Lead Opinion
Raymond Florez (Raymond) appeals his conviction for one count of conspiracy to
I.
Raymond asserts the district court abused its discretion under Federal Rule of Evidence 403 and 404(b) in admitting evidence of his 1995 conviction for possession of marijuana with intent to distribute. Raymond argues the prior conviction’s remoteness, 12 years from the date the instant offense was alleged to have begun, made its admission highly prejudicial and irrelevant. Raymond contends the Government presented no evidence Raymond’s prior conviction had any connection to the evidence presented at trial, other than propensity evidence, and there was a risk that the jury may have convicted Raymond based solely on his prior conviction.
A district court’s evidentiary rulings are reviewed for abuse of discretion. United States v. Malol,
To be admissible, the Rule 404(b) evidence must: (1) “be relevant to an issue other than the defendant’s character;” (2) be proved sufficiently to permit a jury determination that the defendant committed the act; and (3) be of probative value that is not substantially outweighed by undue prejudice and meet the other requirements under Federal Rule of Evidence 403. United States v. Jernigan,
Under the first prong of the Rule 404(b) test, we have stated that, in drug conspiracy cases, “a not guilty plea renders the defendant’s intent a material issue. Evidence of such extrinsic evidence as may be probative of a defendant’s state of mind is admissible unless the defendant affirmatively takes the issue of intent out of the case.” United States v. Matthews,
In applying the third prong of the Rule 404(b) test, the district court must consider Federal Rule of Evidence 403, which states that a court can exclude relevant evidence if the probative value is substantially outweighed by, inter alia, unfair prejudice. To make this determination, a district court must apply “a common sense assessment of all the circumstances surrounding the extrinsic offense, including prosecutorial need, overall similarity between the extrinsic act and the charged offense, as well as temporal remoteness.” Jernigan,
We have declined adopting a bright-line rule with respect to temporal proximity because decisions regarding impermissible remoteness are highly fact-specific. Mat
Raymond’s prior conviction was relevant to an issue other than his character because his intent was directly at issue based on his not-guilty plea and the defense’s theory of the ease. Because his prior conviction was similar to the instant offense, the prior conviction was highly probative of his intent. Further, the probative value of the evidence was not outweighed by any undue prejudice caused by the remoteness of his conviction. Thus, the district court did not abuse its discretion in admitting evidence of his prior conviction.
II.
Raymond argues that DEA Special Agent Robert Livingston’s testimony at trial regarding Raymond’s connection to two drug investigations that occurred in Texas and Ohio was inadmissible hearsay. Agent Livingston testified regarding (1) telephone records that connected Raymond to a drug courier arrested in Texas, and (2) the facts surrounding investigations into the arrests of drug couriers in Texas and Ohio. Raymond asserts that, although such evidence is admissible to explain why law enforcement started an investigation, it should only be used to provide background information. Raymond contends that, in his case, the evidence was used for the truth of the matter asserted, as demonstrated by the Government’s closing argument where the challenged testimony was used as substantive evidence of his guilt. Finally, Raymond argues that this evidence was testimonial hearsay and violated his right to confront witnesses.
Raymond concedes that, because he did not object to the testimony at trial, it is reviewable only for plain error. Where a defendant fails to preserve an evidentiary ruling by contemporaneously objecting, we review only for plain error. United States v. Turner,
We have long recognized that:
statements by out of court witnesses to law enforcement officials may be admitted as non-hearsay if they are relevant to explain the course of the officials’ subsequent investigative actions, and the probative value of the evidence’s non-hearsay purpose is not substantially outweighed by the danger of unfair prejudice caused by the impermissible hearsay use of the statement.
Id. at 1288 (quotations and alteration omitted).
Generally, business records are “by their nature [] not testimonial” hearsay. Crawford,
Because no objection was made to this testimony, the record is unclear as to why the court initially admitted the telephone and bank records testimony. See Jiminez,
As to the facts surrounding the arrests of drug couriers in Texas and Ohio, this evidence was also later used for the truth of the matter asserted in the Government’s closing. Further, the Confrontation Clause may have been violated by Livingston’s testimony regarding what law enforcement told him about their investigation into the Texas and Ohio incidents because an objective witness would have reasonably considered the statements to be available at a later trial. See Baker,
III.
Raymond contends his right to remain silent was violated when a Government witness commented on Raymond’s silence at trial in the witness’s responses to Raymond’s counsel’s questions during cross-examination, and thus, he asserts that reversal of his conviction is required as a matter of law.
We review the court’s refusal to grant a mistrial based on a comment regarding a defendant’s right to remain silent for abuse of discretion. United States v. Chastain,
The district court did not abuse its discretion. The improper comments occurred in the context of cross-examination. The witness’s answers were responses to defense counsel’s questions, and thus, it cannot be shown that the witness manifestly intended to refer to Raymond’s silence. Chastain,
IV.
Raymond raises multiple arguments concerning prosecutorial misconduct. He contends the Government impermissibly relied on facts not in evidence at closing. At trial, the Government made references in its closing arguments to telephone records that connected Raymond to a drug courier arrested in Ohio, without having presented any evidence regarding the records during trial. The Government also claimed that the person seen driving the vehicle accompanying the drug courier was a Hispanic male, without presenting any supporting evidence, in order to show that Raymond was the individual driving the truck. Next, Raymond argues that the prosecutor made repeated attacks on his defense counsel’s credibility at trial by the prosecutor’s statements that a question that defense counsel asked was impermissible and that defense counsel was
Ordinarily, we review claims of prosecu-torial misconduct de novo because they are mixed questions of law and fact. United States v. Merrill,
A personal attack on an opposing lawyer may constitute prosecutorial misconduct. See United States v. Young,
The Government concedes it was improper to refer to facts not in evidence during closing argument. See Bailey,
Further, none of the statements that Raymond challenges as attacking defense counsel’s credibility were improper, and thus, no prosecutorial misconduct occurred in this context. One statement arose in the context of an evidentiary objection addressed to the court, not the jury. See Tampas,
V.
Raymond argues that the cumulative errors during his trial require reversal. He contends that because of the weakness of the Government’s case, the judgment in his case was affected by the errors.
Under the cumulative error doctrine, we review the record as a whole to determine whether the defendant was afforded a fundamentally fair trial. United States v. Lo
The errors that occurred were with respect to the admission of portions of the government agent’s testimony and the prosecutor’s reference to facts not in evidence in his closing statements. Both of these errors were interrelated and were regarding Raymond’s connections to drug activity in Ohio and Texas. However, in light of the other evidence presented at trial demonstrating Raymond’s guilt, these errors, taken together, did not deprive Raymond of a constitutionally fair trial.
VI.
Finally, Raymond argues the evidence was insufficient to support his conspiracy conviction. He contends the Government failed to prove the scope, nature, duration, and members of the conspiracy, as well as show that Raymond actually intended to sell drugs to a confidential informant, rather than just talk about such a sale. He asserts the testimony at trial of convicted drug dealers that Raymond sold them both cocaine and marijuana on multiple occasions for them to distribute should not be sufficient to support his conviction because their credibility was greatly undermined over the course of his trial.
We review both a challenge to the sufficiency of the evidence and the denial of a Federal Rule of Criminal Procedure 29 motion for judgment of acquittal de novo. United States v. Gamory,
To sustain a conviction for conspiracy to distribute drugs, the government must prove that “1) an agreement existed between two or more people to distribute the drugs; 2) that the defendant at issue knew of the conspiratorial goal; and 3) that he knowingly joined or participated in the illegal venture.” United States v. Brown,
The evidence at trial was sufficient to convict Raymond. Multiple witnesses testified that Raymond actually supplied them with cocaine and marijuana, demonstrating both his agreement with others to supply drugs to them and his actions taken to further the conspiracy. In addition, the Government presented audio recordings of conversations between a confidential informant and Raymond, which demonstrated Raymond’s past involvement in distributing drugs, as well as his willingness to resume his drug activities. Although Raymond argues the Government’s witnesses were not credible, all credibility choices are made in the Government’s favor. See Gamory,
Based upon our review of the record and parties’ briefs and having had the benefit of oral argument, we affirm Raymond’s conviction.
AFFIRMED.
Concurrence Opinion
Concurring:
I join in the majority opinion because there is no question that, under our case law, the opinion is sound. But I am compelled to note a concern.
My concern is the direction that the harmless error doctrine has taken — the development of the “guilty anyway” rule: Even when there is admitted error, even when the prosecution bases its argument on potentially prejudicial extra-record evidence, and even when the evidence is remote beyond relevance, the law requires us to conclude that the mistakes were of no legal consequence because the admissible proof shows that the defendant is “guilty anyway.”
The harmless error doctrine might have noble origins. After all, it counsels us to defer to the jury’s decision, despite minor errors, when the evidence clearly weighs against the defendant. But, at some point, the doctrine threatens the substantive fairness of a trial, the goal of which is to ferret out the truth through rigorous advocacy under an historical safeguard of adherence to the principles and rules of a fair trial.
When evidence of prior conduct under Rule 404(b) is admitted, the rule should be something more than a rule that can be reduced to an anything goes proposition. When the trial court rightly limits the testimony of a witness (in Agent Livingston’s case to a very narrow purpose), it is untoward for the prosecutor to disregard the judge’s rulings and to make use of the evidence in a manner that the judge expressly disallowed. To then admit to us on appeal that the inappropriate use of that evidence at trial and in closing argument was an error, but made no difference, disrespects the rule of law and the institutional obligations that lawyers have to the court and to the administration of justice.
The guilty anyway rule does nothing to ensure that an over zealous prosecutor will be constrained by the rules and the trial judge’s rulings. If fact, it does the opposite. It simply enforces the notion that it is easier to ask for forgiveness on appeal than it is to ask permission at trial.
But, as the majority points out, the trial court’s application of the rules of procedure, the rules of evidence, and our application of the harmless error doctrine do not occur in a vacuum. The trial judge, for instance, can only serve his or her function in a system of advocacy when the advocates exercise their institutional roles and obligations. This means, in part, that defense counsel must raise meritorious objections at trial, rather than wait and present the objections for the first time on appeal. Tactical decisions are a part of every trial, but tactics do not usurp the obligation to toe the mark when it comes to ensuring fairness in the trial process. In this case, as the majority notes, the constraints placed on our review require defense counsel to make a proper record.
I join the majority, but I have grave concerns that the trial process increasingly drifts toward not a search for the truth through a rigorous rule based undertaking but a process where close enough counts in government work. If the law was not so clear on the issues raised in this appeal, I would reverse the convictions and send the case back for a new trial where the lawyers are compelled to do the job they are supposed to do.