*After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the determination of this appeal. SeeFed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 16 1999 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. MARIANO HERNANDEZ-MUNIZ,

Defendant - Appellant. No. 97-2303

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D. Ct. No. CR-96-611-BB)

Submitted on the briefs: * Michael G. Katz, Federal Public Defender, and Jenin e Jensen, Assistant Federal Public Defender, Denver, Colorado, for Defendant-Ap pellant. John J. Kelly, United States Attorney, and David N. Williams, Assistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.

Before TACHA , BALDOCK , and MURPHY , Circuit Judges.- 2 -

TACHA , Circuit Judge.
Defendant/Appellant Mariano Hernandez-Muniz appeals his federal court conviction for possession with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B ). He alleges several trial errors that he claims deprived him of his constitut ional rights and require reversal of his conviction. We have jurisdiction under 28 U .S.C. § 1291 and affirm. Background On September 21, 1996, Hernandez-Muniz and co-defen dant Robert Abbud drove a car from Mexico into the United States Bord er Patrol checkpoint at Orogrande, New Mexico. In response to routine ques tioning, the men told Agent Jesus Torres that they were going mountain biking i n Ruidoso, New Mexico. Agent Torres became suspicious because most mountai n bikers coming through the checkpoint prefer other areas to Ruidoso, becau se the car had a temporary tag instead of a license plate, and because Abbud, the driver of the car, was visibly nervous. Agent Torres asked for and received permi ssion to have the car inspected by a border patrol canine. The dog alert ed to the rear bumper of the car, and a subsequent search revealed two bundles o f cocaine totaling over five pounds concealed inside the bumper. Agents arreste d the men, and, on October 5, 1996, a federal grand jury returned a one-count ind ictment charging them with violating 21 U.S.C. §§ 841(a)(1) and (b)(1)(B).- 3 -

Abbud initially told an officer that Hernandez-Muni z had provided the car but had nothing to do with the cocaine. Hernandez- Muniz told Agent Ray Sanchez that Abbud owned the car and that he did no t know Abbud well. Abbud pled guilty prior to Hernandez-Muniz’s trial and te stified for the government against defendant. Abbud testified that he had kno wn Hernandez-Muniz for years and that Hernandez-Muniz had provided the car, knewabout the drugs, and actually proposed the whole plan. Agent Sanchez also testified at defendant’s trial. However, when the prosecution sought to question him regarding the st atement Hernandez-Muniz made to him, defense counsel objected because the g overnment had not disclosed the statement during discovery. After questioning counsel outside the presence of the jury, the trial court ruled that the governmenthad adequately disclosed the substance of Hernandez-Muniz’s statement when AgentSanchez testified about it at a preliminary hearing. The court noted that def endant’s trial counsel had attended the preliminary hearing and cross-examined Agent Sanchez. Defendant exercised his Fifth Amendment right not t o testify at trial. During his closing argument, the prosecutor emphasi zed the importance of several statements made by defendant that were admitted at trial through the testimony of third-party witnesses. The prosecutor also argued that some of the defendant’s statements were “lies.” Defense counsel raised no contemporaneous objection to- 4 -

the prosecutor’s closing argument. At the conclusi on of the trial, the jury returned a guilty verdict. The trial court imposed a sentence of eighty-four months. In this appeal, defendant alleges three sources of reversible error. First, he claims that the federal prosecutor failed to adequately disclose prior to trial his statement to Agent Sanchez. Second, defendant asse rts that the prosecutor engaged in impermissible conduct during his closing argument by referring to the fact that defendant had not testified at trial and injecting his personal opinion as to the credibility of defendant’s statements. Thir d, defendant claims that even if the individual errors do not warrant reversal, thei r cumulative effect rendered the trial fundamentally unfair. I. Hernandez-Muniz contends that the government’s alle ged failure to disclose his statement to Agent Sanchez violated Fe deral Rule of Criminal Procedure 16, United States District Court for the District of New Mexico Local Criminal Procedure Rule (“Local R. Crim. P.”) 16.1, and his due process rights under Brady v. Maryland , 373 U.S. 83 (1963). Discovery rulings rest withi n the sound discretion of the district court, and we revi ew them only for abuse of discretion. See, e.g. , Pippinger v. Rubin , 129 F.3d 519, 533 (10th Cir. 1997). Even if the district court erred in admitting defen dant’s statement at trial, we- 5 -

review his claim for harmless error. See Fed. R. Crim. P. 52(a); United States v. Scafe , 882 F.2d 928, 936 (10th Cir. 1987). The applicab le harmless error standard, as articulated in Kotteakos v. United States , 328 U.S. 750, 765 (1946), requires that the error have a “‘substantial influe nce’ on the outcome of the trial.” United States v. Nieto , 60 F.3d 1464, 1468 (10th Cir. 1995) (quoting Unit ed States v. Perez , 989 F.2d 1574, 1583 (10th Cir. 1993) (en banc)). We review Bradyclaims de novo. See Newsted v. Gibson , 158 F.3d 1085, 1094 (10th Cir. 1998). Federal Rule of Criminal Procedure 16(a)(1)(A) prov ides that the government “must . . . disclose to the defendant th e substance of any . . . relevant oral statement made by the defendant whether before or after arrest in response to interrogation by any person then known by the defen dant to be a government agent if the government intends to use that stateme nt at trial.” In addition, Local R. Crim. P. 16.1 provides: “If a question exists of the exculpatory nature of material sought under Brady, it will be made availa ble for in camera inspection at the earliest possible time. Motions to enforce the continuing duty of the U.S. Attorney’s Office . . . should not be necessary.” Defendant claims that the prosecutor violated these rules by failing to discl ose defendant’s statement to Agent Sanchez. We disagree. Federal Rule 16 only requires the government to ale rt the defendant as to- 6 -

the “substance” of his unrecorded oral statements m ade under interrogation. Agent Sanchez testified at a preliminary hearing an d disclosed the substance of defendant’s statement to him. Defendant’s trial co unsel attended this hearing and cross-examined Agent Sanchez. In addition, the pro secution made available to the defendant transcripts of Sanchez’s preliminary hearing testimony. We find, under these circumstances, that the government met its disclosure obligations under Rule 16. The underlying purposes of Rule 16 further support our conclusion. Rule 16 is designed to provide the defendant with suffic ient information to make an informed decision about a plea, to allow the court to rule on admissibility motions before trial, to minimize prejudicial surprise at t rial, and to generally increase the efficiency of litigation. See Fed. R. Crim. P. 16 advisory committee notes to th e 1974 amendment. The disclosure of the defendant’s statement at the preliminary hearing, along with provision of the hearing transc ript, combine to satisfy these purposes. Defendant cannot now complain about a la ck of notice or prejudice in this matter. The district court did not abuse its discretion in admitting the
statement. The above analysis also disposes of defendant’s Bra dyargument and his argument regarding a violation of Local R. Crim. P. 16.1. The Supreme Court in Bradyheld that “the suppression by the prosecution of e vidence favorable to an- 7 -

accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good fa ith or bad faith of the prosecution.” 373 U.S. at 87; see also Newsted , 158 F.3d at 1094. “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceed ing would have been different.” United States v. Bagley , 473 U.S. 667, 682 (1985). Because we find that t he government did not “suppress” the statement at issu e, we need not evaluate the statement’s nature and materiality. Defendant argues that because his statement was notincluded “in the discovery,” the government suppressed it. However, “[t]here is no general constitutional right to discovery in a criminal cas e, and Bradydid not create one.” Weatherford v. Bursey , 429 U.S. 545, 559 (1977). The government violate s a defendant’s due process rights when it fails to pro vide him with exculpatory information, but due process does not necessarily r equire disclosure in a specific form or manner. The government provided the allege dly exculpatory information at the preliminary hearing. As the Eighth Circuit noted in a case based on similar facts, “[t]here could be no suppression by the stat e of evidence already known by and available to [defendant] prior to trial.” DeBe rry v. Wolff , 513 F.2d 1336, 1340 (8th Cir. 1975). Because there is no Rule 16 or Bradyviolation, we also find no violation of Local R. Crim. P. 16.1. Accor dingly, defendant’s discovery- 8 -

claims have no merit. II. Hernandez-Muniz next claims that the prosecutor eng aged in misconduct during his closing argument by allegedly commenting on Hernandez-Muniz’s failure to testify and expressing his personal opin ion about Hernandez-Muniz’s credibility. Because Hernandez-Muniz did not conte mporaneously object, we review this claim for plain error only. See United States v. Russell , 109 F.3d 1503, 1514 (10th Cir.), cert. denied , 117 S. Ct. 2525 (1997); United States v. Barton , 731 F.2d 669, 674 (10th Cir. 1984) (applying plai n error analysis to alleged Griffinviolation). Plain error must be so “egregious” as to result in a “miscarriage of justice.” Russell , 109 F.3d at 1514 (quoting United States v. Young , 470 U.S. 1, 15 (1985)). We view the prosecutor’s comments in the context of the entire case. See id. Defendant asserts that the government violated his Fifth Amendment right not to testify against himself and committed plain error when the prosecutor, during his closing argument, stated that “the most important witness in this case was Mr. Hernandez.” R., Vol. II at 213. Under Gri ffin v. California , 380 U.S. 609, 614 (1965), prosecutorial comment on a defendant’s failure to testify violates the Fifth Amendment. “[A] statement is improper if ‘the language used was manifestly intended or was of such character th at the jury would naturally and- 9 -

necessarily take it to be a comment on the failure of the accused to testify.’” United States v. McIntyre , 997 F.2d 687, 707 (10th Cir. 1993) (quoting Knowl es v. United States , 224 F.2d 168, 170 (10th Cir. 1955)). While defen dant chose not to testify at trial, the government admitted severa l of his statements into evidence through the testimony of those to whom defendant ha d spoken. In proper context, we do not find that the prosecutor’s isolated comme nt constituted a Griffin violation. First, the immediate context of the statement itsel f shows that the prosecutor did not attempt to comment on defendant’ s failure to testify. The prosecutor instead tried to explain the significanc e of the defendant’s statements admitted through the testimony of others. He state d: “although Mr. Abbud was an important witness, the most important witness in th is case was Mr. Hernandez. When he was talking to Agent Flores, when he was ta lking to Mrs. Abbud, and when he was talking to Agent Sanchez on Saturday, S eptember 21st.” R., Vol. II at 213. The isolated reference to the defendant as a “witness” did not, on this record, constitute an improper reference to defenda nt’s election not to testify. Second, the comment cited by defendant represents t he only possible reference in the prosecution’s closing argument to Hernandez-Mun iz’s failure to testify. We find no other statement that could have influenced the jury to construe defendant’s silence against him. In addition, the trial judge instructed the jury- 10 -

that it could not take defendant’s silence into con sideration, and defense counsel reminded the jury of this fact in his closing. Vie wing the prosecutor’s argument in its totality, we do not find it infringed on Her nandez-Muniz’s Fifth Amendment or due process rights. Defendant also claims that the prosecutor’s charact erization of defendant’s statements as “lies” constituted improper commentary on defendant’s credibility. The prosecutor, in closing, stated that “you’d have to agree that there were some lies told during the course of this case,” R., Vol. II at 201, and proceeded to direct the jury’s attention to conflicting testimony among defendant and other witnesses, several times characterizing defendant’s statement as a “lie.” The prosecutor also characterized as a lie Robert Abbud’s initial state ment to the police that defendant did not know about the cocaine in the car. We find no plain error in the prosecutor’s statements. We have characterized as “unnecessary” and “unwarra nted” a prosecutor’s closing argument in which he called the defendant a“liar” and told the jury that defendant had not told the complete truth. See United States v. Nichols , 21 F.3d 1016, 1019 (10th Cir. 1994). We have not, however, established that referring to testimony as a lie constitutes per se prosecutorial misconduct. See id. ; United States v. Robinson , 978 F.2d 1554, 1567 (10th Cir. 1992) (noting thatalthough “‘a prosecutor would be well advised to avoid direc tly accusing defendant of- 11 -

lying[,] . . . we are confident that the statements in this case would have been perceived only as commentary on the implausibility of the defendant’s story’” (quoting United States v. Garcias , 818 F.2d 136, 143-44 (1st Cir. 1987))). Like the prosecutor’s comments in Robinson , we find the argument here was merely a commentary on the veracity of defendant’s story. T he conflicting testimony on key aspects of the case required the jury to make d eterminations of witness credibility and truthfulness. The prosecutor’s arg ument fit within the bounds of this context. Moreover, the prosecution was merelyresponding to defense counsel’s opening statement, in which he stated that Abbud would lie in his testimony. In fact, defense counsel began his open ing by stating, “[W]here does the truth lie? And I underscore lie, because that’ s what you’re going to be hearing a lot from Mr. Abbud.” R., Vol. II at 36. Prosecutors have considerable latitude to respond to an argument made by opposing counsel. See United States v. Janus Indus. , 48 F.3d 1548, 1558 (10th Cir. 1995); United State s v. Coleman , 7 F.3d 1500, 1506 n.4 (10th Cir. 1993). Although an improper remark by defense counsel does not necessarily justify one in respons e, it may provide the necessary context in which we review the prosecution’s comments. See United States v. Young , 470 U.S. 1, 11 (1985). In the context of this ca se, we do not believe the1 We note that other circuits have expressly allowed prosecutorial use of the word

“lie” or “lies” in certain cases that turn on the credibility of defendant’s testimony. See United States v. Catalfo , 64 F.3d 1070, 1080 (7th Cir. 1995) (“Where the character and credibility of the defendant are at issue and the evidence allows the inference that the defendant has been less than truthful, the prosecutor does not err in closing argument by referring to the defendant as a liar.”); United States v. Dean , 55 F.3d 640, 665 (D.C. Cir. 1995) (holding that use of the word lie is permissible, depending on context and tone of summation, and as long as “the prosecutor sticks to the evidence and refrains from giving his personal opinion”); United States v. Jacoby , 955 F.2d 1527, 1540-41 (11th Cir. 1992). - 12 - prosecutor made improper remarks. 1 More importantly, even if the comments were imprope r, they were not so egregious as to constitute a miscarriage of justice . As noted above, the prosecutor made the comments in a case that required the jury to believe one witness and disbelieve the other. His comments about “lies” re sponded to defense counsel’s opening argument. He also told the jury it was nothis job to express a personal opinion about the witnesses. Finally, the trial co urt instructed the jury that counsels’ comments did not constitute evidence and that the jury was the sole judge of witness believability. The combination of these factors assures us that the trial did not result in a miscarriage of justic e. See Nichols , 21 F.3d at 1019; Robinson , 978 F.2d at 1566-67. III. Cumulative Error Defendant argues that, even if we do not find any i ndividual reversible error, the combination of errors in this case rende red his trial fundamentally unfair. We review allegations of cumulative error under the harmless error- 13 -

standard. See United States v. McKneely , 69 F.3d 1067, 1080 (10th Cir. 1995); McIntyre , 997 F.2d at 709. However, because we find no err or in this case, defendant can show no basis for cumulative error. See, e.g. , McKneely , 69 F.3d at 1080. For the foregoing reasons, defendant’s conviction i s AFFIRMED.