Reversal Warranted Only if Prosecutor’s Misconduct Cast Serious Doubt on Jury’s Verdict, Prejudicially Affect Substantial Rights of the Defendant
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
In our prior post, we discussed a Texas case which reflects why there is little, if any, systemic or meaningful judicial oversight of prosecutorial misconduct. The case of Maria Aide Delgado offers a glimpse at how the Federal appellate system—at least in the Fifth Circuit—deals with prosecutorial misconduct. This case offers little encouragement that Federal appellate courts will ever have the legal and ethical fortitude to address the cancer of prosecutorial misconduct head-on. Either excusing or ignoring the misconduct seems to be the prevailing judicial view.
On September 11, 2006, Delgado gave Federal customs officers consent to search her residence located near Weslaco, Texas. The agents found 230 kilograms of marijuana inside a locked tractor-trailer parked at the residence. Delgado was subsequently indicted and convicted of (1) possession of marijuana with intent to distribute and (2) conspiracy to possess/distribute the marijuana. She was sentenced to 100 months on each count.
Delgado was the sole owner-operator of TJ Trucking. She frequently hired drivers to transport Mexican produce from Laredo, Texas throughout the United States. She ran the business by phone from a home office. She did not drive the trucks nor accompany drivers on their long hauls.
One of the drivers Delgado frequently contracted with was a Mexican legal resident named Bartolome Vasquez who was regularly employed by a Laredo produce broker and shipper. This produce broker often arranged shipments of Mexican produce through TJ Trucking. These arrangements brought Vasquez into frequent contact with Delgado, either my phone or in person.
And this is where the Federal case against Delgado originated. Vasquez testified at Delgado’s trial that he had always considered her “a legitimate trucking business operator” until September 8, 2006 when Delgado out of the clear blue offered him $10,000 to transport bundles of marijuana with a shipment of Mexican broccoli to North Carolina. Vasquez reportedly refused to accept the offer and instead reported it to the Immigration and Customs Enforcement (ICE). The truck driver testified he knew he might receive a “reward” for the information because he had done snitching business on two prior occasions in which received remuneration from ICE for information. In the Delgado case, Vasquez was given a $7,500 “reward” from ICE for the information about her alleged drug smuggling proposal.
With the reward money in hand, Vasquez returned to Delgado and agreed to do the “shipment” for her. He began secretly recording his telephone conversations with Delgado about how the drug shipment would be done. All these conversations were in Spanish and seem to reflect general discussions about regular produce shipments—nothing about illegal drugs. Vasquez explained away the innocent nature of the conversations by saying he and Delgado were speaking in “code” to disguise the proposed marijuana shipment. Of course, as is often the case with paid informants, he was the only one who knew the “code.” That was good enough for the ICE investigators who on September 11, 2006 concocted a plan with their snitch to get Delgado to send her marijuana-laden truck to an ICE-controlled warehouse in Laredo where the officers planned to make arrests and seize the drugs.
However, according to Vasquez, Delgado called the informant on September 11 and cancelled the shipment, reportedly telling him that the individual who was supposed to receive the marijuana in North Carolina had been arrested. Neither the ICE investigators nor Government prosecutors ever learned who the mysterious North Carolina buyer was; and, in fact, never learned how Delgado came into possession of the marijuana. Wanting to protect his reward dough, Vasquez informed ICE about Delgado’s change in plans, telling investigators the marijuana was in the tractor-trailer parked at her residence. No evidence was ever revealed how Vasquez knew the marijuana was in the semi-trailer.
This was the situation a three-judge panel of the Fifth Circuit Court of Appeals confronted when they heard Delgado’s appeal. On January 19, 2011, two of those judges found that Vasquez’s version of the events highly suspect—so much so that they voted to reverse Delgado’s conviction and remand the case for a new trial. The majority opinion stated:
“There are some discrepancies or oddities in the record that tend to detract from the reliability of Vasquez’s testimony. Although he was over 50 years old, had lived in the United States most of his life, and had taken three years of college-level English, he required the assistance of an interpreter in his testimony. Although the government’s opening statement described Delgado’s alleged promise to pay Vasquez $10,000 as being conditioned upon the marijuana-laced produce shipment clearing inspection and ‘get[ting] it past law enforcement,’ Vasquez’s testimony relates no such conditions. Further, Vasquez testified that Delgado said she planned to try to return the marijuana, but did not say how, where, or to whom; nor did he otherwise indicate that she would be successful in that attempt.
“On September 11, 2006, a dozen or so ICE officers from Laredo and McAllen converged on Delgado’s house near Weslaco at about 2 p.m. They could see the truck described by Vasquez parked inside the locked fence. Delgado initially did not respond to the officers for about 30 minutes; she then opened her door and, after being informed that the officers were checking out a marijuana tip, agreed to allow them into her property for a search. She voluntarily opened her closet and safe, where the officers found three handguns and a shotgun. They also seized her cell phone, computer, and business papers and records. But she claimed she did not have a key to the truck; she said that only the driver had the key and she did not have his phone number. An officer with a drug-sniffing dog arrived, and Delgado allowed the dog to traverse her property inside and out and around the semi-trailer rig. The dog did not alert on anything. Some of the officers terminated their search as fruitless at this point, but others persisted. After unsuccessfully trying to open the rig’s cab with keys from Delgado’s office, an officer obtained her permission to do anything he could, without breaking anything, to get in. He ultimately was able to unlock the cab door with a coat hanger and discovered 230 kilograms of marijuana hidden in the sleeper compartment. Another officer searched a large room inside the house where several large dogs were tied up; he was bitten once by one of the dogs. The officer found a number of aluminum wrappers inside a trash bag with what the officers believed was marijuana residue. Delgado told the officers that she thought it was potting soil that her house and garden worker, Peter (or Pedro), had brought in.
“A chemist’s test, introduced by stipulation, determined that the bundles found in the truck were marijuana. But no such test was introduced to scientifically identify the residue found in the wrappers in the house or link it to the bundles of marijuana found in the truck. Only a photo of the wrappers was introduced at trial. Although the officers immediately seized the marijuana bundles, the wrappers with residue, Delgado’s computer and cell phone, and her business and banking records and papers, they did not immediately seize the truck. Delgado was not arrested until October 19, 2006, nearly a month after the search and seizures. Although officers testified that they had located Peter — the house and garden worker — and one officer reported seeing Delgado’s ex-husband at her house on a later date, neither of these possible witnesses testified at trial. Evidently, the officers were unable to develop any evidence of illegal drug activity by Delgado from her cell phone, computer, and business, financial and banking records, because none was introduced at trial. The questions of whether other persons were involved with Delgado in the TJ Trucking business, whether other members of her family resided in her house, and the identity of the registered owner of the truck, were not explored or answered at trial. Further, the officers did not attempt to develop fingerprint evidence from the wrappers with residue, the bundles of marijuana, or the sleeper cab of the truck, to link them to Delgado or anyone else. The government introduced no evidence identifying the supplier of the marijuana or the prospective recipient in North Carolina. The evidence provided no indication of the nature or extent of Delgado’s relationship, if any, with the supplier or the prospective recipient of the marijuana.
“Albert Aguilar, who lived in Weslaco near Delgado’s house, worked as TJ Trucking’s driver for some ten months before the ICE officers seized the rig when he drove it to Laredo on September 13, 2006. He testified that he was the only driver operating the truck during that period. He denied having any knowledge of contraband or drug activity involving the truck. He testified that he drove loads of produce for Delgado and TJ Trucking almost weekly from Laredo to points throughout the United States. He said that he was paid about $1,200 to $1,400 per week or trip, and that between trips he always parked the truck at Delgado’s house, locked the cab, and left the key with Delgado. He said he knew of only one key to the truck.
“Regarding the week before the officers’ discovery of marijuana in the truck on September 11, 2006, Aguilar testified he picked up a load of pork in Omaha, Nebraska and headed back to Texas. On September 7, 2006, he arrived in Weslaco, parked the truck at Delgado’s house, locked the cab and left the key with Delgado, and went home. On September 8, 2006, he said, he picked up the truck at her house and drove the load of pork to Hidalgo, Texas, where the pork was unloaded. Then he recounted that he went to Edinburg, Texas to drop off the bill of lading at the broker’s office. From there he took the truck to a shop for mechanical work in Donna, Texas, where he left it and the keys. He testified that at that time there was no marijuana in the vehicle. On September 13, 2006, Delgado called him at his home, told him about the officers’ search of the truck on September 11, 2006 — but assured him the truck was now ‘clean’ — and asked him to pick up a new load in Laredo. Delgado met him with the truck at a tire shop where they put air into the tires. After that, on September 13, 2006, he drove the truck to Laredo, where it was seized by the ICE officers. Because the truck was left at the mechanic’s shop in Donna, Texas on September 8, 2006, and there was no evidence tracing its movements or its contents between that date and September 11, 2006, the mechanic shop personnel and perhaps others had access to the rig and could have cached the marijuana inside during the three days before the agents’ search of it on September 11. The government did not introduce any evidence as to the number or identity of the other persons who had access to the truck during that interval. As to Aguilar himself, the government did not introduce any evidence to corroborate his testimony, such as witnesses to verify his whereabouts and activities prior to the drug search and seizure or to confirm that his cell phone, banking, and financial records showed no signs of involvement in illicit drug activity.”
That was the Government’s case against Delgado, and it was enough for Government prosecutors to convince a jury to accept their “conspiracy” theory that Delgado was a member in a “large-scale illegal drug operation.” It is indeed a Federal offense when two or more people conspire to commit a crime against the United States, even if the objectives of the crime are not achieved. The Government’s entire “conspiracy” case rested the testimony of a paid informant who said there was an “agreement” between him and Delgado to possess and distribute the marijuana to North Carolina. That flimsy evidence is hardly enough to conclude beyond a reasonable doubt that the paid snitch was a bona fide co-conspirator with Delgado, much less that she was the member of a “large-scale illegal drug operation.” The Government’s only evidence of the alleged conspiracy was Vasquez who, in repeated taped telephone conversations, could not get Delgado to say anything that remotely indicated she was involved in a drug-smuggling operation.
Federal law defines a “conspiracy” as a criminal partnership, and in order to prove a specific drug conspiracy, the Government must prove beyond a reasonable doubt the following two elements: 1) That two or more people agreed to distribute and possessed with an intent to distribute drugs; and 2) That the charged defendant joined an agreement or conspiracy with the knowledge that its objective was to distribute and to possess with intent to distribute the drugs. Thus the two prerequisites of a conspiracy are “agreement” and “knowledge.”
So how did the Government prosecutors prove these two essential prerequisites against Delgado? As is too often the case in large scale drug prosecutions in which the Government cannot make its case through honorable prosecutorial conduct (surveillance videos, incriminating recordings, official undercover agents, documents, etc.), prosecutors will resort to the old “convict at any costs” prosecutorial misconduct tactic. And that is exactly what Government prosecutors did in Delgado’s case: it pulled an ace from under the table to secure a winning “full house” hand. That was the conclusion of Fifth Circuit Judges James L. Dixon and Jacques Loeb Wiener, Jr. in Delgado’s case: that the Government prosecutors engaged in calculated misconduct with highly improper and prejudicial comments in their closing argument and by personally vouching for the credibility of the ICE paid informant.
Judge Dixon, who wrote the opinion, summed up the Government’s case as follows: marijuana was found concealed in a tractor-trailer owned by Delgado’s company, the semi-trailer rig was parked on her property, and a paid informant said she planned to ship the marijuana to North Carolina. Against this factual backdrop, Government prosecutors knew their case was legally tenuous at best so they decided to improperly express their personal opinions s about Delgado’s involvement in the conspiracy in order to create the impression that they had “outside knowledge” the marijuana found in the semi-tractor trailer belonged to Delgado and her non-involvement defense lacked “credibility.”
The problem with this prosecutorial tactic is that Delgado did not testify at trial, and, in fact, her defense counsel did not call a single defense witness. The defense had never made Delgado’s “credibility” an issue at the trial; its defense rested exclusively on the premise that Government prosecutors had not proven their case beyond a reasonable doubt. This defense was stressed in defense counsel’s closing argument when he told jurors that Delgado had fully cooperated with the ICE officers when they arrived at her residence to conduct their search; that she had nothing to hide; and that Vasquez lacked credibility because he was a paid informant. That was the heart and soul of her defense.
In rebuttal, Government prosecutors abandoned the normal rules of professional conduct by pursuing a “convict at any costs” strategy. One prosecutor told jurors that Vasquez was indeed credible because he was not a “permanent snitch” and that Delgado had lied to investigating officers even though she had not testified at trial that she had been truthful with the officers. The prosecutor argued: “Talk about motive to lie, ladies and gentlemen. Who has the motive to lie here? The driver? No. He’s working all around. Mr. Vasquez. No. He’s in Laredo. He’s not a permanent snitch. He’s not one of those individuals that makes his living off providing information. He’s provided it twice in the past. The agents? You’re going to blame the agents for all this? Whose [sic] got the motive to lie here? It’s the defendant, and she’s done so. She did so to these agents.”
Defense counsel immediately objected but did not request a curative instruction, and the court on its own did not give one to the jury. Both should have been done.
Longstanding case law has held that a prosecutor cannot express to the jury his personal opinion about the credibility of either witnesses or the defendant. Closing argument by a Government prosecutor should be used only “to assist the jury in analyzing, evaluating and applying the evidence.” When a Government prosecutor expresses a personal opinion to the jury about a witness or defendant, he effectively increases the “probative value” of their credibility or lack thereof because it implies a “presumably superior knowledge of the facts and background of the case.” Most prosecutors are particularly aware of and honor the rule that it is “improper and highly inappropriate” to interject his/her personal opinion about a defendant’s “veracity.”
But, as Judge Dixon pointed out: “ … the prosecutor in [Delgado’s] case did [express his personal opinion]. The prosecutor expressly attacked Delgado’s credibility and opined that she had lied, stating that ‘she’s done so. She did so to these agents’ … [and] the prosecutor did not limit his argument to the evidence: he went one step further and told the jury that Delgado had lied, an expression of opinion regarding fact and credibility that is not properly the subject of an attorney’s closing argument. By effectively calling Delgado a liar and declaring she had lied to investigating governmental agents, the prosecutor threw the weight of his own credibility as a representative of the United States behind his personal opinion – giving his personal opinions ‘much weight … when they should properly carry none.’”
Some would say that defense counsel’s closing argument invited the Government prosecutor’s comments by telling jurors Delgado had fully cooperated with the authorities. Not so, said Judge Dixon: “Further exacerbating the improper argument’s prejudicial effect is that defense counsel’s closing argument neither provoked nor invited the prosecutor’s misconduct … Defense counsel did not improperly bolster his client’s credibility – he argued only that the evidence that she had consented to the search of the property and the tractor-trailer supported the inference that she had no knowledge of the drugs. Nor did defense counsel question the credibility of the governmental agents. Rather, he argued only that they conducted a less-than-thorough investigation. As to Vasquez and Aguilar, defense counsel noted that their testimony left a number of questions unanswered, and questioned whether they had actually played some larger role in the offense. He never argued that they had affirmatively lied in their testimony or in their out-of-court conduct. Thus, viewed in the context in which he made the statements, the prosecutor intended his argument to serve as a highly prejudicial injection of his personal opinion, and not merely as a response to defense counsel’s arguments.”
More damning and more to the heart of the prosecutorial misconduct issue is Judge Dixon’s conclusion that “while wrongfully attacking Delgado’s credibility, the prosecutor improperly bolstered the credibility of the Government’s key witness, Vasquez. The prosecutor, immediately before stating that Delgado had lied, also told the jury that Vasquez [was] ‘not a permanent snitch. He’s not one of those individuals that makes his living providing information.’ ‘When a prosecutor vouches for government witnesses, it provides the witnesses with the ‘imprimatur of the Government, and may induce the jury to trust the Government’s judgment rather than its own view of the evidence.'” Here, the prosecutor’s characterization of Vasquez as ‘not a permanent snitch’ carried the implication that he was giving the jury inside information about the nature of Vasquez’s relationship with the government. The prosecutor thus multiplied the prejudicial effect of his misconduct by contrasting and juxtaposing his improper bolstering of Vasquez’s credibility with his wrongful attack on Delgado’s credibility.”
The primary and most fundamental issue which cannot be escaped in the Delgado case, much less explained away with any rational explanation, is the fact that “knowledge” was an essential element Government prosecutors had to prove beyond a reasonable doubt in both the offenses Delgado had been charged with. Lacking any credible evidence with which to establish the prerequisite “knowledge,” Government prosecutors elected to use highly improper and prejudicial arguments to the jury to impute this “knowledge” to Delgado.
Judge Edith Jones Clement, however, did not agree with Judges Dixon and Wiener—and her dissent probably encouraged the Government to seek, and secure, en banc hearing before seventeen Fifth Circuit judges. On February 22, 2012, fourteen of those judges reversed the decision rendered by Judges Dixon and Wiener. At the outset the en banc panel stressed that there had been “more than sufficient evidence” to support Delgado’s conspiracy conviction. This position defies the simple fact that the only partnership, the only agreement to support a drug conspiracy came from the paid informant. The Government never identified either the source of the marijuana or the North Carolina purchaser.
As for the prosecutorial misconduct issue relative to improper jury arguments by Government prosecutors calling Delgado a liar, the en banc panel excused this away by saying the prosecutor’s charge that Delgado lied on one “particular occasion” was not tantamount to calling her a “liar.” Please don’t make us repeat that. That’s exactly what the en banc panel concluded: saying someone lied on one particular occasion is not the same as calling that person a “liar.” The en banc panel reasoned that the prosecutor’s lying accusation was just “an inference drawn from specific evidence, not an attack on Delgado’s character.”
Then the en banc panel added this justification for its bizarre “liar” conclusion: “Contrary to Delgado’s suggestion, the contested statement included no indication that the prosecutor was trying to sway the jury by stating his personal opinion, and it certainly did not imply that he was relying on information that was not admitted into evidence. While the prosecutor should have chosen his words more carefully, his argument differs from improper argument in that its meaning and effect would have been no different had he simply added the words ‘As I’ve explained, the evidence shows’ before stating that Delgado had lied … Moreover, even if the comment was inappropriate, it certainly does not merit reversal of Delgado’s convictions.”
Okay. If Delgado’s prosecutors did engage in misconduct, then when is it appropriate to reverse a conviction for prosecutorial misconduct? The en banc panel answered that question this way: “ Overturning a jury verdict for prosecutorial misconduct is appropriate only when, ‘taken as a whole in the context of the entire case,’ the prosecutor’s comments ‘prejudicially affect[ed the] substantial rights of the defendant.’ In determining whether the defendant’s substantial rights were affected, we consider three factors: ‘(1) the magnitude of the prejudicial effect of the prosecutor’s remarks, (2) the efficacy of any cautionary instruction by the judge, and (3) the strength of the evidence supporting the conviction.’ ‘If the evidence to support a conviction is strong, then it is unlikely that the defendant was prejudiced by improper arguments of the prosecutor and reversal is not required.’”
Put simply, prosecutorial misconduct is excused when there is overwhelming evidence of guilt because “a criminal conviction is not to be lightly overturned on the basis of a prosecutor’s comments standing alone.” Citing its longstanding rule, the en banc panel added that “’for prosecutorial misconduct to warrant a new trial, it must be so pronounced and persistent that it permeates the entire atmosphere of the trial.’”
As we have pointed out before, some courts have in effect held that there is misdemeanor prosecutorial misconduct and felony prosecutorial misconduct—and misdemeanor conduct will never result in a reversal of conviction under any circumstances. The en banc panel applied this reasoning to the prosecutorial misconduct utilized to convict Delgado and earn her a 100-month sentence in a Federal penal facility:
“Specifically as to the knowledge element of the charged offenses, the government presented overwhelming evidence: Vasquez’s testimony, which we must credit, provided extensive direct evidence of Delgado’s knowledge that was corroborated by virtually every type of circumstantial evidence, including the uncontradicted evidence that the truck was under Delgado’s exclusive control when it was loaded with more than 500 pounds of marijuana.”
In other words, the 500 pounds of weed found in a truck parked near Delgado’s residence and Vasquez’s ICE-purchased testimony, is “overwhelming evidence” that Delgado was a member of a “large-scale illegal drug operation.”
We believe the en banc panel decision in the Delgado case is just a renewal of the long held license for Government prosecutors to engage in pretty much any kind of highly prejudicial and inflammatory closing arguments they deem “appropriate” and necessary to secure convictions. Worse yet, we feel it delivers a warning to lower court Federal judges that the conservative appeals court will not tolerate these trying to tackle and prevent prosecutorial misconduct. It is terribly disturbing to think that this horrific decision, and a 110-month term in prison, rests at the doorstep of a paid snitch. The continued used of paid informants, especially along the borderlands with Mexico, tucks the government further in bed with the official corruption which is epidemic in American cities caught in the crosshairs of the war on drugs.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization