18-10992
11th Cir.Nov 13, 2020Background
- Muller Tercier was indicted and tried for conspiracy to possess with intent to distribute at least five kilograms of cocaine; trial occurred Nov. 2017.
- Law enforcement wiretapped numerous Creole conversations (86 between Lavalliere–Tercier; 25 between Lavalliere–Duroseau); English translations/transcripts were introduced at trial; Special Agent Weber testified about translation verification.
- Government presented a key September 26, 2014 hand‑to‑hand transaction timeline: Duroseau→Lavalliere (delivery), Lavalliere visited Tercier’s autobody shop at 1:19 p.m. and handed a package; Tercier was not photographed and no post‑transaction drugs were seized.
- Co‑conspirators Lavalliere and Duroseau testified for the government; Special Agent Mayo testified as an expert about coded language on wiretaps.
- Jury convicted Tercier; at sentencing the court denied an acceptance‑of‑responsibility reduction but later granted safety‑valve relief and sentenced him to 83 months.
- Tercier appealed raising six claims: Giglio/false testimony, Batson juror strike, Riley warrantless cellphone search, wiretap transcript/jury instruction and Confrontation Clause, evidentiary errors (present sense impressions, lay/expert testimony, bolstering), and denial of acceptance adjustment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prosecutorial misconduct / Giglio (false testimony about Sept. 26 transaction) | Tercier: government knowingly presented false evidence that he participated in the Sept. 26 hand‑to‑hand delivery and relied on inconsistent witness statements; entitled to new trial. | Government/District Court: alleged inconsistencies are credibility issues, not perjury; no evidence government knowingly used false testimony; recordings were admitted and available. | Rejected. Inconsistencies and memory lapses are not Giglio perjury; no reasonable likelihood false testimony affected verdict. |
| Batson peremptory strike of prospective juror | Tercier: government struck an apparently Haitian juror for race/national‑origin reasons; court should have found a Batson violation. | Government: strike was race‑neutral — juror was young, disengaged, lacked life experience; district court found explanation credible. | Rejected. No prima facie proof of protected‑class status on record; government gave permissible reasons; no clear error. |
| Riley / warrantless search of third party cellphone | Tercier: contents of third party cellphone used at trial were obtained without warrant; he has standing to challenge. | Government: Tercier lacks standing to challenge a third party’s phone search; no showing he had an expectation of privacy in that phone. | Rejected. Tercier had no legitimate expectation of privacy in a third party’s cellphone; Riley does not extend standing here. |
| Wiretap transcripts, Creole→English translations, and Confrontation Clause | Tercier: transcripts should not be sent to jury; instruction to "accept" translations usurped jury role and violated Confrontation Clause because translators were not called. | Government/District Court: transcripts are admissible aids; defense had transcripts and opportunity to produce alternatives; Special Agent Weber testified to verification and was cross‑examined. | Rejected. Defendant waived challenge by not offering alternative transcripts; court limited instruction and identified tapes as primary evidence; Confrontation Clause satisfied by cross‑examination of agent. |
| Evidentiary rulings: present sense impressions, lay and expert opinions, witness bolstering (and cumulative error) | Tercier: court erred admitting out‑of‑court surveillance statements, lay testimony about coded language, expert decoding, and allowing improper bolstering; cumulative error warrants reversal. | Government: surveillance statements were present‑sense impressions; lay and expert testimony on coded language were admissible and non‑cumulative; vouching claim involved a government witness, not prosecutor. | Rejected. Present sense impression exception applies; lay and expert testimony admissible under Rules 701/702; no improper prosecutorial bolstering; no cumulative error. |
| Acceptance‑of‑responsibility reduction at sentencing | Tercier: he only contested drug quantity at trial and therefore merits a two‑level acceptance reduction; safety‑ valve relief granted so acceptance should follow. | Government/District Court: Tercier denied essential elements of guilt at trial and only admitted responsibility after conviction; safety‑valve and acceptance are distinct doctrines. | Rejected. Court did not clearly err denying acceptance reduction — defendant challenged factual guilt at trial; safety‑valve eligibility does not require awarding acceptance credit. |
Key Cases Cited
- Giglio v. United States, 405 U.S. 150 (prosecutor may not knowingly use false testimony)
- Batson v. Kentucky, 476 U.S. 79 (peremptory strikes may not be race‑based; three‑step framework)
- Riley v. California, 573 U.S. 373 (privacy protections for cellphones)
- Crawford v. Washington, 541 U.S. 36 (Confrontation Clause requires prior opportunity for cross‑examination for testimonial statements)
- Melendez‑Diaz v. Massachusetts, 557 U.S. 305 (testimonial forensic reports and confrontation principles)
- United States v. Wilson, 578 F.2d 67 (5th Cir.) (guidance on producing/stipulating transcripts and translations)
- United States v. Curbelo, 726 F.3d 1260 (11th Cir.) (Confrontation Clause and translated transcripts)
- United States v. Pierce, 765 F.2d 1491 (11th Cir.) (surveillance statements as present sense impressions)
- United States v. Holt, 777 F.3d 1234 (11th Cir.) (expert testimony decoding coded narcotics wiretaps)