Argued Oct. 28, 2013.
Mark T. Karner, Attorney, Office of the United States Attorney, Rockford, IL, for Plaintiff-Appellee.
Erika L. Bierma, Attorney, Stafford Rosenbaum LLP, Madison, WI, for Defendant-Appellant.
Before POSNER, WILLIAMS, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge.
A jury found Alex Alexander guilty of possessing marijuana with the intent to distribute, possessing a gun though he is a felon, and possessing a gun in furtherance of a drug crime. Alexander argues on appeal— for the first time— that the prosecutor impermissibly vouched for the credibility of the key government witness during his closing argument. With the benefit of appellate hindsight, we conclude that the prosecutor's closing argument at two points strayed across an admittedly fine line into improper vouching, but the errors were not serious and did not deprive Alexander of a fair trial or cause his convictions. Alexander thus cannot establish the plain error that would be required to win reversal based on prosecutorial behavior not objected to at trial. We affirm the judgment of the district court.
Alexander's convictions stem from a traffic stop in Rockford, Illinois, on a February afternoon in 2011 not long after a snow storm. Rockford Police Officer Mark Honzel was on patrol that day and saw Alexander's car stopped on Blake Street next to another car, obstructing a lane of traffic. Honzel drove toward the cars, but Alexander drove away and turned down an icy, snow-filled alley. Rather than follow him down the alley, Honzel caught up with Alexander after he emerged, pulled up behind him, and turned on the squad car's lights to pull him over. Alexander did not stop immediately but began to turn onto another street. This maneuver caused him to lose control of his car and slide deep into a snow bank.
Officer Honzel walked up to the car as Alexander vainly tried to back out of the snow bank. Opening the driver's side door, Honzel was struck by the smell of " fresh raw cannabis." He told Alexander to turn the car off, and Alexander complied. Honzel then called in a drug-sniffing dog, which alerted to the presence of drugs in the car's center console. The subsequent search of the car turned up six grams of marijuana divided into several small plastic bags, $365 in cash, a digital scale, two cell phones, and a loaded gun, which was beneath the front passenger seat. Officer Honzel testified that one of the cell phones displayed a new text message inquiring about drugs: " How much for a half?" An additional $470 in cash was found on Alexander's person. Following his arrest, Alexander was charged in federal court with possessing marijuana for distribution, 21 U.S.C. § 841(a)(1), possessing a gun in connection with a drug crime, 18 U.S.C. § 924(c)(1)(A), and possessing a gun as a felon, 18 U.S.C. §§ 922(g)(1), 924(e)(1).
At trial Alexander's defense was that he did not know the marijuana and gun were in the car, which he did not own. He did not testify or present other evidence that he was unaware of the contraband, but his lawyer sought to support this defense in his opening and closing arguments. He pointed out that Alexander is a large man who, his lawyer reasoned, would have trouble bending over to retrieve a gun from under the passenger seat and so would not stash one there. The car had a lot of things in it, including a lot of trash, but nothing that undoubtedly belonged to Alexander. The government had presented no fingerprint or DNA evidence to establish that Alexander had ever touched the gun or the drug-related items.
Alexander's lawyer argued in closing that Officer Honzel's account of his encounter with Alexander was not trustworthy. The text message Honzel claimed to have seen was not recovered from either of the seized phones. (No text messages
were recovered.) Also, Officer Honzel had written in his police report that he first saw Alexander on Kent Street. He later explained (including when he testified) that he had made a mistake in writing his report and actually had first seen Alexander on Blake Street, which is one block north of Kent. Alexander's lawyer argued that the error showed Honzel's general lack of credibility regarding his encounter with Alexander. Questioning Honzel's credibility further, the lawyer asked rhetorically why he would have waited for a drug-sniffing dog to arrive when he supposedly smelled the marijuana himself, which would have provided probable cause for the search even without the dog. The lawyer seemed to imply that Officer Honzel claimed to have smelled the marijuana himself to give the impression that Alexander must have been able to smell it too— and thus must have been aware it was there— when Alexander had not actually smelled it and did not know it was there.
The prosecutor responded in the rebuttal portion of his closing argument to Alexander's attack on ...