Prosecutor's Misleading Rebuttal Argument at Trial Not Plain Error

United States v. Vargas, No. 08-40704 (5th Cir. Aug. 21, 2009) (Higginbotham, Smith, Southwick)

If a prosecutor successfully moves in limine to exclude from evidence an exculpatory statement that the defendant made at the time of his arrest, may she nevertheless strongly imply in the rebuttal portion of her closing argument that the defendant did not try to exculpate himself when he was arrested? No. Is it obviously wrong for her to do so? Surprisingly, no. At least not in this case.

The scenario is familiar: tractor-trailer pulls up to an interior Border Patrol checkpoint, agents find a boat-load of marijuana concealed among legitimate cargo, issue at trial is whether the driver (Vargas) knew of the marijuana. Of course, there was circumstantial evidence that Vargas knew he was running a load. But there was also this: when Vargas was arrested at the checkpoint, "[h]e waived Miranda and, in response to questioning, stated that he had been working for P&M Trucking for seven months and that he had 'just hooked up the trailer and left.' He also said 'I didn’t know there was any drugs inside the trailer.'"

Prior to trial, the court granted the Government's motion to keep out Vargas's statement, unless he testified. Vargas did not testify. In closing argument, his lawyer naturally argued that the owner of the trucking company (Garza) used Vargas as an unwitting dupe to haul the marijuana. In rebuttal, the prosecutor argued:

And what he chose to tell the Border Patrol, being charged with possession of marijuana, over a million dollars, a million dollars there at the checkpoint, it gets more valuable as it goes north, all he chose to say to them when he was asked some questions is saying, “I work for P&M, I’ve been there for seven or eight months, I picked it up and I was just going to drop it off.”

* * *

It seems like he wants you to believe just that, that he did pick it up at P&M. Because he didn’t say anything differently to the Border Patrol at that time, didn’t say he went to Enrique’s [Garza], “I got it from him.” He never said that.

* * *

Everything he did on the night of his arrest says to you the defendant knew, because you never heard, “Enrique Garza did it, let me tell you about him.” Wouldn’t that be reasonable? Wouldn’t that be the reasonable thing to say at that time?

The defense did not object. The jury found Vargas guilty.

Vargas pressed a prosecutorial misconduct claim on appeal, which of course was subject to plain error review.

On the threshold question—was there error?—the court rejected the Government's argument that it was simply responding to a defense theory Vargas brought up for the first time in his closing argument. "[A] prosecutor may not argue the absence of evidence she well knew existed." Here,

[t]he prosecutor lingered on the point, making specific statements that could be read as implying Vargas made no exculpatory statements, when, in fact, he had. . . . In a case where the single contested issue was Vargas’ knowledge, and in which the prosecutor used a motion in limine to have Vargas’ exculpatory statement excluded from evidence, the high ground would have been to steer clear of arguments that infer no such statement was made—especially when that argument was made only after the defense had had its last opportunity to exercise the right to introduce the statement should it become relevant. At best, if not ill-advised effort, it was a hazardous undertaking.

Nonetheless, the court surprisingly concluded that the error was not clear or obvious:

There are two possible readings of the prosecution’s closing. Alone, the argument suggested no exculpatory statement was made, when the government knew it had. But in context of the argument, it answered the defense’s theory of the case first raised in its closing. In light of these two possible readings, the remarks do not rise to the level of obvious error, evidenced in part by the absence of an objection by defense counsel whose competence is evident in this record.

I disagree. As the court stated earlier in the opinion, "a prosecutor may not argue the absence of evidence she well knew existed." Just because the prosecutor does so in the course of an otherwise permissible rebuttal doesn't make the error any less clear. It was perfectly permissible for the prosecutor to address the evidentiary support, or lack thereof, for the defense's theory of the case; it was not permissible for her to mislead the jury by implying that Vargas never exculpated himself when she not only knew full well that he did, but actively sought to keep that statement from the jury in the first place. (It is also troubling that the court cited "the absence of an objection by defense counsel whose competence is evident in this record" as support for its conclusion.)

Even though Vargas was poured out for failing to satisfy the second plain error prong, the court nevertheless went on to address the third, which was whether the prosecutor's improper remarks affected Vargas's substantial rights, "here the fundamental fairness of the trial." And the court held that they did not, because "[t]he statements were limited to a few moments of the trial, albeit in closing argument, and the jury had ample evidence on which to convict Vargas." "Perhaps the remarks made the trial imperfect," the court said, "but it was fair."

This, too, is a questionable holding. Regardless of the weight of the evidence against the defendant, it's hard to see how a trial can be fair when the prosecutor successfully keeps exculpatory evidence away from the jury, and then implies—when the defense no longer has any opportunity to respond—that it doesn't exist.