José Luis Alicea-Cotto and Cristian Ayala-García appealed their Puerto Rico convictions in a drug/weapons trial. In the appeal they claimed insufficiency of the evidence and prosecutorial misconduct.

When considering a sufficiency of the evidence argument the court looks at the facts in the light most favorable to the government. As two police officers approached a vehicle in a housing complex in Carolina, Puerto Rico they saw the defendants, standing outside the vehicle selling a gun to Benny Alvarado-Arroyo. As they approached they saw in plain view in the vehicle a significant quantity of drugs, wrapped for individual sales, several guns, and currency. Nearby they saw four men sitting outside a building.

At trial the police officers testified that they saw the gun sold and found the drugs and guns in plain view. Other witnesses including the men near the building testified that the two defendants were not near the car but sitting near the building and that the police evidence was fabricated. Both men were convicted. Since the court found that if the jury believed the government evidence they could have found the defendants guilty on all counts except for the possession of a stolen weapon counts against Alicea-Cotto the court rejected the defense argument that there was insufficient evidence.

On the other hand the court accepted the defense argument that the convictions had to be reversed on prosecutorial misconduct grounds. During closing arguments the prosecutor made a number of inappropriate comments. Among the statements made by the prosecutor were:

• Ladies and gentlemen of the jury, those (indicating) are bullets from an AK-47 assault rifle. There are 31 of those bullets that were in this gun, ready to go on May 25th. Thirty-one potential lives were saved on May 25th, 2006. And for that, the district of Puerto Rico should be thankful, 31 lives were saved.

• Do you see the size of these things? Do you see the size of these bullets? You can take them back with you. You can look at them.

• The problem today is there [are] too many people living in public housing projects that are willing to look the other way and not take responsibility for what happened or protect people that need to be here in court and prosecuted . . . because they’re afraid for their lives . . .

• How can you reconcile looking the other way? . . . It should offend the sense of justice, ladies and gentlemen of the jury.

• . . . [I]sn’t it ironic that this car that was owned by Jose Luis Alicea Cotto was an Armada? Isn’t that just ironic?

Because that’s exactly what it was. It was an Armada. He was armed. He was armed for a war that goes on every day in public housing projects around Puerto Rico, around the United States, in every jurisdiction, in every district, poor people, rich people, fat people, tall people, hungry people, they face this reality every day.

• And on behalf of the United States and the District of Puerto Rico, I charge you to do your job, find the Defendants guilty.

The court found that some of the statements particularly the statement that alleged that the arrest of the two men saved the lives of 31 people needlessly aroused the emotions of the jury. There was no evidence that anyone was going to be shot. The court found that the comments “so poisoned the well that the trial’s outcome was likely affected.”

As Judge Boudin said in a concurring opinion:

Motions for a new trial in criminal cases, based on improper remarks by the prosecutor in closing, are often an uphill effort. The government, unlike defense counsel, can pursue strong cases and pass on weak ones, and so many of its cases are strong: eye-witness testimony by eye-witnesses, audio or video tape, and co-conspirators who turn up as prosecution witnesses confront defendants who, often hindered by prior criminal records, chose not to take the stand.

Prosecutors do sometimes make statements that judges find impermissible. Yet the variables are numerous and work against easy rules of thumb: statements may be improper for different reasons and in varying degrees; they may be fine in some contexts and not in others (e.g., depending on the trial evidence); provocation or fair response may mitigate or excuse; corrective instructions may or may not be given and, if given, vary in their force; and judges also vary in what they think allowable comment.

Complicating the equation is the requirement of harm: if no objection was made, the defense must show (among other things) that an objectionable statement caused prejudice. . . .

Only where bad faith is shown is the need for harm sometimes disregarded. But finding bad faith is not easy: trials raise the emotional level and much in closing argument is spontaneous. Further, a court may be reluctant to reverse a reliable conviction because, in Cardozo’s famous phrase, “the constable has blundered.” . . .
The present case, quite unusual, combines an undisputedly improper and significant remark, with a defense case that is forceful and well developed. The statement that “[t]hirty one potential lives were saved” can be understood (even if not so intended) as a claim that the defendants were out to kill people, which was neither the charge nor the subject of any evidence. The government concedes the remark was improper. How far other remarks standing alone were improper can be and is disputed, but several of them, given the quoted statement, tended to emphasize its thrust.

Prosecutors have said worse things, but a timely objection was made so the question is whether the government can show that the remark was harmless. Very often, in a case like this one, there would be unquestioned police testimony that they caught the defendants with guns and drugs and cash, and there would be nothing from the defense side except silence. In that situation, a prosecutor’s overstatement rarely looks like it had any effect; and a new trial, given such evidence, appears a waste of time.

This case is different. Six witnesses, at least four of whom had nothing specific to do with the defendants, testified that the police had fabricated the alleged seizure: that they had not taken the guns and drugs from the defendants or their vehicles, had searched the defendants but found nothing, had disappeared into the woods and returned with a bag and (according to two witnesses) had at the police station taken weapons and drugs from the bag. Other defense evidence is described in the decision.

This does not show that the defendants were bound to be acquitted. The witnesses from the housing project may have been friends of the defendants, hostile to the police or subject to intimidation. But given the objection and substantial impropriety of the main comment, the government had to show that the remark or remarks could not have affected the result, that is to say, (since the jury’s mind cannot be read), that the chances are extremely low that the outcome was affected.

Here, the government cannot meet this burden. . . .