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. e du/thir dc ir c uit_1996/81UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

N0. 94-5754

UNITED STATES OF AMERICA

v.

ARLEATHEA MOLINA GUEVARA

Arleathea Molina-Gu evara, 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, Circu it Judges

(Opinion Filed September 26, 1996)

F aith S. Hochberg

K evin McNulty

A manda Haines (Argued)

O ffice of the U.S.
Attorney
9 70 Broad Street

R oom 502

N ewark, NJ 07102

A ttorneys for Appellee

J effrey A. Bronster (Argued)

D eCotiis, Philips &

Lundsten

1 03 Eisenhower Parkway

R oseland, NJ 07068

A ttorney for AppellantOPINION OF THE COURT

STAPLETON, Circuit Judge:

Arleathea Molina-Guevara was convicted of importing, and conspiring to import, more than 500 grams of co caine. She was sentenced to 84 months' imprisonment. On appea l, she challenges her conviction and sentence on several g rounds, two of which we find meritorious. We agree that the distr ict court abused its discretion by refusing to grant a mistri al after the prosecutor, in summation, (1) asserted that a gover nment agent, if called to testify would have given inculpatory i nformation about the defendant, and (2) improperly vouched for the credibility of two government witnesses. We will r everse the judgment of conviction and remand for a new trial.

I.
The evidence adduced at trial was almost e ntirely testimonial. The government had two key witnesses: Erick Palma, an alleged co-conspirator who had pled guilty and h ad agreed to cooperate with the government, and Special Agent Mi riam Lugo of
the United States Customs Service. Ms. Molina-Guev ara ("the defendant") testified on her own behalf, denying an y 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 a nd the two government witnesses.
Prosecution witness Erick Palma testified that he, the defendant, and the defendant's husband, Franklin Gu evara ("Frank"), agreed to smuggle cocaine into the Unite d States from Puerto Rico. Palma testified that, in June 1994, h e went to the Guevaras' apartment at the defendant's direction an d that the three conspirators spent the afternoon and evening planning the details of the drug trip. According to Palma's tes timony, Frank gave Palma most of the instructions and had evident ly masterminded the plot. At some point during this m eeting, however, the defendant told Palma that the trip wou ld be to Aruba, rather than to Puerto Rico. She gave him hi s 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 repeate d 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 selec ted Palma for examination and discovered the drugs. The Customs agents questioned Palma, and h e 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 pa ger number tocall 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 i n response to Palma's page, and Frank placed the last three. The conversations between Palma and the defendant were primarily abou t 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 refe rences to the drugs during their conversation. Frank ultimately told Palma on the telephone that he would send a cab to pick Palm a up. It was the defendant who arrived at the Newark airport to retrieve Palma. At that point, Customs Agent Miriam Lugo an d Customs Investigator Peter Edge arrested the defendant, rea d her her rights and questioned her. Agent Lugo, the lead Customs agent, testif ied that the defendant lied at first during the interrogation, g iving 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 a ny knowledge of Palma or the drugs. Lugo testified that, after she had
discovered that the defendant had no driver's licen se, much less a taxicab license, the defendant tearfully confesse d 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 o n 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 Fra nk 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 o n her own testimony, during which she denied having told Agen t Lugo that she knew anything about any drugs--in the bin, on P alma, or as any part of her husband's affairs. The defendant a dmitted that she initially had lied about her name during Agent Lugo's interrogation, but she insisted that she was no mor e than a driver, sent by Frank to pick someone up at the air port, with no knowledge of any drugs. Defense counsel's strategy was to discredi t the government witnesses at every turn, to suggest why Palma and Lugo had motivation or reason to lie or to provide inacc urate testimony, and to encourage the jury to believe tha t the defendant had been wrongly accused only because Fra nk--the true target of the government's efforts and the clear le ader of the conspiracy--had escaped and remained a fugitive fro m justice. In her initial summation, government couns el stressed that the existence of a conspiracy to smuggle drugs was acknowledged by both sides, as was the fact that th e defendant came to the airport to pick up Palma, an act which would have had the effect of facilitating the conspiracy. The sol e issue, the government stressed, was whether the defendant knew about thedrugs, an issue that required the jury to choose be tween the

testimony of Palma and Lugo and the testimony of th e 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 L ugo lied, but, of course, the defendant, herse lf, 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 an d 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 bet ter story?

Think about it. If he was lying,
wouldn't he have said it was this defendan t 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 w as she and not her husband who give him directions, instructions what to do in Aru ba?

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 thi s defendant was a participant. Not the only participant. Maybe not the mastermind of the conspiracy. But a participant, neverthele ss.

Now, Mr. Bronster [defense counsel] n ot only attacked the credibility of Erick Pal ma,but of Agent Lugo as well. In fact, becau se

of the strength of Miss Lugo's testimony, he really had nowhere else to go.

* * *

Do you really think this agent made u p all these details? If not, do you think s he would make up one tidbit or two and add it to an otherwise truthful report?

Why would she do it? She has absolut ely no reason to lie. In fact, it is insultin g to think the United States would put on su ch a witness. Her memory of the events is unimpeachable.

App. at 24, 25, 25, 27-28, 28-29. The prediction of government counsel, of c ourse, 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 abou t doing that. It is -- a little tougher is what I'm going to have to talk to you abou t 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 fo r 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 s he 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 stretc hed or maybe you're going to decide that she h as 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 o f cocaine strapped to his body. Where has h e got to go? He's got to give some help to somebody or he's got no way to help himsel f.

Frank Guevara is gone. He's gone. Palma can't get on the witness stand and testify against Frank Guevara because ther e is no trial. The only thing of value he h as is to come in and point a finger at her. The only bargaining chip he has.

What motive does he have to do it? Y ou 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 credibilit y 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 garba ge that comes into the country. And for ever y one they catch, God knows how many get awa y. 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 sincerel y. They get this guy coming in at the airport
, all the stuff strapped to his body, and th ey 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 arou nd. They got the information. They find out i t is Frank Guevara. Now they've got him. N ow they've got a really big bust. They trace d
it back to the source.

* * *

They go to arrest him. They go upsta irs and he's gone. He slipped out again. Twi ce. 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 cat ch 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 the y catch this guy with seven pounds of cocain e strapped to his body, he ends up sitting o n the witness stand trying to get probation for
himself.

So the guy who is carrying the coke i s playing his deal. The guy who is masterminding it is gone.

What did he do? What did he do? May be by now, maybe with all the frustration, ma ybe because she wants so badly to see people punished for importing this garbage, maybe by
now she even believes that Arleathea Molin a told her that she met him. I don't know. If you find that easier to accept than to hav e to say to yourselves she's lying, that's fine. I don't care. As long as you reali ze she's human, too.

App. at 55-56, 57-58. Government counsel, in accordance with sta ndard practice, got the last word. She knew that Agent L ugo's testimony was the linchpin of her case and was quic k to spring to

her defense: Ladies and gentlemen, before I get in to 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 w ho was in the room at the time Miss Guevara g ave her statement?

Of course, Mr. Bronster has absolutel y 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 beyo nd
a reasonable doubt that this defendant
committed these crimes.

But he has the ability to call. He m ay call. Did he call the agent in the room w ith Miss Lugo and ask questions about whether this defendant talked about drugs? Asked questions about whether Miss Lugo way lyin g 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 n ot only that the United States agent lied, bu t that another United States agent lied.

App. at 67, 68, 69. Defense counsel made appropriate objection s to the government's rebuttal argument and moved for a mist rial. 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 im proper remarks in closing argument for abuse of discretion, United States v. Gambino, 926 F.2d 1355, 1365 (3d Cir.), cert. denie d, 502 U.S. 956 (1991), and, if error is found, we apply harmle ss error analysis. United States v. Zehrbach, 47 F.3d 1252, 1264-65 (3d Cir.) (en banc), cert. denied, 115 S. Ct. 1699 (199 5). The standard that we apply in our harmless error analys is depends on whether the error was of constitutional proportions . United States v. Zehrbach, 47 F.3d at 1265. If we find co nstitutional 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 ther e is a "highprobability" the error did not contribute to the co nviction.

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 Edg e as a witness. Prior to the rebuttal, the issue of wheth er 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 Lug o. In her rebuttal, however, government counsel represented t o the jury that Agent Edge, if called as a witness, would have corroborated the testimony of Agent Lugo. Thus, as defense coun sel pointed out in his objection, the prosecutor made a represe ntation as "to what some agent who [was] never called would have s aid." App. at 69. The defendant insists that this representation violated her rights under the Sixth Amendment to confront the wi tnesses against her. We agree. We also agree that this re presentation and other comments of the prosecutor improperly vou ched for the truth of Agent Lugo's testimony. We are unable to agree with the government that this prosecutorial misconduct was e ither harmless or improperly invited.

A.
The Confrontation Clause of the Sixth Amen dment is violated when a prosecutor informs the jury that th ere is a witness who has not testified, but who, if he had t estified, 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. Con trary 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 w ho could be expected to support the defendant's position if it were truthful. See, e.g., United States v. Keller, 512 F.2d 182, 1 86 (3d Cir. 1975); United States v. Kenny, 462 F.2d 1205, 1228 (3d Cir.), cert. denied, 409 U.S. 914 (1972). The absent witn ess here was a government agent whose relevant knowledge would be known to the prosecutor, and the jury was told what the testimon y would be; this was thus not a case in which the jury was mere ly asked to infer, based on all the circumstances, that the def ense was privy
to the same information and decided not to elicit t he testimony
because it was unfavorable.

B. A prosecutor may not properly vouch for th e 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 credibil ity of witnesses and expressing his personal opinion concerning the guilt of the accuse d pose two dangers: such comments can conve y the impression that evidence not presented tothe jury, but known to the prosecutor,

supports the charges against the defendant and can thus jeopardize the defendant's ri ght 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 induc e the jury to trust the Government's judgmen t
rather than its own view of the evidence. In United States v. DiLoreto, we held to b e improper vouching the following statement by the prosecutor: "We [the government] don't take liars. We don't put liars o n the stand.
We don't do that." 888 F.2d at 999. As we there e xplained: The remarks [suggest] that the government, as a matter of policy in the prosecution of i ts cases, does not use liars as witnesses. N o explanation was given, however, of how the government ascertains the honesty or verac ity of its witnesses. Indeed, we have found nothing in the record upon which the prosecutor could have grounded his stateme nt.
There must then have been some other evidence, unknown or unavailable to the ju ry, 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 evaluatio n. What the jury was led to do instead was merely to infer that other information existed which the government used to verif y 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 corroborat e that of Lugo, told the jury that it was "insulting" and "ri diculous" to think that the United States would put on a witness who would lie and assured the jury that "[A]gent [Lugo] did not l ie 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 cours e of conduct that violated the defendant's rights under the Sixt h Amendment, we cannot allow the judgment against her to stand u nless we can say that the improper comments were harmless beyond a reasonable

doubt. As we have noted, the crucial issue for de cision inthis case was whether the defendant knew about the drugs. The

prosecution and the defense respectively tendered i nculpatory and exculpatory interpretations of the coded language o n the telephone surveillance tapes and reasonable minds c ould differ regarding their significance. Since there was no o ther tangible evidence relevant to this issue, this left the jury with the task of deciding whether to believe Palma and Lugo or th e defendant. With respect to the former, the defense advanced an d developed plausible theories as to why each of these witnesse s might have misrepresented the facts, intentionally in the case of Palma and intentionally or unintentionally in the case of Age nt 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 uncro ssexamined Agent Edge or from her assurance to the jury that g overnment witnesses don't lie. Accordingly, defendant's conv iction cannot

stand.

D. The government invokes the doctrine of inv ited error. As we explained in United States v. Pungitore, 910 F.2d 1084, 1126 (3d Cir. 1990), cert. denied, 500 U.S. 915 (19 91): The doctrine [of invited error] teaches th at where a prosecutorial argument has been ma de in reasonable response to improper attacks by defense counsel, the unfair prejudice flow ing from the two arguments may balance each ot her out, thus obviating the need for a new tri al. Young, 470 U.S. at 12-13, 105 S.Ct. at 104 5. We have interpreted the doctrine to mean t hat a prosecutor may neutralize improper defen se 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 inap plicable here
because we can find no fault with defense counsel's conduct. His defense, and his summation in particular, can accur ately be described as vigorous advocacy entirely appropriate for a case that turned on the jury's assessment of the credibi lity of the
witnesses.

IV.
The defendant mounts a number of other att acks on her conviction. Having decided to reverse and remand f or a new trial for the reasons we have already given, it is approp riate for us to address only those issues that are likely to ari se again during the remainder of the proceedings.
The defendant contends that the district c ourt erred in refusing to order production by the government of A gent Lugo's
handwritten notes of her interview with the defenda nt, notes from which the agent's final report was prepared. As th e government conceded before us, production of these notes was r equired by
Federal Rule of Criminal Procedure 16. Whether or not thisviolation was harmless is now a moot issue. On rem and, the notes

will be produced.
The defendant also insists that the distri ct court erred in denying her a suppression hearing pursuant to Massiah v. United States, 377 U.S. 201 (1964). In Massiah, th e Supreme Court held that the defendant's Sixth Amendment rig ht to counsel had been violated when incriminating statements wer e used by the government at trial which it had deliberately elici ted after the
defendant's indictment and in the absence of his co unsel. Id. at 206-07. We find Massiah inapplicable here. The defendant and Palma exchanged eight le tters while both were in prison. As the defendant testified at trial, she initiated the exchange because she believed Palma w ould 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 coopera tion agreement with the government. The defense secured the admis sion of these letters and elicited testimony regarding them durin g the defense. It argued that the letters indicated Palma was test ifying against the defendant because she had rejected his sexual a dvances. Having thus affirmatively used the letters, we conc lude that the defendant is not entitled to a hearing to determine whether they should be suppressed.

V. We will reverse the judgment of the distri ct court and
remand for a new trial.