USA v. Rice

Filing 511109161

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Document: 00511109161

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Date Filed: 05/12/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40116 May 12, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in tiff -A p p e lle e , v ersu s J O H N FITZGERALD RICE, JR.; SARAH LYNN CORMIER, D e fe n d a n ts -A p p e lla n ts .

A p p e a ls from the United States District Court fo r the Eastern District of Texas

B e fo r e GARWOOD, SMITH, and CLEMENT, Circuit Judges. J E R R Y E. SMITH, Circuit Judge:

J o h n Rice and Sarah Cormier appeal their convictions of carjacking and r e la te d offenses. They raise various claims of error and prosecutorial miscond u c t. We affirm.

I. O n e day in December 2007, Cormier and Rice joined Aldrain Booker, Kei-

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No. 09-40116 s h a Guidry, Joshua Hayward, and William Staunton in search of people to rob. T h e group first went to a local bingo hall, where Rice and Hayward discussed r o b b in g a woman who had just won the big prize. They all piled into Guidry's c a r , and Rice told Stanton, who was driving, to follow the woman home. When t h e y arrived there, Rice retrieved his gun through the armrest and exited the veh ic le . But by the time he reached the house, the garage door was almost closed, s o he returned to the car, and the group drove away. L a t e r that night, Cormier and Rice came up with a plan to order pizza to a n abandoned house and then steal the delivery man's pizza, money, and car. C o r m ie r called the pizza restaurant but learned that they did not deliver after 9 p.m. T h e group then decided to drive to a grocery store to get something to eat. W h e n they reached the parking lot, Rice spotted an older couple, whom the g r o u p followed home. On the way, they discussed wrapping the couple in duct t a p e and taking their money and car. At the couple's house, Rice and Hayward e x it e d the vehicle and ran toward their targets. As Rice and Hayward app r o a c h e d , the elderly man pulled out his phone and threatened to call the police. R ic e and Hayward then retreated to Guidry's car. N e x t , the group drove to a convenience store at a gas station where one of B o o k e r 's friends, Danial Reynolds, was working. After four members of the g r o u p entered the store, Cormier asked Reynolds whether they could rob him a n d later split the profits. Reynolds seemed to think she was joking and disreg a r d e d the proposal. F i n a lly , only a few minutes later, Amanda Weeks approached the gas statio n in her car, and Rice ordered Stanton to park across the street so they could o b s e r v e Weeks. After Weeks used her debit card to pay for gas, Rice told Stanto n to follow her home so they could steal her money and car. While the car follo w e d Weeks, Rice once again retrieved his gun from behind the armrest. 2

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No. 09-40116 W h e n Weeks arrived at her residence and opened her car door, she saw a m a n , later identified as Rice, walk up and point a gun at her head. He told her t o get into the passenger seat, then shoved her into it. Rice drove Weeks to a n e a r b y ATM and ordered her to switch seats and withdraw as much money as p o s s ib le . He also told her not to do anything stupid and that he had "done this b e f o r e ." Weeks withdrew $200 and gave it to Rice. R i c e drove to a nearby credit union and told Weeks that he was keeping h e r car to wipe off fingerprints. He ordered her out of the car, told her to lie on t h e ground until he left, and drove away. T h ro u g h o u t the incident, Stanton, Cormier, Booker, Hayward, and Guidry fo llo w e d Rice and Weeks in Guidry's car. After Rice dropped off Weeks, the rest o f the group stopped in front of him at an underpass. Rice gave Cormier $20, a n d Booker got in Weeks's car with Rice. They proceeded to take her car to an a b a n d o n e d house, where the group stole various items from the car and wiped o ff fingerprints. When they returned to Guidry's trailer, Rice took the gun ins id e , and Booker hid it under the sofa cushions. A f te r reviewing videotape from the gas station, police officers went to G u id r y 's trailer. When they entered, one officer observed Rice and Hayward p u s h in g down into the couch cushions. He ordered them to stand up, and the o t h e r officers soon discovered the gun used to rob Weeks the night before. B o o k e r , Guidry, and Stanton gave written statements to the police reg a r d in g their involvement in the incident. They all indicated that Rice held the g u n to Weeks's head and took her car and money. Cormier stated that she rem e m b e r e d visiting the gas station with the others but got tired of waiting and s l e p t through the entire incident.

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No. 09-40116 II. A. R ic e , Cormier, Hayward, Booker, Stanton, and Guidry were charged with c o n s p ir a cy to commit carjacking in violation of 18 U.S.C. § 371, carjacking and a id in g and abetting a carjacking in violation of 18 U.S.C. §§ 2 and 2119(1), and b r a n d is h in g and aiding and abetting the brandishing of a firearm in relation to a carjacking in violation of 18 U.S.C. §§ 2 and 924(c)(1). Rice was also charged w ith being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). B e fo r e the trial of Rice and Cormier, the government gave notice of its int e n t to introduce evidence of Rice's extrinsic crimes, wrongs, or bad acts under F e d e r a l Rule of Evidence 404(b). Those other acts included (1) a robbery he comm it t e d in August 2002; (2) a robbery he committed in October 2002 at a Domino 's Pizza restaurant, for which he was sentenced to fifteen years' imprisonment; a n d (3) a robbery he committed in July 2007, at a seafood restaurant, for which a trial was pending in state court. After briefing, the district court ruled that it would admit evidence of those a c ts for the purpose of proving intent. It also found that the government's evid e n c e of the several uncharged attempted robberies during the night of the c h a r g e d offenses was admissible as intrinsic evidence. Also before trial, Rice moved to sever the charge of being a felon in possess io n of a firearm. He requested that the court conduct a separate trial on that c o u n t or bifurcate his trial. The district court denied that motion. S e v e r a l days later, Rice's counsel withdrew at Rice's request, and the dist r ic t court allowed Rice to proceed pro se with appointed counsel as standby. At a pretrial hearing, Weeks heard Rice speak and informed the prosecutor that she c o u ld identity his voice as belonging to the person who carjacked her. The prosecution then informed Rice and the court of its intent to introduce W e e k s 's voice identification. Rice unsuccessfully moved to suppress that evi4

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No. 09-40116 d e n c e . The court then allowed Rice to cross-examine Weeks regarding her recolle c tio n of the carjacking. After cross-examination, the district court reconsidered R i c e 's motion to suppress and denied it once again. S h o r t ly before trial, the prosecutor offered Cormier a plea agreement that w a s contingent on Rice's making a joint plea. Although Cormier had rejected a p le a offer, she indicated her wish to accept the new terms, but Rice was not willin g to plead guilty. Consequently, Cormier was not able to take the governm e n t 's offer. A t trial, the government offered the testimony of Detective Alton Baise. T h e prosecutor asked Baise whether he believed Cormier's statement that she s le p t through the incident. He indicated that he did not believe her, and Corm ie r made no objection. The government then offered testimony from Weeks, R e y n o ld s , and the four other co-conspirators. During closing arguments, the prosecutor reminded the jury of Weeks's t e s tim o n y that her assailant said he had "done this before." The prosecutor then s u g g e s te d that, because Rice was the only member of the group who had previo u s ly been convicted of robbery, the assailant's statement helped to prove that R ic e was the one holding the gun to Weeks's head. There was no objection. The jury convicted Rice and Cormier on all counts. The court denied Rice's m o tio n for a new trial.

B. O n appeal, Rice argues that (1) the government committed prosecutorial m is c o n d u ct by suggesting that the jury could consider his previous robbery conv ic tio n s to prove identity; (2) the district court improperly admitted extrinsic e v id e n c e of those robberies to prove intent; (3) the court improperly admitted evid e n c e of other offenses leading up to the carjacking as intrinsic to the charged c r im e s ; (4) the court erroneously denied Rice's motion to sever the felon-in-pos5

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No. 09-40116 s e s s io n charge; (5) the government violated Brady v. Maryland by failing to prov id e Rice with evidence of a witness's previous convictions; (6) the court erred in a d m itt in g voice identification evidence from Weeks; and (7) the court erred in d e n y in g a motion for a mistrial on the basis of Weeks's purportedly perjured test im o n y . Cormier contends that (1) the district court erred in allowing Baise to g iv e his opinion of her truthfulness; and (2) the government committed prosecuto r ia l misconduct by offering her a plea deal contingent on Rice's joint plea.

III. W e review a district court's response to allegations of prosecutorial miscond u c t for abuse of discretion, for which a defendant must show that (1) the prosec u t o r made an improper remark and (2) the remark affected his substantial r ig h ts . See United States v. Gracia, 522 F.3d 597, 600 n.2 (5th Cir. 2008). We a ls o apply an abuse-of-discretion standard to evidentiary rulings, United States v . Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005), to the denial of a motion for severa n c e , United States v. Holloway, 1 F.3d 307, 310 (5th Cir. 1993), and to the denia l of a motion for new trial on the basis of perjury, Johnson v. Offshore Exploratio n , Inc., 845 F.2d 1347, 1357-59 (5th Cir. 1988). Whether identification evid e n c e comports with due process is a mixed question of law and fact that we rev ie w de novo. United States v. Honer, 225 F.3d 549, 552 (5th Cir. 2000). Where an error is not contemporaneously objected to at trial, however, we r e v ie w only for plain error. United States v. Gallardo-Trapero, 185 F.3d 307, 321 (5 th Cir. 1999). To meet that more stringent standard, a defendant must demons tr a te that (1) there was error, defined as a deviation from a legal rule; (2) it was p la in , defined as obvious; and (3) it affected his substantial rights, defined as p r e ju d ic ia lly affecting the outcome of the trial. Id. at 322. Reversible plain error is that which seriously affects the fairness, integrity, or public reputation of judic ia l proceedings. Id. 6

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No. 09-40116 IV . R i c e raises seven issues on appeal, Cormier two. We first address the c la im s made by Rice and then those made by Cormier, following the order in w h ic h the arguments are presented.

A. 1. R ic e claims the government committed prosecutorial misconduct by sugg e s t in g that the jury consider his previous robbery convictions for the purpose o f identification. There is no reversible error. I n accordance with Federal Rule of Evidence 404(b), the government gave R ic e notice of its intent to introduce extrinsic evidence of his previous convict io n s . At a rule 404(b) hearing, the government argued that Rice's robbery conv ic tio n s were admissible to prove that he acted with the legally-required level o f intent and that he was the person who held the gun to Weeks's head. Over R ic e 's objection, the district court ruled the convictions admissible "for the limite d purposes of determining the intent exception under 404(b)." The court decide d , however, that the convictions were not admissible to prove the identity of the c a r ja c k e r , because they were not sufficiently similar to the charged crimes to q u a lify for the identity exception under rule 404(b). D u r in g closing arguments, the prosecutor began commenting on how the ju r y could identify Rice as the carjacker, then stated, And another thing I want you to remember, ladies and gentlem a n , is a very important statement that was made during this carja c k i n g wasSSby the person who did hold this gun to Ms. Weeks' h e a d was "I've done this before." You heard testimony from four other co-defendants. Nobody else h a s been convicted of a robbery. No other evidence of any other pers o n has ever held a gun to anybody's head, but this man sitting

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No. 09-40116 r ig h t here. Ladies and gentlemen of the jury, I submit to you that that indic a t e s and supports Ms. Weeks' testimony that John Fitzgerald Rice, J r . is the person who held her at gunpoint. D u r in g its rebuttal closing argument, the government returned to the same p oint: Ladies and gentlemen, there wereSSyou heard that the defendant w a s convicted of some crimes. You can use those crimes, as [the othe r prosecutor] discussed with you, to decide the robber was the only o n e who had done this before, committed robberies before. The defe n d a n t was the only one there is any evidence of committing any o th e r robbery. R ic e argues that those statements exceeded the limited purpose for which evid e n c e of his previous robberies was admitted and amounts to prosecutorial misc o n d u c t that affects his substantial rights. R ic e 's pre-trial objection was not sufficient to preserve the claim of prosec u t o r ia l misconduct. To preserve an argument for appeal, an objection must be c o n te m p o r a n e o u s to the alleged error. United States v. Mares, 402 F.3d 511, 515 (5 th Cir. 2005). Rice made no objection to the prosecutor's comments during eit h e r the closing argument or rebuttal. Therefore, we review only for plain error. R ic e has demonstrated that the prosecutor's comments regarding the use o f extrinsic evidence to prove identity were error. In the first statement quoted a b o v e , the prosecutor argued that Rice was the only one who had been convicted o f robbery, so the assailant's statement that he had "done this before" shows that R ic e "is the person who held [Weeks] at gunpoint." During the government's reb u tt a l, the prosecutor told the jury that it could use Rice's previous convictions t o decide whether the robber in the present case was the only one in the group w h o had committed robberies before. Given that the court had specifically exc lu d e d identity as a proper purpose for introducing extrinsic evidence of the prev i o u s robberies, the prosecutor's suggestion that those robberies help to prove 8

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No. 09-40116 th a t Rice was the carjacker constituted trial error. Even assuming arguendo that that error was plain, however, Rice cannot s h o w that the remarks affected his substantial rights. Although the comments w e r e erroneous, they were minimal and harmless in the context of the entire t r ia l. The statements occupy only a few lines in a record that spans several t h o u s a n d pages. More importantly, the prosecution presented overwhelming e v id e n c e that Rice was the one who carjacked Weeks, including consistent statem e n t s and testimony from his accomplices, testimony from the lead police invest ig a t o r , and voice identification by the victim. There is nothing near a reasona b le possibility that, without the prosecutor's improper statements, Rice would h a v e been acquitted of any charge. Therefore, the claim of prosecutorial miscond u c t does not survive plain error review.

2. R ic e argues that the district court abused its discretion in admitting ext r in s i c evidence of his previous robberies for the purpose of proving intent. T h e r e is no reversible error. Rule 404(b) governs the admissibility of evidence of prior crimes or bad acts: Evidence of other crimes, wrongs, or acts is not admissible to p r o v e the character of a person in order to show action in conformity t h e r e w it h . It may, however, be admissible for other purposes, such a s proof of motive, opportunity, intent, preparation, plan, knowle d g e , identity, or absence of mistake or accident, provided that upon r e q u e s t by the accused, the prosecution in a criminal case shall prov id e reasonable notice in advance of trial, or during trial if the court e x c u s e s pretrial notice on good cause shown, of the general nature o f any such evidence it intends to introduce at trial. F ED. R. EVID. 404(b). In United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1 9 7 8 ) (en banc), this court laid out the two-step test for admission of extrinsic

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No. 09-40116 e v id e n c e of prior offenses or other misconduct under rule 404(b). "First, it must b e determined that the extrinsic offense evidence is relevant to an issue other t h a n the defendant's character. Second, the evidence must possess probative v a l u e that is not substantially outweighed by its undue prejudice and must meet t h e other requirements of rule 403." Id. R i c e claims that his previous robberies were not sufficiently similar to the c h a r g e d crimes to be relevant and were too remote in time to be probative of his g u ilt. Even if we were to agree that the district court abused its discretion in a d m it t in g the extrinsic evidence, Rice cannot show that his substantial rights w e r e prejudiced. As noted above, the prosecution presented overwhelming evid e n c e of his guilt on all charges. Because he suffered no prejudice from the adm is s io n of extrinsic evidence, any error under rule 404(b) was harmless and does n o t require reversal.1

3. R ic e contends the district court erred in admitting evidence of the several u n in d i c te d offenses he and his co-conspirators committed on the night of the carja c k in g . Specifically, the government introduced evidence that the group (1) att e m p t e d to rob a woman who had just won a prize playing bingo; (2) tried to rob a pizza delivery man; (3) attempted to rob an elderly couple Rice spotted at a g r o c e r y store; and (4) sought to rob a convenience store. The court found that evid e n c e of those offenses helped to explain how the conspiracy came together, p la c e d the charged crimes in context, and completed the story behind the crimin a l activity. The court therefore allowed the prosecution to present that evid e n c e , holding that those offenses were "intrinsic" to the charged crimes.

See United States v. Gutierrez-Farias, 294 F.3d 657, 663-64 (5th Cir. 2002) (stating that abuse of discretion in admitting evidence does not require reversal where there is no reasonable possibility that the improperly admitted evidence contributed to the conviction).

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No. 09-40116 T o determine whether "other acts" evidence was erroneously admitted, we m u s t first decide whether the evidence was intrinsic or extrinsic. "`Other act' e v id e n c e is `intrinsic' when the evidence of the other act and the evidence of the c r im e charged are `inextricably intertwined' or both acts are part of a `single c r im in a l episode' or the other acts were `necessary preliminaries' to the crime c h a r g e d ." United States v. Williams, 900 F.2d 823, 825 (5th Cir. 1990). Intrinsic e v id e n c e is admissible to "complete the story of the crime by proving the immedia t e context of events in time and place," United States v. Coleman, 78 F.3d 154, 1 5 6 (5th Cir. 1996), and to "evaluate all of the circumstances under which the defe n d a n t acted," United States v. Randall, 887 F.2d 1262, 1268 (5th Cir. 1989). I n t rin s ic evidence does not implicate rule 404(b), and "consideration of its admiss i b ilit y pursuant to [that rule] is unnecessary." United States v. Garcia, 27 F.3d 1 0 0 9 , 1014 (5th Cir. 1994). O u r discussion in Coleman, 78 F.3d at 156, is particularly instructive as t o whether the district court properly categorized the other offenses leading up t o the carjacking as "intrinsic." In that case, the government offered evidence t h a t the defendants had attempted to carjack two luxury cars earlier in the day b e fo r e eventually carjacking a Mercedes. Id. The court found that evidence to b e "intrinsic," because it "helped place the entire events of the evening in cont e x t ." Id. Coleman's reasoning applies equally to this case. Rice's four unsuccessful r o b b e r y attempts and the carjacking of Weeks occurred within a few hours of e a c h other and involved the same group of co-conspirators. Presentation of those p r e v io u s attempts helped the government to paint the picture of a group comm it t e d to robbing someone that night and to explain how and why they decided t o victimize Weeks. Evidence of the other acts was intrinsic, because it allowed t h e government to tell the whole story of a unified criminal episode. The court d id not abuse its discretion. 11

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No. 09-40116 4. R ic e posits that the district court abused its discretion in denying his mot io n to sever the charge of unlawful possession of a firearm by a convicted felon. T h e district court correctly found, however, that joinder of his charges was app r o p r ia te under Federal Rule of Criminal Procedure 8(a) and that severance was n o t required under Federal Rule of Criminal Procedure 14(a). Rule 8(a) provides that a defendant may be charged in a single indictment fo r two or more offenses if they (1) are of the same or similar character; (2) are b a s e d on the same act or transaction; or (3) are connected with or constitute p a r ts of a common scheme or plan. FED. R. CRIM. P. 8(a). Once it is determined t h a t joinder is proper, the district court must decide whether it causes sufficient p r e ju d ic e to require severance under rule 14(a). Severance is required only in c a s e s of "compelling prejudice." United States v. McIntosh, 655 F.2d 80, 84 (5th C ir . Unit A Sept. 1981). All of the charged offenses, including being a felon in possession of a firea r m , were based on the same criminal episode, so joinder was proper under rule 8 (a ). In addition, Rice fails to show specific and compelling prejudice that would w a r r a n t reversal. Given the overwhelming evidence of his guilt, it is unlikely t h a t the felon-in-possession charge had any effect on the jury's evaluation of the o th e r charges. Moreover, the judge gave a detailed limiting instruction to minim iz e the chance of improper consideration of his previous convictions. Such ins t r u c t io n s are generally "sufficient to prevent the threat of prejudice resulting f r o m unsevered trials." United States v. Massey, 827 F.2d 995, 1005 (5th Cir. 1 9 8 7 ) . Therefore, the court did not abuse its discretion in denying a severance.

5. R i c e argues that the government violated Brady v. Maryland, 373 U.S. 83 (1 9 6 3 ), by failing to disclose Booker's prior juvenile adjudications and adult con12

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No. 09-40116 v ic t io n s . Ordinarily, we review Brady questions de novo. United States v. Runy a n , 290 F.3d 223, 245 (5th Cir. 2002). Brady claims, however, "present factb a s e d judgments that cannot be adequately first made on appellate review. That is why Brady challenges must be brought to the district court's attention, winn o w e d by the trial judge, and made part of the record through a motion for new tr ia l." United States v. Gonzales, 436 F.3d 560, 580 (5th Cir. 2006). Rice did not c a ll upon the district court to decide whether the government had violated Brad y , nor did he move to reopen the verdict. Because he never properly raised any B r a d y issues in the district court, we decline to review those issues on appeal.

6. R ic e avers that Weeks's voice identification testimony violated due proc e s s.2 For a particular identification to violate due process, it must be "so imperm is s ib ly suggestive as to give rise to a very substantial likelihood of irreparable m is i d e n t if ic a t io n ." Roper v. Beto, 454 F.2d 499, 502 (5th Cir. 1972) (quoting S im m o n s v. United States, 390 U.S. 377, 384 (1968)). S e v e ra l factors support the district court's finding that Weeks's identificat io n was reliable. First, she demonstrated a high level of certainty regarding her id e n t if ic a t io n . Both before and during trial, she expressed no doubt that Rice's v o ic e was identical to the carjacker's. Second, the evidence showed Weeks was p a y in g close attention to the perpetrator's voice during the crime. She testified t h a t she responded immediately to his verbal commands and was able to des c r ib e in detail his distinctive way of speaking. Finally, although eight months e la p s e d between the incident and the identification, the district court correctly

Rice did not raise an objection based on Federal Rule of Evidence 901(b)(5) in the district court, and his brief on appeal does not sufficiently raise the issue so as to warrant our review for plain error. See FED. R. APP. P. 28(a)(9)(A) (requiring that appellant's brief contain his "contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies"). Accordingly, we address only Rice's due process claim.

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No. 09-40116 fo u n d that, given Weeks's specific and vivid recollections, the passage of time did n o t give rise to a substantial likelihood of misidentification. Therefore, Weeks's t e s tim o n y did not violate due process.3

7. R ic e alleges that the district court erred in denying his motion for a new t r ia l on the basis of Weeks's purportedly perjured testimony. During cross-exa m in a t io n , Rice questioned Weeks about a photo lineup she viewed at the police s ta t io n after the incident. Rice asked Weeks whether she recognized the perpet r a to r in the picture at the station, and she responded, "Yes, but I don't believe it was documented." The next morning, Rice unsuccessfully requested a mistrial o n the ground that Weeks had committed perjury, depriving him of a fair trial. R ic e has a plausible argument that Weeks, whether intentionally or not, m a d e false statements on the witness stand. She stated that, at the time of the lin e u p , she was able to identify the perpetrator in the picture. Sergeant Kevin W h it e , however, testified that Weeks was unable to make a positive identificatio n of Rice at that time. Although Weeks insisted that she had made the identific a t io n , the remainder of her testimony indicates that she was never able to get a good look at the perpetrator's face. C it in g United States v. Agurs, 427 U.S. 97 (1976), Rice claims that his conv ic tio n is based on perjury and must be reversed. The Agurs Court, however, d i s tin g u is h e d between cases in which prosecutors acted in good faith and those in which "a conviction [was] obtained by the knowing use of perjured testimony." I d . at 103. The Court held that only the latter situation constitutes prosecutorial m is co n d u c t and that the resulting conviction must be set aside if there is a reas o n a b le likelihood that the false testimony could have affected the judgment of
See, e.g., Neil v. Biggers, 409 U.S. 188, 199-200 (1972) (analyzing totality of the circumstances to evaluate due process concerns raised by identification testimony).
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No. 09-40116 th e jury. Id. at 103-04. J u st as in Agurs, there is no evidence that the prosecution knowingly pres e n te d perjured testimony. Weeks's allegedly perjured statements were not elicit e d by the government but instead came in response to Rice's cross-examination. F u r t h e r , those statements conflicted with the case the prosecution was attemptin g to build, and their only likely effect was to undermine Weeks's credibility. I n any event, given the other overwhelming evidence of guilt, it is highly unlikely that Weeks's misstatements had any effect on the verdict. The district court d id not abuse its discretion in denying a new trial.

B. 1. C o r m ie r 's first claim is that the district court erred in allowing Baise to g iv e his opinion of her truthfulness. At the end of the government's direct examin a t io n of Baise, the prosecutor asked whether he had advised Cormier to get an a tt o r n e y because he did not believe her statement that she slept through the inc id e n t . Baise answered in the affirmative. Cormier made no objection at trial a n d now argues that the court should have excluded that answer. A s an initial matter, the record indicates that Baise's response was not an a tt e m p t to offer his opinion of Cormier's truthfulness. Instead, it seems he was m e r e ly explaining why he had advised her to get an attorney. Cormier did not m a in t a in at trial that she slept through the carjacking and therefore the prosec u t o r had no need to undermine her previous account of the event. Understood in proper context, the challenged comment was not opinion testimony, and its a d m is s io n does not mandate a mistrial. E v e n assuming (along with both parties), however, that Baise was offering h is opinion as to Cormier's truthfulness, the failure to exclude that opinion was n o t plain error. There is no reasonable possibility that Baise's fleeting response 15

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Date Filed: 05/12/2010

No. 09-40116 h a d any effect on the verdict.

2. C o r m ie r claims that the government engaged in prosecutorial misconduct b y offering her a plea deal contingent on Rice's joint plea. Cormier expressed a w illin g n e s s to accept the deal, but Rice refused to plead guilty. The prosecutor d e c lin e d to offer Cormier the same terms for an individual plea, and the case w e n t to trial. Although she made no objection in the district court, she now c la im s that the government's offer of a joint plea bargain violated due process. I t is well established that there is no constitutional right to plea bargain. W e a th e r fo r d v. Bursey, 429 U.S. 545, 561 (1977). It follows that defendants do n o t have a right to plea bargain individually. Cormier offers no reason why the g o v e rn m e n t should be prohibited from conditioning a plea offer on a joint plea, a n d she had no right to accept only her portion of the government's offer. Moreo v e r , contrary to her suggestions, the government did not "coerce" her into standin g trialSSshe had already rejected a plea offer and remained perfectly free to p le a d guilty to the crimes as charged. Because the government's offer of a joint p le a was not prosecutorial misconduct, Cormier's second claim also fails on the fir s t prong of plain error review. R i c e and Cormier demonstrate no reversible error. The judgments of conv ic t io n are therefore AFFIRMED.

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