Jerome Bass v. United State

Filing

OPINION FILED - THE COURT: DIANA E. MURPHY, STEVEN M. COLLOTON and RALPH R. ERICKSON. Ralph E. Erickson, Authoring Judge (PUBLISHED) [3827052] [10-1931]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 10-1931
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Jerome Jay Bass,
Appellee,
v.
United States of America,
Appellant.

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*
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* Appeal from the United States
* District Court for the
* District of Nebraska.
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Submitted: May 12, 2011
Filed: September 9, 2011
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Before MURPHY and COLLOTON, Circuit Judges, and ERICKSON,1 District
Judge.
ERICKSON, District Judge.
After a jury convicted Jerome Jay Bass of conspiring to distribute 50 grams or
more of cocaine base, the district court granted Bass’s motion for a new trial. The
government appealed and this court reversed, holding there was no adequate basis for
the order granting a new trial. United States v. Bass, 478 F.3d 948, 952 (8th Cir.
2007). On remand, Bass was sentenced to the 10-year statutory minimum and
1

The Honorable Ralph R. Erickson, Chief Judge, United States District
Court for the District of North Dakota, sitting by designation.

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appealed the sufficiency of the evidence. We rejected that argument in a oneparagraph unpublished opinion. United States v. Bass, 270 Fed. Appx. 467 (8th Cir.
2008). This appeal concerns Bass’s subsequent motion for post-conviction relief
under 28 U.S.C. § 2255 for ineffective assistance of trial counsel.
The district court granted postconviction relief. The court concluded trial
counsel provided ineffective assistance by failing (1) to move in limine to preclude
Karlos Harper from testifying; (2) to object to the testimony of Terrell Jackson about
Jimmy Swain; and (3) to object to improper vouching by the government during
closing argument. The government appeals this determination and we reverse.
“When addressing post-conviction ineffective assistance claims brought under
§ 2255, we review the ineffective assistance issue de novo and the underlying findings
of fact for clear error.” United States v. Regenos, 405 F.3d 691, 692-93 (8th Cir.
2005). We evaluate claims of ineffective assistance of counsel under the familiar
standard established in Strickland v. Washington, 466 U.S. 668 (1984). Under
Strickland, a § 2255 movant must establish (1) that counsel’s representation was
deficient and (2) that he suffered prejudice as a result. Theus v. United States, 611
F.3d 441, 446 (8th Cir. 2010). “Deficient performance is that which falls below the
range of competence demanded of attorneys in criminal cases.” Id. (quotation
omitted). Prejudice requires the movant to establish “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Strickland, 466 U.S. at 694.
A. Motion in Limine and Testimony Regarding Jimmy Swain
The government contends that trial counsel could not have been deficient for
failing to move in limine to preclude Karlos Harper from testifying. The government
asserts that a district court has no authority to preclude a witness from testifying
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because of her history of untruthfulness in prior proceedings before the court. We
need not decide this question – though we note appellate courts have held that a
witness’s prior perjury does not preclude that witness from testifying. See United
States v. Oros, 578 F.3d 703, 710-11 (7th Cir. 2009) (stating a witness’s testimony is
not “per se incredible simply because he once committed perjury”); United States v.
Zizzo, 120 F.3d 1338, 1347 (7th Cir. 1997) ("even the most dastardly scoundrels,
cheats, and liars are generally competent to testify"); United States v. Margolis, 138
F.2d 1002, 1004 (3d Cir. 1943) (holding perjury does not preclude a witness from
testifying but is rather a credibility issue for the jury). In the government's first
appeal, this court concluded that “aside from Mr. Harper’s contested testimony,” there
was “overwhelming evidence” of Bass’s participation in a conspiracy to distribute
crack cocaine. Bass, 478 F.3d at 952. Accordingly here, had trial counsel
successfully moved in limine, there is not a reasonable probability that the result of
the trial would have been different. Bass simply did not suffer prejudice from the lack
of a motion in limine to prevent Karlos Harper from testifying.
Likewise, Bass did not suffer prejudice from counsel’s failure to object to the
testimony regarding Jimmy Swain. That testimony was, at best, a minor part of a
week-long trial and any prejudice cannot overcome the fact that "[s]ix witnesses
testified to participating in crack cocaine transactions with Mr. Bass or observing Mr.
Bass's crack-related activities." Id.
B. Improper vouching
The government next challenges the district court’s holding that the prosecutor
improperly vouched for her witnesses during closing argument. The district court
concluded the following remarks by the prosecutor constituted improper vouching:
Most of them [the government's witnesses] have testified
before this trial, but not all. And they know what the truth
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is, and they understand it’s important, and they came before
you and told you the truth about Jerome Bass. Sergeant
Langam explained it best when he testified about his
personal barometer, how he gauges the truthfulness in
proffer interviews. He corroborates the interviews against
each other . . . .
On appeal, the government argues the comments were permissible references to the
witnesses’ plea agreements and a response to defense counsel’s challenge to the
witnesses’ credibility. We agree.
“Improper vouching may occur when the government expresses a personal
opinion about credibility, implies a guarantee of truthfulness, or implies it knows
something the jury does not.” United States v. Roundtree, 534 F.3d 876, 880 (8th Cir.
2008). Although attempts to bolster a witness by vouching for his credibility are
normally improper, United States v. McClellon, 578 F.3d 846, 859 (8th Cir. 2009), the
government may explain why the jury might find the government’s witnesses credible.
United States v. Bentley, 561 F.3d 803, 813 (8th Cir. 2009). For example, in
Roundtree, it was not improper vouching for the government to discuss its witnesses'
credibility, including their motivations for testifying and the safeguards to ensure the
witnesses did not lie to obtain reduced sentences. 534 F.3d at 881. In United States
v. Littrell, 439 F.3d 875, 882 (8th Cir. 2006), the prosecutor stated that an investigator
was “meticulous” and “telling the truth as he knew it,” and that the jury could take
another witness’s testimony “to the bank.” Id. at 880. Although these statements may
have appeared improper, id. at 882, this court reiterated that prosecutors may argue
the credibility of witnesses and upon reviewing the statements in context, held they
did not constitute the prosecutor putting his personal reputation behind the testimony
of his witnesses. Id. at 882. Similarly, in United States v. Jackson, 915 F.2d 359,
360-61 (8th Cir. 1990), comments that a witness was telling the truth were not
improper vouching because the comments derived from a comparison of the evidence

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before the jury and did not put the prosecutor's own credibility before the jury. Nor
did the comments support an inference of outside knowledge. Id.
After careful review of the record of this case, we conclude the contested
remarks do not constitute improper vouching. The remarks occurred after the
prosecutor discussed the testimony of her witnesses as well as the sentence reductions
the witnesses received for testifying. The prosecutor did not ask the jury to rely on
her in making its decision, but rather to compare the testimony of the witnesses in
deciding whom to believe. The context of the remarks establishes that the prosecutor
was arguing the credibility of her witnesses, not vouching for their credibility.
Accordingly, Bass's trial counsel could not have been deficient for failing to
object during closing argument. Moreover, even if the remarks were improper, Bass
cannot establish prejudice under Strickland. See Snell v. Lockhart, 14 F.3d 1289,
1300-01 (8th Cir. 1994) ("Perhaps if the evidence had been close, prejudicial closing
remarks could have swayed the jury one way or the other. But the evidence here
overwhelmingly supported the jury's decision . . . .").
The judgment of the district court is reversed.
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