia in possession of a suitcase which

was later seized and discovered to contain ten kilograms of cocaine.

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court excused the jury and held a bench conference to determine

whether Thaete had previously testified on the subject of the Government's questions. Concluding that the question called for an expert

opinion, the court sustained the objection.

Montano-Heredia asserts that his right to a fair trial was prejudiced

by the prosecutor's examination of Everett and Thaete. We disagree.

Although the prosecutor's questions may have elicited inadmissible

evidence, the court sustained Montano-Heredia's objections to the

improper questions, promptly instructed the jury to disregard those

questions and their responses, and at one point, openly admonished

the prosecutor. We conclude that the court took appropriate and sufficient steps in response to the prosecutor's improper questions and that

the court acted within its discretion in denying the motion for a new

trial.6

Montano-Heredia also claims he was entitled to a new trial based

upon the prosecutor's alleged misconduct during its rebuttal closing

argument. In his closing argument, defense counsel asserted that

Thaete had no idea what happened in the hotel room in which the

Government contended that, in Montano-Heredia's presence, the

cocaine was divided between two suitcases. Counsel argued that

Thaete tried to deceive the jury and urged them not to allow him to

"get away with it." In rebuttal, the prosecutor, calling the jury's attention to defense counsel's objections during Thaete's testimony,

argued that Thaete "had a strong suspicion of what was going on in

that hotel room when that cocaine first went in there. And he wanted

to tell you, defense counsel didn't want him to, though."

Montano-Heredia contends these comments constituted an impermissible argument that defense counsel was somehow trying to hide

the truth. The court sustained defense counsel's objection to the prosecutor's argument and instructed the jury on their duty to consider

only admissible evidence, specifically adding that arguments of counsel were not evidence. Again, we find that the court's curative instructions eliminated any possible prejudice.7 

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6 See United States v. Harrison , 716 F.2d 1050, 1053 (4th Cir. 1983).

7 See Harrison, 716 F.2d at 1053.

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Lastly, Montano-Heredia points to the prosecutor's objecting during the defense's opening statement as improper conduct.8 Because

counsel did not object at trial, we review this remark for plain error.9

Montano-Heredia does not establish how he was prejudiced by the

prosecutor's objection, asserting only that it demonstrates the prosecutor's attitude to win at all costs. We find no plain error in the

court's denying Montano-Heredia's motion for a new trial on this

basis.

Finding no abuse of the court's discretion in denying MontanoHeredia's motion for a new trial, we affirm Montano-Heredia's conviction. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the court

and argument would not aid the decisional process.

AFFIRMED

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8 The prosecutor objected after defense counsel told the jury he was

uncertain whether the Government would call an alleged co-conspirator

as a witness.

9 See United States v. Olano, 507 U.S. 725, 731 (1993).

 5