149 F. 3d 1298 - United States v. Wilson

Defendant appeals his conviction claiming that prosecutorial misconduct warrants a new trial. While some of the prosecutor's conduct at trial was improper, we nonetheless conclude that a new trial is not justified. We affirm.

In 1995, the Drug Enforcement Agency (DEA) and local law enforcement agencies conducted "Operation Cookie"--a multi-agency task force established to investigate large-scale drug activity. As part of the investigation, Deputy Leon Paige and a confidential informant negotiated a drug deal with Defendant Kevin Wilson. Defendant was supposed to sell 125 grams--or 4.5 ounces--of crack cocaine to Paige. But, on the day of the transaction, Defendant had only one-half ounce of crack cocaine to sell. Nonetheless, Paige purchased the amount of crack cocaine Defendant had at that time.1 Paige tape-recorded the transaction. Photographic surveillance of the transaction also occurred.

Despite this sale of cocaine, Defendant was not immediately arrested.2 Defendant, however, was later arrested for the one-half ounce transaction and indicted on one count of distributing cocaine base (crack cocaine) in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The case proceeded to trial. At the close of his case, Defendant moved for a mistrial for prosecutorial misconduct. The district court denied Defendant's motion. The jury convicted Defendant on the sole count charged. The district court sentenced Defendant to 236 months' imprisonment. Defendant appeals.

I Reversal of Conviction due to Instances of Prosecutorial Misconduct

Defendant argues that instances of prosecutorial misconduct necessitate a mistrial. He specifically contends that, because he was indicted for the single sale of only a small amount of crack cocaine, the prosecutor improperly characterized him as a "major" drug dealer during the course of the trial.3 See United States v. Blakey, 14 F.3d 1557, 1560-61 (11th Cir.1994) (prosecutor must refrain from conduct, such as improper characterization of defendant, that is calculated to produce wrongful conviction); United States v. Goodwin, 492 F.2d 1141, 1147 (5th Cir.1974); cf. United States v. Caballero, 712 F.2d 126, 132 (5th Cir.1983) ("The offense charged is a major transaction, and the government committed no error in characterizing it as such."). In addition, he asserts that the prosecutor made improper inquiries about his prior convictions.4 Defendant's argument, however, is unavailing. To find prosecutorial misconduct, a two-element test must be met: " '(1) the remarks must be improper, and (2) the remarks must prejudicially affect the substantial rights of the defendant.' " United States v. Gonzalez, 122 F.3d 1383, 1389 (11th Cir.1997) (quoting United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir.1991)); see also United States v. Thomas, 62 F.3d 1332, 1343 (11th Cir.1995). "A defendant's substantial rights are prejudicially affected when a reasonable probability arises that, but for the remarks, the outcome [of the trial] would be different." United States v. Hall, 47 F.3d 1091, 1098 (11th Cir.1995) (citing Kennedy v. Dugger, 933 F.2d 905, 914 (11th Cir.1991)). The court makes this determination in the " 'context of the entire trial and in light of any curative instruction.' " United States v. Chirinos, 112 F.3d 1089, 1098 (11th Cir.1997) (quoting United States v. Beasley, 72 F.3d 1518, 1525 (11th Cir.1996)); Thomas, 62 F.3d at 1343 (curative instruction may render prejudicial remark harmless).

In this case, some of the pertinent remarks of the prosecutor were improper.5 And, at least about some of the remarks, the government's counsel conceded as much in the briefs and at oral argument.6 The sole issue, then, is whether the remarks substantially affected Defendant's rights. We conclude that Defendant has shown no substantial prejudice.

The record reveals that the district court made an effort to cure any prejudice that may have resulted from the prosecutor's remarks. In at least one instance, the district court sustained an objection by Defendant and issued immediately a curative instruction to the jury to disregard the improper remark. See Gonzalez, 122 F.3d at 1389 (no substantial prejudice because the district court sustained objections and issued a curative instruction). In addition, the district court gave several instructions to the jury throughout the trial about how evidence or statements made by the lawyers should be used and considered.7 See United States v. Bailey, 123 F.3d 1381, 1402 (11th Cir.1997). The jury is presumed to have followed these instructions. See United States v. Calderon, 127 F.3d 1314, 1334 (11th Cir.1997).

Most important, evidence of Defendant's guilt is overwhelming. See generally United States v. McLean, 138 F.3d 1398, 1403 (11th Cir.1998) (Despite prosecutorial misconduct, "[defendant] cannot show prejudice in the face of the overwhelming evidence of his guilt."); United States v. Gonzalez, 833 F.2d 1464, 1466 (11th Cir.1987) (no substantial prejudice where evidence of guilt was overwhelming); United States v. Modica, 663 F.2d 1173, 1182 (2nd Cir.1981) (same); cf. Blakey, 14 F.3d at 1561 (substantial prejudice shown where evidence "was not overwhelming"). The government presented this evidence: (1) Deputy Paige's direct testimony about purchasing the cocaine from Defendant; (2) evidence of the crack cocaine; (3) a tape recording of Paige, the confidential informant, and Defendant during the drug transaction;8 and (4) Defendant's own testimony, which seems to corroborate the evidence to some extent.9

We conclude that the prosecutor's remarks, although improper, did not affect Defendant's substantial rights and did not deprive him of a fair trial. The district court committed no error by denying the motion for mistrial; and no new trial is warranted. See United States v. Melton, 739 F.2d 576, 579 (11th Cir.1984); see also United States v. Dodd, 111 F.3d 867, 870 (11th Cir.1997).

II Alternative Sanctions for Instances of Prosecutorial Misconduct

We thus find ourselves in a situation with which we are all too familiar: a prosecutor has engaged in misconduct at trial, but no reversible error has been shown. See United States v. Boyd, 131 F.3d 951, 955 (11th Cir.1997); see United States v. Eason, 920 F.2d 731, 736 (11th Cir.1990) (citing cases in which the court has affirmed convictions despite prosecutorial misconduct); United States v. Butera, 677 F.2d 1376, 1383 (11th Cir.1982); see also Modica, 663 F.2d at 1182.

We recall the duties in a criminal prosecution of a lawyer for the United States:

"A United States district attorney carries a double burden. He owes an obligation to the government, just as any attorney owes an obligation to his client, to conduct his case zealously. But he must remember also that he is the representative of a government dedicated to fairness and equal justice to all and, in this respect, he owes a heavy obligation to the accused. Such representation imposes an overriding obligation of fairness so important that Anglo-American criminal law rests on the foundation: better the guilty escape than the innocent suffer."

Dunn v. United States, 307 F.2d 883, 885 (5th Cir.1962) (quoting Handford v. United States, 249 F.2d 295, 296 (5th Cir.1957)); see Goodwin, 492 F.2d at 1147 ("[Prosecutor] is at liberty to strike hard blows, but not foul ones.").

And, as this court said in Hall, "government counsel is, as an individual, properly and highly respected by the members of the jury for his integrity, fairness, and impartiality." 419 F.2d at 588 (internal quotations and citation omitted).

"It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none."

Added to this is the unseen presence in the courtroom of our great and powerful government with its counsel and its voice in the person of the United States Attorney. For all these reasons his power to persuade is great. And for these reasons he must speak with the care, the decorum and the sensitivity that befit his position and his duties. Neither the heat and strain of trial nor the right to strike hard blows authorizes him to do otherwise.

Id. (quoting Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1934)). Not only must a prosecutor be faithful to his duties each time he enters a courtroom, he must also be mindful of the authority he wields when executing those duties before a jury.

One may think that unless a conviction is reversed, no error has occurred. Such a proposition is incorrect. "That we find an error not to be reversible does not transmute that error into a virtue. The error is still an error. [And, u]rging the error upon the trial court still violates the United States Attorney's obligation to the court and to the public." Eason, 920 F.2d at 737; see Boyd, 131 F.3d at 955 ("The fact that we do not reverse the convictions in these cases does not mean that we condone [improper] remarks of this kind."). But the reversal on appeal of a conviction is usually an inappropriate method by which to deter or to correct prosecutorial misconduct. See Modica, 663 F.2d at 1183-84; see generally United States v. Isgro, 974 F.2d 1091, 1099 (9th Cir.1992) (dismissing indictment due to misconduct would provide an unwarranted "windfall" to the defendants).

On the matter of professional misconduct of prosecutors, the realities require that we defer to our colleagues on the district courts to take the lead. District courts are in a better position to ensure that a prosecutor properly fulfills the duties and obligations of his office. Modica, 663 F.2d at 1184-85. The district judge is in a better position to view the pertinent conduct--for example, the tone and demeanor of the prosecutor. And the district judge will almost surely have more information--for example, discussions off the record--available to him when making decisions about dealing with such conduct. Also, as we have already mentioned, "[t]he district judge is in [the best] position to control the overall tenor of the trial. He can order the offending statements to cease and can instruct the jury in such a manner as to erase the taint of improper remarks that are made." Id.; see Thomas, 62 F.3d at 1343 (curative instruction may render prejudicial remark harmless). Furthermore, where a prosecutor's transgressions are excessive, " 'the trial judge has an obligation in the interests of fairness and justice to stop the prosecutor delivering a greatly prejudicial argument sua sponte.' " Garza, 608 F.2d at 666 n. 7 (quoting United States v. Corona, 551 F.2d 1386, 1391 n. 5 (5th Cir.1977)).

But, aside from these corrective measures, district courts must also consider "more direct sanctions to deter prosecutorial misconduct." Butera, 677 F.2d at 1383 (citing Modica, 663 F.2d at 1182-86). The district courts have many potential remedies available: (1) contempt citations; (2) fines; (3) reprimands; (4) suspension from the court's bar; (5) removal or disqualification from office; and (6) recommendations to bar associations to take disciplinary action. See generally Bennett L. Gershman, Prosecutorial Misconduct Ch. 13 (1997). "We encourage the district courts in this circuit to remain vigilant ... and consider more [fully these sanctions] in cases of persistent or flagrant misconduct." Butera, 677 F.2d at 1383.

We do not say that the prosecutor's words in this case warranted more action than what was taken by the district court. We know that the trial of a criminal case is not a dainty affair. And, this case is by no means the worst we have seen from prosecutors. Also, we do recognize that most prosecutors in most trials act completely consistently with their professional obligations.

But, we want to make clear that improper remarks and conduct in the future, especially if persistent, ought to result in direct sanctions against an offending prosecutor individually. "We expect the able attorneys who supervise federal prosecutors throughout this Circuit to renew their efforts to maintain the high level of conduct that has traditionally characterized the office of the United States Attorney." Modica, 663 F.2d at 1186. And prosecutors must expect that this court will support district judges who take reasonable steps to correct prosecutorial conduct that is not right.

AFFIRMED.