United States v. Blanco , 46 F. App'x 193 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4814
JAMES LEWIS BLANCO, a/k/a Carlito,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-01-120-A)
Submitted: July 29, 2002
Decided: September 23, 2002
Before WILKINS, NIEMEYER, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Edwin Cicero Brown, Jr., BROWN, BROWN & BROWN, P.C.,
Alexandria, Virginia, for Appellant. Paul J. McNulty, United States
Attorney, Rebeca Hidalgo Bellows, Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BLANCO
OPINION
PER CURIAM:
James Lewis Blanco appeals from his conviction for conspiracy to
distribute and possess with intent to distribute crack cocaine, powder
cocaine, and marijuana, in violation of 21 U.S.C. § 846 (2000). On
appeal, Blanco alleges that the district court erred in denying his
motion for a new trial based upon improper remarks by the prosecutor
during closing argument. Finding no error, we affirm the judgment.
A jury convicted Blanco after the Government presented evidence
at trial that consisted primarily of the testimony of nine convicted co-
conspirators and tangible evidence that corroborated their testimony.
Blanco called no witnesses to rebut the testimony. During the prose-
cutor’s closing rebuttal argument, he stated, "one other thing that
prosecutors are allowed to do in closing is to make a plea for law
enforcement . . . . I’m not here to tell you (what the verdict should
be), because it’s your decision. It’s your community. Do what you
think is right." (JA 839-40).
We review the district court’s denial of a motion for a new trial for
abuse of discretion. United States v. Arrington, 757 F.2d 1484, 1486
(4th Cir. 1985). A district court should exercise its discretion to grant
a new trial "sparingly" and should grant a new trial based on the
weight of the evidence "only when the evidence weighs heavily
against the verdict." Id.To prevail on a claim of prosecutorial misconduct, Blanco must
show: (1) the government’s remarks and conduct were improper; and
(2) the remarks or conduct prejudicially affected his substantial rights
so as to deprive him of a fair trial. United States v. Golding, 168 F.3d
700, 702 (4th Cir. 1999). We review a district court’s factual findings
on prosecutorial misconduct for clear error. United States v. Ellis, 121
F.3d 908, 927 (4th Cir. 1997). Blanco contends that the prosecutor’s
comments constituted a plea to convict him to protect community val-
ues, preserve civil order, or deter commission of future offenses. He
relies on a District of Columbia Circuit case, United States v. Mona-
ghan, 741 F.2d 1434, 1441 (D.C. Cir. 1984), in which the court held
that it is impermissible for a prosecutor to urge jurors to convict based
UNITED STATES v. BLANCO 3
upon community concerns because jurors may be persuaded that a
guilty verdict will alleviate serious social problems, regardless of the
guilt or innocence of the defendant. This court has also found a prose-
cutor’s remarks improper that urged the jury to "make that statement
so that we can address these types of conspiracies that are taking
place in our community." United States v. Pupo, 841 F.2d 1235, 1240
(4th Cir. 1988).
We find that the district court did not err in concluding that there
was no prosecutorial misconduct. First, although the prosecutor said
that he was permitted to make a plea for law enforcement, he never
actually made such a plea. The comments cannot fairly be said to
incite the passions and prejudices of the jurors. The argument focused
nearly in its entirety on the overwhelming evidence in the record of
Blanco’s guilt.
Even if the Government’s remarks were improper, Blanco suffered
no prejudice. In determining whether there was prejudice, the court
considers:
(1) the degree to which the prosecutor’s remarks have a ten-
dency to mislead the jury and to prejudice the accused; (2)
whether the remarks were isolated or extensive; (3) absent
the remarks, the strength of competent proof introduced to
establish the guilt of the accused; and (4) whether the com-
ments were deliberately placed before the jury to divert
attention to extraneous matters.
United States v. Harrison, 716 F.2d 1050, 1052 (4th Cir. 1983).
Courts also consider whether the remarks were invited, see United
States v. Young, 470 U.S. 1, 12-13 (1985), and the remedial effect of
any curative instructions, see Harrison, 716 F.2d at 1053.
The comments objected to by Blanco were isolated and minimal in
nature compared to the rest of the argument by the prosecutor. The
district court found that the remarks were invited in part by defense
counsel and we find it was not clear error to find so. Further, there
was overwhelming and uncontroverted evidence of Blanco’s guilt
presented at trial.
4 UNITED STATES v. BLANCO
We therefore conclude that the district court did not abuse its dis-
cretion in denying the motion for a new trial. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED