United States v. Shawn Joaquin Smith, AKA "S-Man"

concurring in part and dissenting in part:

The government certainly presented sufficient evidence to convict Smith of attempted possession of a controlled substance with intent to distribute and use of a firearm in a drug trafficking crime. However, the majority is plain wrong in holding that the prosecutor’s conduct in this case constituted plain error. During a criminal trial defense counsel and the prosecutor frequently find themselves in sharp, even vitriolic, exchanges. Such are not too unusual given the high emotions that often surround the charges against the defendant and the atmosphere of the trial. Such emotion and gamesmanship, and the prof *937 fers of virtue by each side, do not justify unfairness or misconduct; however, I think this court should be careful about overestimating the actual impact of the prosecutor’s comments upon a jury. Plain error is an extremely demanding standard, and I do not believe that any miscarriage of justice occurred in this case.

We can all agree that the prosecutor was out-of-bounds when he said that “the court wouldn’t allow” him to do anything wrong. See United States v. Roberts, 618 F.2d 530 (9th Cir.1980) (government may not place…

Shawn Joaquin Smith appeals his conviction for attempted possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. §§ 841 (a)(1) and 846, and use of a firearm in a drug traffick *926 ing crime, in violation of 18 U.S.C. § 924 (c)(1). Smith contends, inter alia, that the prosecutor’s improper vouching during closing argument constituted plain error and warrants reversal of his conviction notwithstanding his failure to raise a contemporaneous objection. We agree.

I

In 1988, United States Customs agents together with the Las Vegas Metropolitan Police Department began a sting operation designed to attract prospective buyers of large quantities of narcotics. On December 3, 1988, one of the agents was contacted by Leonard Erivin, who negotiated a preliminary deal for five kilos of cocaine at $14,500 per kilo on behalf of his associates and then gave the agent a telephone number for George Brown. Another member of the undercover team, Detective Davis, contacted Brown and arranged a preliminary meeting at Carrows Restaurant. At the restaurant, Brown informed Davis that he represented another person, whom he identified as his “main man” or “money man”.

On…

962 F.2d 923 UNITED STATES of America, Plaintiff-Appellee, v. Shawn Joaquin SMITH, aka "S-Man", Defendant-Appellant. No. 89-10649. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 4, 1991. Decided April 24, 1992. Annette R. Quintana, Las Vegas, Nev., for defendant-appellant. Bradford R. Jerbic, Asst. U.S. Atty., Thomas R. Green, Asst. U.S. Atty., Las Vegas, Nev., for plaintiff-appellee. Appeal from the United States District Court for the District of Nevada. Before: POOLE, REINHARDT, and FERNANDEZ, Circuit Judges. REINHARDT, Circuit Judge: 1 Shawn Joaquin Smith appeals his conviction for attempted possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. §§ 841 (a)(1) and 846, and use of a firearm in a drug trafficking crime, in violation of 18 U.S.C. § 924 (c)(1). Smith contends, inter alia, that the prosecutor's improper vouching during closing argument constituted plain error and warrants reversal of his conviction notwithstanding his failure to raise a contemporaneous objection. We agree. 2 * In 1988, United States Customs agents together with the Las Vegas Metropolitan Police Department began a sting…