Appeal From the United States District Court For the District of Puerto Rico [Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]
Luis Angel Guzman-Dupont argued, with whom Mark E. Howard and Howard & Ruoff, PLLC, were on brief, for appellant.
Nina Goodman, Attorney, Appellate Section, Criminal Division, U.S. Department of Justice, with whom Leslie R. Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy Assistant Attorney General, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, were on brief, for appellee.
Before Lynch, Kayatta, and Barron, Circuit Judges.
BARRON, Circuit Judge.
Ricardo Amaro-Santiago was convicted, after a jury trial, of drug and weapons offenses committed in connection with the Federal Bureau of Investigation's Operation Guard Shack, which targeted corrupt Puerto Rico police officers. The District Court sentenced Amaro, who was not himself a police officer, to fifteen years in prison. Amaro challenges his convictions and his sentence. We affirm.
Operation Guard Shack began in 2008. It focused on Puerto Rico police officers who were suspected of accepting money from drug dealers in exchange for providing security during drug transactions.
In May 28, 2010, as part of that operation, the FBI conducted the sting operation that led to Amaro's arrest. The sting took place at an apartment in Guaynabo, Puerto Rico. It involved a staged drug deal (using sham cocaine) in which Amaro was claimed to have participated -- along with two police officers -- by acting as an armed guard. The FBI audio and video recorded the deal.
At trial, Amaro put on a duress defense and took the stand to make his case. Amaro testified that he needed $400 to fix his car and that a co-worker had suggested that Amaro might be able to borrow the money from her cousin, who was a police officer. Amaro testified that he met with that officer, but the officer said he did not "have the money right now." Amaro said he went with the officer and a second officer to the apartment where the drug transaction took place because he thought they were going there to collect $400 for Amaro and not to provide security for a drug transaction. Amaro testified that he stayed at the apartment and helped with the drug transaction only because, when he tried to leave the apartment, the FBI agent posing as the drug dealer made a comment to him that made him think the drug dealer would hurt him if he tried to leave. Finally, Amaro testified that he did not report the drug transaction to the police because he was afraid for his family's safety.
Despite Amaro's testimony, the jury returned a guilty verdict on all three counts it was asked to consider: conspiracy to possess with intent to distribute cocaine in excess of five kilograms, in violation of 21 U.S.C. § 841(a)(1) and § 846, aiding and abetting the attempted possession with intent to distribute cocaine in excess of five kilograms, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and possession of a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c). The jury also found that the amount of fake cocaine involved in the first two offenses was eleven kilograms. The District Court then sentenced Amaro to fifteen years in prison. Amaro now appeals, challenging both his convictions and his sentence.
Amaro first contends that his convictions must be vacated because the prosecutor made two inappropriate statements during closing argument. The parties dispute whether Amaro objected to those statements below, and thus they disagree about whether our review should be de novo or only for plain error. But we do not need to resolve that disagreement because, even assuming that our review is de novo, each of his challenges still fails.
Under de novo review, we may reverse Amaro's convictions on the basis of the prosecutor's remarks only if they were "both inappropriate and prejudicial." United States v. Matías, 707 F.3d 1, 5 (1st Cir. 2013). To be prejudicial, "the prosecutor's remarks [must have] 'so poisoned the well that the trial's outcome was likely affected.'" United States v. Shoup, 476 F.3d 38, 43 (1st Cir. 2007) (quoting United States v. Henderson, 320 F.3d 92, 107 (1st Cir. 2003)). In determining whether a statement "poisoned the well, " we must consider "the totality of the circumstances, including the severity of the misconduct, the prosecutor's purpose in making the statement (i.e., whether the statement was willful or inadvertent), the weight of the evidence supporting the verdict, jury instructions, and curative instructions." Matías, 707 F.3d at 5-6 (quoting United States v. De La Paz-Rentas, 613 F.3d 18, 25 n.2 (1st Cir. 2010)). Applying those standards here, we conclude that Amaro has not shown that the prosecutor's statements require reversal of his convictions.
Amaro first points to the prosecutor's statement in closing argument concerning a key aspect of Amaro's duress defense. The context for that statement is as follows.
During the staged drug transaction at the apartment, Amaro stated that he had left his cell phone downstairs. The FBI agent who was posing as the drug dealer said that Amaro should not be allowed to get his cell phone because he would "run away." The agent said, "He'll run away and I have the chainsaw ready for . . . any person that infiltrates in here put him dr-r-r-r-r-r."
At trial, Amaro testified that this comment made him feel that his "life was threatened, " and so he did not leave the apartment. In his closing argument, however, the prosecutor told the jury that:
you can't have an immediate threat that somebody's going to chop you up with a chain saw if there's not even a chain saw in the room. And there's no evidence that there was a chain saw anywhere in that apartment. And to be clear, to meet this element of the duress defense, that's the defendant's burden. He has to put some evidence to you and prove that by a preponderance of the evidence that the threat was immediate, that there was a chain saw available for these people to chop him up.
Amaro argues that this statement improperly informed the jury that, as a legal matter, the chainsaw remark could not support a key element of his duress defense -- that the threat be an "immediate threat of serious bodily injury." United States v. Bravo, 489 F.3d 1, 10 (1st Cir. 2007). But although Amaro is right that the jury could have found that he felt immediately threatened as a result of the agent's statements regarding the chainsaw even though there was no chainsaw in the room, the prosecutor's problematic statement does not warrant reversal.
As troubling as the prosecutor's misstatement of the law of duress is, the District Court's instruction the next morning sufficed to cure any concern that the prosecutor's statement misled the jury. In the curative instruction, the District Court properly restated the elements of duress, and then added the following comments that directly addressed what the prosecutor had said regarding the chainsaw:
Now, let me note that in this case -- and we've been here for seven, this is the eighth day -- the prosecutor for the Government in his closing argument stated that to meet the duress defense -- and I will quote, "Mr. Amaro had to prove that the threat was immediate and that there was a chain saw and that there was a chain saw available for these people to chop him up." And that was the prosecutor's statements [sic].
Now, I want you to be aware that the prosecutor's statement about the presence or not of a chain saw in the apartment and Mr. Amaro having to prove its presence to succeed, is not part of the Court's duress instructions and cannot be considered by the jury as an instruction nor as what the law is. That is not the law, and that was an incorrect statement.
Now, the presence of a chain saw or not in the apartment is an argument that the prosecutor . . . has made and which you may consider in your deliberations in determining from the law and the evidence, as you find it, whether Mr. Amaro was under duress or not. However, if you consider that argument, you must also equally consider Mr. Amaro's arguments of duress which are not limited to the presence or not presence of a chain saw.
Given the thoroughness and specificity of the curative instruction, we do not see how the prosecutor's statement caused prejudice that would warrant reversal. See United Statesv.Rodriguez, 675 F.3d 48, 63 (1st Cir. 2012) ("This court has repeatedly held that a strong, explicit and thorough curative instruction to disregard improper comments by the prosecutor is sufficient to cure any prejudice from prosecutorial misconduct, " id. (quoting United Statesv.Riccio, 529 F.3d 40, 45 (1st Cir. 2008))), as "juries are presumed to follow such instructions, " id. (quoting United Statesv.Gentles, 619 F.3d 75, 86 (1st Cir. 2010)). And that is so notwithstanding Amaro's contention on appeal that, because the instruction was not ...