United States Court of Appeals For the First Circuit

No. 09-1527

UNITED STATES OF AMERICA,

Appellee,

v.

PATRICK GOMES, a/k/a Pistol,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before Boudin, Circuit Judge, Souter,* Associate Justice, and Selya, Circuit Judge.

George F. Gormley, by appointment of the court, with whom Stephen P. Super and George F. Gormley, P.C. were on brief for appellant. Kelly Begg Lawrence, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief for appellee

April 13, 2011

* The Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. BOUDIN, Circuit Judge. Patrick Gomes was convicted in

October 2008 on one count of conspiring to distribute cocaine base,

(2006), and two counts of distribution of cocaine

base within a thousand feet of a school and/or aiding and abetting

such distribution,

(2006);

(a)(1),

860. On this appeal, Gomes claims that the prosecutor engaged in

witness vouching on cross-examination and in closing. Some

understanding of the trial evidence is necessary background.

The government's case was that Gomes had conspired with

Alex Curet to distribute crack cocaine and had participated with

Curet in two drug sales--one on September 25, 2007, and the other

on October 3, 2007--in which Curet sold a cooperating witness

("CW") crack cocaine. In both sales, recordings offered at trial

disclosed Curet handing drugs to the CW and receiving money in

return. The government alleged that Gomes acted as both driver and

lookout.

In the September sale, the CW wore hidden recording

equipment and made the exchange inside a car driven by Gomes.

Several officers testified that they saw that car travel past their

observation points two or three times before coming to a stop, and

one officer noted that the occupants were looking around. Gomes

was videotaped in the driver's seat during the drug deal, looking

at the CW in the backseat and talking, and Gomes' attorney admitted

in his opening statement that Gomes was "watching what went on"

-2- during the transaction. Gomes' defense at trial was that he was

merely giving his friend a ride and looking for parking as he

cruised; but a government witness said there had been no shortage

of parking spaces.

The October sale occurred in a car driven by the CW and

containing hidden cameras. The video and audio recordings showed

Gomes to be present outside the car immediately before and after

the sale was made. In addition, Sergeant Detective John Fitzgerald

testified that he observed Gomes and Curet leave a car that Gomes

had driven; that Gomes went immediately to speak to the CW in the

latter's car and was looking back and forth even when speaking to

the CW; and that when Curet approached the CW to complete the sale,

Gomes continued scanning and also turned his body to shield the

transaction from view.

The strength of the government's case was Gomes' presence

at both sales, his undeniable role as the driver in the first sale,

and indications that he was performing surveillance for Curet as

well. The weakness, if there was one, lay in the lack of any

handling by Gomes of either drugs or money and the absence of any

directly incriminating statements by Gomes during or after the

event. Although Gomes was recorded in the second sale talking with

the CW just before the buy, the conversation was benign.

During his defense, Gomes did not testify but sought to

impeach Fitzgerald, primarily through the use of an expert of his

-3- own. Fitzgerald's testimony was especially significant since it

identified Gomes as driving Curet to the scene and playing a

secondary role in the sale itself. Ultimately, the jury convicted

Gomes on all three counts, finding that each sale involved five

grams or more of cocaine base. Gomes was sentenced to 78 months in

prison, and he now appeals from his conviction on two grounds.

Gomes' first ground on appeal concerns the government's

cross-examination of Gomes' expert witness, a former FBI agent,

Richard Egan, who visited the scene and then offered testimony

questioning Fitzgerald's ability to see clearly what was happening

during the second sale. Fitzgerald had witnessed the scene using

binoculars but from a vantage point that was 100-150 feet or more

away from the sale. Fitzgerald said his view was crystal clear;

Egan said his own replication showed a chain fence and some foliage

complicating the sight lines.

In the course of cross-examining Egan, the prosecutor

asked questions that resulted in the following exchange:

Q. And you have absolutely no basis to dispute the statement in [Fitzgerald's] report that from where he sat he had a clear view up Woodward Avenue and a clear view down George Street? A. His report is what it says. And I don't--I positioned myself where his report put me, and I didn't see it as clearly as he did. Q. But my question to you, sir, is you have no basis for disputing his statement that on October 3 that [sic] he had a clear view up Woodward Avenue?

-4- [GSA305:7-15] At this point, Gomes' counsel objected to the

question as "comment on another witness' testimony," and the

objection was overruled. Thereafter the following ensued:

Q. Now, when you were at the FBI, how serious a matter was it to put false statements in a report? A. It's always a serious matter. Q. How serious? A. It's going to get you fired or in jail.

On appeal, Gomes argues that in these exchanges the

prosecutor engaged in "improper vouching," which occurs where a

prosecutor seeks to bolster the credibility of the witness--in this

case, Fitzgerald--by expressing his own opinion that the witness is

telling the truth.1 Counsel's personal belief is neither impartial

nor relevant. See Model Rules of Prof'l Conduct R. 3.4(e) (1983)

(mandating that a lawyer shall not "in trial, . . . state a

personal opinion as to . . . the credibility of a witness"). A

further concern is that the prosecutor may thereby "place the

prestige of the United States behind a witness." United States v.

Torres-Galindo,

(1st Cir. 2000).

1 United States v. Castro-Davis,

(1st Cir. 2010) ("We have held that '[a] prosecutor improperly vouches for a witness when she . . . impart[s] her personal belief . . . or impli[es] that the jury should credit the prosecution's evidence simply because the government can be trusted.'" (quoting United States v. Perez-Ruiz,

(1st Cir. 2003), cert. denied,

(2004))), cert. denied,

(2011); see also United States v. Santana-Pérez,

(1st Cir. 2010); United States v. Gentles,

(1st Cir.), cert. denied,

(2010); United States v. Flores-De-Jesús,

(1st Cir.), cert. denied,

(2009).

-5- The government says that the vouching objection was not

adequately preserved by what defense counsel said to the judge

("comment on another witness' testimony") and that review should be

only for plain error. Admittedly, vouching can be regarded as a

species of comment and yet, so phrased, the objection is pretty

uninformative. But we need not decide whether the objection was

clear enough in context, because the prosecutor's remarks were not

vouching at all.

Although the quoted questions were intended to undermine

Egan's testimony and thereby bolster Fitzgerald's credibility, this

does not make them vouching. Thus, no "vouching" would be involved

in asking Egan to explain what basis he had for questioning

Fitzgerald's testimony or whether a false report by an officer

would be a serious matter (although the latter might be

objectionable for other reasons). This is all that occurred if one

understands the prosecutor's "no basis" remarks to be

interrogative--rather than intended as assertions that might then

be taken to express the prosecutor's own view.

Although the prosecutor's "questions" may look

grammatically like assertions, the court reporter, who heard the

tone of voice, understood both "no basis" sentences as questions,

as the question marks in the transcript confirm. The prosecutor

made clear in the second statement that he intended a question

("But my question to you, sir, is . . ."). And the witness

-6- seemingly took the statements as invitations to respond to what

most witnesses (and jurors) would probably have understood as a

(hostile) request for a further explanation.

What defense counsel might have argued is that the quoted

passages taken together approached a somewhat different question

often regarded as improper, namely (in paraphrase), "Are you, a

former FBI agent, calling the government's witness, Sergeant

Detective Fitzgerald, a liar?" See United States v. Thiongo,

(1st Cir. 2003). But that was not what the prosecutor

literally said, was not the objection in trial court, is not argued

on appeal, and is not by any means plain error under settled case

law.

By contrast, Gomes' second claim of vouching--to which we

now turn--is technically stronger; it concerns a statement of the

prosecutor during the government's rebuttal to Gomes' closing

argument. The full quotation, with the objectionable language

emphasized for clarity, went as follows:

These are serious drugs. And he just sits there by the second buy? Okay, maybe you can figure he was in a daze the first day. He didn't know what's going on. But the second day, he knows exactly what's going on. Curet, Perez, Curet, Perez. Oh, shoot. What does he do? What he would have done, what he should have done, if he was anything other than a lookout, the kind of lookout that Dick Egan told you was used all the time, is he would have done what they did immediately after the buy and what you saw them do on that video. He would have walked across that street and said, Get me out of here. And he didn't

-7- because Alex Curet was his man, because the job for the day was being the lookout, because John Fitzgerald gave you honest, candid, truthful testimony.

The portion that we emphasize can be viewed as a personal

assertion by the prosecutor, and the government's brief concedes it

crossed the line into vouching. Formally, the statement is not

expressly a personal opinion and could have been intended, and

perhaps understood, as merely a description of what the prosecutor

was urging the jury to conclude based on the evidence. And, in

fairness, it followed a rather strong attack on Fitzgerald's

honesty in defense counsel's own closing argument.

However, the prosecutor's statement could also be

understood as an expression of his personal opinion and, if an

objection had been made during closing, the jury would have been

told that the prosecutor's own view was irrelevant and should have

no weight in the jury's deliberations. But no objection was made,

and while the judge could have intervened on his own, experienced

trial judges are usually reluctant to pursue a matter that is not

very important and that defense counsel may want left alone rather

than emphasized even by a cautionary instruction.

An objection not preserved at trial can be pursued on

appeal only if the error likely altered the outcome and created a

miscarriage of justice. United States v. Olano,

, 734-

37 (1993). Here, the government had a fairly strong case: a jury

would likely think that driving Curet to one drug deal might be

-8- mischance but that driving him to two was beyond innocent

explanation. And even if some of Fitzgerald's detail were

disregarded, Gomes' approach to the CW's car was damning enough,

taken in conjunction with his behavior at the earlier sale.

Furthermore, the potential for harm from vouching varies,

and it is likely to be more dangerous where the prosecutor flaunts

the government's skills and purity of motive or where the context

or the prosecutor's words imply private knowledge of the

defendant's guilt that unfortunately cannot be shared with the

jury. See, e.g., United States v. Manning,

(1st

Cir. 1994). In this case, neither vice manifested itself. The

jury heard and saw Fitzgerald, and the prosecutor's favorable

adjectives can only have added very little.

Affirmed.

-9-