MANOLO PEREZ, PETITIONER V. UNITED STATES OF AMERICA No. 90-5803 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit Brief For The United States In Opposition OPINION BELOW The judgment order of the court of appeals (Pet. App. A1) is unreported, but the judgment is noted at 905 F.2d 1539 (Table). JRISDICTION The judgment of the court of appeals was entered on June 25, 1990. The petition for a writ of certiorari was filed on Monday, September 24, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the prosecutor's comments and questions during trial relating to petitioner's Cuban nationality, immigration status, and inability to speak English deprived him of a fair trial. STATEMENT After a jury trial in the Middle District of Tennessee, petitioner was convicted on one count of conspiring to distribute cocaine, methaqualone, and marijuana, in violation of 21 U.S.C. 846, one count of distributing cocaine, in violation of 21 U.S.C. 841(a)(1), and one count of travelling in interstate commerce in furtherance of the narcotics offenses, in violation of 18 U.S.C. 1952(a)(3). He was sentenced to a total term of 97 months' imprisonment. The court of appeals affirmed. 1. The evidence at trial showed that petitioner, during the late 1980s, was an active member of a narcotics distribution organization led by Alex Gessa. During this period, petitioner transported cocaine, methaqualone, and marijuana from Florida to Tennessee, where Gessa's distribution ring operated. Petitioner received cash payments for his courier services. Gov't C.A. Br. 3-5. /1/ 2. Petitioner took the stand in his own defense and testified about, among other matters, his emigration from Cuba and his desire to become a United States citizen. III Tr. 137-138. /2/ On cross-examination, the prosecutor asked petitioner what steps he had taken to become a citizen. In responding, petitioner stated that he had been on "parole." III Tr. 158. The prosecutor then asked petitioner what he meant by that term; petitoner replied that the immigration papers he had received used the word "parole." III Tr. 158. At that point, petitioner's counsel -- outside the jury's presence -- moved for a mistrial, contending that the prosecutor was implying that petitioner was an illegal alien -- in direct violation of a pretrial stipulation that petitoner's immigration status was unblemished. III Tr. 160. The district court denied the motion, but immediately instructed the jurors that there's no suggestion by the Government that (petitioner's) status is anything other than that of a legal resident in this country, and therefore you will, upon your oath, give no weight or consideration to any reference to the use of the word, parole, any implication that he may be here in this country under some kind of limitation related to custody of some sort -- in that fashion. You are to disregard, give no weight or consideration to that reference, to the use of the word, parole, at all. III Tr. 169-170. In further cross-examining petitioner about his ability to understand English, the prosecutor -- over petitioner's objection -- posed the following untranslated question to the case agent sitting at counsel table: "Mr. Keller, did you bring me the cocaine?" III Tr. 181. The prosecutor then asked petitioner (through the translator) if he understood any of that question. Petitioner acknowledged understanding the words "Keller" and "cocaine." III Tr. 181. Over petitioner's objection, the prosecutor also asked petitoner if he had "rehearsed (his) testimony of the lunch hour." III Tr. 188. /3/ Petitioner responded that "(i)t's (his) understanding (he) was practicing so the interpreters could show what (he) had to do." III Tr. 188. On redirect, in response to his counsel's questions, petitoner stated that he "didn't understand it was any kind of rehearsal of (his) testimony. You don't have to rehearse to tell the truth." III Tr. 191. In his opening and closing argument, the prosecutor referred to Gessa's narcotics distribution ring as the "Havana Hillbillies" who had come to Tennessee to strike it rich in the narcotics trade. See II Tr. 5; IV Tr. 97. /4/ In his closing, defense counsel referred to this comparison as "kind of amusing," IV. Tr. 113, and then used the Latin-origin versus American-origin theme to suggest that the government's witnesses had conspired to frame petitioner -- a Cuban national, IV Tr. 114-141. In rebuttal argument, the prosecutor stated: And this paranoia (defense counsel) talked about, conspiracy to get (petitioner). I don't know if it's paranoia but I think (defense counsel) think's he's representing the wrong Manuel. He thinks he's representing Manuel Noriega. He wants you to think that these people, (the government's witnesses), have duped me into believing (petitioner's) some kind of drug kingpin. * * * Does that make sense to you. IV Tr. 141. 3. Petitioner filed a motion for a new trial, contending that the prosecutor's comments and questions during trial relating to petitioner's Cuban nationality, immigration status, and inability to speak English, together with his reference to Manuel Noriega, deprived petitioner of a fair trial. The district court denied that motion, concluding that the prosecutor's actions did not prejudice petitioner. Pet. App. A4-A5. Petitioner renewed that contention before the court of appeals, which summarily affirmed petitioner's conviction after "find(ing) that no prejudicial error intervened in the judgment and proceedings in the district court." Pet. App. A1. ARGUMENT Petitioner contends (Pet. 30-36) that the prosecutor's comments and questions during trial relating to his Cuban nationality, immigration status, and inability to speak English, together with the prosecutor's reference to Manuel Noriega, deprived him of a fair trial. At the outset, we agree that allusions to a defendant's heritage, native language, or immigration status, as a general matter, have no place in a criminal trial. See Pet. 31-32 (citing cases). For that reason, the prosecutor's references to Manuel Noriega and the so-called "Havana Hillbillies" -- although not attracting any objection by petitioner at trial -- were admittedly ill-advised. Nevertheless, those isolated statements in opening and closing arguments -- reviewed in the context of the entire trial -- "were not such as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice." United States v. Young, 470 U.S. 1, 16 (1985). Turning to the cross-examination of petitioner about his United States citizenship, the prosecutor for the most part engaged in legitimate impeachment of petitioner's testimony that he wanted to become a citizen as soon as possible. To the extent the prosecutor's questioning mistakenly elicited potentially misleading testimony about petitioner's immigration status, the district court promptly and correctly dispelled any potential for the jury's misunderstanding petitioner's reference to "parole." /5/ Similarly, the prosecutor's attempts on cross-examination to show that petitioner understood English despite his apparent need for a translator and that petitioner's testimony was not spontaneous are well-settled tactics for impeaching the credibility of witnesses, whether they be defendants, cooperating witnesses for the government, or defense witnesses. Accordingly, in light of the substantial weight of the evidence showing petitioner's complicity in the narcotics distribution organization, the prosecutor's comments and questions -- when reviewed in context -- did not deprive petitioner of a fair trial. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General RICHARD A. FRIEDMAN Attorney DECEMBER 1990 /1/ The evidence against petitioner consisted principally of testimony given by his coconspirators, i.e., Gessa, Camille Kohler, the organization's bookkeeper, Richard Elder, a member of the narcotics organization, and Luis Egozcue-Garcia, one of the organization's cocaine suppliers. See, e.g., II Tr. 45-58, 156-173, 225-233; III Tr. 53-56, 74, 76. Each of those coconspirators stood convicted of various federal narcotics charges rising out of the organization's activities. /2/ Petitioner testified through the aid of a Spanish translator. /3/ With notice to the government, petitioner's counsel had previously sought and obtained the court's permission to use another courtroom to acclimate petitioner to testifying with the aid of a translator. See III Tr. 2-3. The court rejected petitioner's objection to the question, pointing out that alleged rehearsing of testimony is "appropriate cross-examination." III Tr. 187. /4/ The prosecutor was apparently alluding to a television series popular in the 1960s -- the "Beverly Hillbillies," recounting the adventures in Beverly Hills, California, of a Tennessee family that had acquired a fortune from the discovery of oil. /5/ Although petitioner suggests that the prosecutor deliberately violated the pretrial stipulation regarding petitioner's immigration status, the district court expressly found to the contrary. Pet. App. A5. Petitioner offers no persuasive reason to question that factual determination.