APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND. Hon. John J. McConnell, Jr., U.S. District Judge.
Alan Jay Black for appellant.
Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Neronha, United States Attorney, was on brief, for appellee.
Before Lynch, Chief Judge, Howard and Kayatta, Circuit Judges.
KAYATTA, Circuit Judge.
Rolando Rojas appeals from his conviction for distributing cocaine, pointing to two instances of prosecutorial misconduct during closing arguments: improper vouching and the playing of an audio recording never entered into evidence. Because the district judge ably responded to both of the prosecutor's errors, and neither of the errors affected Rojas's conviction, we affirm.
Rolando Rojas was indicted for distributing cocaine on three occasions in violation of 21 U.S.C. § § 841(a)(1), (b)(1)(C), and (b)(1)(B)(iii). His buyer was an undercover agent, Wing Chau, who made audio and video recordings of their meetings and also recorded many of their phone calls.
At trial, Chau testified that the first sale took place in January 2011, following two recorded phone calls between him and Rojas. According to the transcript of the first call, Chau said to Rojas, " I want to pick up that OZ from you," and Rojas responded, " yeah, I'm going to be around." Chau then asked, " [y]ou cooked the good one for me?" Rojas against responded, " [y]eah." In the second call, Chau told Rojas he would be at their meeting place in five minutes, and Rojas responded, " It's going to be a G . . . but it's gonna be rock, rock, rock. It's going to be good man."
The prosecution presented a video showing their meeting, and a separate audio recording, which together seem to depict Rojas agreeing to accept cartons of cigarettes as payment for cocaine, though the actual cocaine cannot be seen due to the position of the camera. Chau testified that after the purchase he gave the substance he received to a detective, who himself testified that he performed a preliminary test confirming that it was cocaine, a result further confirmed by a full chemical test, according to another witness.
In several phone calls later in January, Chau and Rojas discussed the previous sale and possible future sales, with Chau expressing his interest in more cocaine (e.g., " I still need the hard stuff" ) and Rojas agreeing that he would try to procure it (e.g., " let me see what I can do" ). The second sale, Chau testified, took place in February 2011. On the phone the day before, Chau asked if Rojas had " that material," and Rojas said that he would " get it and then make it" by the following afternoon. The prosecution presented a video of their meeting, with audio, which shows Rojas producing a bag carrying a white substance while saying, " [t]his . . . is bomb man." As with the first sale, the substance tested positive for cocaine.
Rojas allegedly sold cocaine to Chau for the third and final time in March 2011. In a phone call a few days before, Chau said, " I need . . . 120 grams," and Rojas responded, " I'm going to try to give it to you." In later calls, Chau and Rojas negotiated the price and worked out the logistics of their meeting. The prosecution again presented a video of their meeting, with audio, in which Rojas again accepts payment in cigarette cartons and seems to refer to the cocaine he is selling (" [t]his is bomb" ), but the cocaine itself is out of view, as in the first sale. The substance received by Chau tested positive for cocaine.
When Rojas was arrested in July 2011, he was interviewed by Christian Jardin, who also testified at trial. According to Jardin, ...