US v. Alejandro Garcia-Laguna
Filing
UNPUBLISHED AUTHORED OPINION filed. Originating case number: 5:12-cr-00376-F-1. Copies to all parties and the district court/agency. [999758009]. [14-4370]
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 1 of 39
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4370
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALEJANDRO GARCIA-LAGUNAS, a/k/a Alex Fuentes,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Fox, Senior
District Judge. (5:12−cr−00376−F−1)
Argued:
September 17, 2015
Before DUNCAN
Circuit Judge.
and
DIAZ,
Decided:
Circuit
Judges,
February 19, 2016
and
DAVIS,
Senior
Affirmed in part, vacated in part, and remanded by unpublished
opinion.
Judge Diaz wrote the opinion, in which Judge Duncan
joined. Senior Judge Davis wrote a dissenting opinion.
ARGUED: Paul K. Sun, Jr., ELLIS & WINTERS, LLP, Raleigh, North
Carolina, for Appellant.
Kristine L. Fritz, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 2 of 39
Unpublished opinions are not binding precedent in this circuit.
2
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 3 of 39
DIAZ, Circuit Judge:
A jury convicted Alejandro Garcia-Lagunas of conspiracy to
distribute
cocaine,
sentenced
cocaine
in
to
and
violation
188
of
possess
21
months’
with
U.S.C.
intent
to
§§ 841(a),
imprisonment.
On
distribute
846.
appeal,
He
was
Garcia-
Lagunas challenges his conviction, arguing that he was deprived
of a fair trial because of several evidentiary errors, including
the
introduction
of
ethnically
charged
evidence.
He
also
challenges his sentence on several grounds, including that the
district court miscalculated the U.S. Sentencing Guidelines (the
“Guidelines”) range.
For the reasons that follow, we affirm
Garcia-Lagunas’s conviction, vacate his sentence, and remand for
resentencing.
I.
“On appeal from a criminal conviction, we recite the facts
in the light most favorable to the government.”
United States
v. Washington, 743 F.3d 938, 940 (4th Cir. 2014).
A.
On
March
Fayetteville,
charges.
27,
North
2012,
Ronnie
Carolina
on
Reed
federal
was
drug
arrested
in
trafficking
Reed told the law enforcement officers that he had a
“Mexican drug supplier” named “Alex.”
J.A. 92.
Reed led the
officers to three trailers in Robeson County—at 33 Sonoma, 47
3
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 4 of 39
Sonoma, and 294 Maple Leaf—where he said he had purchased drugs
from “Alex.”
Reed also gave the officers four telephone numbers
that he had previously used to contact “Alex.”
The
next
warrants
on
day,
the
the
three
police
simultaneously
trailers.
The
executed
officers
found
search
Garcia-
Lagunas’s parents at 33 Sonoma and ten kilogram wrappers buried
in a lean-to shed behind the trailer at 47 Sonoma.
At 294 Maple
Leaf, officers followed a vehicle that left that location to a
trailer at 353 Westcott.
Hernandez
exit
the
353
Detective Kurt Stein observed Marco
Westcott
trailer
from
the
back,
and
Detective Pedro Orellano and Sergeant Gregory Johnson approached
him.
Orellano confirmed that Hernandez lived at the trailer and
obtained his consent to search it.
The officers found Garcia-Lagunas and Brian Jacobs inside
the trailer.
Garcia-Lagunas had white powder under his nose and
appeared “impaired” to Detective Orellano.
Lagunas
identified
himself
to
the
J.A. 248.
officers
as
Alex.
GarciaBoth
Garcia-Lagunas and Jacobs told the officers that they did not
live in the trailer.
After Sergeant Johnson asked him to empty
his pockets, Garcia-Lagunas produced $600 cash and a cell phone.
When Detective Stein dialed one of the phone numbers Reed had
given the police for “Alex,” Garcia-Lagunas’s phone rang.
Later
analysis of the phone’s records connected it to several known
drug dealers.
4
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 5 of 39
The officers searched the trailer.
In the kitchen, they
found a handgun and several small baggies about one inch by one
inch in size.
In one bedroom, the officers found body armor; a
large digital scale; a small digital scale; a black plastic bag
containing a vacuum-sealed bag, which in turn contained about
800
grams
cocaine.
of
a
white
powder;
and
a
small
baggie
of
crack
The white powder field-tested positive for cocaine,
but later State Bureau of Investigation (“SBI”) laboratory tests
revealed that the powder contained no controlled substance.
B.
A
grand
jury
charged
Garcia-Lagunas 1
with
conspiring
to
distribute and possess with the intent to distribute 500 grams
of
cocaine,
in
violation
of
21
U.S.C.
§§ 841(a),
846,
and
unlawfully reentering the United States after having previously
been deported, in violation of 8 U.S.C. § 1326(a).
He pleaded
guilty to the unlawful reentry charge and proceeded to trial on
the conspiracy charge.
Before trial, the government gave notice of its intention
to call Detective Shawn Collins as an expert witness, stating
that he would “testify about drug trafficking investigations and
methods
utilized
by
their drug business.”
1
drug
traffickers
J.A. 32.
to
operate
and
protect
The district court also agreed
Garcia-Lagunas was indicted under the name Alex Fuentes.
5
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 6 of 39
to provide Garcia-Lagunas with a Spanish interpreter for the
proceedings.
Collins was the government’s first witness, testifying both
as an expert and as an officer who had participated in the
investigation
and
the
relevant
searches.
After
hearing
testimony about Collins’s training and experience, the district
court ruled that Collins could testify as an expert in the field
of narcotics investigations.
According to Collins, the white powder could have fieldtested positive for cocaine and still have been found to contain
no controlled substance in SBI’s laboratory analysis if someone
had added an excessive amount of cutting agent to the cocaine,
such that “when the lab sampled a small amount of that 800 grams
of
cocaine
there . . .
wasn’t
enough
cocaine
in
it
to
even
register with the SBI or the instruments they were using.”
J.A.
111.
Collins
also
told
the
jury
that
Garcia-Lagunas
alien illegally in the United States.”
prosecution
“being
asked
assisted
Collins
with
the
if
he
help
saw
of
an
J.A. 150.
that
was
After the
Garcia-Lagunas
interpreter”
“an
in
was
court,
Collins testified that his informants had not indicated that
they had needed to use Spanish in their dealings with GarciaLagunas.
J.A. 150-51.
Moreover, Collins testified that Garcia-
Lagunas “appeared to be fluent in English.”
6
J.A. 151.
Appeal: 14-4370
Doc: 67
Four
Filed: 02/19/2016
drug
dealers—Reed,
Pg: 7 of 39
Jacobs,
Thomas
Brewington,
and
Antonio Locklear—each testified pursuant to plea agreements to
having bought cocaine from Garcia-Lagunas.
they
had
spoken
to
Garcia-Lagunas
in
They each said that
English.
testified that they did not know each other.
They
also
Hernandez, the
owner of the trailer at 353 Westcott, testified, also pursuant
to a plea agreement, that Garcia-Lagunas had been staying in the
room in which the body armor and scales had been found for about
four weeks leading up to the arrest.
Detective Orellano testified about his participation in the
relevant searches and the evidence that he and Stein found in
the
353
Orellano,
Westcott
the
trailer.
defense
During
elicited
its
cross-examination
testimony
regarding
of
the
relatively squalid state of Garcia-Lagunas’s living conditions.
On
redirect,
Orellano
told
the
jury
that
he
had
extensive
experience investigating “Hispanic drug traffickers,” and that
“they’re very modest living” because “they send the majority if
not all the proceeds back to their native countries.”
Defense counsel objected.
J.A. 270.
Asked to explain the relevance of
Orellano’s testimony, the government said that it rebutted the
defense’s implied argument “that it would be impossible for the
defendant to have dealt these large amounts of cocaine and taken
in this large amount of money because he’s living in relatively
low level conditions.”
J.A. 271.
7
Defense counsel responded
Appeal: 14-4370
that
Doc: 67
Orellano
Filed: 02/19/2016
had
not
been
Pg: 8 of 39
qualified
as
an
expert.
After
confirming that Orellano’s testimony was based on his training
and experience, the district court overruled the objection. 2
government
argument
to
lifestyle.”
Several
referred
to
explain
this
testimony
Garcia-Lagunas’s
during
lack
of
its
The
closing
an
“extravagant
the
government.
J.A. 520.
other
officers
testified
for
Relevant to this appeal, Detective Matthew Taylor testified that
based on his training and experience, the type of baggies he
found in the kitchen at 353 Westcott were “mostly used for the
repackaging and sale of narcotics.”
J.A. 411.
testified,
and
based
on
his
training
Detective Stein
experience,
that
the
vacuum-sealed bag containing the 800 grams of white powder was
of the type frequently used by drug traffickers “to seal in the
odor of the narcotics so that they’re harder to be detected
[and] easier to transport.”
J.A. 437-38.
The court chose (without objection from the parties) not to
submit a special verdict sheet for the jury to indicate the
2
After defense counsel renewed his objection, the court at
a bench conference stated: “I’m not quite sure what the
relevance of all of this is, but I do know, based on my
experience, that most Latins send money home whether they’re
drug dealers or not.”
J.A. 273.
Garcia-Lagunas contends that
the court’s statement emboldened the government to engage in
ethnic stereotyping.
While the court’s comment is puzzling at
best, we do not address it further because the jury did not hear
it.
8
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 9 of 39
amount of cocaine Garcia-Lagunas was responsible for within the
conspiracy,
finding
it
sufficient
that
specifically referenced the indictment.
Lagunas
guilty
of
conspiring
to
the
verdict
The jury found Garcia-
distribute
and
possess
intent to distribute 500 grams or more of cocaine.
verdict,
the
court
sua
sponte
form
directed
the
with
After the
parties
to
brief
whether it erred by failing to instruct the jury to find the
amount of cocaine individually attributable to Garcia-Lagunas,
as required by United States v. Collins, 415 F.3d 304 (4th Cir.
2005).
However, it ultimately ruled that no Collins error had
occurred.
The
presentence
investigation
report
(the
“PSR”)
found
Garcia-Lagunas responsible for 39 kilograms of cocaine and 16
grams of crack cocaine, resulting in a base offense level of 34.
The PSR added three two-level enhancements for possession of a
dangerous weapon, threatening or directing the use of violence,
and obstruction of justice, resulting in a total offense level
of 40.
score
The PSR also found Garcia-Lagunas had a criminal history
of
zero,
putting
him
in
criminal
history
category
I.
Garcia-Lagunas objected to the drug weight calculation and the
three enhancements.
The district court overruled Garcia-Lagunas’s objections to
the
drug
enhancement,
weight
but
calculation
sustained
the
9
and
the
objections
dangerous
to
the
weapon
other
two
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 10 of 39
enhancements, resulting in an offense level of 36.
An offense
level of 36 coupled with criminal history category I yielded a
Guidelines
range
of
188
to
235
months’
imprisonment.
The
government stated, however, that it would agree to a “two level
downward
directive
variance
that
is
based
upon
related
the
the
to
Attorney
General’s
proposed
amendment
recent
to
the
Guidelines, specifically the drug quantity base offense levels
in the Guideline that may end up being a two level drop for each
drug quantity,” provided that Garcia-Lagunas agreed not to later
seek a variance for the same reason.
J.A. 678-79.
Garcia-
Lagunas so agreed, and the district court stated its intent “to
go down the two levels.”
The
resulting
J.A. 679-80.
offense
level
of
34
yielded
range of 151 to 188 months’ imprisonment.
a
Guidelines
The district court
then sentenced Garcia-Lagunas to 188 months’ imprisonment while
stating it was “impos[ing] a sentence at the low end of the
range
because
conviction.”
Garcia-Lagunas
this
constitutes
J.A.
680-81,
to
a
the
683.
consecutive
defendant’s
The
court
sentence
first
also
of
imprisonment for his unlawful reentry conviction.
felony
sentenced
24
months’
Only after
announcing the sentence did the court allow Garcia-Lagunas to
allocute.
10
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 11 of 39
II.
Garcia-Lagunas
first
challenges
several
of
the
district
court’s evidentiary rulings.
We review those rulings for abuse
of
them
discretion,
and
subject
to
harmless
error
review.
United States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010).
An
error is harmless when this court is able to conclude, “after
pondering
all
that
happened
without
stripping
the
erroneous
action from the whole, that the judgment was not substantially
swayed by the error.”
F.3d
365,
371
(4th
Id. (quoting United States v. Brooks, 111
Cir.
1997)).
But
we
may
disregard
a
constitutional error only if we are “able to declare a belief
that it was harmless beyond a reasonable doubt.”
Chapman v.
California, 386 U.S. 18, 24 (1967).
Where a defendant fails to timely object to an evidentiary
ruling, however, we review for plain error.
Keita, 742 F.3d 184, 189 (4th Cir. 2014).
United States v.
To make out a plain
error, “the defendant must show ‘there was an error, the error
was plain, and the error affected [the defendant’s] substantial
rights.’”
Id. (alteration in original) (quoting United States
v. Boykin, 669 F.3d 467, 470 (4th Cir. 2012)).
Garcia-Lagunas contends that (1) the admission of evidence
regarding Hispanic drug traffickers denied him due process and
equal
opinion
protection,
testimony
(2) the
from
district
several
11
of
court
the
allowed
improper
government’s
lay
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 12 of 39
witnesses, (3) the district court improperly allowed Collins to
testify
as
an
failure
to
comply
(4) the
expert
admission
witness
in
with
expert
of
spite
evidence
of
disclosure
the
government’s
requirements,
regarding
and
Garcia-Lagunas’s
immigration status and use of an interpreter was plain error.
We consider each challenge in turn.
A.
1.
Garcia-Lagunas contends that his Fifth Amendment guarantees
of due process and equal protection were violated by Orellano’s
ethnicity-based testimony, which the government used to create
an adverse inference against him.
Alternatively, he argues that
even if the admission and repetition of this testimony in the
government’s closing argument did not violate his constitutional
rights, the evidence nonetheless was improperly admitted expert
testimony delivered by a lay witness.
Garcia-Lagunas
objected
to
this
testimony
at
trial,
arguably on the improper-expert-testimony ground only.
See Fed.
R.
at
Evid.
103(a)(1)(B).
Nonetheless,
the
government
oral
argument granted that, because of the troubling nature of the
error, we should review both contentions for harmless error.
Oral Argument at 22:17–23:10, United States v. Garcia-Lagunas,
No.
14-4370
(Sept.
17,
2015),
available
at
http://coop.ca4.uscourts.gov/OAarchive/mp3/14-4370-20150917.mp3.
12
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 13 of 39
While we are not bound by the government’s concession, Pisano v.
Strach, 743 F.3d 927, 936 n.13 (4th Cir. 2014), we choose to
apply harmless error here as it does not affect the outcome.
2.
There is no dispute that “[a]ppeals to racial, ethnic, or
religious
prejudice
defendant’s
Fifth
during
Amendment
the
course
right
to
of
a
a
trial
fair
violate
trial.”
a
United
States v. Cabrera, 222 F.3d 590, 594 (9th Cir. 2000); accord
United States v. Runyon, 707 F.3d 475, 494 (4th Cir. 2013) (“The
Supreme
Court
capable
of
‘degrade
the
has
long
inflaming
made
clear
jurors’
administration
of
that
racial
or
justice.’”
statements
ethnic
(quoting
that
are
prejudices
Battle
v.
United States, 209 U.S. 36, 39 (1908))).
Where the government injects ethnicity into a trial in a
manner that “invite[s] the jury to put [a defendant’s] racial
and cultural background into the balance in determining their
guilt,” constitutional error occurs. 3
3
United States v. Vue, 13
As the dissent correctly notes, the government here
concedes constitutional error.
While we do not lightly ignore
that concession, neither are we bound by it.
See Kamen v.
Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) (“When an issue
or claim is properly before the court, the court is not limited
to the particular legal theories advanced by the parties, but
rather retains the independent power to identify and apply the
proper construction of governing law.”); United States v.
Robinson, 460 F.3d 550, 558 n.7 (4th Cir. 2006) (“[O]ur judicial
obligations compel us to examine independently the errors
(Continued)
13
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 14 of 39
F.3d 1206, 1213 (8th Cir. 1994); see also United States v. Cruz,
981 F.2d 659, 664 (2d Cir. 1992) (“Injection of a defendant’s
ethnicity into a trial as evidence of criminal behavior is selfevidently
improper
and
prejudicial
for
reasons
that
need
no
elaboration here.”).
Several
of
our
sister
circuits
have
held
that
“the
introduction of evidence connecting the race or ethnicity of a
defendant to racial or ethnic generalizations about a particular
drug
trade
is
[constitutional
error].”
United
States
v.
Ramirez-Fuentes, 703 F.3d 1038, 1045 (7th Cir. 2013) (citing
Cruz, 981 F.2d at 663-64; Vue, 13 F.3d at 1212-13; and United
States v. Doe, 903 F.2d 16, 21 (D.C. Cir. 1990)).
We accept
that these circuits correctly applied the law, but find that the
government’s
use
of
an
ethnic
stereotype
here,
while
regrettable, is materially distinguishable.
In each of the cases where our sister circuits have found
constitutional
error
surrounding
the
use
of
ethnically
based
evidence, the government’s argument was, fundamentally, that a
certain ethnic or national group was a major participant in the
drug
trade,
that
the
defendant
belonged
to
that
ethnic
or
confessed.” (alteration in original) (quoting Young v. United
States, 315 U.S. 257, 258-59 (1942))).
14
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 15 of 39
national group, and that the defendant was therefore more likely
to be a drug dealer.
For example, in Doe, the government presented an expert
witness who testified that “‘[t]he Jamaicans . . . have had a
phenomen[al]
Columbia,’
impact
and
Jamaicans,’”
on
the
drug
trade
the
market
‘has
been
where
there
was
reason
in
to
District
of
over
taken
the
basically
by
believe
that
the
government’s key witness, an American, owned the incriminating
evidence attributed to the Jamaican defendants.
903 F.2d at 18,
28 (second alteration in original) (footnote omitted).
The D.C.
Circuit ruled that this testimony was inadmissible because it
“strongly suggested that appellants were guilty because two of
them are Jamaican.”
Similarly,
in
Id. at 20–23.
Vue,
the
government
introduced
a
custom
official’s testimony that 95% of opium smuggling cases in the
Twin Cities area “related to Hmong individuals.”
1211–12.
13 F.3d at
The Eighth Circuit held that the introduction of such
testimony violated the Hmong defendants’ constitutional rights
“because
the
injection
of
ethnicity
into
the
trial
clearly
invited the jury to put the Vues’ racial and cultural background
into the balance in determining their guilt.”
Id. at 1213; see
also Cabrera, 222 F.3d at 596 (“[H]ighlighting the ethnicity of
the other Cuban drug dealers under investigation at the time was
not
relevant . . . ;
the
reference
15
merely
made
it
seem
more
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 16 of 39
likely in the eyes of the jury that [the defendants] were drug
dealers because of their ethnicity.”).
Here, in contrast, the government did not ask the jury to
put
Garcia-Lagunas’s
indicating
Hispanic
trade.
ethnicity
guilt
by
stating
descent
is
more
or
likely
on
the
side
implying
that
to
be
of
a
involved
the
scale
defendant
in
the
of
drug
Put another way, it did not try to inflame any jury
prejudice against Hispanic defendants by tying Hispanic identity
to a propensity for criminality.
concedes, 4
it
inappropriately
Rather, as the government now
relied
on
an
ethnically
based
generalization to refute Garcia-Lagunas’s suggestion that he was
too poor to be a major drug dealer. 5
4
The government nonetheless denies that its use of such
evidence was reversible error.
5
The government’s brief directs our attention to United
States v. Khan, 787 F.2d 28 (2d Cir. 1986).
In Khan, the
defendant, a Pakistani man, “attempted to rebut the government’s
portrayal of him as a major drug dealer by suggesting that he
was a poor man.” 787 F.2d at 34. The government responded by
introducing an expert who testified, in part, that “heroin
dealers in Pakistan, like all Pakistanis, [wear] the same
national dress-pantaloon, baggy pants, and a knee length top.”
Id.
The Second Circuit found that the testimony was relevant
and not unduly prejudicial because it explained that “even if
[the defendant] had made a great deal of money in the heroin
trade, it would not necessarily show from the manner of his
dress.” Id.
Khan does not help the government here.
First, the
government’s witness in Khan was testifying as an expert.
Second, Khan lived in Pakistan, so the testimony could fairly be
understood to be about a cultural practice in the country,
(Continued)
16
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 17 of 39
This use of stereotype was particularly inapt because of
the lack of evidence that Garcia-Lagunas himself was sending
significant money anywhere.
The record shows that since 1988,
Garcia-Lagunas has spent the great majority of his time in the
United
States.
While
he
does
have
two
children
living
in
Mexico, he also has two children living in this country, and at
the time of his arrest his parents lived next door to him.
Thus, the government’s only “evidence” that Garcia-Lagunas was
remitting
money
was
its
generalization
about
Hispanic
drug
traffickers.
Nonetheless, although the government made improper use of
an ethnic stereotype, it did not encourage the jury to consider
Garcia-Lagunas’s
ethnicity
as
evidence
of
his
guilt.
Accordingly, we find no constitutional violation, although we
also conclude that the evidence was irrelevant.
Testing the
evidentiary error for harm, however, we find none.
Here, the “over-arching issue at trial” was whether GarciaLagunas conspired to deal in large quantities of cocaine, not
what he did with any proceeds he made.
631
F.3d
146,
155
(4th
Cir.
2011).
United States v. Cole,
Significant
evidence
rather than a generalization about how a certain ethnicity or
nationality behaves. Finally, the testimony in Khan was about a
readily observable practice.
17
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 18 of 39
supported the jury’s finding that he did so conspire.
At trial,
four
testified
witnesses
who
did
not
know
each
other
consistently to their dealings with Garcia-Lagunas.
See United
States v. Briley, 770 F.3d 267, 277 (4th Cir. 2014) (finding
evidentiary error harmless where “[a]n array of witnesses gave
clear,
compelling,
and
consistent
accounts
about
[the
defendant’s] actions”), cert. denied, 135 S. Ct. 1844 (2015);
cf. Johnson, 617 F.3d at 295 (finding erroneous admission of a
DEA agent’s testimony as a lay witness was not harmless where
the only direct evidence linking the defendant to the charged
crime was the testimony of one codefendant that was contradicted
by another codefendant’s testimony).
In addition, when Garcia-
Lagunas was arrested, he had white powder on his nose, $600 in
cash, and was near a handgun.
In his room, the police found 800
grams of a white powder substance, two digital scales, and body
armor.
Bags used for drug dealing were also found at locations
associated
which
with
matched
Garcia-Lagunas.
that
of
Reed’s
Finally,
source
of
his
phone
supply,
number,
“Alex,”
was
connected to several known drug dealers.
On this record then, “[w]e can say, ‘with fair assurance,
after
pondering
all
that
happened
without
stripping
the
erroneous action from the whole,’ that the jury’s consideration
was
not
‘substantially
swayed’”
by
Orellano’s
testimony.
Briley, 770 F.3d at 278 (quoting Kotteakos v. United States, 328
18
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
U.S. 750, 765 (1946)). 6
Pg: 19 of 39
We therefore find no cause to reverse
based on the error.
B.
We next address Garcia-Lagunas’s argument that the district
court
erred
in
admitting
evidence
regarding
status and use of an interpreter at trial.
his
immigration
Because the defense
failed to timely object at trial, we review for plain error.
Evidence of a crime or wrong is not admissible to prove a
defendant’s bad character in order to show that he acted in
accordance with that character.
Fed. R. Evid. 404(b)(1).
Such
evidence may be admissible, however, “for another purpose, such
as proving . . . identity.”
Id. 404(b)(2).
Under Rule 404(b),
we use a four-part test to assess admissibility: “(1) the prioract evidence must be relevant to an issue other than character,
such as intent; (2) it must be necessary to prove an element of
the crime charged; (3) it must be reliable; and (4) . . . its
probative
value
must
prejudicial nature.”
not
be
substantially
outweighed
by
its
United States v. Lespier, 725 F.3d 437,
448 (4th Cir. 2013) (quoting United States v. Queen, 132 F.3d
991, 995 (4th Cir. 1997)).
6
Garcia-Lagunas also alleges that Detective Orellano should
not have been permitted to testify to the practices of Hispanic
drug traffickers because he was not testifying as an expert.
Having determined that Orellano’s testimony was irrelevant but
harmless, we do not address this separate objection.
19
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 20 of 39
1.
The government presented evidence that Garcia-Lagunas was
an alien illegally in the United States.
The government argues
that this was relevant to Garcia-Lagunas’s identity.
At trial,
the officers explained that “they learned that a Mexican man
going by the name ‘Alex’ was a significant source of cocaine in
Cumberland
and
Robeson
Counties.”
Appellee’s
Br.
at
42.
According to the government, Garcia-Lagunas’s immigration status
was thereby relevant as evidence that he was “Alex.”
We do not
agree.
Collins
previously
testified
deported
solely
from
the
that
United
“[t]he
States
and
has
almost
no
probative
value
is
was
an
alien
J.A. 150.
illegally in the United States right now.”
testimony
defendant
This
concerning
Garcia-
Lagunas’s Mexican nationality; it establishes only that he is
not a United States citizen.
We reject the notion that an
individual’s status as an illegal alien, without more, creates
an
inference
of
Mexican
nationality.
And,
importantly,
the
government could easily have shown that Garcia-Lagunas was from
Mexico without highlighting his immigration status.
See Fed. R.
Evid. 404(b) advisory committee’s note (“The determination must
be
made
whether
the
danger
of
undue
prejudice
outweighs
the
probative value of the evidence in view of the availability of
other means of proof . . . .”).
20
Because the probative value of
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Garcia-Lagunas’s
Pg: 21 of 39
immigration
status,
especially
without
reference to his country of citizenship, was so low, we find
that it was substantially outweighed by its prejudicial nature.
It
was
not,
therefore,
permissible
404(b)
evidence.
See
Lespier, 725 F.3d at 448.
Garcia-Lagunas’s evidentiary challenge, however, fails on
plain error review.
‘obvious.’”
“To be ‘plain,’ an error must be ‘clear’ or
United States v. Ramirez-Castillo, 748 F.3d 205,
215 (4th Cir. 2014) (quoting United States v. Olano, 507 U.S.
725, 734 (1993)).
Even if the error here was plain, we “may
correct the error” only if it also “affects substantial rights.”
Olano, 507 U.S. at 732 (emphasis and alteration omitted).
An
error affects substantial rights “in most cases” if it “affected
the
outcome
of
the
district
court
proceedings.”
Ramirez-
Castillo, 748 F.3d at 215 (quoting Olano, 507 U.S. at 734).
We
need
not
address
whether
the
improper
admission
of
Garcia-Lagunas’s immigration status was plain because we find
that it did not affect the outcome of the trial.
The jury had
before it substantial evidence of Garcia-Lagunas’s participation
in
a
status
conspiracy
was
not
to
distribute
referenced
cocaine,
again
after
and
his
Collins’s
Thus, we decline to find plain error on this record.
21
immigration
testimony.
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 22 of 39
2.
Garcia-Lagunas also challenges the government’s references
to his use of an interpreter at trial, arguing that they were
intended to paint him as a “faker” for relying on an interpreter
when he did not need one.
Appellant’s Br. at 36.
The government’s witnesses told the jury that they spoke to
Garcia-Lagunas in English when they dealt with him, and some of
those witnesses could only speak English.
Lagunas
was
the
man
who
dealt
with
To prove that Garciathese
witnesses,
the
government had good reason to clarify to the jury that he could
in fact speak English, in spite of the impression his use of an
interpreter
might
government’s
relevant
to
substantially
have
created.
references
to
identity,
and
outweighed
Lespier, 725 F.3d at 448.
by
We
therefore
Garcia-Lagunas’s
their
any
probative
threat
of
find
that
interpreter
value
was
prejudice.
the
were
not
See
Accordingly, we find no error.
C.
1.
Garcia-Lagunas next contends that the district court erred
in allowing Detective Collins to testify as an expert witness
where the government failed to comply with the expert disclosure
requirements.
Because the defense failed to timely object at
trial, we again review for plain error.
22
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 23 of 39
Federal Rule of Criminal Procedure 16(a)(1)(G) requires the
government, on the defendant’s request, to provide the defendant
a written summary of any expert testimony that it intends to
use.
That summary “must describe the witness’s opinions, the
bases
and
reasons
qualifications.”
for
Fed.
those
R.
opinions,
Crim.
P.
and
the
witness’s
16(a)(1)(G).
“Rule
16(a)(1)(G) ‘is intended to minimize surprise that often results
from
unexpected
opponent
with
expert
a
fair
testimony . . .
opportunity
to
and
test
to
the
provide
merit
expert’s testimony through focused cross-examination.’”
of
the
the
United
States v. Smith, 701 F.3d 1002, 1007 (4th Cir. 2012) (quoting
Fed. R. Crim. P. 16(a)(1)(G) advisory committee’s note to 1993
amendment).
Garcia-Lagunas points out that the government’s notice that
Collins would “testify about drug trafficking investigations and
methods
their
utilized
by
business,”
qualifications,
opinions.”
drug
J.A.
opinions,
traffickers
32,
or
to
failed
“the
operate
to
bases
and
state
and
reasons
protect
Collins’s
for
his
While
Appellant’s Br. at 38.
government’s
Garcia-Lagunas
short
and
has
summary
a
viable
notice
argument
failed
to
that
the
meet
the
requirements of Rule 16(a)(1)(G), we need not decide whether the
district court’s admission of the testimony was plain error, as
23
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 24 of 39
Garcia-Lagunas cannot establish that any such error affected his
substantial rights.
On that score, while Garcia-Lagunas claims that Collins’s
testimony was “completely unexpected,” id. at 39, he fails to
point to any specific portion of the testimony that took him by
surprise.
Collins’s testimony largely served to provide the
jury
contextual
the
background
of
how
drug
trafficking
organizations function and explain the significance of certain
physical
evidence.
Given
the
limited
scope
of
the
physical
evidence and that the government would clearly try to explain
why the white powder did not test positive for any controlled
substance
in
the
laboratory,
Garcia-Lagunas
cannot
establish
that more specific notice of the scope of Collins’s testimony
would have so changed his counsel’s ability to cross-examine
Collins that the trial would have come out differently.
See
United States v. Jones, 739 F.3d 364, 370 (7th Cir. 2014) (“We
need
not
testimony
consider
without
whether
notice]
the
could
error
be
[of
admitting
considered
plain,
expert
because
[the defendant] cannot demonstrate that he would not have been
convicted absent the error, or that the introduction of that
testimony
without
complying
with
the
expert
requirements resulted in a miscarriage of justice.”).
24
testimony
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 25 of 39
2.
Garcia-Lagunas
also
contends
that
Collins’s
testimony
explaining how the white powder might have field-tested positive
but
tested
negative
in
the
laboratory
for
any
controlled
substance was improper lay opinion testimony, as Collins was not
an expert in SBI laboratory techniques.
Counsel objected at
trial; therefore we review for harmless error.
After defense counsel’s objection, the government elicited
testimony from Collins demonstrating his familiarity with the
methods used by the SBI in its laboratory tests.
In particular,
he testified that he knew from his training and experience that
they would test only a portion of a controlled substance.
foundation
testimony
adequately
demonstrated
This
Collins’s
competence to testify on this issue. 7
III.
Garcia-Lagunas next challenges his sentence.
“We review a
criminal sentence for procedural and substantive reasonableness
7
Garcia-Lagunas also contends that the district court erred
in admitting lay opinion testimony from Detectives Taylor and
Stein concerning the use of small plastic baggies and vacuumsealed bags in drug trafficking. Because Garcia-Lagunas did not
object at trial, we review for plain error.
Garcia-Lagunas
cannot meet that high bar.
Given the weight of the evidence
against him, we are confident that the complained-of testimony
did not affect the outcome of the proceeding.
25
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 26 of 39
under a deferential abuse-of-discretion standard.”
Washington,
743 F.3d at 943 (citing Gall v. United States, 552 U.S. 38, 51
(2007)).
First,
we
must
“ensure
that
the
district
court
committed no significant procedural error, such as failing to
calculate
(or
improperly
Gall, 552 U.S. at 51.
calculating)
the
Guidelines
range.”
If the sentence is procedurally sound, we
then move on to “consider the substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard.”
Because Garcia-Lagunas
did
not
object
to
any
sentencing errors, we review for plain error.
of
the
Id.
alleged
United States v.
Lynn, 592 F.3d 572, 576–77 (4th Cir. 2010).
A.
Garcia-Lagunas
first
challenges
the
district
court’s
determination that it did not commit a Collins error in failing
to
instruct
the
jury
to
determine
the
quantity
of
cocaine
Garcia-Lagunas was responsible for within the conspiracy.
For
graduated
drug
offenses,
penalty
scheme
21
U.S.C.
based
on
§ 841(b)
the
“sets
quantity
forth
of
a
drugs
attributable to the defendant.”
United States v. Foster, 507
F.3d 233, 250 (4th Cir. 2007).
The statute imposes mandatory
minimum and maximum penalties when a defendant is responsible
for a threshold quantity of drugs.
Here, Garcia-Lagunas was
convicted of a conspiracy to distribute 500 grams or more of
cocaine.
Under § 841(b)(1)(B), Garcia-Lagunas was subject to a
26
Appeal: 14-4370
Doc: 67
sentence
of
Filed: 02/19/2016
no
less
than
Pg: 27 of 39
five
and
no
more
than
40
years’
imprisonment.
However,
in
United
individual
defendant,
§ 841(a),
[should
States
found
not]
v.
guilty
be
Collins,
of
we
held
conspiracy
sentenced
under
that
to
“an
violate
§ 841(b)
by
considering the amount of narcotics distributed by the entire
conspiracy,” 415 F.3d 304, 312 (4th Cir. 2005), but rather “the
jury must determine what amount of cocaine base was attributable
to [each defendant],” id. at 314.
The district court, relying on United States v. Williams,
439 F. App’x 254 (4th Cir. 2011) (per curiam), found that it did
not need to submit this question to the jury, as “there [was] no
uncertainty
regarding
the
amount
of
cocaine
the
defendant
distributed and no co-conspirators for the jury to consider,”
and therefore “the drug quantity charged in the indictment can
serve
as
the
statutory
sentencing
threshold
under
§ 841(b).”
J.A. 639.
We hold that this was not plain error.
Although Williams
was unpublished and therefore not precedential, it suggests that
even if the district court erred, such error was not plain.
See
Williams, 439 F. App’x at 257; see also United States v. Hughes,
401 F.3d 540, 547 (4th Cir. 2005) (“An error is plain ‘where the
law at the time of trial was settled and clearly contrary to the
law at the time of appeal.’” (quoting Johnson v. United States,
27
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
520 U.S. 461, 468 (1997))).
Pg: 28 of 39
In addition, there is no indication
that the district court was inclined to go below the mandatory
minimum
of
five
years’
imprisonment,
and
thus
Garcia-Lagunas
cannot establish that the error affected his substantial rights.
B.
Finally,
Garcia-Lagunas
argues
that
the
district
court
erred procedurally when it calculated his offense level as 36.
We
agree,
and
also
find
that
the
error
was
plain
and
substantially affected Garcia-Lagunas’s rights.
At sentencing, the district court announced that GarciaLagunas’s total offense level was 36 after sustaining two of his
objections to the PSR’s calculation.
The government responded
that it would not object to a downward departure of two levels
to reflect upcoming amendments to the Guidelines, and the court
agreed
total
to
go
offense
down
those
level
two
should
levels.
have
been
Thus,
34,
Garcia-Lagunas’s
which
would
have
yielded a Guidelines range of 151 to 188 months’ imprisonment.
While the 188 month sentence the court imposed was within this
range, the court specifically stated that it was “impos[ing] a
sentence at the low end of the range.”
J.A. 683.
Additionally,
in its “Statement of Reasons” form, the court scored GarciaLagunas’s total offense level at 36, noting that it sustained
one
of
Garcia-Lagunas’s
anticipated
Guidelines
objections
amendment
28
to
the
PSR
reduction,
and
used
but
the
not
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 29 of 39
acknowledging that it sustained a second objection.
Thus, the
court’s error in sentencing Garcia-Lagunas under offense level
36 instead of 34 was plain.
See United States v. Ford, 88 F.3d
1350, 1356 (4th Cir. 1996) (finding plain and prejudicial error
where
the
erroneous
addition
of
points
to
the
defendant’s
criminal history score caused the defendant “to be sentenced at
a more severe guideline range”).
We also find that the error significantly affected GarciaLagunas’s substantial rights.
The district court made clear
that it intended to sentence Garcia-Lagunas at the low end of
the range to reflect his lack of criminal history.
Thus, had it
consulted the correct range, there is good reason to believe the
court would have sentenced Garcia-Lagunas to 151, rather than
188, months’ imprisonment.
This fact distinguishes United States v. Molina-Martinez,
588 F. App’x 333 (5th Cir. 2014) (per curiam), cert. granted,
136 S. Ct. 26 (2015).
There, the Fifth Circuit found that the
defendant could not show that the plain error in sentencing him
under the wrong offense level affected his substantial rights
because (1) his sentence under the wrong level fell within the
range for the correct level, and (2) he could not “point to
‘additional evidence’ in the record, other than the difference
in
ranges,
to
Molina-Martinez,
show
588
an
F.
effect
App’x
at
29
on
his
334–35.
substantial
Indeed,
rights.”
the
Fifth
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 30 of 39
Circuit specifically distinguished United States v. Pratt, 728
F.3d 463 (5th Cir. 2013), which had facts much more like this
case.
There, “the district court affirmatively stated on the
record that . . . it was choosing a sentence in the middle of
the Guidelines range.”
Molina-Martinez, 588 F. App’x at 335
(citing Pratt, 728 F.3d at 482). 8
In United States v. Knight, 606 F.3d 171 (4th Cir. 2010),
where we found the defendant had not shown that the use of an
incorrect sentencing range affected her substantial rights, we
explicitly distinguished a hypothetical case that is very close
to what happened here.
There, the district court plainly erred
in sentencing Knight under a Guidelines offense level of 26,
with an advisory range of 92-115 months’ imprisonment, instead
8
The Supreme Court has granted Molina-Martinez’s petition
for certiorari on the question of whether an appellate court
should presume, for the purposes of plain-error review, that the
application of the wrong Guidelines range to a criminal
defendant affected his substantial rights. See Molina-Martinez,
136 S. Ct. 26 (2015); Petition for Certiorari, Molina-Martinez
v. United States, 2015 WL 5766728 at *i (No. 14-8913). Even if
the Court holds that an appellate court should not make that
presumption, our finding in this case would not be affected, as
we rely not on a presumption but rather on the district court’s
stated intent to sentence Garcia-Lagunas at the low end of the
applicable Guidelines range—the “additional evidence” that was
absent in Molina-Martinez.
Alternatively, if the Court holds
that appellate courts should presume a sentence under the
incorrect Guidelines range affects a defendant’s substantial
rights, then it would only confirm that Garcia-Lagunas’s
substantial rights were affected by the error.
Thus, we need
not await the Supreme Court’s ruling in Molina-Martinez.
30
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 31 of 39
of the correct level of 24, with an advisory range of 77-96
months.
Knight,
606
F.3d
at
177-78.
The
district
court
compared Knight favorably to another defendant the court had
sentenced that day, who had received a sentence of about half of
his Guidelines range.
Id. at 178-79.
The district court then
sentenced Knight to 60 months in prison.
Id. at 179.
Knight
argued that the court’s intent was to sentence her, like the
other defendant, to “roughly half” of her Guidelines range, and
so the sentencing error affected her substantial rights because
the court would have sentenced her to “roughly half” of 77-96
months under the correct range.
Id.
We rejected this argument, finding it “pure speculation”
that the sentencing “court’s limited statements about the other
defendant” had the meaning that Knight ascribed to them.
Id.
We
the
explicitly
distinguished
a
hypothetical
case
where
sentencing court either “explicitly connected Knight’s sentence
to the sentence given to the other defendant” or “explicitly
connected
advisory
the
60-month
range—for
sentence
example,
by
ultimately
stating
that
imposed
it
to
intended
the
to
impose a sentence that was a certain percentage of the low or
high end of the advisory range.”
court
did
explicitly
connect
the
Id.
Here, the sentencing
sentence
imposed
to
the
advisory range, and thus Garcia-Lagunas’s claim is not “pure
speculation.”
Garcia-Lagunas
therefore
31
has
shown
that
his
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 32 of 39
substantial rights were affected by the miscalculation because
it is very likely “he would have received a lower sentence had
the error not occurred.”
Id. at 178.
And though we need not always correct plain error, Keita,
742 F.3d at 189, we choose to do so here.
Fairness dictates
that Garcia-Lagunas be sentenced under the correct Guidelines
range, particularly when doing so could potentially lead to a
sentence reduction.
See Ford, 88 F.3d at 1356 (“[S]entencing a
defendant at the wrong guideline range seriously affects the
fairness,
integrity,
proceedings.”).
and
public
reputation
of
the
judicial
“Three years of a man’s life is not a trifling
Id. 9
thing.”
IV.
In
sum,
Lagunas’s
we
trial
hold
that
were
either
substantial rights.
any
evidentiary
harmless
or
errors
did
not
in
Garcia-
affect
his
The district court, however, plainly erred
in calculating Garcia-Lagunas’s Guidelines range, and such error
affected his substantial rights.
9
Accordingly, we affirm Garcia-
As we are vacating on this issue, we need not address
Garcia-Lagunas’s other claim of procedural unreasonableness, his
claim of substantive unreasonableness, or his claim that the
district court’s failure to allow him a presentence allocution
affected his substantial rights.
32
Appeal: 14-4370
Doc: 67
Lagunas’s
Filed: 02/19/2016
conviction,
vacate
Pg: 33 of 39
his
sentence,
and
remand
for
resentencing.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
33
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 34 of 39
DAVIS, Senior Circuit Judge, dissenting:
The
Government
correctly
concedes
that
it
was
constitutional error for prosecutors to elicit and rely upon
testimony consisting of a blatant ethnic generalization in hopes
that
the
Alejandro
prove
jury
draw
Garcia-Lagunas.
beyond
testimony
would
did
a
reasonable
not
inferences
Because
doubt
contribute
to
adverse
the
that
the
to
Government
its
Appellant
failed
reliance
jury’s
on
verdict,
to
such
as
my
friends in the majority implicitly acknowledge, I am compelled
to dissent from their conclusion to affirm the judgment.
During his trial, Garcia-Lagunas sought to show that he
was, at most, a common drug abuser and not a sophisticated drug
distributor who trafficked in large volumes of cocaine.
this
distinction,
Garcia-Lagunas
utilized
questions
To make
during
cross-examination of prosecution witnesses to establish that he
lived a meager lifestyle devoid of any of the drug proceeds that
should
follow
a
high-volume
distributor.
For
example,
when
cross-examining Detective Shawn Collins, Garcia-Lagunas elicited
testimony
about
the
assets
discovered
at
the
residences
of
Ronnie Reed, one of Garcia-Lagunas’s alleged purchasers and a
Government witness.
J.A. 153-55.
During searches of Reed’s
residences related to federal drug trafficking charges, officers
found and ultimately seized more than $100,000 in U.S. currency,
multiple telephones, a 2008 Infiniti, a 2006 Chevy Impala, a
34
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 35 of 39
2004 Acura, a 2004 BMW, a 2002 Lincoln Navigator, and multiple
firearms.
J.A. 154-55.
Contrasting this showing of the wealth accumulated by Reed
during the four to five years that he sold drugs prior to his
2012
arrest,
the
cross-examinations
of
Detective
Collins
and
Detective Pedro Orellano established that Garcia-Lagunas lived a
life of limited means.
evening
detectives
Their testimony showed that, on the
arrested
Garcia-Lagunas,
he
was
found
shirtless and shoeless in the “kitchen/living room area” of a
small trailer in which he rented a room for less than $350 per
month.
J.A. 103-04, 315.
The detectives did not find any
vehicles belonging to Garcia-Lagunas, and they only uncovered
$600 in currency.
J.A. 176.
Ultimately, Garcia-Lagunas hoped
this testimony would cause the jury to ask: how can a man who is
allegedly
dollars
responsible
in
cocaine 1
transactions?
Assistant
United
Any
for
have
selling
no
proceeds
experienced
States
hundreds
Attorney
(and
even
of
to
an
prosecuting
thousands
evidence
of
those
inexperienced)
cases
in
this
Circuit would fully expect (and be prepared for) this kind of
defense tack on this record.
1
According to the testimony of four drug dealers testifying
pursuant to plea agreements, Garcia-Lagunas sold them, in the
aggregate, at least 39 kilos of cocaine, with each kilo of
cocaine valuing approximately $30,000 to $32,000 during the
relevant time frame.
J.A. 205, 208, 239, 340-42, 360-61, 388.
35
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 36 of 39
As Garcia-Lagunas’s defense theory became apparent during
trial,
first
however,
time
the
the
Government
absence
of
seemingly
drug
potential weakness in its case.
cure
the
ostensible
weakness
recognized
trafficking
for
proceeds
the
as
a
The Government opted not to
through
the
introduction
of
admissible evidence by, for example, moving to admit proof of
wire transfers from Garcia-Lagunas to family in Mexico.
Either
because such evidence did not exist 2 or because the Government
failed
to
adequately
prepare
its
case,
it
instead
sought
to
counter the theory offered by Garcia-Lagunas by eliciting an
outrageous ethnic stereotype about the propensity of “Hispanic
drug traffickers” to live modestly while sending “the majority
if not all the proceeds back to their native countries.”
270.
J.A.
The Government then drove this racial generalization home
at the outset of its closing argument, stating:
Ladies and Gentlemen, what did Detective Orellano tell
you about Hispanic drug trafficking organizations and
about what they do with their money? He told you that
they package that money and they send it back to their
home
country
as
part
of
the
drug
trafficking
organization. That’s why we don’t have an extravagant
lifestyle associated with this Defendant, fancy cars,
any of the things like Ronnie Reed has talked about.
2
As my colleagues in the majority point out, Garcia-Lagunas
has resided in the United States since he was a teenager, and
the majority of his family, including his parents, spouse, and
two of his children, also live in the United States, making it
improbable that he was sending large amounts of money back to
family in Mexico.
36
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 37 of 39
J.A. 520.
The relative ability of this particular stereotype to sway
the jury is evidenced by its effect on the presiding judge.
response
to
a
renewed
objection
to
Detective
In
Orellano’s
testimony, the trial judge held a bench conference and admitted
that he “wasn’t quite sure the relevance of” the Detective’s
testimony regarding Hispanic drug traffickers, but that, “based
on [his] experience, . . . most Latins send money home whether
they’re
drug
dealers
or
not.” 3
J.A.
273.
The
Government
admittedly hoped the jurors would draw a similar inference when
rendering a verdict.
J.A. 273.
As the majority explains, “[a]ppeals to racial, ethnic, or
religious
prejudice
during
the
course
of
a
trial
defendant’s Fifth Amendment right to a fair trial.”
Cabrera, 222 F.3d 590, 594 (9th Cir. 2000).
violate
a
United v.
A number of our
sister circuits have interpreted this basic principle to mean
that
a
constitutional
error
3
occurs
when
the
Government
The majority suggests that the trial judge’s statements
could not have independently affected the jury because they were
voiced during a bench conference. To the contrary, I note that,
as Juror Number 2 in a recent state criminal trial (and based on
the “white noise” used in my courtroom when I served as a
federal
district
judge),
statements
made
during
bench
conferences, whether conducted under the hopeful veil of “white
noise” or not, often remain within earshot of nearby and
attentive jurors. There is nothing in the record here to suggest
that the judge’s remarks went unheard in this instance.
37
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 38 of 39
“invite[s] the jury to put [a defendant’s] racial and cultural
background into the balance in determining their guilt.”
United
States v. Vue, 13 F. 3d 1206, 1213 (8th Cir. 1994); United
States v. Cruz, 981 F.2d 659, 663-64 (2d Cir. 1992); United
States v. Doe, 903 F.2d 16, 20-24 (D.C. Cir. 1990).
This is
exactly what the Government did here.
To counter Garcia-Lagunas’s primary defense theory and cure
a
perceived
hole
generalizations
in
its
about
case,
the
Garcia-Lagunas’s
Government
ethnicity
offered
to
the
up
jury.
The Government hoped that, like the presiding judge, the jurors
would
believe
that
Garcia-Lagunas’s
modest
lifestyle
did
not
undermine allegations that he distributed hundreds of thousands
of dollars in cocaine because he had assuredly been sending his
significant proceeds back to his native country, electing to
live
like
a
distinguish
pauper
the
here.
ethnic
And
while
generalization
the
majority
tactically
seeks
elicited
to
and
repeated in this case on the ground that the ethnically based
“evidence” was used in a more nuanced fashion than was true in
the
cases
specific
decided
method
in
for
our
sister
injecting
circuits,
the
Garcia-Lagunas’s
Government’s
ethnicity
as
evidence in favor of his guilt makes it no less improper.
Most
tellingly,
even
the
Government
concedes
that
the
elicitation of Detective Orellano’s testimony during re-direct
and
recitation
of
the
testimony
38
at
the
outset
of
closing
Appeal: 14-4370
Doc: 67
Filed: 02/19/2016
Pg: 39 of 39
argument amounted to a constitutional error.
Oral Argument at
20:38-20:51, United States v. Garcia-Lagunas, No. 14-4370 (Sept.
17,
2015),
available
at
http://coop.ca4.uscourts.gov/OAarchive/mp3/14-4370-20150917.mps.
During oral argument, when asked whether the error amounted to
constitutional
error,
counsel
unequivocally, “Yes.”
Id.
for
the
Government
responded
The Panel then asked, as a result of
the Government’s belief that constitutional error had occurred,
whether
it
was
the
Government’s
burden
“to
prove
beyond
a
reasonable doubt that the error had no substantial effect on the
jury’s verdict.”
Id.
In response, counsel for the Government
firmly stated, “That’s correct.”
Id.
Accordingly, because the Government’s appeal to an ethnic
generalization was plainly a constitutional error and because
the Government failed to prove beyond a reasonable doubt that
its reliance on such testimony did not contribute to the jury’s
verdict in a drug conspiracy case resting almost entirely on the
testimony
of
four
drug
dealers
testifying
pursuant
to
agreements, I would vacate and remand for a new trial.
plea
By
rejecting the Government’s concession that constitutional error
occurred here, and thereby refusing to apply the only applicable
harmlessness
standard,
the
majority
affirms
the
because there was sufficient evidence to support it.
It errs in doing so.
I respectfully dissent.
39
conviction
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?