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Prosecutorial Misconduct During Closing Didn't Affect Conviction

By Gabriella Khorasanee, JD on July 14, 2014 | Last updated on March 21, 2019

Rolando Rojas was convicted of distributing cocaine, in violation of federal law, to undercover agent Wing Chau, on three different occasions from January 2011 to March 2011. During the course of the investigation, some of the phone calls were recorded, and meetings were video/audio recorded.

Though the prosecution seemed to have enough evidence for a conviction, it made two errors during closing arguments that could affect the outcome of the trial. Did the First Circuit think so? Let's see.

The Closing Arguments

During the closing arguments, "the prosecutor committed two errors," according to the court. First, the prosecutor played an audiotape during closing arguments, which had not been admitted into evidence. Defense counsel did not object, but later moved for a mistrial in chambers. Second, in response to defense counsel's arguments challenging the credibility of prosecution witnesses, the prosecutor gave an "overzealous and inappropriate response," to which defense counsel objected.

Inappropriate Rebuttal

The prosecutor's rebuttal brought in his own credibility in trying to bolster the government's witness's credibility, by stating that he conducted the investigation, and "employed his own standing and credibility to buttress the one part of his case upon which the defense focused its attack." Nonetheless, the First Circuit found that defense counsel's objection, together with the district judge's sustaining of the objection, was sufficient.

The court noted that Rojas "fails to describe specifically what the judge should have done differently," such as give a correcting instruction, or declare a mistrial. Even so, the court found that even if he had done that, his claim would still fail "because Rojas did not request at trial the relief he now says he should have received."

Tape Not Admitted Into Evidence

There was no dispute that the prosecution inadvertently played a portion of the audio recording that had not been admitted into evidence. Here, the court assumed arguendo that defense counsel's post-closing argument request for a mistrial was timely, and concluded that the "impact of the unadmitted tape beyond that of the admitted tapes was so minimal that no one appeared to notice as it was played that it had not been admitted." Because Rojas could not point to any language that was particularly prejudicial, and because the judge gave a curative instruction, the court affirmed Rojas' conviction.

The First Circuit noted that this was the third case in three years where the court had to review improper vouching by prosecutors (United States v. Rodríguez-Adorno and United States v. Gomes). If there's a lesson to be learned here, it's for prosecutors: stop vouching. You should know better, and you're wasting resources by instigating appeals.

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