UNITED STATES of America, Plaintiff-Appellee, v. Allen Kyode PACQUETTE, Defendant-Appellant.
No. 13-11736
United States Court of Appeals, Eleventh Circuit.
March 4, 2014.
556 F. App‘x 933
Non-Argument Calendar.
Paul Michael Rashkind, Michael Caruso, Federal Public Defender, Federal Public Defender‘s Office, Samuel J. Randall, Kenny Nachwalter, PA, Miami, FL, for Defendant-Appellant.
Before TJOFLAT, JORDAN, and FAY, Circuit Judges.
PER CURIAM:
Allen Kyode Pacquette appeals his conviction for importing 500 grams or more of cocaine, in violation of
I. BACKGROUND
On information from a confidential informant, United States Customs and Border Protection (“CBP“) officers stopped Pacquette at Miami International Airport, after his arrival from St. Thomas, U.S. Virgin Islands. A search revealed the bag he was carrying contained approximately one kilogram of cocaine, as well as clothing and several personal items. He was arrested and subsequently indicted.
After stipulation by the parties, the primary issue at trial was whether Pacquette had known his bag contained cocaine. Pacquette generally denied knowing of the cocaine and contended it was planted. The government‘s case included testimony from two CBP officers. The officers testified differently regarding whether Pacquette claimed he had known his bag contаined cocaine.
My questions to [Pacquette] wеre, if this is your bag, which he answered yes. Did you pack your bags? He stated yes. I also asked him, did anybody give you anything to bring back to the United States? He said no. Does everything in here belong to you? Yes.
R at 287. The government further questioned Officer Rivera:
Q. And just to be clear, the defendant claim[ed] that everything in the bag belonged to him?
A. That‘s correct.
R at 287. CBP Officer Raul Ramirez gave this account of his later discussion with Pacquette, which occurred after Officer Rivera had discovered the cocaine.
Q. And did the defendant claim responsibility for everything in the bag?
A. At that moment he said no and I stopped him, and I said, what do you mean by no? He said well—[h]e pointed at my supervisor. He said, he found something in the bag.
R at 310.
On cross-examination of both witnesses, defense counsel attempted to elicit the fact that, in the inspection area, Pacquette had disсlaimed the cocaine found in his bag. The district judge forbade defense counsel from asking about Pacquette‘s denial and concluded it was hearsay and an exculpatory statement, admissible only if Pacquette testified.
In her closing argument, defense сounsel stated twice that Pacquette had denied the cocaine belonged to him. The judge raised the possibility of a mistrial because of defense counsel‘s continued reference to the denial, but instead instructed jurors:
[Y]ou can only consider evidence that has been admitted. And in this particular case, there is no evidence that I have admitted that the defendant denied ... knowing the contents of the bag. Therefore, I instruct you to disregard any mention by any lawyer, including Ms. Batoff, the defense lawyer, аbout the denial of the contents of the bag because that‘s not evidence in this particular case.
R at 462. The jury convicted Pacquette on both indictment counts.
II. DISCUSSION
On appeal, Pacquette argues the district judge erred by excluding his statement disclaiming knоwledge of the cocaine found in his bag. Pacquette argues the judge applied an incorrect legal standard, when he concluded the rule of completeness does not apply to exculpatory statements. Pacquette further contends he should have been allowed to introduce the parts of his pre-arrest oral statement necessary to clarify and explain the portions that had been admitted at trial.
We review a district judge‘s evidentiary rulings for abuse of discretion. United States v. Gibson, 708 F.3d 1256, 1275 (11th Cir.), cert. denied, --- U.S. ---, 134 S.Ct. 342, 187 L.Ed.2d 238 (2013). Discretion is abused by applying an incorrect legal standard, or by making findings of fact that are clearly erroneous. See id.
A. The Rule of Completeness in Oral Statements
Under the common-law “rule of completeness,” the party “against whom a part of an utterance has been put in, may in his turn complеment it by putting in the remainder, in order to secure for the tribunal a complete understanding of the total
The government does not cite, discuss, or otherwise acknowledge Baker. Rather, the government argues that our 1996 decision in Range, where we discussed the rule of completeness and first announced the application of the
We disagree. First, our discussion of the rule of completeness in Range was not dicta; we applied facts to the rule before determining the district judge‘s ruling was correct. See Range, 94 F.3d at 620-21. Second, the government misconstrues Ramirez-Perez. In that case, the defendant raised only
B. Application of the Rule of Completeness
As we have explained, we evaluate whether the remainder of an oral statement should be admitted under the rule of
Officer Rivera‘s testimony regarding Pacquette‘s admission was technically accurate, but incomplete. While Pacquette initially had claimed everything in his bag, that statement was made prior to the discovery оf the cocaine. Pacquette was entitled to cross-examine Officer Rivera to provide the jury with a complete description of the facts and the effect of his admission. That is, upon Officer Rivera‘s discovery of the cocaine, Pacquette disclaimed knowledge of it. Because the district judge disallowed cross-examination on this subject, the government was able to characterize Pacquette‘s initial statement as admitting the cocaine found in his bag belonged to him.
Officer Ramirez‘s later testimony of Pacquette‘s denial was muddled and confusing. Further, his testimony “[a]t that moment [Pacquette] said no” was in evidence. R at 310. To clarify the meaning and significance of that testimony, defense counsel was entitled to reference the denial and рresent other necessary portions of the statement. The district judge, by prohibiting cross-examination and excluding Pacquette‘s statement merely because it was exculpatory, applied an incorrect legal standard and reached an еrroneous result. Therefore, the judge abused his discretion.
C. Harmless Error
“Even if an evidentiary ruling is erroneous, that ruling will result in reversal only if the error was not harmless.” United States v. Khanani, 502 F.3d 1281, 1292 (11th Cir.2007) (citations and internal quotation marks omitted). An error is harmful if, in light of the entire record, there is a reasonable likelihоod it affected the defendant‘s substantial rights. See id.
The government emphasized the “fact” that Pacquette did not protest when confronted with the cocaine. In closing argument, the prosecutor stated:
The number one reason we know [the cocaine] couldn‘t have been planted is the defendant‘s own behavior.... [I]f it were planted, he would have been shocked. He would have protested. The three officers testified that they all interacted with him and he didn‘t say anything. He didn‘t contest it. He didn‘t protest.
R at 479-80. The prosecutor continued:
If you got stuck with that much cocaine and you had no idea it was there you would maintain that it wasn‘t yours. You would persist in telling people, I got planted. I got duped.
R at 480. Although the jury was led to believe otherwise, that is exactly what Pacquette had done.
The district judgе magnified the error by instructing the jury that “there is no evidence ... [Pacquette] denied ... knowing the contents of the bag.” R at 462. Not only was the instruction inaccurate—Officer Ramirez had testified to that fact—but it also reinforced the government‘s erroneous assertiоns that Pacquette had not denied knowing about the cocaine.
Pacquette‘s conviction is VACATED, and we REMAND for a new trial consistent with this opinion.
UNITED STATES of America, Plaintiff-Appellee, v. Allen Kyode PACQUETTE, Defendant-Appellant.
No. 13-11736
United States Court of Appeals, Eleventh Circuit.
March 4, 2014.
556 F. App‘x 933
We doubt that defendant‘s vague and conclusоry mention of a single/multiple conspiracy issue in his initial brief is sufficient to warrant entertaining the issue. In any event, we readily conclude that defendant has not demonstrated error in this regard.
With respect to defendant‘s arguments that improper cross-examinаtion of defendant‘s main witness and cumulative errors require a new trial, we note initially that there was no objection in the district court to any of the errors complained of. We have carefully considered the arguments of the parties, and relevant portions of the record, and we have considered the errors complained of, both individually and in the aggregate, and we conclude that there probably has been no error at all and certainly that there has been no plain error.
For the foregoing reasons,4 the judgment of the district court is
AFFIRMED.
аnd finally, in light of the fact that the actual charge in the indictment could colloquially be referred to as importation, we readily conclude that the jury could not possibly have misinterpreted the true charge and that there was no constructive amеndment.