US v. Alejandro Garcia-Laguna
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 5:12-cr-00376-F-1. [999921586]. [14-4370]
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 1 of 64
ON REHEARING
PUBLISHED
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,
September 1, 2016
and
DAVIS,
Senior
Affirmed in part, vacated in part, and remanded by published
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: Kelly Margolis Dagger, ELLIS & WINTERS, LLP, Raleigh,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 2 of 64
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
2
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 3 of 64
DIAZ, Circuit Judge:
A
jury
convicted
Alejandro
“Alex”
Garcia-Lagunas
of
conspiracy to distribute or possess with intent to distribute
cocaine,
in
violation
of
21
U.S.C.
§§ 841(a),
sentenced to 188 months’ imprisonment.
and
we
affirmed
committed
his
conviction,
nonconstitutional
He
was
Garcia-Lagunas appealed
finding
error
846.
by
that
using
the
government
ethnically
charged
evidence to rebut Garcia-Lagunas’s assertion that he was too
poor to have dealt in large quantities of drugs, but that such
error was harmless.
the
district
Guidelines
We also vacated his sentence, holding that
court’s
range
was
miscalculation
plain
error
of
Garcia-Lagunas’s
affecting
his
substantial
rights, and remanded for resentencing.
Garcia-Lagunas filed a petition for rehearing and rehearing
en
banc.
rehearing,
We
granted
thus
vacating
Garcia-Lagunas’s
our
prior
petition for rehearing en banc.
the
evidentiary
error,
if
petition
opinion
and
for
panel
mooting
the
We directed briefing on whether
assumed
to
be
of
constitutional
magnitude, was nonetheless harmless beyond a reasonable doubt.
We
now
again
affirm
Garcia-Lagunas’s
sentence, and remand for resentencing.
3
conviction,
vacate
his
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 4 of 64
I.
A.
On
March
Fayetteville,
charges.
27,
2012,
North
Reed
“Mexican
drug
trailers
in
Carolina,
told
the
supplier”
Robeson
Ronnie
on
Reed
federal
arresting
named
County—at
“Alex”
33
was
drug
officers
and
Sonoma,
arrested
47
trafficking
that
led
in
he
them
had
to
Sonoma,
a
three
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 day, the police executed search warrants on the
three
trailers.
Sonoma
and
ten
They
found
one-kilogram
Garcia-Lagunas’s
wrappers,
parents
several
with
at
33
“white
powdery residue” on them, buried in a lean-to shed behind the
trailer at 47 Sonoma.
J.A. 98.
At 294 Maple Leaf, officers
found an older male with a small user amount of cocaine.
During
earlier surveillance, officers had seen a car leave 294 Maple
Leaf and go to a trailer at 353 Westcott.
As the search of the
three trailers had not turned up “Alex,” the officers decided to
try
353
Westcott.
When
they
arrived,
Detective
Kurt
Stein
observed Marco Hernandez exit the trailer from the back, and
Detective Pedro Orellano and Sergeant Gregory Johnson approached
him.
Orellano confirmed with Hernandez that Hernandez lived at
the trailer and obtained his consent to search it.
4
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 5 of 64
The officers found Garcia-Lagunas and Brian Jacobs inside
the trailer.
Garcia-Lagunas had white powder under his nose and
appeared
impaired.
Garcia-Lagunas
officers
as
Both
Alex.
identified
Garcia-Lagunas
and
himself
Jacobs
officers that they did not live in the trailer.
to
the
told
the
After Sergeant
Johnson asked him to empty his pockets, Garcia-Lagunas produced
$600 cash and a cell phone, which had his photograph as its
background image.
When Detective Stein dialed one of the phone
numbers Reed had given the police for “Alex,” 1 Garcia-Lagunas’s
phone rang.
The officers then searched the trailer.
In the kitchen,
they found a handgun and several small baggies.
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 of a white powdery
substance;
and
a
small
baggie
of
crack
cocaine.
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.
Analysis of Garcia-Lagunas’s phone’s records connected it
to several known drug dealers, including Reed, Jacobs, Thomas
1
Brian Jacobs and Thomas Brewington, a drug dealer who
purchased cocaine from Garcia-Lagunas, also gave officers that
same phone number for “Alex.”
5
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 6 of 64
Brewington, Shaun Beard, and Reginald Clark.
that
from
February
9th
to
23rd,
2012,
The records showed
there
were
185
calls
between Garcia-Lagunas and Beard; 60 between Garcia-Lagunas and
Clark; 56 between Garcia-Lagunas and Jacobs; 56 between GarciaLagunas and Reed; and 160 between Garcia-Lagunas and various
numbers with a 404 area code, which the government identified as
Atlanta, a “drug hub city.”
J.A. 139.
From February 13th to
21st, 2012, there were 37 calls between Garcia-Lagunas and the
landline at 294 Maple Leaf.
From February 22nd to February
23rd, 2012, there were five calls between Garcia-Lagunas and
Brewington.
B.
A
grand
jury
charged
Garcia-Lagunas 2
with
conspiring
to
distribute or 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
2
Garcia-Lagunas was indicted under the name Alex Fuentes.
6
Appeal: 14-4370
methods
Doc: 86
Filed: 09/01/2016
utilized
by
drug
their drug business.”
Pg: 7 of 64
traffickers
J.A. 32.
to
operate
and
protect
Separately, the district court
agreed 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
a
fact
witness
investigation and the searches.
with
respect
to
the
According to Collins, the white
powder found in the trailer could have field-tested positive for
cocaine
and
still
have
been
found
to
contain
no
controlled
substance in SBI’s laboratory analysis if the cocaine had been
mixed with a sufficient amount of cutting agent 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.”
Collins
also
told
the
jury
that
alien illegally in the United States.”
prosecution
asked
Collins
if
he
saw
J.A. 111.
Garcia-Lagunas
J.A. 150.
that
was
“an
After the
Garcia-Lagunas
was
being assisted by an interpreter in court, Collins responded
that his informants had not indicated that they had needed to
use Spanish in their dealings with Garcia-Lagunas.
Moreover,
Collins testified that Garcia-Lagunas “appeared to be fluent in
English.”
Four
J.A. 151.
drug
dealers—Reed,
Jacobs,
Brewington,
and
Antonio
Locklear—each testified pursuant to plea agreements to having
7
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 8 of 64
purchased cocaine from Garcia-Lagunas.
Reed bought four to nine
ounces of cocaine from Garcia-Lagunas at the 47 Sonoma location
two times a week from October 2011 until Reed’s March 27, 2012
arrest,
adding
up
to
at
least
six
kilograms,
and
separately
bought nine to twenty ounces of cocaine from Garcia-Lagunas at
the Maple Leaf location at least once a week from December 2011
until March 27, 2012, adding up to at least four additional
kilograms.
Reed resold the drugs that he bought from Garcia-
Lagunas, and did not use them himself.
Jacobs had been buying drugs from Garcia-Lagunas for about
eight years, prior to which Jacobs had sold to Garcia-Lagunas.
On the day of Garcia-Lagunas’s arrest, Jacobs had given $600 to
Garcia-Lagunas
Jacobs
also
for
three-quarters
testified
that
he
of
had
an
on
ounce
over
of
cocaine.
thirteen
other
occasions bought from a quarter of an ounce to three-quarters of
an ounce of cocaine from Garcia-Lagunas.
According
to
Brewington,
he
bought
cocaine
from
Garcia-
Lagunas only once, at 294 Maple Leaf, and he bought nine ounces
on that occasion.
resell
with
price.
cocaine,
He discussed the amount of cocaine he could
Garcia-Lagunas,
in
order
to
negotiate
a
better
Brewington noted that when he tried to redistribute the
“one
of
[his]
people
that
[he]
complaining that it wouldn’t” cook properly.
8
gave
it
J.A. 363.
to
was
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 9 of 64
Locklear began using Garcia-Lagunas as a source for drugs
around June of 2010.
cocaine
from
purchased
the
From then until March 2011, he bought
Garcia-Lagunas
drugs
to
about
resell
every
them.
other
On
day,
direct
and
he
examination,
Locklear testified that he always bought at least nine ounces,
and never more than eighteen ounces, and estimated that he had
bought 29-30 kilograms total.
However, on cross-examination,
Garcia-Lagunas impeached Locklear with a March 2011 statement to
law
enforcement,
in
which
he
had
apparently
attributed
only
three kilograms of cocaine to Garcia-Lagunas.
Reed, Jacobs, Brewington, and Locklear each testified that
they
did
Brewington,
not
and
know
all
the
others,
testified
to
owner
the
except
that
having
spoken
Reed
knew
English
of
with
Garcia-Lagunas.
Hernandez,
testified,
also
the
pursuant
of
to
a
trailer
plea
at
agreement,
353
Westcott,
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, and that the armor and large scale belonged to GarciaLagunas. 3
Hernandez also testified that while he had never seen
Garcia-Lagunas selling drugs, he had seen visitors, including
3
In their testimony, Detectives Collins and Orellano noted
that the room Hernandez attributed to Garcia-Lagunas looked as
if it had recently been moved into.
9
Appeal: 14-4370
Doc: 86
Jacobs,
give
Filed: 09/01/2016
Garcia-Lagunas
Pg: 10 of 64
money.
He
also
saw
Jacobs
give
Garcia-Lagunas the gun that was found in the trailer. 4
Detective Orellano testified about his participation in the
searches and the evidence that he and Detective Stein found in
the 353 Westcott trailer.
defense
elicited
Garcia-Lagunas’s
While cross-examining Orellano, the
testimony
living
regarding
conditions,
the
squalid
which
state
supported
of
Garcia-
Lagunas’s defense theory that he was a drug user but not a drug
dealer.
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
countries.”
not
all
of
the
proceeds
back
to
their
native
J.A. 270.
Defense counsel objected.
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
relatively low level conditions.”
because
J.A. 271.
he’s
living
in
Defense counsel
responded that Orellano had not been qualified as an expert.
4
When Garcia-Lagunas and Hernandez were placed in a cell
together after their arrests, Garcia-Lagunas called Hernandez a
“chiva,” a “term supposedly . . . for the people who collaborate
with the law.” J.A. 305-06.
10
Appeal: 14-4370
After
Doc: 86
Filed: 09/01/2016
confirming
training
and
objection. 5
different
that
Orellano’s
experience,
Orellano
terms:
Pg: 11 of 64
the
testimony
district
repeated
“It
is
the
consistent
was
based
his
overruled
court
on
the
testimony
with
in
slightly
Hispanic
drug
traffickers not to misuse the drug proceeds and to send or get
rid of the proceeds, send them to their native countries or
their next step over them in the drug trafficking organization.”
J.A. 274.
closing
The government referred to this testimony during its
argument
to
explain
“extravagant lifestyle.”
Several
other
Garcia-Lagunas’s
lack
of
an
J.A. 520.
officers
testified
for
the
government.
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
5
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.
The court’s comment is puzzling at best,
but we do not address it further because there is no evidence
that the jury heard it.
11
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 12 of 64
odor of the narcotics so that they’re harder to be detected
[and] easier to transport.”
Through
J.A. 437-38.
cross-examination
and
closing
argument,
Garcia-
Lagunas presented two defense theories: first, that even if he
sold
drugs
to
the
dealer
witnesses,
he
did
so
in
a
simple
“buyer-seller” relationship, and the evidence was insufficient
to show that he was involved in a distribution conspiracy with
those dealers; 6 second, that he was too poor to have dealt in the
large quantities that the government’s witnesses attributed to
him.
The court chose (without objection from the parties) not to
submit a special verdict sheet for the jury to indicate the
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
form
The jury found Garcia-
distribute
or
possess
intent to distribute 500 grams or more of cocaine.
with
After the
verdict, the district court sua sponte directed 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
6
“A mere buyer-seller relationship is insufficient to
support a conspiracy conviction.” United States v. Howard, 773
F.3d 519, 525 (4th Cir. 2014).
12
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
(4th Cir. 2005).
Pg: 13 of 64
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
weight
enhancement,
but
calculation
sustained
and
the
the
dangerous
objections
to
the
enhancements, resulting in an offense level of 36.
weapon
other
two
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
to
the
Attorney
the
proposed
General’s
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
13
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 14 of 64
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.
defendant’s
The
consecutive
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.
II.
Garcia-Lagunas argues that the government’s improper use of
an ethnic stereotype to rebut Garcia-Lagunas’s defense theory
that
he
was
too
poor
to
be
a
major
drug
dealer
was
constitutional error and was not harmless beyond a reasonable
doubt.
We will assume, as the government conceded, see Oral
Argument at 20:38–20:51, United States v. Garcia–Lagunas, No.
14–4370 (Sept. 17, 2015), http://coop.ca4.uscourts.gov/OAarchive
/mp3/14-4370-20150917.mp3, that the use of the stereotype was
constitutional error, and proceed directly to the question of
14
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 15 of 64
whether the government has shown that the error was harmless
beyond a reasonable doubt.
See, e.g., United States v. Evans,
216 F.3d 80, 89-90 (D.C. Cir. 2000) (declining to decide whether
error
was
constitutional
where
the
error
was
harmless
under
either constitutional or nonconstitutional standard).
A.
For all constitutional errors that do not “‘defy analysis
by “harmless error” standards[,]’ . . . ‘reviewing courts must
apply
[Federal
harmless-error
Rule
of
analysis
Criminal
and
must
Procedure]
disregar[d]
harmless beyond a reasonable doubt.’” 7
Rule
errors
52(a)’s
that
are
United States v. Lovern,
293 F.3d 695, 700 (4th Cir. 2002) (third alteration in original)
(quoting Arizona v. Fulminante, 499 U.S. 279, 309 (1991) and
Neder v. United States, 527 U.S. 1, 7 (1999)).
The essential
question is therefore: “Is it clear beyond a reasonable doubt
that
a
rational
jury
absent the error?”
States
v.
Camacho,
would
have
found
the
defendant
guilty
Neder, 527 U.S. at 18; see also United
955
F.2d
950,
955
(4th
Cir.
1992)
(“The
decision below should only stand if, viewing the entire record,
it is clear beyond a reasonable doubt that the jury would have
7
Garcia-Lagunas does not argue that this constitutional
error is in the “limited class of fundamental constitutional
errors” that require automatic reversal without a harmlessness
analysis. United States v. Lovern, 293 F.3d 695, 700 (4th Cir.
2002).
15
Appeal: 14-4370
Doc: 86
returned
a
error.”).
Filed: 09/01/2016
guilty
verdict
Pg: 16 of 64
absent
allegedly
harmless
The burden rests on the government, the beneficiary
of the error, to show harmlessness.
386 U.S. 18, 24 (1967).
de
the
novo
in
order
See Chapman v. California,
We have “the power to review the record
to
determine
an
error’s
harmlessness.”
Fulminante, 499 U.S. at 295.
Importantly,
“holding
‘reflec[t]
a
involved,’”
Neder,
(quoting
Rose
the
of
denigration
v.
527
U.S.
Clark,
error
the
at
478
19
U.S.
harmless
does
constitutional
(alteration
570,
577
in
not
rights
original)
(1986)),
and
we
emphasize that “[i]njection of a defendant’s ethnicity into a
trial
as
evidence
of
criminal
behavior
is
self-evidently
improper and prejudicial,” United States v. Cruz, 981 F.2d 659,
664 (2d Cir. 1992); see also United States v. Runyon, 707 F.3d
475, 494 (4th Cir. 2013) (“The Supreme Court has long made clear
that statements that are capable of inflaming jurors’ racial or
ethnic
prejudices
‘degrade
the
administration
of
justice.’”
(quoting Battle v. United States, 209 U.S. 36, 39 (1908))).
In
this
stereotype
to
case,
the
explain
government’s
Garcia-Lagunas’s
reliance
living
on
an
ethnic
conditions
was
particularly inapt given its failure to show that Garcia-Lagunas
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
16
Appeal: 14-4370
living
Doc: 86
in
Filed: 09/01/2016
Mexico,
he
has
two
Pg: 17 of 64
other
children
living
in
this
country, and at the time of his arrest his parents lived next
door to him.
Nor did the government present any evidence that
Garcia-Lagunas was sending proceeds to the “next step over [him]
in the drug trafficking organization.”
J.A. 274.
Thus, the
government’s only “evidence” that Garcia–Lagunas was remitting
money was the generalization about Hispanic drug traffickers.
That said, the harmless error rule “serve[s] a very useful
purpose
insofar
as
[it]
block[s]
setting
aside
convictions”
where the constitutional error had “little, if any, likelihood
of having changed the result of the trial.”
Neder, 527 U.S. at
19 (alterations in original) (quoting Chapman, 386 U.S. at 22).
The rule thus “recognizes the principle that the central purpose
of a criminal trial is to decide the factual question of the
defendant’s
guilt
or
innocence, . . .
and
promotes
public
respect for the criminal process by focusing on the underlying
fairness of the trial.”
Id. at 18 (alteration in original)
(quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)).
B.
In this case, Garcia-Lagunas was found guilty of coming “to
a mutual understanding to try to accomplish the . . . plan of
distributing or possessing with intent to distribute 500 grams
or more of cocaine,” and “knowingly bec[oming] a member of that
conspiracy.”
J.A. 554.
We are satisfied beyond a reasonable
17
Appeal: 14-4370
doubt
Doc: 86
Filed: 09/01/2016
that—even
without
the
Pg: 18 of 64
government’s
improper
use
of
an
ethnic stereotype—a rational jury still would have arrived at
that verdict.
1.
We begin first with the quantity of the drugs involved in
the conspiracy.
At trial, the government presented evidence
that Garcia-Lagunas sold far greater amounts of cocaine than the
500 grams charged in the indictment.
Jacobs,
Brewington,
and
Locklear
The testimony of Reed,
attributed
to
Garcia-Lagunas
the sale of nearly 40 kilograms—40,000 grams—of cocaine.
the
jury
need
only
have
credited
1.3%
of
that
Thus,
quantity
to
satisfy the government’s burden.
The fact that Reed, Jacobs, Brewington, and Locklear were
known drug dealers each testifying pursuant to a plea agreement
certainly casts some doubt on their credibility.
See United
States v. Garcia, 752 F.3d 382, 397 (4th Cir. 2014) (noting that
a
witness’s
testimony
for
the
government
“was
put
into
question . . . not least because his testimony was in return for
sentencing
considerations
by
the
Government
in
a
[state]
prosecution in which he faced a maximum potential sentence of
life
in
course,
prison
the
and . . .
jury
was
deportation”).
unquestionably
But
entitled
testimony of [that government witness].”).
see
to
id.
credit
(“Of
the
Here, however, the
testimony of three of the dealers was bolstered by phone records
18
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 19 of 64
showing an extraordinary volume of phone calls (in a compressed
period of time) between them and Garcia-Lagunas. 8
See, e.g.,
J.A. 338 (Jacobs testifying that he and Garcia-Lagunas exchanged
“somewhere around th[e] range” of 56 calls from February 10th to
22nd, 2012); cf. United States v. Johnson, 617 F.3d 286, 298
(4th Cir. 2010) (finding error not harmless where codefendant
drug dealers’ testimony was inconsistent, there was otherwise
“scant
evidence,”
and
defendant
“called
seven
witnesses
to
testify about his legitimate source of income”).
In addition, circumstantial physical evidence also pointed
to Garcia-Lagunas’s guilt.
See United States v. Holness, 706
F.3d 579, 598-600 (4th Cir. 2013) (finding error harmless beyond
a
reasonable
predominantly
doubt
even
where
circumstantial”).
“the
government’s
Garcia-Lagunas’s
case
room
was
had
a
large scale in it that the jury heard was of the type commonly
used by dealers to weigh drugs in large quantities, as well as a
smaller scale typically used to weigh user amounts of drugs,
which had what appeared to be cocaine and crack cocaine residue
on it.
8
The phone records were largely irrelevant to Locklear’s
testimony, as the subpoenaed records covered February 9th to
23rd, 2012, and Locklear testified that he stopped purchasing
from Garcia-Lagunas following his arrest in March 2011.
19
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 20 of 64
In the same room, officers found a bulletproof vest that
Detective
trade.”
Collins
testified
J.A. 106.
was
“another
tool
in
the
drug
Hernandez told the jury that the vest and
the large scale belonged to Garcia-Lagunas.
container
of
Garcia-Lagunas’s
room
was
Inside a storage
800
grams
of
a
white
powdery substance, packed in a vacuum-sealed bag and again in a
garbage bag.
The substance field-tested positive for cocaine,
though the readings were “light.”
J.A. 108.
Subsequent SBI
test results showed that the powder did not contain a controlled
substance but Collins explained that such a result was possible
even if there were cocaine present, given the techniques used in
the lab, if the cocaine had had a significant amount of cutting
agent
added
to
Garcia-Lagunas
it.
was
The
“known
government’s
for
adding
evidence
too
much
showed
that
additive
into
cocaine which would produce a very small amount of cocaine.”
J.A. 111; see also J.A. 363 (Brewington testifying that when he
tried
to
resell
cocaine
he
purchased
from
Garcia-Lagunas,
a
customer complained that “[i]t wouldn’t cook properly”).
Other tools of the drug trade were found in the trailer’s
main room.
Police found a .32 caliber revolver in a purple
Crown Royal bag in a cabinet over the stove, which Jacobs had
given to Garcia-Lagunas that day.
20
There were several phones on
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 21 of 64
the kitchen table when Collins entered the trailer, 9 and Collins
testified that he had seen dealers who dealt in large quantities
with four to six different phones, because “it’s harder for a
law
enforcement
officer
to
phones at a time.”
J.A. 85.
he
to
had
used
three
Garcia-Lagunas.
four
keep
track
of
several
different
In addition, Reed testified that
different
phone
numbers
to
reach
Finally, officers also found one-inch-by-one-
inch plastic baggies on top of the kitchen cabinets and in a box
on top of the refrigerator.
The
circumstances
of
Garcia-Lagunas’s
demonstrate that he was a drug dealer.
arrest
also
Jacobs testified that
when he had previously bought cocaine from Garcia-Lagunas at the
Westcott trailer, he bought between a quarter of an ounce and
three-quarters of an ounce, and that on the day of the arrest,
he was there to purchase three-quarters of an ounce and had
given Garcia-Lagunas $600 for it.
Hernandez saw Jacobs give
Garcia-Lagunas “some money . . . and a gun,” J.A. 298, and saw
Garcia-Lagunas count the cash before pocketing it.
And when the
officers arrived, Garcia-Lagunas was found with $600 in cash.
9
The record does not explain where the phones were when
Sergeant Johnson and Detective Stein first entered the trailer,
except for the phone that Garcia-Lagunas removed from his
pocket.
21
Appeal: 14-4370
Doc: 86
With
Filed: 09/01/2016
respect
to
the
Pg: 22 of 64
conspiracy
element
of
the
offense,
“[g]iven the ‘clandestine and covert’ nature of conspiracies,
the
government
can
prove
the
existence
circumstantial evidence alone.”
of
a
conspiracy
by
United States v. Howard, 773
F.3d 519, 525 (4th Cir. 2014) (quoting United States v. Burgos,
94 F.3d 849, 857 (4th Cir. 1996) (en banc)).
While “[a] mere
buyer-seller
to
conspiracy
relationship
conviction,”
relationship
is
is
insufficient
evidence
continuing
and
that
includes
such
a
support
a
buyer-seller
repeated
transactions
“can support the finding that there was a conspiracy, especially
when coupled with substantial quantities of drugs.”
Id. at 525-
26 (quoting United States v. Reid, 523 F.3d 310, 317 (4th Cir.
2008)).
Here, the most direct evidence that Garcia-Lagunas shared a
“mutual
understanding”
testimony
that
he
to
distribute
discussed
the
cocaine
amount
of
was
Brewington’s
cocaine
he
could
“move” with Garcia-Lagunas, so that Garcia-Lagunas “would lower
the
price,”
J.A.
361-62,
which
indicates
that
Garcia-Lagunas
knew Brewington was a reseller and not buying the drugs for his
own use.
In addition, Reed and Locklear each testified that
they were buying from Garcia-Lagunas more than twice a week and
that they were reselling the drugs that they bought from GarciaLagunas.
selling
See Howard, 773 F.3d at 526 (noting that defendant
to
“frequent
customers
22
who
often
resold
the
drugs”
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 23 of 64
supported a conspiracy conviction).
high
quantities
and
frequency
More circumstantially, the
of
transactions
attributed
to
Garcia-Lagunas support the government’s contention that he knew
his buyers were redistributing the drugs.
2.
On this record, we are satisfied that the constitutional
error was harmless beyond a reasonable doubt.
Put another way,
we conclude “that the district court’s judgment, entered on the
jury’s guilty verdict, could not have been substantially swayed”
by the improperly admitted evidence.
United States v. Holness,
706 F.3d 579, 600 (4th Cir. 2013).
Garcia-Lagunas’s reliance on our decision in United States
v. Johnson, 617 F.3d 286 (4th Cir. 2010), to argue otherwise
misses the mark.
in
admitting
There, we held that a nonconstitutional error
police
testimony
regarding
the
meaning
of
wiretapped phone calls was not harmless in a drug conspiracy
case where “[n]o drugs were found, no financial evidence was
presented
and
there
was
no
surveillance
that
captured
[defendant] engaging in illicit activity, despite the extensive
investigation
erroneously
mounted
admitted
by
the
testimony
local
lent
DEA,”
and
“critical
where
the
credibility
bolstering the government’s reliance on the testimony of three
convicted drug dealers.”
Id. at 295-96.
23
Appeal: 14-4370
Doc: 86
We
Filed: 09/01/2016
emphasized
there,
Pg: 24 of 64
however,
that
the
testifying
drug
dealers “often contradicted themselves,” id. at 295, and the
contradictions were highlighted by a DEA agent who originally
testified as a government witness but was called by the defense
“to testify regarding his interview with [one of the witnesses]
and the inconsistencies between the information he collected in
the interview and [that witness’s] testimony at trial,” id. at
291 n.5.
In addition, Johnson presented a much stronger defense than
Garcia-Lagunas did, testifying that he had never been involved
with drugs, had no criminal record, was a former Marine and
State Trooper, and had legitimate sources of income.
291.
He
legitimate
also
called
sources
several
of
witnesses
income,
and
to
testify
several
Id. at
to
those
witnesses
who
testified about his lifestyle and character, including that he
had never been involved with drugs.
Id. at 291-92, 298.
Finally, the erroneously admitted testimony in Johnson was
central to the government’s case: A government witness testified
that the language Johnson and a non-testifying codefendant used
in a phone call was code related to drug dealing.
With the
contradictory
this
essentially
Johnson.
testimony
the
Id.
of
entirety
at
296
the
of
codefendant
the
(“Had
dealers,
government’s
Agent
Smith’s
case
was
against
testimony
been
excluded, the jury would have weighed the testimony of Johnson,
24
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 25 of 64
a veteran and former law enforcement officer with no criminal
record, against that of a convicted drug dealer and two codefendants with long rap sheets.”).
In
short,
Johnson
and
this
case
are
poles
apart.
And
unlike many of the cases that have found that an evidentiary
error was not harmless (Johnson included), what Garcia-Lagunas
did with his earnings from the drug trade was not an element of
the prosecution’s case against him.
486
U.S.
249,
258-59
(1988)
Cf. Satterwhite v. Texas,
(finding
psychiatrist’s
improper
testimony not harmless beyond a reasonable doubt where jury had
to
find
“future
dangerousness”
beyond
a
reasonable
doubt
to
sentence defendant to death, he was the only psychiatrist to
testify at sentencing, and he “stated unequivocally that, in his
expert
opinion”
the
defendant
would
“‘present
a
continuing
threat to society by continuing acts of violence’” (quoting the
record)); United States v. Williams, 632 F.3d 129, 134 (4th Cir.
2011)
(finding
improperly
admitted
stipulation
not
harmless
beyond a reasonable doubt because it “essentially established an
element of the crime”).
Moreover,
although
the
government
repeated
the
offensive
stereotype in its closing argument, the improper evidence did
not pervade the trial.
Cf. Garcia, 752 F.3d at 398 (finding
improperly admitted testimony about the meaning of defendant’s
phone calls not harmless where the testifying agent testified
25
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 26 of 64
six of the twelve days of the trial, was recalled to the stand
eighteen times, and “[f]rom the beginning of the trial to the
end of the trial, the calls and the meaning of the words used in
those calls were the centerpiece of the [g]overnment’s case”).
Finally, the challenged testimony did not open the door to the
admission of further damaging evidence that would otherwise not
have come in.
Cf. Fulminante, 499 U.S. at 300 (finding improper
admission
duplicative
of
reasonable
doubt
where
it
confession
“led
to
not
the
harmless
admission
beyond
of
a
other
evidence prejudicial to” the defendant).
In
short,
whatever
questions
Garcia-Lagunas’s
living
conditions may have raised, it is beyond clear to us that a
rational jury would have nonetheless convicted him of the drug
conspiracy offense, even had they heard nothing of Orellano’s
improper testimony.
Accordingly, we hold that the evidentiary
error was harmless beyond a reasonable doubt. 10
10
Garcia-Lagunas also complains 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 assumed that Orellano’s testimony violated
Garcia-Lagunas’s constitutional rights, but having found it
harmless beyond a reasonable doubt, we do not address this
separate objection.
26
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 27 of 64
III.
Garcia-Lagunas
also
contends
that
(1) the
admission
of
evidence regarding Garcia-Lagunas’s immigration status and use
of
an
interpreter
was
plain
error,
(2) the
district
court
improperly allowed Collins to testify as an expert witness in
spite
of
the
disclosure
government’s
requirements,
and
failure
to
(3) the
comply
district
with
court
expert
allowed
improper opinion testimony from several of the government’s lay
witnesses.
We
review
discretion.
these
evidentiary
challenges
Johnson, 617 F.3d at 292.
for
abuse
of
Where Garcia-Lagunas
objected at trial, we review for harmless error, leaving the
judgment intact where we are 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.”
Id. (quoting United States v. Brooks, 111 F.3d 365, 371
(4th Cir. 1997)).
Where Garcia-Lagunas failed to timely object, we review for
plain error.
Cir. 2014).
United States v. Keita, 742 F.3d 184, 189 (4th
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)).
27
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 28 of 64
A.
Garcia-Lagunas contends that the district court erred in
admitting evidence regarding his immigration status and use of
an interpreter at trial.
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) (alteration in original) (quoting United
States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997)).
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
28
Appeal: 14-4370
Doc: 86
Cumberland
Filed: 09/01/2016
and
Robeson
Pg: 29 of 64
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 . . . .”).
Because the probative value of
Garcia-Lagunas’s
status,
immigration
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
Lespier, 725 F.3d at 448.
29
404(b)
evidence.
See
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 30 of 64
Garcia-Lagunas’s evidentiary challenge, however, fails on
plain error review.
“To be ‘plain,’ an error must be ‘clear’ or
‘obvious’ . . . .”
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 “affect[s] substantial
rights.”
Olano,
507
(emphasis omitted).
U.S.
at
732
(alteration
in
original)
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.
discussed,
the
Garcia-Lagunas’s
jury
had
before
participation
in
it
a
substantial
conspiracy
As we have
evidence
to
of
distribute
cocaine, and his immigration status was not referenced again
after Collins’s testimony.
Thus, we find no plain error on this
record.
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.
30
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 31 of 64
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
may
have
created.
government’s
references
to
relevant
identity,
and
to
substantially
outweighed
Lespier, 725 F.3d at 448.
by
We
therefore
Garcia-Lagunas’s
their
any
of
that
interpreter
probative
threat
find
value
was
prejudice.
the
were
not
See
Accordingly, we find no error.
B.
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.
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.
31
P.
and
the
16(a)(1)(G).
witness’s
“Rule
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 32 of 64
16(a)(1)(G) ‘is intended to minimize surprise that often results
from
unexpected
opponent
with
a
expert
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
drug
by
drug
business,”
qualifications,
opinions.”
traffickers
J.A.
opinions,
or
to
operate
32,
failed
to
“the
bases
and
and
state
protect
Collins’s
reasons
for
his
While
Appellant’s Br. at 38.
government’s
Garcia-Lagunas
short
and
has
a
summary
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
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
32
of
how
drug
trafficking
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 33 of 64
organizations function and explain the significance of certain
physical
evidence.
evidence,
questioning
Given
Garcia-Lagunas
the
limited
surely
regarding
the
scope
anticipated
of
negative
SBI
the
the
test
physical
line
of
results.
Accordingly, Garcia-Lagunas cannot establish that more specific
notice of the scope of Collins’s testimony would have so changed
the defense’s ability to cross-examine him that the trial would
have come out differently.
See United States v. Jones, 739 F.3d
364, 370 (7th Cir. 2014) (“We need not consider whether the
error [of admitting expert testimony without notice] could be
considered
plain,
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
testimony
requirements
resulted
in
a
miscarriage
of
justice.”).
2.
Garcia-Lagunas
also
contends
that
Collins’s
testimony
explaining how the white powder might have tested positive in
the
field
but
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
33
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 34 of 64
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. 11
IV.
Garcia-Lagunas next challenges his sentence.
“We review a
criminal sentence for procedural and substantive reasonableness
under
a
deferential
abuse-of-discretion
standard.”
United
States v. Washington, 743 F.3d 938, 943 (4th Cir. 2014) (citing
Gall v. United States, 552 U.S. 38, 51 (2007)).
“ensure
that
the
district
court
committed
First, we must
no
significant
procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range.”
Gall, 552 U.S. at 51.
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.”
Id.
Because Garcia-Lagunas did
not object to any of the alleged sentencing errors, we review
11
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
vacuum-sealed bags in drug trafficking.
Because Garcia-Lagunas
did not object at trial, we review for plain error.
GarciaLagunas 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.
34
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
for plain error.
Pg: 35 of 64
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
drug
graduated
offenses,
penalty
21
scheme
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.
sentence
Under § 841(b)(1)(B), Garcia-Lagunas was subject to a
of
no
less
than
five
and
no
more
than
40
years’
imprisonment.
However,
in
United
individual
defendant,
§ 841(a),
[should
States
found
not]
be
v.
guilty
Collins,
of
sentenced
we
held
conspiracy
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)
(emphasis
omitted), but rather “the jury must determine what amount of
cocaine base was attributable to [each defendant],” id. at 314.
35
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 36 of 64
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.
This
unpublished
was
and
not
plain
therefore
error.
not
Although
precedential,
it
Williams
was
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,
520 U.S. 461, 468 (1997))).
In addition, Garcia-Lagunas cannot
show that any such error affected his substantial rights.
was
sentenced
under
21
U.S.C.
§ 841(b)(1)(B),
mandatory minimum of five years’ imprisonment.
which
has
He
a
Had he instead
been sentenced under the more lenient § 841(b)(1)(C), he would
have
been
subject
to
a
mandatory
minimum
of
three
years’
supervised
release
and
a
mandatory
maximum
of
twenty
years’
imprisonment.
36
Appeal: 14-4370
Doc: 86
There
Filed: 09/01/2016
is
no
indication
Pg: 37 of 64
that
the
district
court
was
inclined, in the absence of a five-year mandatory minimum, to
give
Garcia-Lagunas
imprisonment.
a
Nor
sentence
was
of
less
Garcia-Lagunas’s
than
five
sentence
years’
above
the
twenty year mandatory maximum that would have applied under the
more
lenient
subsection.
Garcia-Lagunas
therefore
fails
to
establish that there was plain error or that such 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.”
37
J.A. 683.
Additionally,
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 38 of 64
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
objections
Guidelines
to
the
amendment
PSR
and
reduction,
used
but
acknowledging that it sustained a second objection.
the
not
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.
After our original opinion in this case, the Supreme Court
in
Molina-Martinez
v.
United
States,
136
S.
Ct.
1338,
1347
(2016), held that “in the ordinary case a defendant will satisfy
his burden to show prejudice by pointing to the application of
an
incorrect,
higher
received thereunder.”
Guidelines
range
and
the
sentence
he
In that case, as here, the district court
38
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 39 of 64
sentenced the defendant under an incorrect Guidelines range, but
gave him the lowest sentence under that incorrect range, which
also fell within the correct Guidelines range.
that
despite
the
district
court’s
failure
The Court held
to
explain
the
sentence, “the [d]istrict [c]ourt’s selection of a sentence at
the bottom of the range, . . . ‘evinced an intention . . . to
give the minimum recommended by the Guidelines.’”
Id. at 1347-
48 (alteration in original) (quoting Brief for the United States
at 18, Molina-Martinez, 136 S. Ct. 1338 (No. 13-40324)).
the
sentencing
court
made
this
intention
explicit,
Here,
and
thus
“there is at least a reasonable probability that the [d]istrict
[c]ourt
would
sentenced
Id.
have
imposed
Garcia-Lagunas
Because
“[t]hat
a
under
different
the
probability
correct
is
all
sentence”
had
Guidelines
that
is
it
range.
needed
to
establish an effect on substantial rights,” Garcia-Lagunas has
established that effect.
Id. at 1349.
And though we need not always correct plain error, Keita,
742 F.3d at 189, we do so here.
Lagunas
be
sentenced
under
Fairness dictates that Garcia-
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, and public reputation of the judicial proceedings.”).
“Three years of a man’s life is not a trifling thing.”
39
Id.
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 40 of 64
V.
We affirm Garcia-Lagunas’s conviction.
however,
plainly
erred
in
The district court,
calculating
Garcia-Lagunas’s
Guidelines range, and the error affected his substantial rights.
Accordingly, we vacate the sentence and remand for resentencing.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
40
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 41 of 64
DAVIS, Senior Circuit Judge, dissenting:
On our panel rehearing, my friends in the majority assume
for
the
sake
of
argument
that
the
improper
and
prejudicial
testimony elicited and relied upon by the Government to convict
Appellant
error.
Alejandro
Garcia-Lagunas
amounts
to
constitutional
There is no need for assumptions; this is unequivocally,
and admittedly, a case of constitutional error.
Moreover, the
majority concludes that the Government’s error, as compounded by
the
district
court’s
constitutional
doubt.
I,
failure
magnitude,
however,
Government
did
reasonable
doubt
not
was
remain
carry
that
to
compelled
burden
clearly
it,
even
beyond
harmless
its
its
correct
a
to
conclude
of
proving
unconstitutional
if
of
a
reasonable
that
the
beyond
a
use
a
of
blatant ethnic generalization did not contribute to the jury’s
verdict.
Accordingly,
I
respectfully
dissent
from
the
majority’s decision to refuse, once again, to order a new trial.
I.
During trial, Garcia-Lagunas’s counsel sought to show that
Garcia-Lagunas was, at most, a common drug abuser and not a
sophisticated drug distributor who trafficked large volumes of
cocaine as alleged in the indictment.
To make this distinction,
counsel strategically questioned Government witnesses on crossexamination about Garcia-Lagunas’s meager lifestyle, a lifestyle
devoid of the flamboyant trappings derived from drug proceeds
41
Appeal: 14-4370
that
Doc: 86
one
Filed: 09/01/2016
might
distributor.
expect
to
Pg: 42 of 64
surround
a
high-volume
narcotics
For example, the cross-examinations of convicted
drug dealer Ronnie Reed and Detectives Shawn Collins and Pedro
Orellano tended to establish that Garcia-Lagunas lived a life of
truly limited means.
Reed testified that he never knew Garcia-
Lagunas to have any “fancy things” such as jewelry, firearms, or
vehicles.
J.A. 222.
Detectives Collins and Orellano testified
that, on the evening of his arrest, Garcia-Lagunas was found
shirtless and shoeless in the “kitchen/living room area” of a
small trailer at 353 Wescott Drive in which he had recently
begun renting a room for less than $350 per month.
315.
Detective
Collins
described
the
bedroom
J.A. 103-04,
belonging
to
Garcia-Lagunas as in “disarray” and explained to the jury that
it
looked
moving
as
to
though
the
Garcia-Lagunas
trailer,
as
his
had
yet
belongings
throughout the small room in laundry baskets.
Further
searched
the
law-enforcement
353
Wescott
testimony
trailer,
to
as
unpack
were
since
scattered
J.A. 120.
showed
well
that
as
detectives
three
other
trailers in and around Robeson County, North Carolina, where it
was alleged that Garcia-Lagunas had previously sold cocaine, and
not one of the searches uncovered evidence of profits consistent
with an individual allegedly trafficking hundreds of thousands
of dollars’ worth of cocaine.
In fact, the only items of value
that the searches uncovered, a .32 caliber revolver and $600 in
42
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 43 of 64
U.S. currency, were described as having been brought to the 353
Wescott trailer the night of Garcia-Lagunas’s arrest by Brian
Jacobs, allegedly in exchange for three-quarters of an ounce of
powder cocaine.
J.A. 298, 320–21, 342.
However, no powder
cocaine was actually found at that trailer or any other of the
trailers linked to Garcia-Lagunas.
Testimony revealed that the only substances discovered by
law enforcement to lab-test positive for the presence of cocaine
were two baggies containing user amounts of crack cocaine, for
which Garcia-Lagunas was not charged.
J.A. 117, 122, 124, 404.
Counsel
an
for
Garcia-Lagunas
provided
explanation
for
the
presence of those drugs by questioning the Government witnesses
about
his
client’s
personal
drug
use.
Three
different
Government witnesses testified that they had observed GarciaLagunas use drugs, J.A. 320, 349, 355, 376, and Jacobs testified
that,
for
a
number
of
years,
Garcia-Lagunas
had
actually
purchased small amounts of cocaine from him for Garcia-Lagunas’s
personal use, J.A. 354.
Further, several detectives explained
to the jury that, on the night of his arrest, Garcia-Lagunas had
white powder under his nose, which, together with his dilated
pupils and erratic movements, suggested that he had ingested
cocaine immediately before the arrival of the law-enforcement
officers.
J.A. 103–04, 248, 283.
43
Appeal: 14-4370
Doc: 86
To
bring
Filed: 09/01/2016
home
the
Pg: 44 of 64
defense
theory
of
the
case,
counsel
emphasized during cross-examination that Garcia-Lagunas’s meager
lifestyle did not square with the portrait that the Government
was painting of a sophisticated, large-volume drug trafficker.
Counsel astutely presented the theory by offering the jury the
opportunity to contrast Garcia-Lagunas’s lifestyle with that of
Reed,
one
of
Garcia-Lagunas’s
alleged
purchasers.
Counsel
questioned Detective Collins and Reed on cross-examination about
Reed’s drug-trafficking operation and the proceeds that Reed had
amassed during the four years that he sold drugs prior to his
2012 arrest on federal drug trafficking charges.
225-30.
J.A. 153-55,
During searches of Reed’s family home and stash house,
officers found more than $100,000 in U.S. currency, multiple
telephones, a 2008 Infiniti, a 2006 Chevy Impala, a 2004 Acura,
a 2004 BMW, a 2002 Lincoln Navigator, and multiple firearms.
J.A. 154-55.
a
large-scale
The officers also found contraband consistent with
drug-trafficking
operation,
including
more
than
180 grams of crack cocaine, more than three-and-a-half kilos of
powder
cocaine,
240
grams
of
marijuana,
money
that
the
Fayetteville police department had used to conduct controlled
buys from Reed, a cocaine press, and a money counter.
J.A. 225-
29.
The
upshot
of
all
of
this,
contrary
to
the
majority
opinion’s one-sided spin on the evidence, is that there were
44
Appeal: 14-4370
two,
Doc: 86
Filed: 09/01/2016
competing
narratives
Pg: 45 of 64
before
the
jury.
And
it
was
the
jury’s call, not the job of the members of this appellate panel,
to
judge
the
accordingly,
credibility
and
of
reach
a
all
fair
of
the
and
evidence,
impartial
weigh
verdict
it
in
accordance with law.
Ultimately, counsel for Garcia-Lagunas hoped the testimony
he elicited would prompt the following question from at least
one
juror
(because
interest
of
one
of
course,
juror
to
he
raise
only
a
needed
to
possibility
garner
of
a
the
more
beneficial outcome than the one he got): how can a man who is
allegedly
dollars’
direct
responsible
worth
or
of
indirect
for
selling
cocaine 1
proceeds
not
of
hundreds
of
thousands
of
have
on
hand
any
discernable
any
kind
on
the
day
of
his
arrest, with zero indication from any source that his arrest was
imminent?
Any experienced (and even an inexperienced) Assistant
United States Attorney prosecuting 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 the four drug dealers
testifying pursuant to plea agreements, Garcia-Lagunas sold to
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.
45
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 46 of 64
My friends in the majority may not think much of defense
theories
in
particular,
admissible
disputation
general,
but
that
evidence,
by
Amendment-based
a
or
is
and
lawyer
of
Garcia-Lagunas’s
what
well
it
within
committed
obligations
was,
to
the
to
her
fully
her
theory
supported
realm
of
Fifth-
client. 2
in
by
plausible
and
As
Sixthin
any
prosecution, whether for a crime involving the infliction of
unspeakable violence upon actual victims, or in the prosecution
of the most plain-vanilla so-called “white collar” offense, and
any
prosecution
in
between,
the
defendant
in
our
system
is
entitled to have the jury grapple, if it must, with his defense
theory,
unaided
by
blatantly
foul
blows
delivered
by
the
prosecution, abetted by the trial judge, in the use of racial or
ethnic entreaties aimed at undermining or dismissing outright
2
Recall that the indictment in this case charged a greaterincluded offense of conspiring to distribute or possess with the
intent to distribute 500 grams or more of cocaine, in violation
of 21 U.S.C. §§ 841(a), 846.
Importantly, therefore, the
defense theory in this case not only militated in favor of an
acquittal, but perhaps even more important from the defense
perspective, it laid the basis for the jury’s consideration of a
lesser included offense involving a lesser amount of narcotics
and thus a lower potential sentence.
Cf. United States v.
Hickman, 626 F.3d 756, 763-71 (4th Cir. 2010) (holding that
evidence was insufficient to support the jury’s guilty verdict
on the indicted conspiracy involving greater drug amount but
remanding for resentencing on conspiracy involving lesser drug
amount).
46
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 47 of 64
the defense theory of the case.
But that is precisely what
happened here.
As Garcia-Lagunas’s defense theory became apparent during
trial, the Government seemingly recognized for the first time
the absence of drug trafficking proceeds as a potential weakness
in its case, a case in which it now argues the evidence of guilt
was always overwhelming.
ostensible
evidence
weakness
by,
for
The Government opted not to cure the
through
example,
the
introduction
moving
to
admit
of
admissible
proof
of
transfers from Garcia-Lagunas to individuals in Mexico.
wire
Either
because such evidence did not exist 3 or because the Government
failed to adequately prepare its case, the Government instead
sought to counter the defense theory 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.”
J.A. 270.
The Government then highlighted this irrelevant and unsupported
racial
generalization
at
the
outset
of
its
rebuttal
closing
argument, stating:
3
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
individuals in Mexico.
47
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 48 of 64
Ladies and Gentlemen, what did Detective Orellano tell
you about Hispanic drug trafficking organizations
[sic] 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.
J.A. 520.
The relative ability of this particular stereotype to sway
one or more jurors is evidenced by its extraordinary confirming
effect
on
objection
the
to
presiding
Detective
judge.
Orellano’s
In
response
testimony,
to
the
a
renewed
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 [sic] send money home whether they’re drug dealers
or not.” 4
J.A. 273.
The Government admittedly hoped the jurors
4
The majority chooses not to address how the trial judge’s
statements could have independently affected the jury’s thinking
because they were voiced during a bench conference and there is
no affirmative evidence that the jury heard the trial judge’s
reinforcing remarks. However, it is not Garcia-Lagunas’s burden
to demonstrate the rippling effects of the Government’s
unconstitutional testimony.
Rather, the Government is tasked
with establishing that its constitutional error did not
contribute to the jury’s verdict. Here, the Government has not
attempted to show that the trial judge’s statements did not
affect the jury’s consideration of Garcia-Lagunas’s defense
theory. Moreover, I note that, having both served as a juror on
three occasions in criminal cases tried in Maryland state
courts, and having presided for 14 years over federal jury
trials employing “white noise” to keep jurors in the dark, I
(Continued)
48
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 49 of 64
would draw a similar inference when rendering a verdict.
J.A.
273.
To counter Garcia-Lagunas’s primary defense theory and cure
a
perceived
hole
generalization
in
its
about
case,
the
Government
Garcia-Lagunas’s
ethnicity
offered
up
to
jury.
the
a
The Government hoped that, like the presiding judge, the jurors
would believe that Garcia-Lagunas’s modest lifestyle could not
rationally undermine allegations that he distributed hundreds of
thousands of dollars’ worth of cocaine because he assuredly had
been
sending
his
significant
proceeds
back
to
his
native
country, electing to live like a pauper in the United States.
Tellingly,
even
the
Government
concedes
that
the
elicitation of Detective Orellano’s testimony during re-direct
and
the
recitation
of
the
testimony
at
the
outset
of
the
rebuttal closing 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.
know full well that statements made during bench conferences not
infrequently remain within earshot of nearby and attentive
jurors.
Accordingly, because there is nothing in the record
here to suggest that the judge’s remarks went unheard in this
instance, it undeniably falls on this Panel, in conducting a
harmless-error review, to fully consider the trial judge’s
statements and their potential, if not likely, impact on the
jury’s verdict.
49
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 50 of 64
During oral argument, when asked whether the error amounted to
constitutional
error,
unequivocally, “Yes.”
counsel
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 it is clear that “[a]ppeals to racial,
ethnic,
or
religious
prejudice
during
the
course
of
a
trial
violate a defendant’s Fifth Amendment right to a fair trial,”
United States v. Cabrera, 222 F.3d 590, 594 (9th Cir. 2000), I
see no reason to resort to assumptions in addressing GarciaLagunas’s appeal.
See, e.g., United States v. Vue, 13 F.3d
1206, 1213 (8th Cir. 1994) (concluding that a constitutional
error occurs when the Government “invite[s] the jury to put [a
defendant’s] racial and cultural background into the balance in
determining
unabashed
their
ethnic
guilt”).
The
generalization
Government’s
was
plainly
a
appeal
to
an
constitutional
error, and as a result, it is the Government’s burden to prove
that its error was harmless beyond a reasonable doubt.
the
reasons
set
forth
below,
I
cannot
Government carried that burden in this case.
50
conclude
And, for
that
the
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 51 of 64
II.
As
the
majority
mandate reversal.
explains,
not
all
constitutional
errors
However, when a non-structural constitutional
error occurs, the reviewing court may only disregard the error
so long as the Government can carry its burden of demonstrating
that the error was “harmless beyond a reasonable doubt.”
v.
United
California,
States,
386
527
U.S.
U.S.
18,
1,
24
7
(1999)
(1967)).
(quoting
Here,
Neder
Chapman
the
v.
majority
concludes that the Government has met its harmless-error burden
because
“even
without
the
[G]overnment’s
improper
use
of
an
ethnic stereotype[,] a rational jury still would have arrived at
that verdict.”
Ante at 17. 5
For several reasons, I believe this
analysis grievously misses the mark.
5
As discussed fully infra, in framing the issue as it does,
the majority commits a fundamental error that has been
identified and warned against by distinguished legal scholars
and others for decades:
Properly applied, harmless error analysis should ask
only whether the state can demonstrate that error did
not sufficiently affect the outcome at trial and not,
conversely, whether evidence of guilt outweighed the
impact of any error.
See Sullivan v. Louisiana, 508
U.S. 275, 279 (1993) (“The inquiry . . . is . . .
whether the guilty verdict actually rendered in this
trial was surely unattributable to the error.
That
must be so, because to hypothesize a guilty verdict
that was never in fact rendered--no matter how
inescapable the findings to support that verdict might
be--would violate the jury-trial guarantee.”); Jason
M. Solomon, Causing Constitutional Harm: How Tort Law
Can Help Determine Harmless Error in Criminal Trials,
(Continued)
51
Appeal: 14-4370
Doc: 86
Rule
Filed: 09/01/2016
52(a)
of
the
Pg: 52 of 64
Federal
Rules
of
Criminal
Procedure
mandates that “[a]ny error, defect, irregularity, or variance
that does not affect substantial rights must be disregarded.”
Fed.
R.
Crim.
Pro.
52(a).
Rule
52(a)’s
“emphasi[s]
‘substantial rights’” serves two important purposes.
386 U.S. at 22.
factfinding
[on]
Chapman,
First, it stresses the significance of the
process,
recognizing
that,
at
its
heart,
“the
central purpose of a criminal trial is to decide the factual
question of the defendant’s guilt or innocence.”
Neder, 527
U.S. at 18 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681
(1986)).
process
Second, it “promotes public respect for the criminal
by
focusing
on
the
underlying
fairness
of
the
trial
rather than on the virtually inevitable presence of immaterial
error.”
Van
Arsdall,
475
U.S.
at
681.
Accordingly,
in
practice, Rule 52(a) works to “save the good”—those convictions
99 Nw. U. L. Rev. 1053, 1085-98 (2005) (arguing that
judges should look at evidence of influence on jury
rather than focusing primarily on untainted evidence
of guilt).
Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev.55, 108
n.195 (2008); see also John M. Greabe, The Riddle of Harmless
Error Revisited, 54 Hous. L. Rev. (forthcoming 2016) (manuscript
at 12 n.70) (“The [Supreme] Court has at . . . times . . .
suggested that the presence of overwhelming evidence of guilt
alone renders an error harmless. But these statements—which are
akin to a ‘correct result’ test of the sort rejected in Chapman—
are contradicted by the Court’s more carefully reasoned cases
and should not be taken to express the proper formulation.”
(internal citations omitted)).
52
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 53 of 64
that, while the product of an imperfect trial, were the subject
of
“constitutional
particular
case
errors
[were]
which
so
in
the
setting
and
insignificant
unimportant
of
[the]
that
they may . . . be deemed harmless”—while excising the bad—those
convictions that might have been impacted by the complained of
error.
Chapman, 386 U.S. at 22–24.
The
Supreme
analysis
in
Court
Neder
applied
when
a
Rule
criminal
52(a)’s
harmless-error
defendant
challenged
a
district court’s failure to submit the materiality element of
the defendant’s tax-fraud charges to the jury.
The
Supreme
determining
Court
began
whether
a
by
stating
the
527 U.S. at 4.
overarching
error
constitutional
test
harmless:
is
for
“[W]hether it appears ‘beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.’”
at
15
(quoting
question,
the
Chapman,
Court
Government
could
materiality
a
false
tendency
to
first
element.
general,
386
carry
Id.
or
at
considered
its
statement
influence,
U.S.
24).
the
burden
at
16.
is
It
ways
of
answer
in
capable
if
it
of
that,
has
that
which
establishing
explained
material
[is]
To
Id.
a
the
the
“[i]n
natural
influencing
the
decision of the decisionmaking body to which it was addressed”
but noted that “several courts have determined that any failure
to report income is material.”
Id. (alterations in original)
(citations and internal quotation marks omitted).
53
The Court
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 54 of 64
then described how, at trial, the Government had “introduced
evidence that Neder failed to report over $5 million in income
from the loans he obtained,” and that “[t]he failure to report
such
substantial
income
incontrovertibly”
materiality element of his charges.
After
emphasizing
that
established
the
Id.
Neder
did
not
even
attempt
to
contest materiality, either before the jury or on appeal, the
Supreme
Court
concluded
that,
“[i]n
this
situation,
where
a
reviewing court concludes beyond a reasonable doubt that the
omitted element was uncontested and supported by overwhelming
evidence, such that the jury verdict would have been the same
absent error, the erroneous instruction is properly found to be
harmless.”
Id. at 16–17.
And specifically applying the test
set forth in Chapman, the Court further noted that, “We think it
beyond cavil here that the error ‘did not contribute to the
verdict obtained.’”
Id. at 17 (quoting Chapman, 386 U.S. at
24).
It is true that reading portions of Neder in isolation and
out
of
context
from
the
remainder
of
the
Supreme
Court’s
extensive harmless-error jurisprudence, as the majority does in
this case, could lead one to conclude that all a reviewing court
must do to satisfy itself of an error’s harmlessness is ask
whether it is beyond a reasonable doubt that a jury would have
54
Appeal: 14-4370
Doc: 86
found
the
Filed: 09/01/2016
defendant
guilty
Pg: 55 of 64
if
the
error
had
never
occurred.
Such an approach, however, is misplaced and ill-advised.
First,
nature
of
it
fails
the
to
holding
give
in
proper
Neder.
credence
In
to
the
summarizing
narrow
why
its
harmless-error inquiry reached “an appropriate balance between
society’s interest in punishing the guilty [and] the method by
which decisions of guilt are to be made,” the Court took care to
explain that,
[i]n a case such as this one, where a defendant did
not, and apparently could not, bring forth facts
contesting the omitted element, answering the question
whether the jury verdict would have been the same
absent the error does not fundamentally undermine the
purpose of the jury trial guarantee.
Id. at 18–19.
Unlike Neder, the present appeal clearly does not
fit within the narrow subset of cases where the fact that a
rational jury could have found the defendant guilty absent the
erroneous omission necessarily dictates that the error did not
contribute to the verdict.
Second, merely assuring oneself that a rational jury would
have
nonetheless
convicted
the
criminal
defendant
absent
the
error fails to heed important guidance from the Supreme Court.
The Supreme Court has explained that, in the case of affirmative
error, a reviewing court should not simply confine itself to the
abstract and ask “whether, in a trial that occurred without the
error,
a
guilty
verdict
would
55
surely
have
been
rendered.”
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 56 of 64
Sullivan v. Louisiana, 508 U.S. 275, 279 (1993).
52(a)
harmless-error
analysis
requires
us
to
Rather, a Rule
consider
“what
effect [the error] had upon the guilty verdict in the case at
hand” and assure ourselves that “the guilty verdict actually
rendered in [the] trial was surely unattributable to the error.”
Id.
This
is
so
because,
when
we
frame
the
harmless-error
analysis in the abstract and remain content to imagine a world
where
the
Government
exclusively
relied
upon
admissible
evidence, we not only fail to consider the error’s actual effect
on the jury, but we also “improperly conflate[] sufficiency-ofthe-evidence
review
with
the
appropriate
Chapman
standard.”
United States v. Holness, 706 F.3d 579, 598 (4th Cir. 2013)
(quoting Virgin Islands v. Martinez, 620 F.3d 321, 338 (3d Cir.
2010)).
Here, when I consider the specifics of the Government’s
prosecution
of
Garcia-Lagunas
and
the
unique
nature
of
the
unconstitutional testimony and the prosecution’s arguments based
thereon, I am unable to conclude beyond a reasonable doubt that
the
complained
of
error
did
not
contribute
to
the
jury’s
verdict. 6
6
In this regard, it bears mention that not all
constitutional infringements visited upon defendants in criminal
cases stand on equal footing.
That is to say, as one scholar
argues,
“judicial
proceedings
marred
by
unconstitutional
discrimination on the basis of race, religion, ethnicity,
national origin, or gender and intentional misconduct by
government officials such as . . . prosecutors” deserve a
(Continued)
56
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 57 of 64
From opening statements through closing arguments, GarciaLagunas’s trial lasted a mere thirteen hours spread over the
course
of
three
days.
Within
those
thirteen
hours,
when
confronted with a gaping hole in its confident characterization
of Garcia-Lagunas as a sophisticated drug trafficker responsible
for the distribution of more than 39 kilos of cocaine valued at
more than $1 million, the Government knowingly and purposefully
elicited
inadmissible
enforcement
officer.
and
prejudicial
While
the
testimony
Government
from
did
not
a
law-
qualify
Detective Orellano as an expert, it repeatedly requested that he
testify pursuant to his “training and experience” investigating
Hispanic
drug
trafficking
organizations.
J.A.
272–74.
Accordingly, when Detective Orellano explained to the jury that
it did not need to be concerned that the investigation into
Garcia-Lagunas recovered no proceeds and instead revealed a man
of abject poverty because such evidence was actually “consistent
with the method of operation of Hispanic drug traffickers,” he
did
so
with
an
authority
that
any
juror
would
have
had
heightened level of scrutiny in the analysis of harmless error.
Greabe, supra note 5, at 5.
57
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
difficulty discounting. 7
The
Pg: 58 of 64
Government no doubt hoped that
Detective Orellano’s years of experience investigating “Hispanic
drug
traffickers”
would
carry
weight
with
the
jury,
and
the
import of his testimony to the Government’s case is evidenced by
the Government’s decision to begin its rebuttal closing remarks
by asking, “What did Detective Orellano tell you about Hispanic
drug trafficking organizations and about what they do with their
money?”
J.A. 520.
The weighty impact of this unconstitutional testimony and
argument
is
illuminated
Government’s
case
further
against
when
one
considers
Garcia-Lagunas
that
relied
the
almost
exclusively upon criminal defendants testifying pursuant to plea
agreements
and
circumstantial
evidence.
As
Garcia-Lagunas
pointed out to the jury, the Government was unable to present
any direct evidence that Garcia-Lagunas participated in a drug
trafficking conspiracy through law-enforcement testimony.
cross-examining
that,
despite
Detective
a
lengthy
Collins,
Garcia-Lagunas
investigation
7
into
a
When
confirmed
“Mexican
drug
Importantly, further exacerbating the impact of this
improper testimony, the trial judge asked Orellano, in open
court before the jury, to state the basis of his opinion.
The
magic words “training and experience” were quickly forthcoming,
and the trial judge promptly overruled counsel’s renewed
objection.
J.A. 272–73.
One can easily understand the
remarkable impact on a juror who observes such a display of
judicial approval of a law-enforcement witness.
58
Appeal: 14-4370
Doc: 86
trafficker
evidence
Filed: 09/01/2016
named
of
any
Alex,”
the
Government
hand-to-hand
involving Garcia-Lagunas.
Pg: 59 of 64
did
transactions
J.A. 152–53.
not
or
have
direct
controlled
buys
This lack of direct
evidence is especially probative when one considers that lawenforcement
officers
had
Reed,
Garcia-Lagunas’s
alleged
purchaser, under “intense surveillance” while Reed was allegedly
visiting Garcia-Lagunas at least three times a week to purchase
cocaine.
J.A.
152–53,
consistent
rendezvous,
204–06.
law
Despite
enforcement
these
never
frequent
saw
Reed
and
with
Garcia-Lagunas and did not become aware of the locations of the
meetings until after Reed was arrested on his own federal drug
trafficking charges.
Of
greatest
Id.
significance
to
this
appeal’s
harmless-error
analysis, however, is not the highly prejudicial method by which
the unconstitutional evidence was presented to the jury, the
Government’s repeated and strategic reliance upon the evidence,
or the strength vel non of the Government’s case against GarciaLagunas.
The
most
critical
factor
here
is
the
troublesome nature of the unconstitutional testimony.
uniquely
Not only
do “[a]ppeals to racial, ethnic, or religious prejudice during
the
course
of
a
trial
violate
a
defendant’s
Fifth
Amendment
right to a fair trial,” but on a broader note, they also place
the public’s trust in “[t]he fairness and integrity of [our]
criminal” justice system at risk.
59
Cabrera, 222 F.3d at 594,
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 60 of 64
597; see also Pena–Rodriguez v. People, 350 P.3d 287, 294 (Colo.
2015) (Marquez, J., dissenting), cert. granted sub nom. Pena–
Rodriguez v. Colorado, No. 15-606, 2016 WL 1278620 (U.S. Apr. 4,
2016) (“Racial discrimination in our jury trial system not only
violates our Constitution and the laws enacted under it but is
at war with our basic concepts of a democratic society and a
representative
government,”
and
“the
harm
caused
by
such
discrimination is not limited to the defendant—there is injury
to
the
jury
system,
to
the
law
as
an
institution,
to
the
community at large, and to the democratic ideal reflected in the
processes
of
our
courts.”
marks omitted)).
(internal
citations
and
quotations
And it is in recognition of this fact that
several of our sister circuits have unequivocally condemned the
use
of
impermissible
ethnic
or
racial
generalizations
and
reversed the convictions of criminal defendants, even where the
reviewing
panel
believed
sufficient to convict.
(reversing
defendants’
that
the
non-erroneous
evidence
was
See, e.g., Cabrera, 222 F.3d at 596–97
convictions
after
noting
that,
“[a]lthough we find that the evidence was sufficient to convict
Cabrera and Mulgado, Detective Brook’s repeated references to
their
Cuban
origin
and
his
generalizations
about
the
Cuban
community prejudiced Cabrera in the eyes of the jury”); Vue, 13
F.3d at 1213 (reversing defendants’ convictions despite finding
that
the
evidence
was
sufficient
60
to
sustain
the
convictions
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 61 of 64
because the panel believed that “the injection of ethnicity into
the
trial
clearly
invited
the
jury
to
put
the
[defendants’]
racial and cultural background into the balance of determining
their guilt,” thereby undermining the bedrock principle of our
legal system--“[f]ormal equality before the law”).
I agree that
it is “much too late in the day to treat lightly the risk that
racial bias may influence a jury’s verdict in a criminal case.”
United States v. Doe, 903 F.2d 16, 21 (D.C. Cir. 1990).
Here, because the Government repeatedly encouraged the jury
to
consider
Garcia-Lagunas’s
ethnicity
and
draw
inferences
contrary to Garcia-Lagunas’s interest in reliance upon an ethnic
generalization, I am unable to conclude that the constitutional
error did not contribute to the jury’s verdict.
Specifically,
the effect of the error was to eviscerate the sole plausible
defense theory of the case, one with ample evidentiary support
in the record.
could
consider
Indeed, I am baffled how any reviewing court
an
error
of
this
magnitude
harmless
beyond
a
reasonable doubt, either to a criminal defendant’s conviction or
our criminal justice system on the whole.
By presenting to the
jury its unconstitutionally constructed racial taxonomy of the
universe
drug
of
North
dealers
like
Carolina
Reed,
who
drug
live
traffickers—African-American
the
high
life
and
spend
lavishly and ostentatiously, with lots of cash and drugs lying
about,
in
contrast
to
“Hispanic
61
drug
traffickers,”
whose
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 62 of 64
members, even long-time residents in this country, like GarciaLagunas,
habitually
choose
to
live
in
abject
poverty—the
Government blatantly bolstered its case in contravention of well
known and well settled constitutional norms.
Moreover,
as
the
majority
opinion
correctly
and
comprehensively explains, the jury knew, for lack of a timely
objection or motion in limine by defense counsel, although it
should not have been told, that Garcia-Lagunas was present in
this country illegally. The majority refuses to treat that error
as
one
remediable
error
as
to
that
under
our
singular
plain
error
issue
to
doctrine.
one
side,
But
the
plain
jury’s
knowledge of that irrelevant and highly prejudicial fact renders
the prosecution’s resort to racial and ethnic animus more, not
less,
condemnable,
analysis.
and
should
factor
into
the
harmless-error
It blinks reality not to do so.
III.
It is ironic that, in a break from our sister circuits, and
at a moment in our country’s history when uncommon attention is
being
paid
consequent
chooses
to
to
issues
of
mistreatment,
privilege
racial
and
ethnic
actual
or
threatened,
the
Government
to
stereotyping
this
employ,
and
Court
without
consequence, irrelevant, prejudicial, and factually unwarranted
evidence of blatant racial stereotyping to obtain a criminal
conviction.
In this moment, not even the ethnic heritage of
62
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 63 of 64
distinguished federal judges is beyond trashing in the public
sphere,
and
by
a
prominent
candidate
office on the planet, no less.
Court
has
insidious
otherwise
racial
stood
and
the
most
powerful
All this at a time when this
firmly
ethnic
for
against
animus
in
manifestations
voting,
N.C.
of
State
Conference of NAACP v. McCrory, --- F.3d ---, 2016 WL 4053033
(4th
Cir.
July
29,
2016),
employment,
Boyer–Liberto
v.
Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015) (en banc), and
many other domains of civic, economic, and political life.
After this published opinion, future panels of this Court
will be required to struggle with the issue of just how much
evidence of guilt is enough evidence of guilt to permit the
Court to give the Government a pass when it bolsters its pursuit
of a conviction through resort to gratuitous racial and ethnic
evidence intended to spur one or more jurors to convict.
case
sets
a
very
low
bar,
considering
that
the
This
level
of
certainty that the constitutional violation had no effect upon
any
juror
is
agreed
to
be
“beyond
a
reasonable
doubt,”
a
standard that, interestingly, this Court has long refused to
allow trial judges to define for ordinary jurors.
See United
States v. Walton, 207 F.3d 694, 699 (4th Cir. 2000) (en banc)
(“We
find
requiring
no
a
reason
jury
criminal cases.”).
to
alter
instruction
our
current
defining
practice
reasonable
of
doubt
not
in
Perhaps, as we approach the 50th anniversary
63
Appeal: 14-4370
Doc: 86
Filed: 09/01/2016
Pg: 64 of 64
of the seminal teachings of Chapman v. California, the time has
come for this Court to undertake an examination of just what
“beyond a reasonable doubt” means, after all.
I would vacate the conviction on the conspiracy count of
the indictment and order a new trial.
64
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?