UNITED STATES OF AMERICA v. MULLER TERCIER, a.k.a. Mike
No. 18-10992
United States Court of Appeals, Eleventh Circuit
November 13, 2020
D.C. Docket No. 1:17-cr-20282-CMA-7
Appeal from the United States District Court for the Southern District of Florida
(November 13, 2020)
Before MARTIN, GRANT, and LAGOA, Circuit Judges.
LAGOA, Circuit Judge:
Muller Tercier appeals his conviction and sentence for conspiring to possess with the intent to distribute five kilograms or more of cocaine in violation of
I. FACTUAL AND PROCEDURAL HISTORY
In April 2017, a grand jury returned an indictment charging Tercier and nine other defendants with conspiracy to possess with intent to distribute five hundred grams or more of cocaine in violation of
During voir dire, the government exercised a peremptory strike on prospective juror 17. Tercier, an African-American man of Haitian descent, objected to the strike and described the prospective juror as “apparently of Haitian descent.” Tercier asked the government for a race-neutral reason for the strike. The government responded that the prospective juror, a college student, was too young and too disengaged in the proceedings to be a juror in the case.1 The government also noted that “there are a number of African-American jurors or that appear to be African-American jurors who the government has accepted at this point.”
At trial, the government argued that Tercier was part of a cocaine trafficking conspiracy in South Florida. The government asserted that Tercier and his primary co-conspirators, Richard Lavalliere and Kevens Duroseau, delivered and sold imported cocaine, communicating via coded conversations and burner phones. After Lavalliere caught the attention of law enforcement, drug-enforcement authorities used wiretaps and onsite surveillance to investigate Lavalliere. The government wiretapped eighty-six conversations between Lavalliere and Tercier and twenty-five conversations between Lavalliere and Duroseau. The government introduced these wiretap recordings into evidence and introduced transcripts in English of selected wiretap sessions as several of those wiretap sessions recorded conversations in Creole. Tercier never objected to the accuracy of the English translations at trial.
During its case in chief, the government focused on a September 26, 2014, hand-to-hand transaction between the conspirators and elicited testimony from surveilling officers Detective Kenny Veloz, Detective Yaniel Hernandez, and Special Agent Weber. The day before the September 26, 2014, transaction, Lavalliere called Duroseau asking for two to four kilograms of cocaine. Lavalliere paid for the cocaine that day and arranged for Duroseau to deliver the drugs the next day.
During trial, the government presented the following timeline for the September 26 events. At 9:57 a.m., Duroseau informed Lavalliere that he had the cocaine. At 10:22 a.m., Duroseau delivered the cocaine to Lavalliere‘s house. At 12:00 p.m., Lavalliere told Tercier that he received “two [kilograms] this morning.” At 12:44 p.m., Lavalliere called Tercier, telling Tercier that he would leave his house in “15 minutes.” Lavalliere arrived at Tercier‘s autobody shop at 1:19 p.m., quickly gave Tercier a package with the cocaine, and departed moments later. Tercier was not photographed during the transaction.
Lavalliere and Duroseau testified for the government. Regarding the September 26 transaction, Lavalliere could not remember whether he was delivering drugs to or solely picking up money from Tercier. But Lavalliere testified that he and Tercier “dealt” eight to eleven kilograms of cocaine within the six months prior
At trial, Tercier argued that he used the coded language in both drug-related and non-drug-related conversations alike. To rebut this claim, the government elicited testimony from Lavalliere and Forensic Examiner Ricardo Soto. The government also produced evidence obtained from a warrantless search of a cellphone owned by a third party who had sold Tercier construction-related materials. The testimony and cellphone content showed that these conversations were devoid of coded language.
Tercier vigorously cross-examined the government‘s witnesses, especially Lavalliere. After the government rested, Tercier moved for a judgment of acquittal and argued that the government did not produce any evidence of a conspiracy. The district court denied Tercier‘s motion for judgment of acquittal. During closing arguments, Tercier argued that the government did not show “any type of illegal activity or any other activity for that matter.”
Tercier objected to the transcripts of the wiretap conversations being allowed into the jury room. Tercier argued that the transcripts should not be sent to the jury room because the wiretapped recordings themselves were the actual evidence, not the
[Certain exhibits] have been identified as typewritten transcripts and partial translations from Haitian Creole to English of the oral conversations heard on the recordings received in evidence . . . . The transcripts also purport to identify the speakers engaged in the conversations. I have admitted the transcripts for the limited and secondary purpose of helping you follow the contents of the conversations as you listen to the tape recordings, particularly those portions spoken in Haitian Creole, and also to help you identify the speakers.
You are to accept the provided English translations of the Haitian Creole, but you are specifically instructed that whether the transcripts correctly reflect the contents of the English language conversations or the identities of the speakers is entirely for you to decide based on your own evaluation of the testimony you have heard, about the preparation of the transcripts, and from your own examination of the transcripts in relation to hearing the tape recordings themselves as the primary evidence of their own contents.
On December 6, 2017, the jury found Tercier guilty of conspiracy to possess with intent to distribute at least five kilograms of cocaine.
In a January 9, 2018, presentence investigation report (“PSI“), the probation officer determined that Tercier should not be eligible for an acceptance-of-responsibility adjustment because Tercier fundamentally denied his guilt throughout trial. The PSI also indicated that safety-valve relief was not available to Tercier because he had not provided a safety-valve statement. Tercier objected to the PSI, arguing that he was entitled to an acceptance-of-responsibility adjustment because he
I, Muller Tercier, admit I was involved in the sale of cocaine in the Southern District of Florida. I received a total of a little less than 2 kilos of cocaine from May to November, 2014, from my business associate, Richard Lavalliere. Then I sold the cocaine by the ounce or grams to others. I knew this was wrong when I did it. I apologize to the Court and the government for my actions. I also apologize to my family.
The government responded that this admission differed from the jury‘s factual findings and noted that Tercier had previously given the government false information on two separate occasions before his conviction, i.e., at his arrest and after an incident concerning a co-defendant.
In February 2018, the district court conducted a sentencing hearing over the course of two days. The district court expressed surprise at Tercier‘s argument that the only reason he went to trial was to dispute the quantity of drugs, stating that it “never heard any of that before or during trial by Mr. Tercier.” At the conclusion of the first day of the sentencing hearing, the district court denied Tercier‘s request for an acceptance-of-responsibility adjustment. Prior to the second day of sentencing, Tercier was given the opportunity to meet with the government in order to provide another safety-valve statement. On the second day of sentencing, Tercier took the witness stand, and the district court found his in-court statements truthful and complete and granted him safety-valve relief. The district court sentenced Tercier
II. ANALYSIS
On appeal, Tercier raises six arguments: (1) the government presented false testimony regarding the September 26 drug transaction, in violation of Giglio v. United States, 405 U.S. 150 (1972); (2) the district court improperly allowed the government to strike a purportedly Haitian prospective juror, in violation of Batson v. Kentucky, 476 U.S. 79 (1986); (3) the district court erred in admitting evidence obtained from a warrantless search of a third party‘s cellphone, in violation of Riley v. California, 573 U.S. 373 (2014); (4) the district court erred in submitting transcripts of wiretapped conversations to the jury and directing the jury to accept the Creole-to-English transcript translations as accurate; (5) the district court committed cumulative error when it admitted present sense impression statements, lay opinion evidence, expert testimony, and allowed witness bolstering; and (6) the district court erred in declining to reduce his sentence after he purportedly accepted responsibility for his actions. We address each of Tercier‘s arguments in turn.
A. Gigilo Violation
We first address Tercier‘s argument that the government violated Giglio v. United States by presenting false testimony regarding the September 26 drug transaction. Under Giglio, the government cannot knowingly submit false evidence
“Typically, we review such a claim of prosecutorial misconduct de novo.” United States v. Horner, 853 F.3d 1201, 1206 (11th Cir. 2017). However, when, as here, a defendant does “not object at trial or otherwise raise the issue” of prosecutorial misconduct “before the district court, such as through a motion for mistrial or for new trial, we review only for plain error.” Id. Because Tercier did not object at trial, we review his Giglio claim only for plain error.
Here, Tercier denies that he participated in the September 26 drug transaction, claiming that the government submitted false evidence to the jury when it claimed Tercier was involved in the hand-to-hand transaction with Lavalliere. To prove that he was not at his autobody shop during the transaction, Tercier identifies what he
Tercier‘s arguments as to prosecutorial misconduct concern factual and credibility disputes more properly reserved for a jury in determining guilt or innocence, and in this case, do not support a finding of prosecutorial misconduct.
B. Batson Violation
We next turn to Tercier‘s Batson arguments. In considering a Batson claim, our “standard of review of the trial court‘s factual findings in a Batson hearing [is] ‘highly deferential.‘” Flowers v. Mississippi, 139 S. Ct. 2228, 2244 (2019) (quoting
A Batson inquiry consists of three steps. Batson v. Kentucky, 476 U.S. 79, 96-98 (1986). First, the defendant has the burden to make out a prima facie case of discrimination. See Flowers, 139 S. Ct. at 2241. A defendant may base his prima facia case on race, ethnic, or national-origin discrimination. See id. (race); Smith v. Comm‘r, Ala. Dep‘t of Corr., 924 F.3d 1330, 1343-47 (11th Cir. 2019) (national origin); United States v. Ochoa-Vasquez, 428 F.3d 1015, 1039 (11th Cir. 2005) (ethnicity). “[T]he defendant must point to more than the bare fact of the removal of certain venirepersons and the absence of an obvious valid reason for the removal.” United States v. Allison, 908 F.2d 1531, 1538 (11th Cir. 1990) (quoting United States v. Young-Bey, 893 F.2d 178, 179 (8th Cir. 1990)); see also Flowers, 139 S. Ct. at 2243 (providing examples of “evidence to support a claim that a prosecutor‘s peremptory strikes were made on the basis of race“).
Second, once the defendant has shown a prima facia case of discrimination, the burden shifts to the government to “provide [protected-class-neutral] reasons for its peremptory strikes.” Flowers, 139 S. Ct. at 2241. “Although there are a number
At the last step, the “trial judge must determine whether the prosecutor‘s stated reasons were the actual reasons or instead were a pretext for discrimination.” Flowers, 139 S. Ct. at 2241. “At this stage, the persuasiveness of the prosecutor‘s justification for his peremptory strike” is critical. Atwater, 451 F.3d at 806. “‘[I]mplausible or fantastic justifications’ may be found to be pretextual, and in these cases, the question is whether the prosecutor‘s . . . explanations are credible.” Id. (alteration in original) (quoting Miller-El v. Cockrell, 537 U.S. 322, 339 (2003)). “Credibility can be measured by, among other factors, the prosecutor‘s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.” Miller-El, 537 U.S. at 339. Still, the party challenging the strike carries “the ultimate burden of persuasion.” Purkett, 514 U.S. at 768.
Initially, to the extent that Tercier argues that he established a prima facia case of discrimination because the prospective juror was of Haitian ethnicity or national origin based on his race and French-sounding surname, we find Tercier‘s argument without merit. Here, the record contains no evidence establishing the prospective juror‘s ethnicity or national origin. Based on this record, “we have no way of knowing whether the government could tell whether the juror[] it struck” was in fact Haitian. Ochoa-Vasquez, 428 F.3d at 1043. Indeed, as the record reveals, “the only alternative to identifying the self-reported race or ethnicity of the venire members [would be] to establish it based on appearance, demeanor, accent, and other physical characteristics—thereby emphasizing racial distinctions in jury selection, which our Batson jurisprudence seeks to eliminate.” See id.
Tercier also asserts that the government‘s rationale for the strike was pretextual and that the district court improperly condensed the second and third Batson steps. With regard to the second step of the Batson inquiry, the government initially proffered that the prospective juror was too disengaged in the proceedings and too young. After additional questioning, the government admitted that the
Finally, as to Tercier‘s claim that the district court improperly condensed the second and third Batson steps, we acknowledge that the district court might have condensed the second and third Batson steps. See United States v. Edouard, 485 F.3d 1324, 1343 (11th Cir. 2007) (explaining that “the district court improperly condensed the second and third steps of the Batson inquiry by summarily overruling [the defendant‘s] objections and/or failing to consider whether [the defendant] had refuted the race-neutral explanations proffered by the Government“). “Nevertheless, given the great deference afforded to the determinations of trial courts regarding the believability of the [government‘s] race-neutral explanations for its strikes, we cannot conclude that the district court clearly erred in overruling [Tercier‘s] Batson objections.” See id. As previously stated, the government articulated permissible reasons for the strike. Moreover, the record evidence shows that the government sought to strike another prospective student juror and that African-Americans were selected as jurors. “Although the presence of African-
C. Riley Violation
We now turn to Tercier‘s argument that the district court erred in admitting evidence obtained from a warrantless search of a third party‘s cellphone in violation of Riley v. California. Even though a third party owned the cellphone, Tercier asserts that he has standing to challenge the search.
As a general matter, “[a] defendant has standing to challenge a warrantless search if the defendant had a ‘legitimate expectation of privacy’ in the property when it was searched.” United States v. Gibson, 708 F.3d 1256, 1276 (11th Cir. 2013) (quoting Rakas v. Illinois, 439 U.S. 128, 143 (1978)). In Riley v. California, 573 U.S. 373 (2014), the Supreme Court found that a defendant has an expectation of privacy in his personal cellphone contents. Id. at 403; see also Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018) (holding that a defendant has a legitimate expectation of privacy “in the record of his physical movements as captured through” cell-site location information).
However, a defendant “has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith v. Maryland, 442 U.S. 735, 743-44 (1979). A defendant therefore cannot benefit from an unconstitutional search of a third party. See Rawlings v. Kentucky, 448 U.S. 98, 103-06 (1980) (holding that a defendant could not benefit from the unconstitutional search of another person‘s purse); United States v. Salvucci, 448 U.S. 83, 84-85 (1980) (holding that a defendant could not benefit from the unconstitutional search of the apartment of his co-defendant‘s mother); United States v. Brown, 743 F.2d 1505, 1507-08 (11th Cir. 1984) (holding that a defendant did not have an expectation of privacy in the person of his co-defendant, who personally carried drugs).
On appeal, Tercier argues that the district court improperly allowed evidence that was obtained from a warrantless search of a third party‘s cellphone and that he has standing to challenge the search because content from the cellphone was used against him at trial. Given the applicable principles set forth above, we find that while Tercier would have standing to challenge a warrantless search of his own cellphone, see Riley, 573 U.S. at 403, Tercier does not have standing to challenge the cellphone contents of a third party, see Rakas, 439 U.S. at 143. There is no evidence in the record demonstrating that Tercier had an expectation of privacy in the cellphone contents of the third party. See id. Although the third party‘s cellphone contained Tercier‘s phone number, a defendant “has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”
D. Jury Instructions
Next, Tercier argues that the district court erred in submitting transcripts of wiretapped conversations to the jury and directing the jury to accept the Creole-to-English transcript translations as accurate. “The propriety of the trial court‘s jury instruction is a question of law, which we review de novo.” United States v. Drury, 396 F.3d 1303, 1313 (11th Cir. 2005). Unpreserved constitutional arguments are subject to plain error review. United States v. Chau, 426 F.3d 1318, 1321-22 (11th Cir. 2005).
“[T]ranscripts are evidence admissible to aid the jury as it listens to a tape.” United States v. Costa, 691 F.2d 1358, 1362-63 (11th Cir. 1982). When a transcript contains translated text, we require
the district court and the parties [to] make an effort to produce an ‘official’ or ‘stipulated’ transcript, one which satisfies all sides. If such an ‘official’ transcript cannot be produced, then each side should produce its own version of a transcript or its own version of the disputed portions. In addition, each side may put on evidence supporting the accuracy of its version or challenging the accuracy of the other side‘s version.
Still, translated transcripts may trigger Confrontation Clause issues. Under the Confrontation Clause, “the accused shall enjoy the right . . . to be confronted with the witnesses against him.”
When an individual who independently reviewed the underlying recordings and transcripts for accuracy is subject to cross-examination, however, the Confrontation Clause is not violated. See id. at 1276. Indeed, the Confrontation Clause does not require “that anyone whose testimony may be relevant in establishing the chain of custody . . . must appear in person as part of the prosecution‘s case.” Melendez Diaz v. Massachusetts, 557 U.S. 305, 311 n.1 (2009).
Tercier argues that the district erred when it instructed the jury to accept the Creole-to-English translated wiretap conversation transcripts as true. Tercier asserts that the given instruction invaded the fact-finding role of the jury and tangentially argues that this instruction violated the Confrontation Clause because the government did not offer the transcript translators as witnesses.
We disagree with Tercier‘s contentions. Importantly, Tercier never objected to the wiretap transcript translations at trial and did not offer his own version of the translations. See Wilson, 578 F.2d at 69-70. Because Tercier stipulated to their introduction at trial, he “cannot complain on appeal that the jury‘s fact-finding function was usurped when he failed to present evidence which would have aided the jurors in fulfilling that function.” See Llinas, 603 F.2d at 510. Although Tercier
Furthermore, the district court properly instructed the jury to use the transcripts for a limited purpose. See United States v. Onori, 535 F.2d 938, 947-48 (5th Cir. 1976). The transcripts were to be used as an aid when the jury reviewed the wiretap recordings, which the district court described as the primary evidence. The district court also properly instructed the jury to determine whether the English language conversations and speaker identifications were accurate. Cf. Nixon, 918 F.2d at 901-02; United States v. Rosenthal, 793 F.2d 1214, 1238 (11th Cir. 1986).
Tercier‘s Confrontation Clause arguments are similarly unavailing. While the government did not proffer its translators as witnesses, primarily because Tercier did not contest the accuracy of the translations, it offered Special Agent Weber as a witness, who testified to the translation verification process and the transcript‘s accuracy. Because the Confrontation Clause “only insists that testimony be subject to cross-examination” and Special Agent Weber was cross-examined, the
E. Evidentiary Issues
Tercier also raises four evidentiary issues, arguing that the district court erred when it allowed: (1) government witnesses to recount the “real time” present sense impressions of surveilling agents during the September 26 transaction, in violation of the Confrontation Clause; (2) Duroseau to opine on the coded conversations between Tercier and Lavalliere; (3) Special Agent Mayo, the government‘s sole expert witness, to opine on the coded conversations; and (4) the government to purportedly bolster its witness. As a result, Tercier argues that the district court committed cumulative error.
“[A] district court‘s evidentiary rulings are reviewed for abuse of discretion. . . [If] the defendant failed to preserve his challenge to an evidentiary ruling by contemporaneously objecting, our review is for plain error.” Edouard, 485 F.3d at 1343 (citation omitted). “Further, we must review the prejudicial effect of all evidentiary errors, evaluated under both preserved and plain error standards, in the aggregate. We will therefore reverse if the cumulative effect of the errors is prejudicial, even if the prejudice caused by each individual error was harmless.” United States v. Baker, 432 F.3d 1189, 1203 (11th Cir. 2005) (emphasis in original) (footnote omitted) (citation omitted), abrogated on other grounds by Davis v. Washington, 547 U.S. 813, 821 (2006). Additionally, unpreserved constitutional arguments are subject to plain error review. Chau, 426 F.3d at 1321-22. We discuss each argument in turn.
i. Present Sense Impression and Confrontation Clause
Tercier argues that the district court erred when it permitted the government witnesses to recount the “real time” present sense impressions of surveilling agents during the September 26 transaction. Under
As discussed above, a Confrontation Clause violation occurs when a defendant did not have an opportunity to cross-examine an unavailable witness. Crawford, 541 U.S. at 51–59. The Supreme Court has stated that “[a] witness‘s testimony against a defendant is thus inadmissible unless the witness appears at trial
Tercier identifies three instances where the district court overruled his present sense impression objections. First, Detective Hernandez described what Task Force Officer Corley told him over the radio, in real time, when Officer Corley drove by Lavalliere‘s house on September 26. Second, Detective Hernandez described what Detective Veloz told him over the radio, in real time, when Detective Veloz surveilled Tercier‘s autobody shop. And third, Detective Veloz described what Detective Hernandez told him over the radio, in real time, when Detective Veloz surveilled Lavalliere‘s movements. Tercier argues that the present sense impression hearsay exception does not apply because the witnesses were describing the out-of-court statements of the surveilling agents. Tercier also notes that these statements are testimonial and therefore violate the Confrontation Clause.
We disagree, as these underlying statements are admissible under the present sense impression exception. In United States v. Pierce, this Court held that the tape-recorded statements of a surveillance officer, who recorded his impressions “of what he saw” when he saw them, were present sense impressions. 765 F.2d 1491, 1501 (11th Cir. 1985). “Although the statements may have been hearsay recorded out of the presence of the defendants, they fall clearly within the exception for present sense impressions, which are admissible on the ground that ‘the substantial
Similarly here, the statements of the surveilling agents concerning events as they witnessed them were relayed simultaneously to the government witnesses and, therefore, the testimony was admissible under the present sense impression exception. Cf. United States v. Gil, 58 F.3d 1414, 1422 (9th Cir. 1995) (“The surveillance officers were providing a description of the events at the same time they were witnessing them, so the testimony was admissible under the present sense impression exception.“).
Additionally, these statements do not violate the Confrontation Clause. Even if these statements were testimonial, both Detective Hernandez and Detective Veloz testified at trial and were subject to cross-examination. Although Officer Corley did not testify at trial, he was present at trial and available to testify. Since Detective Hernandez, Detective Veloz, and Officer Corley were available for cross-examination, no Confrontation Clause issue exists. See Melendez-Diaz, 557 U.S. at 309. We therefore find that the district court did not err in allowing these statements at trial.
ii. Lay Opinion
We now turn to Tercier‘s lay opinion arguments. Tercier argues that the district court should not have allowed Duroseau to opine on the coded conversations
Under
In support of his argument, Tercier relies on United States v. Rivera. Tercier‘s reliance on Rivera is misplaced. Lay testimony is properly permitted when it is “rationally based on . . . perception, first-hand knowledge, and observation,” and “helpful to the jury.” Id. at 1095. Here, as in Rivera, Duroseau‘s testimony was rationally based on his perception, first-hand knowledge, and observation of his previous conversations with his co-conspirators and was therefore helpful to the jury to determine the nature of the coded conversations. Additionally, “[w]e have never
While Tercier takes issue with what he characterizes as Duroseau‘s hedged answers, Tercier‘s arguments regarding Duroseau‘s “perceptions,” and “the accuracy of those perceptions” is “a question for the jury” to decide. See Rivera, 780 F.3d at 1094 (quoting United States v. Davis, 787 F.2d 1501, 1505 (11th Cir. 1986)). We therefore find that the district court did not err in allowing this testimony at trial.
iii. Expert Opinion
We next address Tercier‘s arguments regarding expert opinion testimony. Under
- the expert‘s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
- the testimony is based on sufficient facts or data;
- the testimony is the product of reliable principles and methods; and
- the expert has reliably applied the principles and methods to the facts of the case.
Narcotics officers may expertly opine on wiretapped conversations that contain coded language when the officers have “extensive involvement in [the underlying] investigation, . . . experience in previous wiretaps, . . . and general investigative experience.” United States v. Holt, 777 F.3d 1234, 1265 (11th Cir. 2015). However, a district court may exclude this testimony “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Tercier argues that the district court should not have allowed Special Agent Mayo to opine on Tercier and Lavalliere‘s conversations because Special Agent Mayo‘s testimony was cumulative. In support of his argument, Tercier relies on the fact that Lavalliere had previously testified on two separate days regarding the coded conversations between Tercier and himself.
We find Tercier‘s argument without merit. Initially, we note that neither
Moreover, Special Agent Mayo‘s testimony, which opined on the wiretap recordings, was not cumulative. He was the only expert witness who opined on the coded conversations. As Tercier notes, Lavalliere also opined on these conversations. But Tercier neglects to mention that Lavalliere was also heavily cross-examined. To prove that the coded language referenced cocaine, the government tendered Special Agent Mayo as an expert witness. As such, we conclude that under
iv. Witness Bolstering
Tercier‘s last claim of evidentiary error concerns witness bolstering. “Impermissible vouching occurs when a prosecutor indicates his personal belief in a witness‘s credibility, either by ‘making explicit personal assurances’ of the witness‘s veracity or ‘by indicating that information not presented to the jury supports the testimony.‘” United States v. Hesser, 800 F.3d 1310, 1328 (11th Cir. 2015) (quoting United States v. Sims, 719 F.2d 375, 377 (11th Cir. 1983)). For example, a prosecutor engages in improper bolstering when he vouches for the veracity of a government witness in his closing argument. Importantly, bolstering
Here, Tercier points to a question directed at Special Agent Weber during redirect. The government asked Special Agent Weber, “[d]id you have any evidence that [Lavalliere] was not being truthful regarding the statements he made during those interviews?” Since Special Agent Weber answered in the negative, Tercier argues that the government improperly placed the prestige of the government behind its witness and improperly bolstered Lavalliere.
We disagree. Because Special Agent Weber, and not the government, stated that Lavalliere was credible, Special Agent Weber, and not the government, “vouched for the veracity of a pivotal government witness.” See United States v. Newton, 44 F.3d 913, 920 (11th Cir. 1994). We find the decision of United States v. Sanchez instructive on this issue. In that case, the defendant argued that the government improperly bolstered the government‘s witness. 790 F.2d at 1564. The issue “arose when [the defendant] cross-examined a DEA agent about [the government witness‘s] suitability for federal investigative work. On redirect examination, the agent testified that other DEA agents had worked with [the witness]
Similarly here, the “purpose of this testimony was not to bolster [Lavalliere‘s] credibility, but to justify the [government‘s] decision to” rely on him. See id. Moreover, Tercier “first called attention to the matter on cross examination and the government was entitled to respond to it.” See id. We therefore find that the district court did not err in allowing the testimony.
v. Cumulative Error
Where there is no error as to any of the defendant‘s individual claims of evidentiary error, there can be no cumulative error. See Morris v. Sec‘y, Dept. of Corrs., 677 F.3d 1117, 1132 (11th Cir. 2012); United States v. Gamory, 635 F.3d 480, 497 (11th Cir. 2011). Because Tercier has not established a single evidentiary error by the district court, his claim of cumulative error fails as well.
F. Sentence Adjustment
We review denials of acceptance-of-responsibility adjustments for clear error. United States v. Amedeo, 370 F.3d 1305, 1320 (11th Cir. 2004). A district court may decrease a defendant‘s “offense level by [two] levels” when he “clearly demonstrates acceptance of responsibility for his offense.”
In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct.
In determining whether a defendant is entitled to receive a reduction for acceptance of responsibility, a district court may consider whether the defendant (1) “truthfully admitted the conduct comprising the offense of conviction,” (2) voluntarily withdrew or terminated the criminal conduct, and (3) made a timely acceptance of responsibility. United States v. Wade, 458 F.3d 1273, 1279 (11th Cir. 2006). Importantly, a district court is afforded great deference in making this determination.
A district court‘s discretion to decrease a defendant‘s sentence based on a defendant‘s acceptance of responsibility, however, is not to be confused with what is known as granting “safety-valve relief.” See United States v. Brownlee, 204 F.3d 1302, 1304–05 (11th Cir. 2000) (explaining safety-valve relief). Safety-valve relief enables a district court to “impose a sentence in accordance with the applicable guidelines without regard to any statutory minimum sentence” if five criteria are met.
Here, Tercier “put[] the government to its burden of proof at trial by denying the essential factual elements of guilt, [was] convicted, and only [now] admits guilt and expresses remorse.”
Additionally, granting safety-valve relief does not necessitate granting an acceptance-of-responsibility adjustment. Safety-valve relief concerns, in part, whether a defendant “truthfully provided to the [g]overnment all information and evidence the defendant has concerning the offense or offenses” no “later than the time of the sentencing hearing.”
III. CONCLUSION
Having examined each of Tercier‘s arguments on appeal, and for the reasons stated above, we conclude that no error has been shown. Accordingly, we affirm Tercier‘s conviction and sentence for conspiring to possess with intent to distribute five kilograms or more of cocaine.
AFFIRMED.