1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-26-1996

USA v. Molina-Guevara

Precedential or Non-Precedential:

Docket 94-5754

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Recommended Citation

"USA v. Molina-Guevara" (1996). 1996 Decisions. Paper 81.

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 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 N0. 94-5754 

 

 UNITED STATES OF AMERICA 

 v. 

 ARLEATHEA MOLINA GUEVARA 

 Arleathea Molina-Guevara, 

 Appellant 

 

 On Appeal From the United States District Court 

 For the District of New Jersey 

 (D.C. Crim. Action No. 94-cr-00304-3)

 

 Argued January 24, 1996 

 BEFORE: STAPLETON, MANSMANN and LEWIS, Circuit Judges 

 (Opinion Filed September 26, 1996) 

 

 

 Faith S. Hochberg 

 Kevin McNulty 

 Amanda Haines (Argued) 

 Office of the U.S. 

Attorney 

 970 Broad Street 

 Room 502 

 Newark, NJ 07102 

 Attorneys for Appellee 

 

 Jeffrey A. Bronster 

(Argued) 

 DeCotiis, Philips & 

Lundsten 

 103 Eisenhower Parkway 

 Roseland, NJ 07068 

 Attorney for Appellant 

 

 

 
 OPINION OF THE COURT 

 

STAPLETON, Circuit Judge: 

 Arleathea Molina-Guevara was convicted of importing, 

and conspiring to import, more than 500 grams of cocaine. She 

was sentenced to 84 months' imprisonment. On appeal, she 

challenges her conviction and sentence on several grounds, two of 

which we find meritorious. We agree that the district court 

abused its discretion by refusing to grant a mistrial after the 

prosecutor, in summation, (1) asserted that a government agent, 

if called to testify would have given inculpatory information 

about the defendant, and (2) improperly vouched for the 

credibility of two government witnesses. We will reverse the 

judgment of conviction and remand for a new trial. 

 I. 

 The evidence adduced at trial was almost entirely 

testimonial. The government had two key witnesses: Erick Palma, 

an alleged co-conspirator who had pled guilty and had agreed to 

cooperate with the government, and Special Agent Miriam Lugo of 

the United States Customs Service. Ms. Molina-Guevara ("the 

defendant") testified on her own behalf, denying any knowledge of 

or involvement in the alleged drug conspiracy, and called no 

other witnesses. The jury's decision, accordingly, rested on its 

determination of the credibility of the defendant and the two 

government witnesses. 

 Prosecution witness Erick Palma testified that he, the 

defendant, and the defendant's husband, Franklin Guevara 

("Frank"), agreed to smuggle cocaine into the United States from 

Puerto Rico. Palma testified that, in June 1994, he went to the 

Guevaras' apartment at the defendant's direction and that the 

three conspirators spent the afternoon and evening planning the 

details of the drug trip. According to Palma's testimony, Frank 

gave Palma most of the instructions and had evidently 

masterminded the plot. At some point during this meeting, 

however, the defendant told Palma that the trip would be to 

Aruba, rather than to Puerto Rico. She gave him his ticket and 

brought him an atlas to show him Aruba's location. 

 The next day, the defendant and Frank, who ran a taxi 

company, drove Palma to the airport. Frank repeated the 

instructions, and sent Palma on his way to Aruba. Palma returned 

to Newark Airport three days later as planned, with seven pounds 

of cocaine in plastic bags taped to his stomach and legs. Agents 

of the United States Customs Service randomly selected Palma for 

examination and discovered the drugs. 

 The Customs agents questioned Palma, and he confessed 

that Frank had sent him to Aruba. He admitted that he had made 

two prior such trips to obtain drugs for Frank and the defendant. 

Palma told the agents that Frank had given him a pager number to 
call on his arrival. 

 The agents arranged, with Palma's consent, to record 

Palma's telephone conversations, and had Palma call the pager 

number. The defendant placed the first two calls in response to 

Palma's page, and Frank placed the last three. The conversations 

between Palma and the defendant were primarily about Palma's lack 

of money and inability to get a taxi to give him a ride. Palma 

testified that he and the defendant made coded references to the 

drugs during their conversation. Frank ultimately told Palma on 

the telephone that he would send a cab to pick Palma up. It was 

the defendant who arrived at the Newark airport to retrieve 

Palma. At that point, Customs Agent Miriam Lugo and Customs 

Investigator Peter Edge arrested the defendant, read her her 

rights and questioned her. 

 Agent Lugo, the lead Customs agent, testified that the 

defendant lied at first during the interrogation, giving a false 

name, insisting that she was a taxi driver hired by a man she 

knew only as Frank to pick up a fare, and denying any knowledge 

of Palma or the drugs. Lugo testified that, after she had 

discovered that the defendant had no driver's license, much less 

a taxicab license, the defendant tearfully confessed that her 

husband was Frank Guevara, that Palma was smuggling drugs into 

the country for Frank, and that Frank had sent the defendant to 

get Palma because the authorities would be easier on her if she 

were arrested. 

 The defendant told Lugo where Frank would be waiting 

for them, and Lugo went to arrest Frank. Lugo saw Frank, but he 

managed to escape, and remains a fugitive today. 

 Lugo testified that the defendant told her that there 

was a plastic bin in the Guevaras' closet where Frank kept drugs. 

A subsequent search of the apartment confirmed the presence of 

the bin, but it was empty. 

 Agent Edge did not testify at trial. 

 The defendant's case was primarily based on her own 

testimony, during which she denied having told Agent Lugo that 

she knew anything about any drugs--in the bin, on Palma, or as 

any part of her husband's affairs. The defendant admitted that 

she initially had lied about her name during Agent Lugo's 

interrogation, but she insisted that she was no more than a 

driver, sent by Frank to pick someone up at the airport, with no 

knowledge of any drugs. 

 Defense counsel's strategy was to discredit the 

government witnesses at every turn, to suggest why Palma and Lugo 

had motivation or reason to lie or to provide inaccurate 

testimony, and to encourage the jury to believe that the 

defendant had been wrongly accused only because Frank--the true 

target of the government's efforts and the clear leader of the 

conspiracy--had escaped and remained a fugitive from justice. 

 In her initial summation, government counsel stressed 

that the existence of a conspiracy to smuggle drugs was 

acknowledged by both sides, as was the fact that the defendant 

came to the airport to pick up Palma, an act which would have had 

the effect of facilitating the conspiracy. The sole issue, the 

government stressed, was whether the defendant knew about the 
drugs, an issue that required the jury to choose between the 

testimony of Palma and Lugo and the testimony of the defendant. 

Counsel attempted to anticipate the argument of her adversary: 

 The defense counsel would have you 

 believe that the government case is a pack of 

 lies. That Erick Palma lied, that Agent Lugo 

 lied, but, of course, the defendant, herself, 

 is telling the truth. 

 * * * 

 You must pick through the words, the ideas, 

 the rhetoric and decide who is telling the

 truth and who is not. 

 * * * 

 When you think about the testimony and 

 do your job; namely, determine the truth, 

 there is truth in Erick Palma's testimony 

 which is full of details which ring with 

 truth. 

 You hear the truth in Miriam Lugo's 

 testimony. Her testimony was corroborated by 

 subsequent events and by the extent and 

 detail. 

 * * * 

 If Mr. Palma had wanted to make up a big 

 story in order to please the government, 

 don't you think he'll make up a little better 

 story? 

 Think about it. If he was lying, 

 wouldn't he have said it was this defendant 

 who masterminded the deal, that it was she

 who bought the ticket, that it was she who

 handed him the ticket at the airport, it was 

 she and not her husband who give him 

 directions, instructions what to do in Aruba? 

 He was delivering the drugs to this 

 woman and not her husband. 

 He didn't say those things because he

 told you the truth. The truth is that this 

 defendant was a participant. Not the only

 participant. Maybe not the mastermind of the 

 conspiracy. But a participant, nevertheless. 

 Now, Mr. Bronster [defense counsel] not 

 only attacked the credibility of Erick Palma, 
 but of Agent Lugo as well. In fact, because 

 of the strength of Miss Lugo's testimony, he 

 really had nowhere else to go. 

 * * * 

 Do you really think this agent made up 

 all these details? If not, do you think she 

 would make up one tidbit or two and add it to 

 an otherwise truthful report? 

 Why would she do it? She has absolutely 

 no reason to lie. In fact, it is insulting 

 to think the United States would put on such 

 a witness. Her memory of the events is 

 unimpeachable. 

App. at 24, 25, 25, 27-28, 28-29. 

 The prediction of government counsel, of course, came 

to pass. Defense counsel, in his closing, attacked the 

credibility of both Palma and Lugo: 

 Now, yes, I am going to be arguing to you 

 that Erick Palma's testimony was a pack of

 lies. I don't have any great concern about 

 doing that. It is -- a little tougher is 

 what I'm going to have to talk to you about 

 Agent Lugo. Because some of the things I say 

 to you and are going to submit to you, yes, 

 in fact, she does have some reason in this

 case to lie. It is hard almost to use the

 word. 

 She's an agent of the United States 

 Government. Frankly, no matter what else I 

 have said about her or will say about her in 

 this courtroom, I have a lot of respect for 

 her and the job that she does. She does a

 job that, God knows, I know I wouldn't be 

 able to do. 

 * * * 

 But the fact is, ladies and gentlemen, 

 when she comes into this courtroom, when she 

 sits on that stand, she's as human as any one 

 of us. We'll talk more in detail later. 

 Maybe you'll find that she hasn't 

 intentionally lied to you about something.

 Maybe she has erred. Maybe she has stretched 

 or maybe you're going to decide that she has 

 lied. 

App. at 36, 37. 
 Defense counsel's argument with respect to Palma was 

straightforward: 

 Erick Palma was a man with a lot of 

 problems. He gets caught with five bags of 

 cocaine strapped to his body. Where has he 

 got to go? He's got to give some help to 

 somebody or he's got no way to help himself. 

 Frank Guevara is gone. He's gone. 

 Palma can't get on the witness stand and 

 testify against Frank Guevara because there 

 is no trial. The only thing of value he has 

 is to come in and point a finger at her. The 

 only bargaining chip he has. 

 What motive does he have to do it? You 

 heard from his testimony that under the 

 statutes he was charged with he was facing up 

 to 40 years. 

App. at 41. 

 Defense counsel's attack on the credibility of Agent 

Lugo was more sophisticated: 

 Agent Lugo has a very, very difficult job 

 that she does. She has a very frustrating

 job. She works and works and works, along

 with her fellow agents, to stop this garbage 

 that comes into the country. And for every 

 one they catch, God knows how many get away. 

 You can understand and accept the level of

 frustration that someone in her position 

 would have. 

 Now, along comes this case. A great 

 bust. A great bust. I mean that sincerely. 

 They get this guy coming in at the airport, 

 all the stuff strapped to his body, and they 

 nail him. 

 Then they go the next step. They use

 him to try to get to the person who's 

 masterminding the deal. They turn it around. 

 They got the information. They find out it 

 is Frank Guevara. Now they've got him. Now 

 they've got a really big bust. They traced 

 it back to the source. 

 * * * 

 They go to arrest him. They go upstairs 

 and he's gone. He slipped out again. Twice. 

 He's never been found. 
 Ladies and gentlemen, I'm asking you to 

 put yourselves in Agent Lugo's position. How 

 would you feel? How would you feel? You're 

 out on the street risking your life to catch 

 people like this and he slips away? 

 (Slapping jury box.) 

 She's got a right to be angry. She's

 got the right to be frustrated. 

 Then, to make things worse, after they 

 catch this guy with seven pounds of cocaine 

 strapped to his body, he ends up sitting on 

 the witness stand trying to get probation for 

 himself. 

 So the guy who is carrying the coke is 

 playing his deal. The guy who is 

 masterminding it is gone. 

 What did he do? What did he do? Maybe 

 by now, maybe with all the frustration, maybe 

 because she wants so badly to see people 

 punished for importing this garbage, maybe by 

 now she even believes that Arleathea Molina 

 told her that she met him. I don't know. If 

 you find that easier to accept than to have 

 to say to yourselves she's lying, that's 

 fine. I don't care. As long as you realize 

 she's human, too. 

App. at 55-56, 57-58. 

 Government counsel, in accordance with standard 

practice, got the last word. She knew that Agent Lugo's 

testimony was the linchpin of her case and was quick to spring to 

her defense: 

 Ladies and gentlemen, before I get into 

 the main part of my rebuttal argument here, 

 there is something I have to talk to you 

 about up front. A statement that Mr. 

 Bronster made that I feel that I have to 

 bring to your attention right away. 

 He got up here during his opening and

 then just now and said or gave reason for you 

 to believe that this agent lied. That is 

 ridiculous. This agent did not lie to you. 

 I don't see any evidence anywhere in this 

 case, and you shouldn't, either, that this

 agent fabricated evidence, that she added to 

 her report. 

 * * * 
 Did Mr. Bronster ask a single question to 

 Mrs. Lugo about fabricating her notes? No. 

 . . . 

 Did Mr. Bronster call another agent who 

 was in the room at the time Miss Guevara gave 

 her statement? 

 Of course, Mr. Bronster has absolutely 

 no obligation to put on a case, to get up 

 here and say a word. It is my obligation,

 the government's obligation, to prove beyond 

 a reasonable doubt that this defendant 

 committed these crimes. 

 But he has the ability to call. He may 

 call. Did he call the agent in the room with 

 Miss Lugo and ask questions about whether 

 this defendant talked about drugs? Asked 

 questions about whether Miss Lugo way lying 

 in her testimony? 

 * * * 

 Ask yourself why Mr. Bronster didn't 

 call the other agent who was in the room. If 

 he called that other agent, he'd have to 

 argue not only that Erick Palma lied and not 

 only that the United States agent lied, but 

 that another United States agent lied. 

App. at 67, 68, 69. 

 Defense counsel made appropriate objections to the 

government's rebuttal argument and moved for a mistrial. His 

applications were denied. 

 II. 

 The district court had jurisdiction under 18 U.S.C. 

§ 3231, and we have jurisdiction under 28 U.S.C. § 1291 and 18 

U.S.C. § 3742. 

 We review a district court's decision not to grant a 

mistrial on the grounds that the prosecutor made improper remarks 

in closing argument for abuse of discretion, United States v. 

Gambino, 926 F.2d 1355, 1365 (3d Cir.), cert. denied, 502 U.S. 

956 (1991), and, if error is found, we apply harmless error 

analysis. United States v. Zehrbach, 47 F.3d 1252, 1264-65 (3d 

Cir.) (en banc), cert. denied, 115 S. Ct. 1699 (1995). The 

standard that we apply in our harmless error analysis depends on 

whether the error was of constitutional proportions. United 

States v. Zehrbach, 47 F.3d at 1265. If we find constitutional 

error, we may affirm only if the error is harmless beyond a 

reasonable doubt. Chapman v. United States, 386 U.S. 18, 24 

(1962). If the error does not involve a violation of a 

constitutional right, we may affirm so long as there is a "high 
probability" the error did not contribute to the conviction. 

United States v. Jannotti, 729 F.2d 213, 219-20 (3d Cir.), cert. 

denied, 469 U.S. 880 (1984). 

 III. 

 The government chose not to call Agent Edge as a 

witness. Prior to the rebuttal, the issue of whether the 

defendant had admitted knowledge of the conspiracy after her 

arrest could have been resolved by the jury only by assessing the 

relative credibility of the defendant and Agent Lugo. In her 

rebuttal, however, government counsel represented to the jury 

that Agent Edge, if called as a witness, would have corroborated 

the testimony of Agent Lugo. Thus, as defense counsel pointed 

out in his objection, the prosecutor made a representation as "to 

what some agent who [was] never called would have said." App. at 

69. The defendant insists that this representation violated her 

rights under the Sixth Amendment to confront the witnesses 

against her. We agree. We also agree that this representation 

and other comments of the prosecutor improperly vouched for the 

truth of Agent Lugo's testimony. We are unable to agree with the 

government that this prosecutorial misconduct was either harmless 

or improperly invited. 

 A. 

 The Confrontation Clause of the Sixth Amendment is 

violated when a prosecutor informs the jury that there is a 

witness who has not testified, but who, if he had testified, 

would have given inculpatory evidence. Hutchins v. Wainwright, 

715 F.2d 512 (11th Cir. 1983), cert. denied, 465 U.S. 1071 

(1984). That is precisely what occurred here. Contrary to the 

government's suggestion, this is not a situation in which a 

prosecutor did no more than ask the jury to draw an inference 

from the failure of the defense to call a witness who could be 

expected to support the defendant's position if it were truthful. 

See, e.g., United States v. Keller, 512 F.2d 182, 186 (3d Cir. 

1975); United States v. Kenny, 462 F.2d 1205, 1228 (3d Cir.), 

cert. denied, 409 U.S. 914 (1972). The absent witness here was a 

government agent whose relevant knowledge would be known to the 

prosecutor, and the jury was told what the testimony would be; 

this was thus not a case in which the jury was merely asked to 

infer, based on all the circumstances, that the defense was privy 

to the same information and decided not to elicit the testimony 

because it was unfavorable. 

 B. 

 A prosecutor may not properly vouch for the credibility 

of a government witness. See, e.g., United States v. DiLoreto, 

888 F.2d 996, 998-99 (3d Cir. 1989); United States v. Beatty, 

722 F.2d 1090, 1097 (3d Cir. 1983). As the Supreme Court noted 

in 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. 

 In United States v. DiLoreto, we held to be improper 

vouching the following statement by the prosecutor: "We [the 

government] don't take liars. We don't put liars on the stand. 

We don't do that." 888 F.2d at 999. As we there explained: 

 The remarks [suggest] that the government, as 

 a matter of policy in the prosecution of its 

 cases, does not use liars as witnesses. No 

 explanation was given, however, of how the

 government ascertains the honesty or veracity 

 of its witnesses. Indeed, we have found 

 nothing in the record upon which the 

 prosecutor could have grounded his statement. 

 There must then have been some other 

 evidence, unknown or unavailable to the jury, 

 which convinced the prosecutor that his 

 witnesses were not liars. Obviously, the 

 defendants were not confronted with this 

 extraneous evidence and afforded cross- 

 examination, nor was the jury given an 

 opportunity to engage in its own evaluation. 

 What the jury was led to do instead was 

 merely to infer that other information 

 existed which the government used to verify 

 the credibility of its witnesses prior to 

 introducing their testimonies at trial. 

Id. 

 In this case, the prosecutor, in addition to 

representing that Edge's testimony would corroborate that of 

Lugo, told the jury that it was "insulting" and "ridiculous" to 

think that the United States would put on a witness who would lie 

and assured the jury that "[A]gent [Lugo] did not lie to you." 

App. at 29, 67, 67. We believe the combined effect was to 

suggest that the prosecutor knew more than the jury had heard and 

that it should be willing to trust the government's judgment. It 

follows that the prosecutor's comments violated our rule against 

vouching. 

 C. 

 Because the prosecution engaged in a course of conduct 

that violated the defendant's rights under the Sixth Amendment, 

we cannot allow the judgment against her to stand unless we can 

say that the improper comments were harmless beyond a reasonable 

doubt. 

 As we have noted, the crucial issue for decision in 
this case was whether the defendant knew about the drugs. The 

prosecution and the defense respectively tendered inculpatory and 

exculpatory interpretations of the coded language on the 

telephone surveillance tapes and reasonable minds could differ 

regarding their significance. Since there was no other tangible 

evidence relevant to this issue, this left the jury with the task 

of deciding whether to believe Palma and Lugo or the defendant. 

With respect to the former, the defense advanced and developed 

plausible theories as to why each of these witnesses might have 

misrepresented the facts, intentionally in the case of Palma and 

intentionally or unintentionally in the case of Agent Lugo. In 

this context, it is not possible to affirm beyond a reasonable 

doubt that there was no prejudicial effect from the prosecutor's 

invocation of the testimony of the absent and uncrossexamined 

Agent Edge or from her assurance to the jury that government 

witnesses don't lie. Accordingly, defendant's conviction cannot 

stand. 

 D. 

 The government invokes the doctrine of invited error. 

As we explained in United States v. Pungitore, 910 F.2d 1084, 

1126 (3d Cir. 1990), cert. denied, 500 U.S. 915 (1991): 

 The doctrine [of invited error] teaches that 

 where a prosecutorial argument has been made 

 in reasonable response to improper attacks by 

 defense counsel, the unfair prejudice flowing 

 from the two arguments may balance each other 

 out, thus obviating the need for a new trial. 

 Young, 470 U.S. at 12-13, 105 S.Ct. at 1045. 

 We have interpreted the doctrine to mean that 

 a prosecutor may neutralize improper defense 

 arguments but may not rely on them as a 

 "springboard" for the launching of 

 affirmative attacks upon the defendants. 

(citation omitted). 

 We find the doctrine of invited error inapplicable here 

because we can find no fault with defense counsel's conduct. His 

defense, and his summation in particular, can accurately be 

described as vigorous advocacy entirely appropriate for a case 

that turned on the jury's assessment of the credibility of the 

witnesses. 

 IV. 

 The defendant mounts a number of other attacks on her 

conviction. Having decided to reverse and remand for a new trial 

for the reasons we have already given, it is appropriate for us 

to address only those issues that are likely to arise again 

during the remainder of the proceedings. 

 The defendant contends that the district court erred in 

refusing to order production by the government of Agent Lugo's 

handwritten notes of her interview with the defendant, notes from 

which the agent's final report was prepared. As the government 

conceded before us, production of these notes was required by 

Federal Rule of Criminal Procedure 16. Whether or not this 
violation was harmless is now a moot issue. On remand, the notes 

will be produced. 

 The defendant also insists that the district court 

erred in denying her a suppression hearing pursuant to Massiah v. 

United States, 377 U.S. 201 (1964). In Massiah, the Supreme 

Court held that the defendant's Sixth Amendment right to counsel 

had been violated when incriminating statements were used by the 

government at trial which it had deliberately elicited after the 

defendant's indictment and in the absence of his counsel. Id. at 

206-07. We find Massiah inapplicable here. 

 The defendant and Palma exchanged eight letters while 

both were in prison. As the defendant testified at trial, she 

initiated the exchange because she believed Palma would testify 

against her and she wanted to see if she could get information 

that could be used to discredit him at trial. One of Palma's 

letters was written after he had signed his cooperation agreement 

with the government. The defense secured the admission of these 

letters and elicited testimony regarding them during the defense. 

It argued that the letters indicated Palma was testifying against 

the defendant because she had rejected his sexual advances. 

Having thus affirmatively used the letters, we conclude that the 

defendant is not entitled to a hearing to determine whether they 

should be suppressed. 

 V. 

 We will reverse the judgment of the district court and 

remand for a new trial.