USA v. Bobby Pittman

Filing

UNPUBLISHED OPINION FILED. [09-40967 Affirmed ] Judge: HRD , Judge: FPB , Judge: JWE Mandate pull date is 12/03/2010 for Appellant Bobby Caswell Pittman [09-40967]

USA v. Bobby Pittmanase: 09-40967 C

Document: 00511291931 Page: 1 Date Filed: 11/12/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 12, 2010 N o . 09-40967 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e , v. B O B B Y CASWELL PITTMAN, D e fe n d a n t -A p p e lla n t .

A p p e a l from the United States United States District Court for the Southern District of Texas U S D C No. 2:09-CR-375-ALL

B e fo r e DeMOSS, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* T h is case, in which Defendant-Appellant Bobby Caswell Pittman appeals h is conviction after a jury trial on two counts of smuggling aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) & (1)(B)(ii), involves a determination of plain error w h e r e the government, contrary to established law, engaged in improper crosse x a m in a t io n and improper rebuttal closing argument. Because we find that the e v id e n c e of Defendant-Appellant's guilt is overwhelming, we find that

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 09-40967 Document: 00511291931 Page: 2 Date Filed: 11/12/2010

No. 09-40967 D e fe n d a n t -A p p e lla n t 's rights were not substantially affected by the prosecutor's e r r o r s , and accordingly we affirm the judgment of the district court. On or about April 22, 2009, around 10:00 p.m. Defendant-Appellant Bobby C a s w e ll Pittman was stopped at the primary inspection lane of the United S t a te s Border Patrol checkpoint in Falfurrias, Texas, and Border Patrol agents fo u n d five illegal aliens inside the otherwise empty trailer of his truck. Agent E d u a r d o E. Ybarra then arrested Pittman and found approximately $4,103 in c a s h folded in his front shirt pocket. Pittman waived his rights under Miranda v . Arizona, 384 U.S. 436 (1966), and signed a form stating that he understood his r ig h t s and agreed to discuss what happened, though he refused to make a w r it t e n statement. According to the trial testimony of Agent Ybarra, Agent R o m u a ld o Barrera, and Agent Rodolfo Hernandez, Pittman confessed to a g r e e in g to transport five aliens to Victoria, Texas, at a rate of $700 per person. Pittman, in his alleged confession, explained that a man approached him at the A c a d e m y Sports ("Academy") store truck lot and offered him payment in return f o r his transporting five illegal aliens. Pittman accepted the offer and allowed t h e aliens to enter the trailer. Pittman then secured the trailer doors and placed a seal on them. T w o of the five undocumented aliens found in the trailer testified at trial t h a t smugglers had delivered them to the Academy store and loaded them into t h e trailer. They also stated that they had not understood the post-arrest s t a t e m e n t s that they signed and that the Border Patrol agents had enticed them t o sign the statements regardless. Donald Walker, a loss prevention manager fr o m Academy's corporate office, also testified at trial and explained that A c a d e m y employees, not the truck drivers, load the returns and place the seal o n the trailer doors, as the truck drivers are not supposed to have any seals, and m o r e o v e r , Academy employees never place seals on empty trailers.

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No. 09-40967 P ittm a n testified in his own defense and denied having agreed to transport t h e aliens and denied having confessed as much to the Border Patrol agents. Pittman instead testified that when the smuggler approached him, requesting t h a t he transport aliens, he refused and entered the Academy store to escape the s m u g g le r . Upon Pittman's return, the smuggler reiterated his offer, which P it tm a n again rejected. Pittman then spot-checked the trailer, retrieved an e x t r a seal that he knew was inside the trailer, shut the trailer doors, and put the s e a l on the trailer to prevent the smuggler from tampering with the trailer. Pittman explained that he carried $4,103 because he had planned to buy a car in Wharton, Texas, that morning, but had later discovered that the car was a lr e a d y sold. On cross-examination the prosecutor asked Pittman if the agents had lied a b o u t each of the facts to which they testified that contradicted Pittman's t e s t im o n y and asked Pittman a total of five times whether the agents were lying. Pittman refused to say that the agents were lying, and instead explained that t h e agents "got some things mixed up" perhaps because the checkpoint was busy t h a t night. During rebuttal closing argument, the prosecutor stated: [T ]h e defense here is that everybody's lying. Everybody in the world is in a grand conspiracy and they're all liars, except Mr. Pittman. He's the one t r u t h fu l person. All the law enforcement officers, even that material w it n e s s , even people from Mexico, everybody's lying. Liars, liars, liars. Me, I'm the honest person. Now I'm the honest person. It's a grand c o n s p ir a c y . The prosecutor then posited: W h y should you believe the officers are lying? I don't know. Why would t h e y lie? Risk their careers, commit perjury, for what? A big bonus? A r a is e ? No. They're just doing their job. They don't get anything out of it. What reward do they get for helping us out? They get to come in here and b e called liars. Isn't that a great deal? T h e jury found Pittman guilty on both counts, and the district court s e n te n c e d him to a 48-month prison term. Pittman timely filed a notice of 3

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No. 09-40967 a p p e a l. Pittman contends that during cross-examination the prosecutor

im p r o p e r ly questioned him about whether government witnesses lied in their t e s t im o n y , and that during rebuttal closing argument the prosecutor improperly b o ls t e r e d government witnesses' testimony and improperly asked the jury to e n fo r c e the law to protect community values, and that these missteps together r e s u lt e d in an unfair trial that warrants reversal of his conviction and remand fo r a new trial. Because Pittman did not object to the prosecutor's remarks at trial, this c o u r t reviews for plain error. Under our plain error standard Pittman can p r e v a il only if he can show that the prosecutor's remarks amounted to (1) an e r r o r , (2) that was clear or obvious, and (3) that affected Pittman's substantial r ig h ts . See United States v. Olano, 507 U.S. 725, 732-37 (1993). "The

d e t e r m in a t iv e question in our inquiry is `whether the prosecutor's remarks cast s e r io u s doubt on the correctness of the jury's verdict.'" United States v.

T h o m p s o n , 482 F.3d 781, 785 (5th Cir. 2007) (quoting United States v. V ir g e n -M o r e n o , 265 F.3d 276, 290 (5th Cir. 2001)). "In answering this question, w e consider `(1) the magnitude of the prejudicial effect of the prosecutor's r e m a r k s , (2) the efficacy of any cautionary instruction by the judge, and (3) the s t r e n g t h of the evidence supporting the conviction.'" Id. (quoting United States v . Guidry, 456 F.3d 493, 505 (5th Cir. 2006) (internal citation omitted)). Even if a defendant-appellant shows substantial error, "we still would have discretion t o decide whether to reverse, which we generally will not do unless the plain e r r o r seriously affected the fairness, integrity, or public reputation of the judicial p r o c e e d in g ." United States v. Gracia, 522 F.3d 597, 600 (5th Cir. 2008). This court has repeatedly held that a prosecutor's questioning a defendanta p p e lla n t about the veracity of the government's witnesses is "inappropriate," United States v. Williams, 343 F.3d 423, 437-38 (5th Cir. 2003), and the g o v e r n m e n t concedes that the prosecutor's questioning of Pittman during 4

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No. 09-40967 c r o s s -e x a m i n a t io n regarding whether Border Patrol agents were lying c o n s t it u t e d clear or obvious error. Appellee Br. at 20. This court has also often found that telling jurors that in order for them t o believe a witness they would have to believe in a government conspiracy is e r r o r that is clear and obvious. See Gracia, 522 F.3d at 601-02 (deeming clear a n d obvious error a prosecutor's opining that in order to believe the defendant, t h e jury would necessarily have to believe in a government conspiracy); United S ta te s v. Herrera, 531 F.2d 788, 790 (5th Cir. 1976) (finding objectionable p r o s e c u t o r 's statement that to believe the defendant's theory the jury had to find t h a t the government's witnesses and the prosecutor conspired with each other). Additionally, we have condemned a prosecutor's reliance on the authority of the fe d e r a l government to bolster a government witness in closing argument and h a v e found that it is plain error. See Gracia, 522 F.3d at 601 ("A prosecutor may a r g u e fair inferences from the evidence that a witness has no motive to lie, but ca n n ot express a personal opinion on the credibility of witnesses."); United States v . Gallardo-Trapero, 185 F.3d 307, 320 (5th Cir. 1999) (holding it is "pernicious" fo r a prosecutor to rely on the authority of the federal government to "`impart an im p lic it stamp of believability to what the prosecutor says'") (quoting United S ta te s v. Goff, 847 F.2d 149, 163 (5th Cir. 1988)). It is clear that both of these im p r o p r ie t ie s occurred in this case.1 The prosecutor improperly bolstered the B o r d e r Patrol agents' credibility and relied on facts outside of the record when h e argued that the defense theory required the jury to find "a grand conspiracy"

Pittman also argues that the prosecutor's statement that "[a]lien smuggling laws are no good if we don't have people like you to enforce it," and exhorting the jury to "do the right thing," improperly requested that the jury enforce the law to protect community values, rather than decide the facts. In this circuit, however, "[i]t is well-settled that, unless the prosecutor intended to inflame, `an appeal to the jury to act as the conscience of the community is not impermissible.'" United States v. Ruiz, 987 F.2d 243, 249 (5th Cir. 1993) (citation omitted). As there is no indication that the comments were designed to inflame the jury, we do not find the prosecutor's statements regarding the role of the jury to be clear or obvious error.

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No. 09-40967 a n d that the Border Patrol agents should be believed because they "were just d o in g their job" and had no reason to lie. We are unconvinced by the government's argument that the prosecutor's c o m m e n t s were proper because they drew reasonable inferences from the t e s t im o n y and properly responded to defense counsel's closing argument "theme" t h a t the agents were lying. First, there was no evidence to support the

p r o s e c u t o r 's assertion that the government's witnesses were "just doing their jo b ," his suggestion that they had no reason to risk their careers and lie, or his r e m a r k that the only way that the jury could believe Pittman was to find that t h e r e was a governmental conspiracy against him. Next, a prosecutor is

p e r m it t e d to present arguments in response to the defense's closing and may e v e n bolster the credibility of witnesses, but only if done specifically to rebut a s s e r t io n s by defense counsel. See United States v. Thomas, 12 F.3d 1350, 1367 (5 t h Cir. 1994). The prosecutor's response must be weighed against defense c o u n s e l's statement and must be of appropriate scale. See United States v. R a m ir e z -V e la s q u e z , 322 F.3d 868, 874-75; United States v. Taylor, 210 F.3d 311, 3 1 8 -1 9 (5th Cir. 2000) (finding that even though defense counsel suggested that g o v e r n m e n t witnesses committed perjury, the prosecutor erred by arguing b e y o n d mere rebuttal of that argument). Defense counsel took great care in his c lo s in g argument to say that "Mr. Pittman does not want to call the agents lia r s ," and instead asked the jurors to conclude that the agents made "a huge m is t a k e ," though soon afterward, according to the transcript, he said that the a g e n t s were "lying." Given defense counsel's care in his closing argument in e x p la in in g that officials were mistaken, not lying, a single later mention that the o ffic ia ls lied on the report was not sufficiently egregious to permit the prosecutor t o respond by going outside of the evidence to bolster the agents' credibility by e x p la in in g that they were "just doing their job," insinuating that they had no r e a s o n to risk their careers and lie, and that to believe Pittman the jury would 6

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No. 09-40967 h a v e to believe there was a conspiracy. At most, defense counsel made a single r e fe r e n c e to the agents lying; it was not the theme of the closing, which focused o n asking the jury to believe Pittman's story. As such, the prosecutor went too fa r in rebutting defense counsel's closing argument. The statements that the p r o s e c u t o r made during closing argument bolstering the credibility of g o v e r n m e n t witnesses amounted to clear error. Ameliorating the government's improper argument and crosse x a m in a t io n and their resultant prejudice is the fact that the district court in s t r u c t e d the jury that the lawyers' questions and arguments were not e v id e n c e , and told the jury that it was the jury's responsibility to determine t h e credibility of witnesses. Juries are presumed to follow the court's in s t r u c t io n s , and there was no indication here that this jury did not. See G r a c ia , 522 F.3d at 604 (explaining that generalized jury instructions served, " if only moderately, to reduce the degree of prejudice" resulting from the p r o s e c u t o r 's improper remarks). Were this a close case, the jury instruction itself would not be sufficient t o reverse the prejudicial effect of the prosecutorial misconduct. However, the ju r y instruction, combined most importantly with the overwhelming evidence a g a in s t Pittman, convinces us that the error did not affect Pittman's s u b s t a n t ia l rights. Where there are "numerous witnesses, pieces of evidence, a n d issues placed before the jury," this court has declined to "say that the p r o s e c u t o r 's statements overshadowed what had come before and unduly p r e ju d ic e d the Appellants' case." Gallardo-Trapero, 185 F.3d at 320-321. Where the government's evidence of the defendant's guilt is strong, a p r o s e c u t o r 's improper remarks regarding witness credibility do not amount to a substantial violation of the defendant's right to a fair trial. See United S ta te s v. Fields, 483 F.3d 313, 360 (5th Cir. 2007).

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No. 09-40967 I n this case, even without the contested issue of Pittman's confession, t h e r e was substantial and compelling evidence of Pittman's guilt. First, there w a s no dispute that Pittman transported the five illegal immigrants in his t r u c k . Next, the Border Patrol agents seized $4,103 in cash from Pittman's p o c k e t , and the smuggling of the five aliens would have earned him $3,500, t h u s he had an unusually large amount of cash that corresponded with a sum h e would have earned by smuggling the aliens. Pittman admitted that he put a seal on a trailer that did not contain any merchandise from Academy, which v io la t e d Academy's policy that only Academy employees put seals on trailers a n d only if the trailers contain merchandise. Additionally, statements in P it tm a n 's own testimony were inconsistent with his not knowing there were p e o p le in his trailer. Pittman testified that he "spot checked the trailer" and d id not notice anyone inside, explaining, he "didn't get inside the trailer with a flashlight on, because it was getting dark," yet he had obviously c o n t e m p la t e d the possibility that the smuggler would put the aliens in the t r a ile r without his permission as he testified that he put the seal on the t r a ile r so that he would be able to "see if somebody tamper[ed] with that t r u c k " and "know, you know, hey, somebody's in the truck." R. at 295. Moreover, though it was night, Pittman testified that a portion of the trailer w a s lit because the nearby loading dock had lights. After the smuggler asked P it tm a n to transport the aliens, Pittman purportedly went shopping for bike p a r ts for his daughter, though he had already been waiting at the Academy s t o r e for nearly two hours. Additionally, the smuggler's behavior of putting t h e aliens into the trailer without Pittman's knowledge would have been ir r a t io n a l as the smuggler would likely have no way of getting paid (one alien t e s t ifie d he had not paid the smuggler for his services at all and the other had m a d e only partial payment) as he did not know where Pittman was headed w it h the trailer. More problematically, the trailer did not open from the 8

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No. 09-40967 in s id e , and thus the aliens would have no way of getting out of the trailer o n c e the trailer arrived at Pittman's final destination. In light of this evidence, this case does not present a situation like that in Gracia where, "absent the jury's crediting of the agents' testimony, [the d e fe n d a n t -a p p e lla n t ] could not have been found guilty beyond a reasonable d o u b t on the paucity of other evidence." Gracia, 522 F.3d at 604 (explaining t h a t other than the improperly bolstered testimony from government agents t h e r e was no significant evidence against the defendant). Here, as in United S ta te s v. Ramirez-Velasquez, substantial evidence of guilt in the form of in c o n s is t e n c ie s in the defendant's testimony and circumstantial evidence w a r r a n t affirming the conviction. 322 F.3d at 875. For the aforementioned reasons, the judgment of the district court is A F F IR M E D .

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