Tuesday, February 15, 2011

Defense Suppression Victory; Court Upbraids Prosecutor for Improper Remarks During Closing Argument

United States v. Raney, No. 10-20007 (5th Cir. Feb. 9, 2011; rev. Feb. 10, 2011) (per curiam) (DeMoss, Elrod; Benavides, dissenting)

This case presents two you-dont-see-that-every-days: a rare Fourth Amendment win for the defense, and a stern warning to prosecutors to knock it off with the improper jury arguments.

So what happened here? Raney drove on the wrong side of the street to get around a long line of cars waiting to get into a gas station.  A police officer, who was standing in that lane directing traffic, motioned for Raney to pull over.  Raney did so.  Upon approaching, the officer could smell marijuana.  He ordered Raney out of the car.  A brown object resembling what the officer to believed to be a jazz cigarette fell on the ground.  Handcuffs and pat-down.  Gun in the waistband, ammo in the glovebox, and a felony conviction on the rap sheet = felon-in-possession charge.  The district court denied Raney's motion to suppress the gun and ammo, finding that the stop was justified due to a traffic violation: driving on the wrong side of the street.  A jury found him guilty of the FIP charge.  Raney appealed.

To make a long story short, the panel majority held that there was not an objectively reasonable basis for believing that Raney had committed the three traffic offenses the Government claimed in the district court (driving in the wrong lane, disobeying an officer directing traffic, and reckless driving), or any of the other claimed violations the Government offered for the first time on appeal.  In so holding, the court mentioned a couple of broader points that bear repeating.  First, "[o]ur case law is clear that unless a defendant actually committed a traffic violation, there is no objective basis for the stop in the context of a traffic stop."  Second, and relatedly, the good-faith exception is not available to salvage a stop based on an officer's subjective, but erroneous, belief that a traffic violation occurred.

As it happens, the district court did not make any findings on the Government's disobeying-an-officer and reckless-driving arguments.  But interestingly, the court of appeals refused to remand for additional fact-finding on whether Raney committed those offenses: because "the record has . . . been developed as to these arguments[, w]e will not afford the government a second opportunity to present evidence to the district court in an attempt to meet their burden of proof."  The court therefore vacated the order denying the motion to suppress, and rendered an acquittal.

Now for the schadenfreude . . .

Even though the court reversed the conviction, it went on address Raney's arguments concerning improper closing arguments by the prosecutor, "because the government has been cautioned repeatedly by this court against making such arguments, yet we continue to face them on appeal."  What were those arguments?  At trial, Raney's wife Jamine testified that she did not believe he could have concealed a gun in the waistband of the shorts he was wearing that day (grey cotton, with a missing drawstring).  In closing, the prosecutor argued to the jury that this testimony amounted to accusing the police officers of lying and planting evidence, and that the officers "had 'no reason to risk their careers' by lying."  That's no bueno:
This court has . . . “held it improper for a prosecutor to ask a jury the rhetorical question whether federal agents would risk their careers to commit perjury” thereby implying that because they are government officials they would not lie. Further, it is improper for a prosecutor to vouch for the credibility of a federal agent because this type of statement impermissibly invokes the “aegis of a governmental imprimatur.”
It is troubling to this court that the government made these types of improper remarks in the present matter because the primary inculpatory evidence was the testimony of the law enforcement witnesses whose credibility was bolstered by the prosecution. As emphasized numerous times by the prosecutor during closing argument, this case came down to the credibility of Jasmine Raney and the police officers. The prosecution told the jury: “Who are you going to believe; that’s what this case is about”, and later stated, “Who do you believe? Officers Walker and Watson or Jasmine Raney? That’s it . . . .” The prosecutor then proceeded to diminish Jasmine Raney’s credibility by telling the jury to “make no mistake . . . [she] is directly accusing Officers Walker and Watson of lying to you, of planting evidence.” Although Raney’s defense that he did not possess a weapon arguably supports such an inference, this argument was not proper when it directly attributed the accusation to the sole defense witness who did not actually offer such testimony. In fact, Jasmine Raney testified that she never saw a gun and based on the shorts Raney was wearing, she did not believe that a gun could have been hidden in the waistband. She further testified that she was not present at the time of the stop and thus could not say whether there was a gun on his person when he was searched. The government then proceeded to improperly bolster the credibility of the police officers by improperly telling the jury that they had “no reason to risk their careers” by lying. On rebuttal, the prosecutor again emphasized to the jury that this was “a case of credibility.” In Gracia, this court found comments similar to those made in the present matter reversible under the plain error standard of review. Raney does not face such a burden, which suggests that “less compelling facts” could warrant reversal in his case.
Despite our precedent clearly condemning such remarks, the government continues to disregard our admonishments. Indeed, the government conceded as much at oral argument by stating “cases in the Fifth Circuit ha[ve] admonished the government [not to] make such statements” and “we have been admonished and encouraged not to do that time after time.” Further frustrating the issue is the quandary defendants often find themselves in: if they object to improper remarks during the trial, they likely receive a curative instruction that frequently forms the basis for this court to affirm; if they do not object in order to avoid this result they have to overcome the very difficult hurdle of plain error review. These types of improper remarks substantially effect [sic] a defendant’s rights and the integrity of this court. As such, we write once more to do all that we can–state clearly and unequivocally that these types of remarks and arguments are improper and if the government continues to ignore our reproval, perhaps it is time for this court to reconsider our jurisprudence on curative instructions and plain error in this context.
(cites omitted).
Judge Benavides dissented, concluding that Raney committed a traffic violation by driving on the wrong side of the street, making the stop and eventual search permissible.  But he, too, found fault with the Government's remarks in closing argument:
Like my colleagues in the majority, I am deeply troubled by the Government’s persistence in making such improper arguments despite our repeated admonishments. The majority does not, however, reach the question of whether such improper arguments constitute reversible error. In my view, the panel should reach this question.

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