Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77-Cr-827 - Alfred Y. Kirkland, Judge.
Before Swygert and Cummings, Circuit Judges, and Campbell, Senior District Judge.*fn*
After an earlier prosecution ended in a mistrial, defendant Reyes Vargas was retried in September 1977 and convicted of distribution of heroin in violation of 21 U.S.C. § 841(a)(1). On this appeal he argues that the evidence was insufficient to support the verdict and that the prosecutors' closing arguments denied him a fair trial. Finding the latter claim persuasive, we reverse the conviction and remand for a new trial.
The prolonged history of the Government's prosecution of Vargas began with his indictment on December 16, 1975. The case was first called for trial on April 29, 1976, but Vargas failed to appear and the district court declared him a fugitive and issued an arrest warrant. A co-defendant, Benito Diaz, was tried and convicted. In April of 1977, Vargas was rearrested and then was tried before a jury on September 21-22, 1977. The jury in that trial reported that it was unable to reach a verdict, causing the judge to declare a mistrial. The case then was retried to a second jury on September 26-28, 1977, which found Vargas guilty. On November 1, 1977, Judge Kirkland sentenced Vargas to three years in custody to be followed by a three-year special mandatory parole term.
Two different versions of a series of events during the evening of September 23, 1975, were presented to the jury at the second trial. The Government established that on that evening eight Drug Enforcement Administration (DEA) agents were conducting surveillance in the vicinity of 47th and South Paulina Streets in Chicago. Co-defendant Benito Diaz, owner of a bar located on Paulina between 46th and 47th Streets, stood outside the bar some time after 8:00 p.m., occasionally walking over to an alley near the middle of the block. About five minutes after Diaz left the bar, agents Ricevuto and Garcia observed Diaz motion a 1975 Monte Carlo automobile, moving south on Paulina, into a vacant lot that adjoined the alley. The car, driven by Vargas, had been creeping along even though there was no traffic on Paulina.
Of the eight DEA agents, only Agent Garcia claimed to have seen what happened after Vargas turned into the vacant lot and after Diaz, who at that time had nothing in his hands, walked over to the driver's side of the car. According to Garcia, Vargas turned in the car and then reached up and handed Diaz a brown paper bag approximately six by six by twelve inches in size. Diaz left with the bag and headed north to meet Maria Hernandez, a Government informant, and DEA Agent Vazquez. After stepping into Vazquez' car, Diaz reported that he had the heroin and requested payment of $26,000. Shortly thereafter, Diaz was placed under arrest.
Meanwhile, Vargas drove out of the vacant lot and proceeded south to the corner of Paulina and 47th. He made a right turn at the corner, parked the car and began walking back to Paulina. At the corner he stopped and looked north, then headed east for half a block, and then turned around and headed back toward Paulina and 47th. He was then arrested and an agent performed a pat-down search.
After Vargas' arrest, his car also was searched and the agents found a pistol and some bullets in a plastic bag partially concealed under the seat. At DEA headquarters Vargas' clothing was searched and Agent Kowalski found a tinfoil packet of heroin in the left front pocket of Vargas' pants. During the search and after being advised of his rights, according to Agent Garcia, Vargas stated that he had met an unknown person at Milwaukee Avenue and 18th Street*fn1 who gave him several packages, one containing a gun and the other a packet of heroin "for delivering still another package" to Diaz. Vargas did not sign a written statement and no notes were produced by the agents.
Speaking through an interpreter, Vargas testified at trial and described the events differently. After working on September 23 from 7:00 a.m. to 6:30 p.m. at his $300 per week job, he decided to go for a ride and play some pool. He first stopped at a bar where an acquaintance offered to sell him a gun and, apparently in reaction to an earlier burglary of his home, Vargas purchased the gun for $80. Knowing that carrying it was illegal, he placed the gun, wrapped in plastic, under the car seat.
Vargas then drove to the neighborhood around 47th and Paulina. As he drove on 47th Street, he spotted his friend Benito Diaz and pulled into the alley to talk to him. After the two men spoke briefly, Diaz said that he had to return to his bar. Vargas then backed out of the alley, drove south to 47th Street, and made a right turn, rather than the left turn he apparently preferred, due to heavy traffic. He then parked and walked east, crossing the intersection after looking up Paulina to see if any cars were coming. At trial Vargas explained that he continued walking east to look in store windows and to see what movies were playing at a nearby theatre.
During this walk Vargas suddenly was arrested. Agent Ricevuto pushed him against a wall and removed several items from Vargas' pocket: his car keys, a wallet, a nail clipper and some coins. Subsequently Vargas was questioned and admitted having the gun, but denied handing Diaz a bag of heroin and denied receiving any payment. According to Vargas, he did not tell the agents he had been in the vicinity of 18th and Milwaukee.
I. Sufficiency of the Evidence
Because a holding that the evidence was not sufficient to support the verdict would preclude a retrial (see Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1), it is important to consider initially defendant's argument that the Government's evidence was insufficient. Defendant claims that the Government did not prove beyond a reasonable doubt a distribution of the heroin or defendant's knowledge that the distributed substance was heroin. Taking the evidence in the light most favorable to the Government (Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680), there is ample evidence to support the verdict.
The argument that distribution was not sufficiently proven rests primarily on an attack on Agent Garcia's testimony. Defendant claims that Garcia had been on duty twelve to fifteen hours preceding the arrest, and that he gave conflicting testimony at the preliminary hearing, the first trial and the second trial as to his location in observing the transaction, which assertedly is significant because he may not have been able to see the transaction from one of his possible locations. However, Garcia's testimony at the second trial that he was only 30 feet from Vargas' car was corroborated by two other agents, providing more than a sufficient basis for the jury to disbelieve Vargas' denial, even after weighing the fact that Garcia ...