642 F. App'x 448
5th Cir.2016Background
- Hemphill was convicted after a jury trial of possession with intent to distribute crack and conspiracy to do so; this was the second appeal after his guilty plea was earlier withdrawn on appeal.
- Government’s case rested on two controlled buys by a confidential informant (CI); the second buy was recorded by a button camera but the video was dark and inconclusive.
- The seller in the video wore distinctive red slippers and a light appeared at the seller’s ankle; Hemphill was arrested wearing matching slippers and an electronic ankle monitor that emitted a light. GPS data from the monitor placed Hemphill at home during the buys.
- The district court admitted testimony about Hemphill’s ankle monitor (but excluded a photograph of the device) over Hemphill’s Rule 404(b) objection and allowed the pretrial services officer to testify about GPS data.
- After verdict, the Government disclosed that twelve unadmitted exhibits had been sent to the jury during deliberations; jurors said they viewed only a shoulder-up photograph of Hemphill (possibly a mugshot) and used it to compare to the dark video.
- Hemphill moved for a new trial and for replacement counsel on appeal; the district court denied a new trial and this Court affirmed, rejecting challenges to the monitor evidence, the jury photograph, cumulative error, and several pro se claims (conspiracy-call recording, sufficiency, vouching, chain of custody).
Issues
| Issue | Plaintiff's Argument (Hemphill) | Defendant's Argument (Gov't) | Held |
|---|---|---|---|
| Admissibility of ankle-monitor evidence (Rule 404(b)/403) | Evidence of monitoring device was extrinsic and prejudicial; admission violated Rule 404(b) and risked unfair prejudice. | Device evidence was probative of identity and opportunity (light on ankle + GPS); no prior-crime details were admitted; photo of device was excluded to limit prejudice. | Court assumed 404(b) applied but held admission proper: probative of identity/opportunity and not substantially outweighed by prejudice. |
| Jury exposure to unadmitted photograph during deliberations (extraneous influence) | Photo was prejudicial and likely influenced verdict; jurors used it to identify the defendant in the dark video; some jurors thought it was a mugshot. | Photograph was neutral/cumulative (CI identified Hemphill in court); weight of evidence was strong; no reasonable possibility photo affected verdict. | Court applied burden-shifting test and Ruggiero factors and affirmed: no reasonable possibility that the extraneous photo influenced the verdict. |
| Cumulative-error doctrine | Even if each error is harmless alone, combined errors deprived Hemphill of a fair trial. | No individual errors found, so nothing to aggregate. | Court rejected cumulative-error claim because it found no reversible error on any challenged ruling. |
| Pro se supplemental claims (recorded call admitted as coconspirator statement; sufficiency; prosecutorial vouching; chain of custody) | Recording did not have independent evidence of a conspiracy; evidence insufficient to prove conspiracy or that Hemphill handed drugs to CI; summation improperly vouched; chain break undermines evidence. | Recording plus independent facts (mother called son, gave his number, Hemphill waiting with drugs) supported conspiracy; corpus of evidence sufficient; remarks were argument, not improper vouching; chain breaks go to weight not admissibility. | Court upheld admission of the call and sufficiency for conspiracy and possession; closing argument reviewed for plain error and not reversible; chain-of-custody issues affect weight, not admissibility. |
Key Cases Cited
- United States v. Hemphill, 748 F.3d 666 (5th Cir. 2014) (prior opinion vacating guilty plea and remanding)
- United States v. Girod, 646 F.3d 304 (5th Cir. 2011) (standards for reviewing evidentiary rulings and Rule 403 balancing)
- United States v. Ruggiero, 56 F.3d 647 (5th Cir. 1995) (framework for extraneous influence on juries and new-trial analysis)
- United States v. Mix, 791 F.3d 603 (5th Cir. 2015) (burden-shifting test for jury exposure to extrinsic material and Ruggiero factors)
- United States v. Nelson, 732 F.3d 504 (5th Cir. 2013) (requirement that conspiratorial statements be supported by independent evidence of conspiracy)
- United States v. Dixon, 132 F.3d 192 (5th Cir. 1997) (breaks in chain of custody affect weight of evidence, not admissibility)