United States of America v. Jose Joaquin Morales

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4955
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSE JOAQUIN MORALES,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Roger W. Titus, Senior District Judge.
(1:12-cr-00480-RWT-1)
Submitted: October 31, 2014 Decided: November 12, 2014
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jonathan S. Zucker, LAW OFFICE OF JONATHAN ZUCKER, Washington,
D.C., for Appellant. Rod J. Rosenstein, United States Attorney,
Sandra Wilkinson, Martin J. Clarke, Assistant United States
Attorneys, Katherine Mcfee, Student Law Clerk, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
A federal jury convicted Jose Joaquin Morales of using
a facility of interstate commerce to facilitate a murder for
hire, in violation of 18 U.S.C. § 1958(a) (2012). The district
court sentenced Morales to life imprisonment. Morales now
appeals. Finding no error, we affirm.
Morales first argues on appeal that the Government
violated a proffer agreement by introducing at trial statements
he made to a Bureau of Prisons (“BOP”) employee. We review
evidentiary rulings for abuse of discretion and review de novo
the question of whether a proffer agreement remains in effect.
United States v. Gillion, 704 F.3d 284, 292 (4th Cir. 2012). We
interpret proffer agreements based on their language,
“examin[ing the] express terms to determine whether the
defendant is in breach.” Id. We have thoroughly reviewed the
record and conclude that district court did not err in admitting
Morales’ statements at trial.
Morales next argues that the district court erred in
refusing to strike the testimony of the BOP employee because he
had destroyed his rough notes of his interview with Morales that
were later incorporated into another government agent’s report.
“The Jencks Act requires the [g]overnment to turn over any
statement of a witness in its possession once the witness has
testified on direct examination, provided the statement relates

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to the testimony of the witness.” United States v. Bros. Const.
Co., 219 F.3d 300, 316 (4th Cir. 2000) (citing 18 U.S.C.
§ 3500(b) (2012)). “The term ‘statement’ in § 3500(b) is
defined by statute to include, among other things, ‘a written
statement made by said witness and signed or otherwise adopted
or approved by him.’” United States v. Smith, 31 F.3d 1294,
1301 (4th Cir. 1994) (quoting 18 U.S.C. § 3500(e)(1) (2012)).
“Jencks Act violations constitute harmless error when
they result in no prejudice to the defense.” United States v.
Schell, 775 F.2d 559, 567 (4th Cir. 1985). We review a district
court’s ruling on a Jencks Act motion to determine whether it
was clearly erroneous, United States v. Roseboro, 87 F.3d 642,
645 (4th Cir. 1996), and we conclude that the district court did
not clearly err in denying Morales’ motion to strike the
testimony.
Morales also argues that several comments made by the
prosecutor during closing arguments were improper and rendered
the trial unfair. Morales preserved his challenge to one such
comment by raising it in the district court, and we review this
claim de novo. See United States v. Collins, 415 F.3d 304, 307
(4th Cir. 2005). We review the comments that Morales did not
raise below for plain error. See United States v. Mitchell, 1
F.3d 235, 239 (4th Cir. 1993). To demonstrate plain error,
Morales must show that (1) the district court erred, (2) the

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error was plain, and (3) the error affected his substantial
rights. Henderson v. United States, 133 S. Ct. 1121, 1126
(2013).
A prosecutor’s improper remarks during closing
argument will mandate retrial only if they “so infected the
trial with unfairness as to make the resulting conviction a
denial of due process.” Id. at 240 (internal quotation marks
omitted). We consider six factors in determining whether a
prosecutor’s arguments were so prejudicial as to have deprived
the defendant of a fair trial, including:
(1) whether the government’s remarks misl[ed] the
jury, (2) whether they were extensive, (3) the
strength of the evidence supporting conviction absent
the comments, (4) whether the government deliberately
made the comments to mislead the jury, (5) whether the
defendant invited the comments, and (6) the presence
of a curative instruction.
United States v. Chong Lam, 677 F.3d 190, 197 (4th Cir. 2012).
We have thoroughly reviewed the record and the relevant legal
authorities and conclude that Morales has failed to demonstrate
that any improper remarks rendered the trial unfair.*
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
* Morales also argues that the cumulative errors require
reversal of his conviction. As we conclude he has failed to
demonstrate that the district court erred, we reject this
argument.

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legal contentions are adequately presented in the materials
before this court and argument would not aid in the decisional
process.
AFFIRMED

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