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Date: 09-29-2021
Case Style:
United States of America v. Manuela Chavez
Case Number: 20-1465
Judge: Thomas Lee Kirsch II
Court: United States Court of Appeals
For the Seventh Circuit
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
Chicago, IL -Criminal defense lawyer represented defendant with
conspiracy to distribute and to possess with intent to distribute heroin and distribution of heroin chargers.
The evidence at trial principally consisted of testimony from law enforcement officers and the informant Slater,
as well as the recordings Slater made at Roma III on August
28 depicting the drug transaction and his interaction with
Chavez. Chavez argued that the government could not show
that she knew what was in the package she gave to Slater on
August 28, except through Slater’s unreliable testimony. She
contended that Slater was lying to appease the government,
which had offered him a lenient plea deal in relation to his
own extensive drug distribution crimes.
Slater testified that he had been selling drugs since he was
12 years old (he was 41 at the time of trial) and had been convicted of various felonies, including a cannabis conviction in
1994, a firearms conviction in 1996, another cannabis conviction in 2003, and two other narcotics-related convictions in
2004 and 2011. He had been purchasing large quantities of
drugs at Roma III from someone named Jose until 2012, when
No. 20-1465 5
Jose died. At that point Perez, Jose’s girlfriend, became his
supplier of kilogram quantities of cocaine and heroin. Chavez
worked with Perez to distribute drugs to Slater up until he
began cooperating with the FBI. During this time, Slater
picked up drugs from them once or twice a week depending
on how quickly he could sell his supply. Between 2012 and
2015, Chavez had provided Slater with drugs on four to seven
occasions. Slater also stated that Chavez told him on those occasions what drug he was receiving—brown for heroin or
white for cocaine. When Slater dropped off money to Chavez,
he instructed her to tell Perez how much cash he had given
her. He sometimes showed Chavez the actual cash.
Slater next discussed his cooperation with the government. Around the time Slater began cooperating, he had
picked up heroin from Roma III and returned to an apartment
to unpack it. As he unpacked it, he noticed it was short. Although the timing is unclear from his testimony, Slater said
that at that point he decided to cooperate with the FBI and
turned the drugs over without taking any himself.
Finally, the government shifted its focus to Slater’s plea
agreement in his own criminal case. Slater stated that he was
testifying pursuant to a plea agreement in his own heroin and
cocaine drug trafficking case, in which he had already
pleaded guilty but had not yet been sentenced. He stated that
as part of that plea agreement, he agreed to testify truthfully
in Chavez’s trial. Slater additionally testified that he understood the crime to which he had pleaded guilty carried a potential sentence of five to 40 years’ imprisonment, that his sentencing guidelines range would be 360 years to life, and that
because of his cooperation the government would recommend a ten-year sentence.
6 No. 20-1465
On cross-examination, defense counsel impeached Slater
on several issues. First, defense counsel directed Slater to his
grand jury testimony, in which he stated that he had “never
discussed drugs with” Chavez. Counsel pointed out that
Slater had testified at trial, however, that at times Chavez
would tell him whether he was receiving “brown” or “white.”
Slater responded that he meant he had never discussed prices
of drugs with Chavez. Defense counsel next asked why Slater,
although he had met with the government many times to discuss Perez and Chavez during his cooperation, never told the
government that he and Chavez discussed “brown” or
“white” until shortly before trial. Slater disagreed with this
timeline, saying that he had mentioned the terms “brown” or
“white” to someone with the FBI but he did not know who he
had told. Defense counsel then pointed out that the investigators said that Slater had not raised that point until a few
months before trial, and Slater responded that he guessed the
agents were wrong.
Defense counsel next focused on Slater’s testimony that he
had received drugs from Chavez on four to seven occasions.
Slater had testified before the grand jury that Chavez had
given him drugs four to five times. Counsel also questioned
why Slater had not told investigators this during their initial
meetings, but Slater did not give a clear response. Counsel
similarly pointed out that Slater had testified before the grand
jury that he had given Chavez money for drugs on four or five
occasions, but then testified at trial that it had been ten occasions. Counsel also emphasized that none of Slater’s previous
statements, either to investigators or before the grand jury,
referenced him showing Chavez any cash.
No. 20-1465 7
Defense counsel also discussed Slater’s plea agreement,
pointing out that Slater had admitted to distributing more
than 100 kilograms of heroin and at least 30 kilograms of cocaine. Slater admitted, among other things, that if he received
a guidelines range sentence of 30 years, there was a possibility
that he might die in prison.
Finally, Slater was cross-examined on the heroin that he
had received from Roma III shortly before he began cooperating, which he had told agents (according to FBI testimony)
was short by roughly 200 grams. Defense counsel implied that
Slater had stolen the 200 grams as one final score before cooperating, which Slater denied. Slater stated that he did not recall what he had told the FBI about any conversation with Perez regarding the allegedly shorted heroin.
Following the conclusion of testimony, the government, in
its initial closing argument, focused heavily on Slater’s testimony, the video evidence depicting Chavez handing Slater
the package, and the type and quantity of the drugs that were
recovered. The prosecutor argued that these aspects of the
case proved that Chavez did know what was in the package
she was handing Slater. Specifically, the prosecutor reminded
the jury that Slater testified that Chavez had told him whether
he was getting “brown” or “white.” The video of the August
28 transaction was played again, and the prosecutor urged the
jury to use their common sense as they watched Chavez’s actions, which the prosecutor argued showed that she knew
what was going on as she took him into the back room of the
clothing store.
Finally, the prosecutor made the following statement before concluding:
8 No. 20-1465
Now, the judge just reminded you that what the
parties say in their arguments is not evidence.
But we need to talk about this idea that the defendant didn’t know that it was a kilo of heroin
wrapped in tape. That it didn’t even register
with her as something that was noteworthy.
The prosecutor then repeated some of the circumstantial evidence discussed above that pointed toward Chavez’s
knowledge. She specifically focused on the appearance of the
package that Chavez had placed into the shoe box. She described it as a “mysterious brick-like package” in an old
woman’s shoe box, stating this “was not gift wrapping.” The
prosecutor then asked the jury to find Chavez guilty on both
counts.
Next, Chavez’s attorney argued. Defense counsel forcefully challenged Slater’s credibility, starting with the impeaching evidence he adduced during cross-examination, including Slater’s wavering on the number of times cash or
drugs had changed hands between him and Chavez. Defense
counsel argued that other than Slater’s testimony, nothing
showed that Chavez knew what was in the package. Counsel
then argued that Slater was lying to make the government
happy, and that the explanation for his inconsistencies was
that he had told so many lies that he was having a hard time
keeping them straight in his head. Counsel additionally argued that Chavez’s actions could be explained by her trust in
her aunt and business partner, Perez. Defense counsel concluded by urging the jury not to convict Chavez based on the
Slater’s word alone.
Next came the government’s rebuttal, which is the primary focus of this appeal. The government began by
No. 20-1465 9
reiterating its initial arguments before making arguments
about Slater’s credibility that generally fall within three categories—explanations for his inconsistencies, his motivation to
tell the truth, and immaterial details that were defense counsel’s focus.
As for Slater’s inconsistencies, the prosecutor argued that
“[e]very time Willie Slater has been asked about” Chavez’s involvement in the distribution of heroin at Roma III, “he has
said the same thing: [Chavez] distributed drugs to me on multiple occasions before August 28, 2015.” Defense counsel then
objected. The court overruled the objection, but reminded the
jury of its initial instructions to them that “if anything the attorneys say conflicts with what they recollect the evidence to
be, they are to rely on their own recollection.” Following the
objection, the prosecutor argued that Slater was “doing his
best” to tell the truth, but that certain details may have become mixed up in his mind because these events had happened years before and Slater had been involved with purchasing drugs on many occasions. In effect, the prosecutor argued that it was difficult for Slater to recall exact numbers because this was simply his normal routine as a drug dealer.
Next, the prosecutor emphasized Slater’s cooperation:
I don’t know if you’ve noticed, there is a lot of
crime in Chicago. Okay? And the FBI was using
[] Slater to try to stop that crime.
…
[W]hat incentive does Slater have to lie to you?
You heard about all the different things that he
did as part of his cooperation outside of this.
Okay? This was a small part of it. You heard
10 No. 20-1465
about that. And all the things that [Slater] did,
he built up a considerable amount of credit with
the government.
…
[Slater] has built up all this credit over all these
months, and they like to talk about how many
times he met with the agents. He did. He put in
a lot of work against a lot of different people.
The prosecutor also argued that Slater had no incentive to lie
in this case, as he would risk losing his plea agreement:
[Slater] was looking at 30 to life and now he is
looking at 5 to 10. Would he risk all of that, all
the work he had done against so many other
people out there to frame an innocent person?
Does that make sense? He has every motivation
in the world to tell you the truth, to tell you the
facts and get off the witness stand without jeopardizing his plea agreement, without going to
jail for 30 to life. Nothing to gain by framing her,
everything to lose.
…
[Slater] is self-interested. He doesn’t want to go
to jail for the rest of his life. And if he had gotten
on the witness stand and told you, you know
what, I got it wrong, Perez—the defendant is really the head of the whole operation. Yoink. Plea
agreement is gone, he is in prison for the rest of
his life. If he gets up and says, it wasn’t four to
seven times, I got drugs from her 15 or 20 times.
Goodbye. You’re in prison for the rest of your
No. 20-1465 11
life. Do you think he would risk that? Does the
difference between four and five and four to
seven, was that someone who is trying to exaggerate and risk going to prison for the rest of his
life? Doesn’t make sense.
[Slater] is telling you the truth, he is not exaggerating because he doesn’t want to go to jail for
the rest of his life.
…
[Slater] is not here to exaggerate. He is not here
to tell stories. He is here to tell the truth and get
off the witness stand so he doesn’t go to prison
for the rest of his life.
…
No exaggeration. No lying. Not taking an opportunity to implicate her further because
[Slater] doesn’t want to go to prison for the rest
of his life to frame an innocent person.
Finally, the prosecutor made several references to the defense attorney and what he had said during closing argument
and the trial:
Now, let’s start with Willie Slater because that’s
all the defense wants to talk about. Well, let’s
talk about Willie Slater. Let’s talk about it real
[sic]. Let’s not parse his words, like attorneys
like to do.
…
Now, do you remember when Agent Hedges
was on the stand and the defense tried to
12 No. 20-1465
impeach him with a little parsing of words that
defense attorneys love to do. They tried to impeach him on the fact that, after Slater made his
second recording and delivered the video to the
agents, they tried to suggest to you that he tried
to lie to the agents about what he said to Perez
on the video, after he had handed the video to
the agent so they could watch it. Just because he
didn’t use the exact words on the tape. That’s
parsing. That’s something defense attorneys do.
Don’t be distracted by it.
…
But remember when I got back up and tried to
tell you about what really mattered about that
recording that he told agents the minute he got
back? … Do you remember what he did? He
jumps up. Whoa, I don’t want the jury to hear
that. We don’t want them to hear that. Why? Because that’s a problem for the defense.
…
So then the evidence came in that, when Slater
spoke about it, he consistently told agents that
she distributed drugs to him. That’s a problem
for the defense. So what do they do next? They
start word-parsing.
…
So let’s talk about the things that matter, the
things that the human mind holds onto when
you’re remembering things, and not the little
No. 20-1465 13
details. The distinctions without a difference
that defense attorneys make their living on.
Chavez objected to the final line, and the district court sustained the objection.
Following arguments, the case was submitted to the jury.
During deliberations, the jury sent a note to the court indicating that because Chavez had heard the jurors’ names and
where they lived, they were concerned for their safety. After
conferring with counsel, the district court sent back a note
stating that the jurors should not be influenced by fear and
that the court would address any concerns the jurors still had
after they had performed their duty in accordance with the
jury instructions. The jury ultimately returned a verdict of
guilty on both counts.
Sentencing. At sentencing, the district court stated that it
was “very concerned” that Chavez had chosen to “subsidize
[her] lifestyle” by selling drugs and that her involvement in
the conspiracy did not stem from the need to feed her family
or desperation. The district court described this as “truly
criminal.” Defense counsel objected at this point, stating that
the Presentence Investigation Report (“PSR”) did not support
this conclusion and arguing that there was no evidence in the
record that suggested Chavez had financially benefitted from
the crime. The district court stated:
Very well. Well, I think it’s very clear that there
was a benefit to the two owners of that establishment; that the establishment was made
much more productive by the sale of large
amounts of narcotics for many, many years.
And although it is possible that the defendant
14 No. 20-1465
never benefited a penny from that, it is not the
most reasonable inference to be drawn from the
facts. The most reasonable inference is that as
part owner of the store, she was also part of the
transactions going on in the back room, which
she also helped on occasion, apparently whenever it was needed.
The court then sentenced Chavez to 108 months’ imprisonment, which was the low end of the guideline range. In its
written statement of reasons, the district court, in part, wrote:
[Chavez] was one-half owner of a retail clothing
boutique and apparently had the means of making a living without resorting to selling heroin
and cocaine. This was not a crime driven by despair or need, but a deliberate choice. The need
for deterrence in the general sense as to others
who would, while employed and being far from
destitute, nevertheless choose to engage in drug
trafficking—is also a basis for the court’s sentence in this case.
II
Chavez raises three arguments on appeal. First, she asserts
that she was deprived of a fair trial because of improper prosecutorial statements made during closing argument. Second,
Chavez argues that the prosecution violated the Fifth Amendment protection against self-incrimination by suggesting that
only Chavez could have provided evidence to show she did
not know heroin was in the package she gave Slater on August
28. Third, Chavez contends that the district court relied upon
a fact at sentencing—that Chavez financially benefitted from
No. 20-1465 15
the sale of narcotics at Roma III—that was not in the record.
We address each argument in turn.
A
Chavez focuses first on the prosecution’s statements in rebuttal. Before raising her argument in this appeal, Chavez
moved for a new trial based on three of those statements: (1)
that Chavez’s attorney “unfairly parses statements like defense lawyers are paid to do”; (2) that if Slater testified untruthfully, the prosecutor “would have yanked him off the
stand immediately”; and (3) that Slater “bought firearms from
a lot of different people.” Chavez did not object at trial to
those statements, and the district court denied Chavez’s motion. Now on appeal, Chavez identifies those three statements, two other statements to which she objected at trial, and
a litany of other unobjected-to statements that she asserts
were improper, any or all of which led to an unfair trial.1
We review the district court’s decision on Chavez’s motion
for a new trial for abuse of discretion. See United States v. Rosario, 5 F.4th 706, 710 (7th Cir. 2021). And we reverse if “no
reasonable person could take the view adopted by the trial
court[,]” United States v. Bebris, 4 F.4th 551, 559 (7th Cir. 2021)
(quotations omitted), or if the district court made a legal error.
Rosario, 5 F.4th at 710.
1 Chavez appealed “from the [district court’s] final judgment entered in
this action on March 6, 2020.” Her notice encompasses “all matters occurring on or before the date of final judgment.” United States v. Bonk, 967 F.3d
643, 648 (7th Cir. 2020); see FED. R. APP. P. 3(c)(1)(B). Before the district
court’s entry of judgment, Chavez moved for a new trial and the district
court denied that motion. So Chavez’s new trial motion is properly before
us.
16 No. 20-1465
We review the statements to which Chavez failed to object
at trial for plain error, reversing “only if we find an obvious
(i.e., ’plain‘) error that affected the outcome of the trial and
seriously affected the fairness, integrity, or public reputation
of the judicial proceedings.” United States v. Klemis, 859 F.3d
436, 441 (7th Cir. 2017). “The challenged remarks cannot be
plain error unless [the defendant] probably would have been
acquitted if the prosecutor had not made them.” United States
v. Norwood, 982 F.3d 1032, 1053 (7th Cir. 2020) (quotation omitted).
Chavez objected to two statements in the prosecution’s rebuttal; the district judge sustained one and overruled the
other. We review for abuse of discretion a district court’s “decision to overrule an objection to comments in a closing argument.” United States v. Lopez, 870 F.3d 573, 579 (7th Cir. 2017).
The parties do not suggest how we should review an objection
the district court sustained. We have implicitly suggested that
any contemporaneous objection made to a remark in closing
argument is reviewed for abuse of discretion. See United States
v. Roe, 210 F.3d 741, 746–48 (7th Cir. 2000). Because the parties
have not argued otherwise, we assume Roe provides the correct standard of review concerning Chavez’s sustained objection in closing.2
We analyze the propriety of a prosecutor’s remarks in two
steps, asking (1) “whether the prosecutor’s comments were
improper standing alone,” and if improper, (2) “whether the
remarks in the context of the whole record denied the defendant[] the right to a fair trial.” United States v. Kelerchian, 937
2 Even if we reviewed this statement de novo, the outcome would be the
same.
No. 20-1465 17
F.3d 895, 916 (7th Cir. 2019). Improper prosecutorial statements during closing argument “rarely constitute reversible
error[,]” and Chavez faces an “uphill battle.” Klemis, 859 F.3d
at 442.
Generally, the statements Chavez challenges fall into three
categories. First, Chavez asserts that the prosecutor improperly vouched for Slater’s credibility. Second, Chavez argues
that the prosecutor impugned the defense attorney and defense attorneys generally. Third, Chavez contends that the
prosecutor inflamed the jury’s passions. Additionally, Chavez
argues that the cumulative effect of these statements created
a reversible error. We address each category in turn.
1
Chavez asserts that the prosecutor vouched for Slater’s
credibility in a variety of ways: (i) by mentioning facts regarding his cooperation that were not in the record; (ii) by insisting
that his testimony was consistent on points vital to the prosecution’s case; (iii) by personally approving his credibility; and
(iv) by wrongly implying that he had to testify truthfully or
risk life imprisonment.
It is well established that “a prosecutor may not express
her personal belief in the truthfulness of a witness, and a prosecutor may not imply that facts not before the jury lend a witness credibility.” United States v. Wolfe, 701 F.3d 1206, 1212
(7th Cir. 2012) (quotation omitted). But a prosecutor may comment on a witness’s credibility so long as the statement “reflects reasonable inferences from the evidence” rather than a
personal opinion of the prosecutor. Id. (quotation omitted). A
prosecutor may also remind “the jury of evidence presented
at the trial that tends to show that a witness was telling the
18 No. 20-1465
truth” or “point out that its witnesses, under their plea agreements, are required to testify truthfully.” United States v.
Briseno, 843 F.3d 264, 272 (7th Cir. 2016) (quotations omitted).
i
Chavez argues that the prosecutor’s references to Slater’s
cooperation in other cases—that Slater “put in a lot of work
against a lot of different people,” that Slater “bought drugs
from many, many, different people” and “bought firearms
from a lot of different people,” and that the FBI used Slater
“to try to stop” crime in Chicago—strayed from facts in the
record. Chavez makes the same argument with respect to the
prosecution’s statements that Slater “built up a considerable
amount of credit with the government” and, similarly, that
Slater “built up all this credit over all these months.” Chavez
raised the comment concerning firearms in her motion for a
new trial, but no others. And Chavez did not object to any of
the remarks at trial.
None of these comments was improper. Slater testified
both that he wore recording devices to purchase drugs from
six other people and that he bought guns as part of cooperating with the government. It was reasonable for the prosecutor
to argue from this testimony that Slater’s efforts were intended to stop crime, however unlikely that may have been.
It was up to the jury to accept or reject this inference. As for
the comments about “credit,” Chavez concedes that the prosecutor was discussing Slater’s potential sentence reduction
based on his plea agreement. Thus understood, the prosecutor’s remarks are reasonable references to Slater’s incentive to
testify truthfully. See Briseno, 843 F.3d at 272. Indeed, those
incentives—stemming from Slater’s plea agreement—were
brought out on direct and cross-examination in great detail.
No. 20-1465 19
And all the comments Chavez identifies are grounded in evidence. See Wolfe, 701 F.3d at 1212. So we reject Chavez’s arguments concerning this group of statements.
ii
Chavez next contends that the prosecution insisted—improperly—Slater’s testimony was consistent, thus bolstering
Slater’s credibility. In support, Chavez highlights several
statements to which she did not object: that Slater “consistently told the government that [Chavez] distributed narcotics
to him on multiple occasions”; that “every time” Slater “spoke
about” the drug sales he was “consistent”; that Slater’s testimony about the conspiracy was “thoroughly corroborated on
video”; that Slater “is telling [the jury] the truth”; that Slater
was “not here to exaggerate”; and that Slater was “always
consistent on everything that matters” twice repeating the
word “consistent.” And Chavez also raises the statement to
which she objected at trial that “[e]very time Slater” was
asked about Chavez’s multiple distributions of heroin, Slater
“has said the same thing.” Chavez did not include any of
these statements in her motion for a new trial.
We are not convinced that any of the remarks Chavez
identifies crossed the line (although at least one appears to
come right up to it). We are most troubled by the prosecutor’s
comment to the jury that Slater was “telling you the truth.” If
we were to read that statement without the context of the immediate subsequent remarks, it would be vouching (expressing a personal belief in a witness’s truthfulness). See Wolfe, 701
F.3d at 1212. But when this comment is viewed alongside the
prosecutor’s remarks directly following it and put in context,
we cannot say that it warrants a new trial. When the remarks
are read together, the prosecutor was suggesting that the jury
20 No. 20-1465
could infer Slater was telling the truth because he had sufficient motivation for doing so. There is a fine line between a
prosecutor baldly saying, “Witness is telling the truth,” and
saying something like, “You can conclude from the evidence
that witness is telling the truth because he has a strong motivation to do so.” See Kelerchian, 937 F.3d at 918 (“[W]e have
noted that lawyers sometimes are not as precise as they
should be when giving extemporaneous closing arguments.”
(quotation and alteration omitted)). But it is a line that prosecutors should take care not to cross. There is another reason
that reversal here is unwarranted—defense counsel never objected to the comment at trial. Had counsel objected, the district court could have sustained the objection, struck the comment, and instructed the jury to disregard it. Further, the
prosecutor could have taken the opportunity to clean up the
statement and explain to the jury that credibility determinations were theirs to make, while also explaining how and why
the jury could conclude from the evidence that Slater was telling the truth. Perhaps counsel did not object for strategic reasons—counsel may have believed that Chavez was better off
with the prosecutor focusing on Slater’s credibility than the
video of Chavez handing Slater a kilogram of heroin. We do
not know, and it does not matter here. The prosecutor’s comment does not warrant a new trial.
As to the other statements regarding the consistency of
Slater’s testimony, Chavez admits that “some” might be
“technically true”; tellingly, she does not identify those that
perhaps are not. These comments merely emphasize the consistent thread in Slater’s testimony—that Chavez gave Slater
drugs more than once. That thread finds support in Slater’s
statements to investigators, his grand jury testimony brought
out in cross-examination, and his trial testimony. The jury
No. 20-1465 21
could have rejected this argument that Slater’s testimony was
consistent based on certain inconsistencies in his testimony,
as defense counsel ably urged them to do. But that does not
render the statements improper bolstering, and the statements’ foundation in the evidence assures us, too, that each
passes muster.
iii
Chavez suggests that the prosecution offered the jury its
approval of Slater’s credibility. Specifically, Chavez points to
the statement that Slater “is someone who is doing his best to
tell you the truth,” and that if Slater lied while testifying, the
government would take him off the witness stand—in the
prosecution’s words, “Yoink”—and Slater would go to
“prison for the rest of his life.” At trial, Chavez did not object
to these statements. And she raised only the “yoink” statement in her motion for a new trial.
Again, we find nothing improper in the prosecutor’s remarks. Fatal to both is that neither comment evidences the
prosecutor expressing a personal opinion. See Wolfe, 701 F.3d
at 1212. The “doing his best” comment was an explanation for
any inconsistencies in Slater’s testimony and, as discussed,
the prosecution may reference a witness’s obligation under a
plea agreement to tell the truth. As for the “yoink” comment,
it was not a literal description of what the prosecutor might
do (i.e., drag Slater off the stand) should Slater testify untruthfully, but rather a colorful description of the consequences under the plea agreement for untruthful testimony. Because neither comment invokes the prosecutor’s personal opinion, we
reject Chavez’s arguments concerning these remarks.
22 No. 20-1465
iv
Chavez contends that the prosecution implied Slater’s testimony was premised upon a choice between honesty and life
imprisonment. Chavez identifies several of the prosecution’s
comments in support: stating if Slater testified that he got
drugs from Chavez 15 to 20 times instead of 4 to 7 times, he
would be “in prison for the rest of [his] life; asking whether
“the difference between four and five and four to seven, was
that someone who is trying to exaggerate and risk going to
prison for the rest of his life?”; stating Slater “is not exaggerating because he does not want to go to jail for the rest of his
life”; that Slater “doesn’t want to go to prison for the rest of
his life”; and that Slater “doesn’t want to go to prison for the
rest of his life to frame an innocent person.” She neither objected to these statements nor raised them in her motion for a
new trial.
We reject Chavez’s argument. Slater testified that, without
his plea agreement, his guideline range would be 360 months’
to life imprisonment. Slater, then, indeed could have been
sentenced to the top end of the guideline range, and the prosecutor’s argument (however unlikely we believe it to be) was
grounded in the evidence adduced at trial. Moreover, defense
counsel on cross-examination ably made the point that even a
minimum guideline sentence of 30 years could be a life sentence given Slater’s age. And, as discussed, it is proper for the
prosecutor to discuss Slater’s obligation under the plea agreement to testify truthfully. See Briseno, 843 F.3d at 272.
2
We next turn to the prosecutor’s statements referencing
defense attorneys. As discussed, Chavez objected to one of
No. 20-1465 23
those statements—referencing the “distinctions without a difference” defense attorneys “make their living on”—which the
district court sustained. She also raised another statement—
noting that defense attorneys are paid to parse witness statements—in her motion for new trial, which the district court
held was not improper or, alternatively, did not deprive
Chavez of a fair trial.
The government may criticize defense tactics, but not defense counsel. United States v. Bloom, 846 F.3d 243, 254 (7th Cir.
2017). Here, most of the prosecutor’s statements referencing
defense counsel, including those Chavez objected to and
raised in her new trial motion, address tactics—parsing testimony of witnesses and drawing distinctions that do not matter—not counsel.
But we are troubled by two remarks. First, the government
should not have encouraged the jury to draw a negative inference from defense counsel’s objection during trial. The government rightly does not argue otherwise on appeal. At the
same time, however, the remark did not change the outcome
of the trial. The hearsay objection to which the prosecutor alluded in closing concerned one case agent’s testimony about
what Slater related to the agent of his relationship with
Chavez. Slater testified, thoroughly, about this relationship,
and the video evidence corroborated parts of his testimony.
So the jury was well aware of Slater’s relationship with
Chavez regardless of whether the prosecutor improperly focused its attention on a defense objection concerning the
same.
Second, the prosecutor should not have expressed a view
of how defense counsel makes its living. Again, however, we
are not persuaded that the district court abused its discretion
24 No. 20-1465
either in how it handled Chavez’s objection at trial or in how
it addressed the comment in her motion for a new trial. Indeed, at trial, the district court sustained Chavez’s objection
to this comment, and instructed the jury that the parties’ arguments were not evidence. In its order on Chavez’s motion
for a new trial, the district court held that these statements did
not deprive Chavez of a fair trial because they were not outrageous or extreme and the jury was instructed that the attorneys’ arguments were not evidence. That conclusion was reasonable. So the district court, which had the benefit of observing the trial and was in the best position to assess the impact
of this statement, did not abuse its discretion.
3
Chavez next asserts that the prosecution improperly inflamed the passions of the jury—as evidenced by a jury note
questioning jurors’ safety—by referencing guns, by emphasizing Perez’s statement about her drug source having her
“head on a platter” if she was late with payment, and by mentioning crime on the south side of Chicago generally. None of
these statements drew an objection, and Chavez did not include them in her motion for a new trial.
It is well established that a prosecutor may not make an
argument “aimed at inflaming the passions of the jury.”
United States v. Jackson, 898 F.3d 760, 765 (7th Cir. 2018). Not
so here. Each statement Chavez identifies had a firm foundation in the record. Moreover, the prosecutor made the statements in the context of arguments drawing permissible inferences from that record evidence. As for the jury note,
Chavez’s argument is speculative. So, in sum, the statements
were not improper, much less plainly erroneous.
No. 20-1465 25
4
Chavez concludes by insisting that the cumulative effect
of the errors she identifies above denied her a fair trial. “Cumulative errors, while individually harmless, when taken together can prejudice a defendant as much as a single reversible error and violate a defendant’s right to due process of
law.” United States v. Marchan, 935 F.3d 540, 549 (7th Cir. 2019)
(quotation omitted). To demonstrate cumulative error,
Chavez must show that (1) “at least two errors were committed in the course of the trial,” and (2) “considered together
along with the entire record, the multiple errors so infected
the jury’s deliberation that they denied the petitioner a fundamentally fair trial.” Id. (quotations omitted). For the reasons
discussed above, Chavez fails to establish an error in the prosecution’s rebuttal argument.
From our review of the record, defense counsel represented Chavez well during trial, highlighting the key dispute
in the case—whether Chavez knew that drugs were in the
package she handed to Slater. To that end, defense counsel
ably made the jury aware, in detail, of Slater’s inconsistencies
and suspicious changes in story. Moreover, the district court
specifically instructed the jury that they “may give Slater’s
testimony whatever weight you believe is appropriate, keeping in mind that you must consider that testimony with caution and great care.” In any event, we are not convinced that
Slater’s testimony alone served as the basis for inferring
Chavez’s knowledge of the drug distribution, or that Slater’s
testimony concerning her knowledge was uncorroborated.
The video evidence showed familiarity between Chavez and
Slater and illustrated Chavez’s understanding of where to
find the drugs in the back room and how to conceal them. The
26 No. 20-1465
jurors could draw inferences about whether that interaction,
which occurred in a back room of a clothing store and involved a package which did not clearly appear to contain
clothing, corroborated other aspects of Slater’s testimony.
B
Chavez next argues that the government indirectly highlighted her decision not to testify in violation of the Fifth
Amendment. Chavez did not object to the statement underlying this challenge, so we review for plain error. United States
v. Phillips, 745 F.3d 829, 833–34 (7th Cir. 2014).
During the government’s initial closing argument, the
prosecutor said:
Now, the judge just reminded you that what the
parties say in their arguments is not evidence.
But we need to talk about this idea that the defendant didn’t know that it was a kilo of heroin
wrapped in tape. That it didn’t even register
with her as something that was noteworthy.
The Fifth Amendment’s protection against self-incrimination bars a prosecutor from “offer[ing] a defendant’s failure
to testify as substantive evidence of guilt, whether directly or
indirectly.” United States v. Willis, 523 F.3d 762, 773 (7th Cir.
2008) (quotation omitted). Indirect comments are improper
“only if the prosecutor’s manifest intent was to use the defendant’s silence as evidence of guilt, or if the jury would naturally and necessarily infer guilt from the comment.” United
States v. Carswell, 996 F.3d 785, 797 (7th Cir. 2021) (quotations
omitted).
The prosecution’s comments here did not cross the line.
True, the case hinged on whether Chavez knew what was in
No. 20-1465 27
the package she gave to Slater. But context demonstrates the
prosecutor did not intend to use Chavez’s silence to prove her
guilt, and no jury would naturally infer Chavez’s guilt from
the comment. Instead, the statement prefaced the remarks following it about evidence that showed Chavez did know what
was in the package, an essential element of the crime charged.
The prosecutor discussed the familiarity that Chavez displayed to Slater when he entered the store, how she did not
hesitate to take him into the store’s back room to retrieve the
brick-shaped package, and how she further concealed the
package in an old shoe box before bringing it, and Slater, back
to the store’s front room. These are simply arguments based
on the circumstantial evidence that was adduced at trial, from
which it was proper for the government to argue Chavez’s
knowledge.
C
Chavez’s final argument addresses sentencing. Chavez asserts that the district court relied on inaccurate information
when it found that Chavez had “subsidized her lifestyle” with
money connected to the drug distribution conspiracy. And
because the district court emphasized that this fact was an aggravating circumstance at sentencing, Chavez insists the district court’s reliance upon it affected her sentence.
Chavez has “a due process right to be sentenced based on
accurate information.” United States v. Pennington, 908 F.3d
234, 239 (7th Cir. 2018). A district court procedurally errs
when it relies upon inaccurate information at sentencing. We
review arguments asserting procedural errors de novo. Id. at
238. To succeed on her challenge, Chavez must show that “inaccurate information was before the court and that the court
relied upon it.” Id. at 239.
28 No. 20-1465
As a preliminary matter, we are not convinced the district
court relied on inaccurate information when it explained its
reasons for Chavez’s sentence in open court. As discussed, the
district court initially stated that it was troubled that Chavez
had supplemented her lifestyle by selling drugs. But when defense counsel pointed out that the court’s view was not supported by the PSR, the court appears to have changed course,
stating that “the most reasonable inference” to be drawn from
the facts was that Chavez benefited to some degree from the
drug sales. This is a logical conclusion based on the evidence.
But we need not resolve that issue because the district
court clarified its reasoning in its written statement of reasons.
In its written statement, the court clarified that the aggravating factor upon which it relied at sentencing was Chavez’s
lack of economic need to commit the crime. That statement is
consistent with the findings in the PSR. So even if the district
court’s oral explanation for Chavez’s sentence was based, in
part, on inaccurate information, the district court properly
“corrected his oral misstatement of the facts” in his written
explanation. Pennington, 908 F.3d at 240.
Outcome: AFFIRMED
Plaintiff's Experts:
Defendant's Experts:
Comments: