Unpublished Disposition, 924 F.2d 1063 (9th Cir. 1989)

MEMORANDUM^** 

OVERVIEW

Rogelio Bernal-Rodriguez appeals his conviction, following a jury trial, for importation and possession with intent to distribute marijuana, in violation of 21 U.S.C. §§ 952, 960, and 841(a) (1). We affirm.

FACTS

On December 21, 1988, Rogelio Bernal-Rodriguez was indicted for importation and possession with intent to distribute approximately 352 kilograms of marijuana. The following evidence was adduced at trial.

On December 13, 1988, Bernal-Rodriguez arrived at the Port of Entry at Otay Mesa driving a 40-foot tractor-trailer from Mexico. During questioning by a customs inspector, Bernal-Rodriguez stated that there was nothing in the trailer. In the search which followed, the customs agent discovered a strong odor of marijuana. The inspector then called for a dog to inspect the tractor-trailer for narcotics. The inspector observed that Bernal-Rodriguez appeared to be shaking and that he did not make eye contact as he handed the inspector his resident-alien status card. Following an alert by the dog the truck was dismantled, yielding 270 packages of marijuana with a total weight of 774 pounds.

Bernal-Rodriguez was given his Miranda rights. Subsequently, he admitted smelling something unusual that he could not identify. In response to questioning by the inspector, Bernal-Rodriguez expressed concern for his family's safety.

Bernal-Rodriguez pled not guilty to all charges. During the three day jury trial the prosecutor questioned the customs inspector, and his assistant, and a Drug Enforcement Agency (DEA) agent on the events that surrounded Bernal-Rodriguez's arrest. During recross of the special agent, defense counsel had the following exchange with the witness:

Q. Mr. Bernal is Mexican, right?

A. I'd have to refer to my biographical statement. I believe he said he was born in Mexico, but I cannot be sure.

Q. And you have spoken with many, many Mexican people, right?

A. I have.

Q. They have perhaps a different body language than people of the United States might have?

Mr. Jones: Objection, Your Honor, Relevance.

The Court: Overruled.

Q. They might have a different body language than people in the United States might have, right?

A. I haven't seen that.

During redirect examination of the DEA agent the prosecutor asked:

Q. Also, you indicated that you have spoken with--Mr. Bernal is a Mexican-American, or a Mexican, and that you had spoken with other Mexicans before; is that correct?

A. That's correct.

Q. Have you spoken with other Mexicans who have knowingly smuggled drugs into the United States?

A. I have.

Counsel for Bernal-Rodriguez objected, and the answer was stricken with an admonishment to the jury to disregard it.

A Mexican resident was called to testify for the defense. During cross-examination, the prosecutor asked him whether he was going to receive money for testifying. The witness responded that he had not known until shortly before testifying that he would receive a fee. There were no objections to these questions. During redirect examination, defense counsel clarified the response by establishing that the fee was a $30.00 witness fee, and that the witness would have testified without it.

During direct examination of the next defense witness, it was established that the witness was not testifying as a result of the fee and had not known until that day that he would be paid. One other witness was asked by the prosecutor if his testimony was a result of payment of the fee, and he responded negatively.

The defense investigator testified in response to a question by the prosecutor that he was responsible for making certain that the witnesses were paid under the rules of the court. On redirect, he explained that this statutory payment of witness fees applied to all federal court witnesses and was administered by the United States Marshal's office.

Bernal-Rodriguez testified on his own behalf. During his redirect examination, Bernal-Rodriguez responded negatively when asked whether he thought the odor that he noted upon opening the trailer was marijuana. Defense counsel then asked, "What things smell like marijuana to you?" The prosecution objected on the grounds of relevance and was overruled. When defense counsel asked the question again, the prosecutor objected that it was speculative, the objection was overruled, and the question answered. Subsequently, Bernal-Rodriguez was asked whether there was anything unusual about the odor, and the prosecution objected that the question had been asked and answered. This objection was overruled, and an answer given.

Bernal-Rodriguez was convicted of both counts, and judgment was entered on June 6, 1989. He filed a timely notice of appeal on June 6, 1989.

ANALYSIS

Prosecutorial Misconduct

Bernal-Rodriguez contends that the government committed misconduct at trial by asking racially inflammatory questions of witnesses, asking improper questions of witnesses, and making inappropriate and inflammatory objections. The challenged questions and objections, considered individually or cumulatively, do not constitute prejudicial error requiring reversal of Bernal-Rodriguez's convictions.

When prosecutorial conduct is called into question, the issue is whether, considered in the context of the entire trial, the conduct appears likely to have affected the jury's discharge of its duty to judge the evidence fairly. United States v. Simtob, 901 F.2d 799 (9th Cir. 1990). Prosecutorial misconduct will justify reversal if it appears more probable than not that the alleged misconduct affected the jury verdict. United States v. Tham, 665 F.2d 855, 860 (9th Cir. 1981), cert. denied, 456 U.S. 944 (1982). Where the defense failed to object to a prosecutor's questions below, the plain error doctrine applies, United States v. McWilliams, 730 F.2d 1218, 1222 n. 2 (9th Cir. 1984), and the conviction will be reversed only if it is more probable than not that the error materially affected the verdict, see United States v. Toomey, 764 F.2d 678, 681 (9th Cir. 1985).

When prosecutorial conduct is challenged, this court considers first, whether error was committed. Even if the court finds error, the conviction will be affirmed unless it is more probable than not that the error materially affected the verdict. United States v. Toomey, 764 F.2d 678, 681 (9th Cir. 1985), cert. denied, 474 U.S. 1069 (1986) (holding that in view of the sufficiency of the evidence prosecutor's statement was not an error); United States v. Berry, 627 F.2d 193, 196-97 (9th Cir. 1980), cert. denied, 449 U.S. 1113 (1981) (improper argument by prosecutor was cured by trial court's instructions). When reviewing the cumulative prejudicial effect of several alleged errors, the court determines whether the errors materially affected the jury's verdict in light of the strength of the government's evidence. United States v. Nadler, 698 F.2d 995, 1002 (9th Cir. 1983).

Here, Bernal-Rodriguez alleges three groups of errors. The first alleged error occurred during the prosecutor's redirect examination of the DEA agent who questioned Bernal-Rodriguez at the time of his arrest. Bernal-Rodriguez claims that he was prejudiced by the government's questioning of the DEA agent on whether he had spoken with other Mexicans who had smuggled drugs into the country.

The prosecution did not commit prejudicial error by questioning the DEA agent on his experience with people from Mexico. The issue of ethnicity was raised first by the defense as a factor to be considered in determining whether the DEA agent correctly interpreted Bernal-Rodriguez's responses and the relative responsiveness to his questions. Accordingly, the prosecutor was entitled to further explore this area. See, e.g., United States v. Perry, 857 F.2d 1346, 1352 (9th Cir. 1988) (defendant's attempts to explain his previous misdemeanor convictions invited inquiry into the convictions). When viewed in this context, the prosecutor's statements were not prejudicial and did not result in a constitutional violation even though they may have been improper.¹  See Branch v. Cupp, 736 F.2d 533, 537 (9th Cir. 1984), cert. denied, 470 U.S. 1056 (1985) (prosecutor's improper remarks in closing argument, viewed in context did not violate defendant's fifth amendment right to a fair trial). See also United States v. Horne, 423 F.2d 630 (9th Cir. 1970) (prosecutor's improper reference to defendant's race did not affect defendant's substantial rights).

Second, Bernal-Rodriguez contends that the government erred by asking several defense witnesses whether they were to be paid for testifying. Bernal-Rodriguez did not object to this line of questioning, but did clarify the fact that all witnesses received the statutory $30.00 fee, during redirect examination. The defense investigator was questioned on the procedure for such payment during direct and redirect examinations.

The redirect examination served to clear any implication of impropriety that the witness fee was improper or affected the witnesses' credibility. Cf. United States v. Davenport, 753 F.2d 1460 (9th Cir. 1985) (prosecutorial misconduct where the insinuation is inadmissible propensity evidence upon the government's case in chief). It is highly unlikely that the questions, considered in the totality of the trial circumstances, prejudiced the jury's ability to evaluate the evidence fairly, given that the jury had been told that all witnesses get paid $30.00. See United States v. Endicott, 803 F.2d 506, 513 (9th Cir. 1986) (trial judge neutralized the prosecutor's remarks by reminding the jury that they constituted argument rather than evidence). Accordingly, any possible prejudice that might have resulted did not rise to the level of plain error. See McWilliams, 730 F.2d at 1222 n. 2.

Third, Bernal-Rodriguez claims that the prosecutor committed misconduct by objecting several times during defense counsel's direct examination of Bernal-Rodriguez on whether he recognized the smell of marijuana. Frequent objections, alone, do not constitute misconduct. Thomas v. Cardwell, 626 F.2d 1375 (9th Cir. 1980), cert. denied, 449 U.S. 1089 (1981) (prosecution's frequent objections constituted overzealous and obnoxious conduct but do not, by themselves, warrant relief in a habeas corpus action).

Bernal-Rodriguez finally contends that the cumulative effect of this alleged pattern of prosecutorial misconduct affected the jury's verdict and deprived him of a fair trial. Nonetheless, even assuming that all instances of alleged prosecutorial misconduct are legally cognizable errors, the combined effect was minimal. Sufficient other evidence of Bernal-Rodriguez's participation in the importation and possession of marijuana supports his conviction.²  It is very unlikely that the asserted errors in direct and cross-examination materially affected the jury's verdict. See Nadler, 698 F.2d at 1002.

Because the errors allegedly committed by the prosecution during direct and cross-examination did not materially affect the jury's verdict, Bernal-Rodriguez suffered no prejudice and his conviction should be affirmed. See Nadler, 698 F.2d at 1002.

AFFIRMED.