Filed: Patrick Fisher

F I L E D
United States Court of Appeals

Tenth Circuit
PUBLISH
MAR 16 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
TENTH CIRCUIT
Clerk
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
No. 97-2303
MARIANO HERNANDEZ-MUNIZ,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D. Ct. No. CR-96-611-BB)
Submitted on the briefs: *
Michael G. Katz, Federal Public Defender, and Jenine Jensen, Assistant Federal
Public Defender, Denver, Colorado, for Defendant-Appellant.
John J. Kelly, United States Attorney, and David N. Williams, Assistant United
States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.
Before TACHA, BALDOCK, and MURPHY, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument.
*
TACHA, Circuit Judge.

Defendant/Appellant Mariano Hernandez-Muniz appeals his federal court
conviction for possession with intent to distribute 500 grams or more of cocaine
in violation of 21 U.S.C. 841(a)(1) and (b)(1)(B). He alleges several trial
errors that he claims deprived him of his constitutional rights and require reversal
of his conviction. We have jurisdiction under 28 U.S.C. 1291 and affirm.
Background
On September 21, 1996, Hernandez-Muniz and co-defendant Robert Abbud
drove a car from Mexico into the United States Border Patrol checkpoint at
Orogrande, New Mexico. In response to routine questioning, the men told Agent
Jesus Torres that they were going mountain biking in Ruidoso, New Mexico.
Agent Torres became suspicious because most mountain bikers coming through
the checkpoint prefer other areas to Ruidoso, because the car had a temporary tag
instead of a license plate, and because Abbud, the driver of the car, was visibly
nervous. Agent Torres asked for and received permission to have the car
inspected by a border patrol canine. The dog alerted to the rear bumper of the
car, and a subsequent search revealed two bundles of cocaine totaling over five
pounds concealed inside the bumper. Agents arrested the men, and, on October 5,
1996, a federal grand jury returned a one-count indictment charging them with
violating 21 U.S.C. 841(a)(1) and (b)(1)(B).
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Abbud initially told an officer that Hernandez-Muniz had provided the car
but had nothing to do with the cocaine. Hernandez-Muniz told Agent Ray
Sanchez that Abbud owned the car and that he did not know Abbud well. Abbud
pled guilty prior to Hernandez-Munizs trial and testified for the government
against defendant. Abbud testified that he had known Hernandez-Muniz for years
and that Hernandez-Muniz had provided the car, knew about the drugs, and
actually proposed the whole plan.
Agent Sanchez also testified at defendants trial. However, when the
prosecution sought to question him regarding the statement Hernandez-Muniz
made to him, defense counsel objected because the government had not disclosed
the statement during discovery. After questioning counsel outside the presence of
the jury, the trial court ruled that the government had adequately disclosed the
substance of Hernandez-Munizs statement when Agent Sanchez testified about it
at a preliminary hearing. The court noted that defendants trial counsel had
attended the preliminary hearing and cross-examined Agent Sanchez.
Defendant exercised his Fifth Amendment right not to testify at trial.
During his closing argument, the prosecutor emphasized the importance of several
statements made by defendant that were admitted at trial through the testimony of
third-party witnesses. The prosecutor also argued that some of the defendants
statements were lies. Defense counsel raised no contemporaneous objection to
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the prosecutors closing argument. At the conclusion of the trial, the jury
returned a guilty verdict. The trial court imposed a sentence of eighty-four
months.
In this appeal, defendant alleges three sources of reversible error. First, he
claims that the federal prosecutor failed to adequately disclose prior to trial his
statement to Agent Sanchez. Second, defendant asserts that the prosecutor
engaged in impermissible conduct during his closing argument by referring to the
fact that defendant had not testified at trial and injecting his personal opinion as
to the credibility of defendants statements. Third, defendant claims that even if
the individual errors do not warrant reversal, their cumulative effect rendered the
trial fundamentally unfair.
I.
Hernandez-Muniz contends that the governments alleged failure to
disclose his statement to Agent Sanchez violated Federal Rule of Criminal
Procedure 16, United States District Court for the District of New Mexico Local
Criminal Procedure Rule (Local R. Crim. P.) 16.1, and his due process rights
under Brady v. Maryland, 373 U.S. 83 (1963). Discovery rulings rest within the
sound discretion of the district court, and we review them only for abuse of
discretion. See, e.g., Pippinger v. Rubin, 129 F.3d 519, 533 (10th Cir. 1997).
Even if the district court erred in admitting defendants statement at trial, we
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review his claim for harmless error. See Fed. R. Crim. P. 52(a); United States v.
Scafe, 882 F.2d 928, 936 (10th Cir. 1987). The applicable harmless error
standard, as articulated in Kotteakos v. United States, 328 U.S. 750, 765 (1946),
requires that the error have a substantial influence on the outcome of the trial.
United States v. Nieto, 60 F.3d 1464, 1468 (10th Cir. 1995) (quoting United
States v. Perez, 989 F.2d 1574, 1583 (10th Cir. 1993) (en banc)). We review
Brady claims de novo. See Newsted v. Gibson, 158 F.3d 1085, 1094 (10th Cir.
1998).
Federal Rule of Criminal Procedure 16(a)(1)(A) provides that the
government must . . . disclose to the defendant the substance of any . . . relevant
oral statement made by the defendant whether before or after arrest in response to
interrogation by any person then known by the defendant to be a government
agent if the government intends to use that statement at trial. In addition, Local
R. Crim. P. 16.1 provides: If a question exists of the exculpatory nature of
material sought under Brady, it will be made available for in camera inspection at
the earliest possible time. Motions to enforce the continuing duty of the U.S.
Attorneys Office . . . should not be necessary. Defendant claims that the
prosecutor violated these rules by failing to disclose defendants statement to
Agent Sanchez. We disagree.
Federal Rule 16 only requires the government to alert the defendant as to
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the substance of his unrecorded oral statements made under interrogation.

Agent Sanchez testified at a preliminary hearing and disclosed the substance of
defendants statement to him. Defendants trial counsel attended this hearing and
cross-examined Agent Sanchez. In addition, the prosecution made available to
the defendant transcripts of Sanchezs preliminary hearing testimony. We find,
under these circumstances, that the government met its disclosure obligations
under Rule 16.
The underlying purposes of Rule 16 further support our conclusion. Rule
16 is designed to provide the defendant with sufficient information to make an
informed decision about a plea, to allow the court to rule on admissibility motions
before trial, to minimize prejudicial surprise at trial, and to generally increase the
efficiency of litigation. See Fed. R. Crim. P. 16 advisory committee notes to the
1974 amendment. The disclosure of the defendants statement at the preliminary
hearing, along with provision of the hearing transcript, combine to satisfy these
purposes. Defendant cannot now complain about a lack of notice or prejudice in
this matter. The district court did not abuse its discretion in admitting the
statement.
The above analysis also disposes of defendants Brady argument and his
argument regarding a violation of Local R. Crim. P. 16.1. The Supreme Court in
Brady held that the suppression by the prosecution of evidence favorable to an
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accused upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution. 373 U.S. at 87; see also Newsted, 158 F.3d at 1094. [E]vidence is
material only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.
United States v. Bagley, 473 U.S. 667, 682 (1985). Because we find that the
government did not suppress the statement at issue, we need not evaluate the
statements nature and materiality.
Defendant argues that because his statement was not included in the
discovery, the government suppressed it. However, [t]here is no general
constitutional right to discovery in a criminal case, and Brady did not create one.
Weatherford v. Bursey, 429 U.S. 545, 559 (1977). The government violates a
defendants due process rights when it fails to provide him with exculpatory
information, but due process does not necessarily require disclosure in a specific
form or manner. The government provided the allegedly exculpatory information
at the preliminary hearing. As the Eighth Circuit noted in a case based on similar
facts, [t]here could be no suppression by the state of evidence already known by
and available to [defendant] prior to trial. DeBerry v. Wolff, 513 F.2d 1336,
1340 (8th Cir. 1975). Because there is no Rule 16 or Brady violation, we also
find no violation of Local R. Crim. P. 16.1. Accordingly, defendants discovery
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claims have no merit.

II.
Hernandez-Muniz next claims that the prosecutor engaged in misconduct
during his closing argument by allegedly commenting on Hernandez-Munizs
failure to testify and expressing his personal opinion about Hernandez-Munizs
credibility. Because Hernandez-Muniz did not contemporaneously object, we
review this claim for plain error only. See United States v. Russell, 109 F.3d
1503, 1514 (10th Cir.), cert. denied, 117 S. Ct. 2525 (1997); United States v.
Barton, 731 F.2d 669, 674 (10th Cir. 1984) (applying plain error analysis to
alleged Griffin violation). Plain error must be so egregious as to result in a
miscarriage of justice. Russell, 109 F.3d at 1514 (quoting United States v.
Young, 470 U.S. 1, 15 (1985)). We view the prosecutors comments in the
context of the entire case. See id.
Defendant asserts that the government violated his Fifth Amendment right
not to testify against himself and committed plain error when the prosecutor,
during his closing argument, stated that the most important witness in this case
was Mr. Hernandez. R., Vol. II at 213. Under Griffin v. California, 380 U.S.
609, 614 (1965), prosecutorial comment on a defendants failure to testify
violates the Fifth Amendment. [A] statement is improper if the language used
was manifestly intended or was of such character that the jury would naturally and
-8-
necessarily take it to be a comment on the failure of the accused to testify.

United States v. McIntyre, 997 F.2d 687, 707 (10th Cir. 1993) (quoting Knowles
v. United States, 224 F.2d 168, 170 (10th Cir. 1955)). While defendant chose not
to testify at trial, the government admitted several of his statements into evidence
through the testimony of those to whom defendant had spoken. In proper context,
we do not find that the prosecutors isolated comment constituted a Griffin
violation.
First, the immediate context of the statement itself shows that the
prosecutor did not attempt to comment on defendants failure to testify. The
prosecutor instead tried to explain the significance of the defendants statements
admitted through the testimony of others. He stated: although Mr. Abbud was an
important witness, the most important witness in this case was Mr. Hernandez.
When he was talking to Agent Flores, when he was talking to Mrs. Abbud, and
when he was talking to Agent Sanchez on Saturday, September 21st. R., Vol. II
at 213. The isolated reference to the defendant as a witness did not, on this
record, constitute an improper reference to defendants election not to testify.
Second, the comment cited by defendant represents the only possible reference in
the prosecutions closing argument to Hernandez-Munizs failure to testify. We
find no other statement that could have influenced the jury to construe
defendants silence against him. In addition, the trial judge instructed the jury
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that it could not take defendants silence into consideration, and defense counsel
reminded the jury of this fact in his closing. Viewing the prosecutors argument
in its totality, we do not find it infringed on Hernandez-Munizs Fifth Amendment
or due process rights.
Defendant also claims that the prosecutors characterization of defendants
statements as lies constituted improper commentary on defendants credibility.
The prosecutor, in closing, stated that youd have to agree that there were some
lies told during the course of this case, R., Vol. II at 201, and proceeded to direct
the jurys attention to conflicting testimony among defendant and other witnesses,
several times characterizing defendants statement as a lie. The prosecutor also
characterized as a lie Robert Abbuds initial statement to the police that defendant
did not know about the cocaine in the car. We find no plain error in the
prosecutors statements.
We have characterized as unnecessary and unwarranted a prosecutors
closing argument in which he called the defendant a liar and told the jury that
defendant had not told the complete truth. See United States v. Nichols, 21 F.3d
1016, 1019 (10th Cir. 1994). We have not, however, established that referring to
testimony as a lie constitutes per se prosecutorial misconduct. See id.; United
States v. Robinson, 978 F.2d 1554, 1567 (10th Cir. 1992) (noting that although
a prosecutor would be well advised to avoid directly accusing defendant of
- 10 -
lying[,] . . . we are confident that the statements in this case would have been
perceived only as commentary on the implausibility of the defendants story
(quoting United States v. Garcias, 818 F.2d 136, 143-44 (1st Cir. 1987))). Like
the prosecutors comments in Robinson, we find the argument here was merely a
commentary on the veracity of defendants story. The conflicting testimony on
key aspects of the case required the jury to make determinations of witness
credibility and truthfulness. The prosecutors argument fit within the bounds of
this context. Moreover, the prosecution was merely responding to defense
counsels opening statement, in which he stated that Abbud would lie in his
testimony. In fact, defense counsel began his opening by stating, [W]here does
the truth lie? And I underscore lie, because thats what youre going to be
hearing a lot from Mr. Abbud. R., Vol. II at 36. Prosecutors have considerable
latitude to respond to an argument made by opposing counsel. See United States
v. Janus Indus., 48 F.3d 1548, 1558 (10th Cir. 1995); United States v. Coleman, 7
F.3d 1500, 1506 n.4 (10th Cir. 1993). Although an improper remark by defense
counsel does not necessarily justify one in response, it may provide the necessary
context in which we review the prosecutions comments. See United States v.
Young, 470 U.S. 1, 11 (1985). In the context of this case, we do not believe the
- 11 -
prosecutor made improper remarks. 1

More importantly, even if the comments were improper, they were not so
egregious as to constitute a miscarriage of justice. As noted above, the prosecutor
made the comments in a case that required the jury to believe one witness and
disbelieve the other. His comments about lies responded to defense counsels
opening argument. He also told the jury it was not his job to express a personal
opinion about the witnesses. Finally, the trial court instructed the jury that
counsels comments did not constitute evidence and that the jury was the sole
judge of witness believability. The combination of these factors assures us that
the trial did not result in a miscarriage of justice. See Nichols, 21 F.3d at 1019;
Robinson, 978 F.2d at 1566-67.
III. Cumulative Error
Defendant argues that, even if we do not find any individual reversible
error, the combination of errors in this case rendered his trial fundamentally
unfair. We review allegations of cumulative error under the harmless error
We note that other circuits have expressly allowed prosecutorial use of the word
lie or lies in certain cases that turn on the credibility of defendants testimony. See
United States v. Catalfo, 64 F.3d 1070, 1080 (7th Cir. 1995) (Where the character and
credibility of the defendant are at issue and the evidence allows the inference that the
defendant has been less than truthful, the prosecutor does not err in closing argument by
referring to the defendant as a liar.); United States v. Dean, 55 F.3d 640, 665 (D.C. Cir.
1995) (holding that use of the word lie is permissible, depending on context and tone of
summation, and as long as the prosecutor sticks to the evidence and refrains from giving
his personal opinion); United States v. Jacoby, 955 F.2d 1527, 1540-41 (11th Cir. 1992).
1
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standard. See United States v. McKneely, 69 F.3d 1067, 1080 (10th Cir. 1995);
McIntyre, 997 F.2d at 709. However, because we find no error in this case,
defendant can show no basis for cumulative error. See, e.g., McKneely, 69 F.3d
at 1080.
For the foregoing reasons, defendants conviction is AFFIRMED.
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F I L E D

United States Court of Appeals

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

TACHA, Circuit Judge.

the substance of his unrecorded oral statements made under interrogation.

claims have no merit.

necessarily take it to be a comment on the failure of the accused to testify.

prosecutor made improper remarks. 1

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