USA v. Harper
Filing
501078821
Case: 09-40140
Document: 00511078821
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Date Filed: 04/13/2010
REVISED April 13, 2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
U n i t e d States Court of Appeals F i f t h Circuit
FILED
N o . 09-40140 March 9, 2010 Charles R. Fulbruge III Clerk P la in tiff-A p p e lle e , v. B R IA N KEITH HARPER, D e f e n d a n t -A p p e l la n t .
U N I T E D STATES OF AMERICA,
A p p e a l from the United States District Court for the Eastern District of Texas U S D C No. 4:07-CR-244-4
B e fo r e CLEMENT, PRADO, and ELROD, Circuit Judges. P E R CURIAM:*
This appeal arises from the district court's entry of a judgment of conviction and its imposition of sentence on Defendant-Appellant Brian Keith Harper for one count of conspiring to possess five or more kilograms of cocaine with the intent to distribute in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. For the following reasons, we affirm.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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No. 09-40140 I . FACTUAL BACKGROUND I n November 2007, Drug Enforcement Administration (DEA) agents e x e c u t e d a search warrant at an apartment in Lewisville, Texas on suspicion t h a t it was being used to store illegal narcotics.1 The search revealed several it e m s associated with cocaine trafficking and led to the arrest of Codefendant G e r r a r d o Javier Platas-Rodriguez. When the DEA agents confronted PlatasR o d ri g u e z , he agreed to cooperate with the investigation and informed the a g e n ts about a hidden compartment in the stairwell of the apartment. The a g e n ts recovered fifty-seven bricks of cocaine, each weighing approximately one k ilo g ra m ; $33,000 in cash; a money counter; freezer bags; and wrapping m a te r ia ls from the compartment. Platas-Rodriguez told the agents that he had b e e n hired to maintain the apartment as a stash house by Guadalupe Antonio B a r r e r a , a friend in Mexico. A ft e r Platas-Rodriguez informed the agents that another drug transaction w a s planned, the agents decided to conduct a controlled purchase using fake c o c a in e . At the agents' request, Platas-Rodriguez contacted Barrera, who
in f o r m e d him that an individual, later identified as Codefendant Orlando Leal M a r t in e z , would come from Mexico to represent Barrera in the sale of a quantity o f cocaine. On November 30, 2007, Martinez instructed Platas-Rodriguez to c o m e to his hotel room early the next morning to await Barrera's instructions for c o m p le tin g the sale. The next morning, Platas-Rodriguez and Martinez met at the apartment a n d then drove to an International House of Pancakes (IHOP) to meet the p u r c h a s e r . The agents observed a dual-wheel pickup with Tennessee plates
As Harper appeals the denial of his motion for a judgment of acquittal, we view "`the evidence and the inferences therefrom in the light most favorable to the verdict.'" United States v. Fuchs, 467 F.3d 889, 904 (5th Cir. 2006) (quoting United States v. Anderson, 174 F.3d 515, 522 (5th Cir. 1999)).
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No. 09-40140 t o w in g a trailer enter the parking lot and later identified the driver as C o d e fe n d a n t Frank Savage. Savage met briefly with Platas-Rodriguez and M a rt in e z inside the IHOP before driving to a nearby hotel and checking in. S h o r tly afterwards, Savage returned to the IHOP and handed Martinez a piece o f paper with his room number on it. Savage then drove back to the hotel, r e m o v e d a suitcase containing $898,590 in cash from the trailer, and entered his r o o m . Martinez also drove to the hotel and went to Savage's room with a s u it c a s e containing the fake cocaine while Platas-Rodriguez remained in the p a r k in g lot. At this point, the agents arrested all three individuals. Soon after his arrest, Savage began cooperating with the investigation. He t o ld the agents that the money had belonged to Harper and that he was s u p p o s e d to take the drugs to Harper. After Savage agreed to try to contact H a r p e r , the agents retrieved a cellular telephone that Harper had given to S a v a g e . Harper soon called and asked Savage what was going on. Harper in d ic a te d that he had been in contact with the seller and had learned that the s e lle r 's representative was not returning phone calls. Agent Don York, the lead c a s e agent, recorded four brief conversations between Savage and Harper. D u r in g these conversations, Harper seemed to be concerned that something was a m is s . On December 13, 2007, Harper was arrested in Memphis, Tennessee. D u r in g an interview, Agent York asked Harper if he knew why the DEA agents w e r e present. Harper responded that Savage was "putting [his] name out there a b o u t some dope that got hit." Harper admitted that he had previously sold m a r iju a n a and cocaine and that his current source of cocaine was a Hispanic m a n named "Red." I I . PROCEDURAL BACKGROUND A grand jury indicted Harper, Martinez, Platas-Rodriguez, Savage, and S a v a g e 's girlfriend, Sharif Ellis, on one count of conspiring to possess five or 3
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No. 09-40140 m o r e kilograms of cocaine with the intent to distribute in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. After Harper pleaded not guilty, but before trial, the g o v e r n m e n t notified Harper of its intent to introduce evidence of three e x tr a n e o u s offenses: (1) Harper's 1989 arrest and guilty plea for the possession of a c o n t r o lle d substance, which resulted in three years of p ro b a tio n ; His 1990 arrest and guilty plea for the unlawful possession of a narcotic, which resulted in a $300 fine; and H is 1993 arrest for drug distribution and guilty plea for the p o s s e s s i o n of crack cocaine, which resulted in a nine-month ja il sentence.
(2 ) (3 )
H a rp e r filed a motion in limine, requesting a hearing to determine the a d m is s ib ilit y of this evidence under United States v. Beechum, 582 F.2d 898, 911 (5 th Cir. 1978) (en banc), which the district court granted. After the hearing, the c o u r t determined that the evidence was admissible. On the morning of trial, the d i s tr ic t court denied Harper's motion for a continuance. The district court also d e n ie d Harper's motion to strike the jury panel or, in the alternative, to grant a continuance on the ground that the jury panel was not drawn from a fair crosss e c tio n of the community, in violation of the Sixth Amendment and Due Process C la u s e of the Fifth Amendment. At trial, the prosecution introduced the recorded conversations between S a v a g e and Harper through the testimony of Agent York, who identified the v o ic e as Harper's based on his interview with Harper after his arrest in M e m p h is . Agent York also defined several code words used in these c o n v e r s a tio n s , which he had learned from his involvement with the in v e s t ig a t io n . At the completion of the trial, the jury found Harper guilty. The d is t r ic t court denied Harper's motion for judgment of acquittal and sentenced h im to thirty years of imprisonment, followed by ten years of supervised release.
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No. 09-40140 I I I . DISCUSSION W e have jurisdiction under 28 U.S.C. § 1291. Harper appeals his
c o n v i ct io n , arguing that several of the district court's evidentiary decisions were e r r o n e o u s . Harper also contends that the district court should have granted his m o t io n s for a continuance and his motion to quash the jury panel. In addition, H a r p e r argues that the district court committed several errors during voir dire a n d that it should have granted his motion for a judgment of acquittal. A. Admissibility of Harper's Prior Offenses W e review a decision to admit evidence of prior offenses under Federal R u le of Evidence 404(b) using a heightened abuse of discretion standard. United S ta tes v. McCall, 553 F.3d 821, 827 (5th Cir. 2008). Pursuant to this standard, t h e evidence must be "`strictly relevant to the particular offense charged."' U n ite d States v. Jackson, 339 F.3d 349, 354 (5th Cir. 2003) (quoting United S ta t e s v. Hays, 872 F.2d 582, 587 (5th Cir. 1989)). Rule 404(b) excludes evidence of extrinsic "bad acts" to prove a defendant's b a d character. Fed. R. Evid. 404(b). Such evidence may, however, be admissible " a s proof of motive, opportunity, intent, preparation, plan, knowledge, identity, o r absence of mistake or accident." Id. In Beechum, this court set forth a twos te p test for determining whether extrinsic evidence is admissible. 582 F.2d at 9 1 1 . Before a district court may admit extrinsic evidence of a prior offense, "it m u s t be determined that the extrinsic offense evidence is relevant to an issue o t h e r than the defendant's character. Second, the evidence must possess
p r o b a t iv e value that is not substantially outweighed by its undue prejudice and m u s t meet the other requirements of [Federal Rule of Evidence] 403." Id. The government argues that the admission of the prior offenses satisfies t h e first prong of the Beechum test because Harper placed his intent at issue by p le a d in g not guilty. This court permits the introduction of extrinsic evidence to p r o v e criminal intent when a defendant enters a plea of not guilty, thereby 5
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No. 09-40140 r e q u ir in g the government to prove the elements of its case.2 McCall, 553 F.3d a t 82728. The crime with which Harper was charged, conspiracy to possess c o c a in e with the intent to distribute, required the government to prove that H a r p e r had the intent to join the conspiracy. United States v. Garcia Mendoza, 5 8 7 F.3d 682, 689 (5th Cir. 2009). Evidence of Harper's past drug transactions is relevant to establish his criminal intent. Id. Therefore, the evidence of H a r p e r 's prior offenses satisfies the first requirement under Beechum. The second prong of the Beechum test requires that the evidence meet the g e n e ra l requirements of Rule 403 and that its probative value not be s u b s t a n t ia lly outweighed by its unduly prejudicial effect. This court has
" c o n s is te n tly . . . held that evidence of a defendant's prior conviction for a similar c r im e is more probative than prejudicial and that any prejudicial effect may be m in im iz e d by a proper jury instruction." United States v. Taylor, 210 F.3d 311, 3 1 8 (5th Cir. 2000). The record in this case reveals that the district court took g r e a t care to mitigate the prejudicial effect of the prior offenses. The district c o u r t limited the evidence to the judgment from each offense and Harper's s t ip u la tio n as to the narcotic involved in each case. When the government in tr o d u c e d the evidence, the district court provided a detailed instruction to the ju r y as to the limited purposes for which the prior offenses were admitted. In its f i n a l instructions to the jury, the district court also gave the instruction r e g a r d in g Rule 404(b) evidence found in the pattern jury instructions for the F ifth Circuit. See Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 1 .3 0 (West 2001). In light of our precedent and the district court's efforts to
During oral argument, Harper's counsel argued that the government was on notice that Harper was not placing his intent at issue because his defense was "centered around identity." While the opening statement of Harper's trial counsel did indeed focus primarily on the issue of identity, this falls far short of "`enforceable pre-trial assurances that he intend[ed] not to dispute criminal intent.'" McCall, 553 F.3d at 828 (alteration in original) (quoting United States v. Webb, 625 F.2d 709, 710 (5th Cir. 1980)).
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No. 09-40140 m it ig a t e the prejudicial effect of the prior offenses, the district court did not a b u s e its discretion in admitting the extrinsic evidence. See Garcia Mendoza, 5 8 7 F.3d at 689. Harper also argues, for the first time on appeal, that the government and t h e district court erroneously characterized two of his prior offenses. As these is su e s were not raised before the district court, we review for plain error only. U n ite d States v. Jasso, 587 F.3d 706, 709 (5th Cir. 2009). "This court finds plain e r r o r when: (1) there was an error; (2) the error was clear and obvious; and (3) t h e error affected the defendant's substantial rights." Id. (internal quotation m a r k s and citations omitted). Harper argues that his 1989 offense was
i m p r o p e r ly characterized as a conviction when in fact it was a deferred a d ju d ic a tio n . The government concedes the error, but emphasizes that the p r o s e c u t io n , district court, and defense counsel all made the same error and that t h e mischaracterization was not intentional. Harper presents no authority for t h e proposition that the use of the term "conviction" for his 1989 offense c o n s t it u te s plain error. We hold that the mischaracterization did not affect H a r p e r 's substantial rights and was not plain error. Harper maintains that his 1990 offense did not actually involve a c o n v i c t io n for a controlled substance. This argument lacks merit. Harper
s t ip u la te d to the narcotic involved in the offense and did not object when the ju d g m e n t of conviction was presented to the jury with his stipulation. Moreover, t h e document admitted regarding Harper's 1990 offense indicates that he p le a d e d guilty to possession of cocaine. There was no error arising from the in tr o d u c tio n of Harper's 1990 conviction. B. Harper's Motion for a Continuance H a r p e r argues that the district court abused its discretion when it denied h is oral motion for a continuance made on the first day of trial. This court r e v ie w s a district court's denial of a motion for continuance for an abuse of 7
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No. 09-40140 d is c r e tio n that results in serious prejudice. United States v. German, 486 F.3d 8 4 9 , 854 (5th Cir. 2007). "Factors we consider when determining whether a c o n tin u a n c e was warranted are: the amount of time available for preparation; d e f e n d a n t 's role in shortening the time needed; the likelihood of prejudice from d e n ia l; and the availability of discovery from the prosecution." United States v. M e s se r v ey , 317 F.3d 457, 462 (5th Cir. 2002) (citing United States v. Uptain, 531 F .2 d 1281, 128687 (5th Cir. 1976)). At trial, Harper asserted three
ju s tific a tio n s for a continuance, each of which he reurges on appeal. H a r p e r first argues that a continuance was merited to allow him to r e t r ie v e potentially exculpatory recorded statements made by Savage.3 On the d a y before trial, Harper's attorney discovered that Savage had made calls from a state jail, which had been recorded by the phone company, that exculpated a n o t h e r codefendant. The phone company informed Harper's counsel that it co u ld probably retrieve the recordings, but not without difficulty and some delay. O n the first day of trial, Harper's counsel presented the government with those r e c o r d in g s he had obtained. In response to the district court's inquiry, the g o v e r n m e n t denied having possession of any other recordings. The district court u lt im a t e ly rejected, without comment, Harper's argument that the need to o b ta in these other recordings merited a continuance. Harper has failed to show that the district court's decision resulted in " s e r i o u s prejudice." German, 486 F.3d at 854. The need to investigate an o p p o s in g witness's prior statements can justify a continuance if linked to specific e v id e n c e , but a "speculative argument" about "the possibility of additional in c o n s is te n t statements" is insufficient. Id. Harper's counsel had a year to
Harper attempts to characterize this issue as a violation of the prosecution's obligation to disclose exculpatory information under Brady v. Maryland, 373 U.S. 83 (1963). However, he did not raise a Brady claim in the district court, and we do not consider such claims when they are raised for the first time on appeal. United States v. Skilling, 554 F.3d 529, 568 n.63 (5th Cir.), cert. granted, 130 S. Ct. 393 (2009).
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No. 09-40140 in v e s t ig a t e these statements before trial. This weighs against a finding of p r e ju d ic e . See Messervey, 317 F.3d at 462. In addition, Harper had already r e q u e s te d and received four continuances. See United States v. Walters, 351 F.3d 1 5 9 , 170 (5th Cir. 2003) (upholding denial of continuance to investigate e x c u lp a t o r y information where defendant had previously been granted two c o n t in u a n c e s ). Moreover, Harper has failed to uncover exculpatory evidence s in c e the denial of his motion. See German, 486 F.3d at 854 (observing that the d e f e n d a n t s ' inability to point to any newly discovered exculpatory evidence u n d e r c u t their argument that the district court erred by denying their motion fo r a continuance). In light of these circumstances, the district court did not a b u s e its discretion when it denied Harper a continuance on this ground. Harper next argues that a continuance was merited to allow him to r e tr ie v e evidence to rebut Platas-Rodriguez's testimony. Before trial, Harper t o ld his attorney that Platas-Rodriguez could not identify him and therefore c o u ld not link him to the conspiracy. Two days before trial, Harper's counsel a s k e d the prosecutors whether Platas-Rodriguez could identify Harper; they r e s p o n d e d with uncertainty and told Harper's counsel that they would interview P la ta s -R o d rig u e z and respond at a later date. On the day before the trial, the p ro s e cu tio n informed Harper's counsel that Platas-Rodriguez could identify H a rp e r because the two had met on three prior occasions, including once on a t r ip to Mexico. Harper argued that a continuance was necessary in order to o b ta in Harper's records of travel to Mexico. In response to this argument, the d i s tr ic t court made the following factual findings: I don't find that there's any surprise here other than that you were n e v e r told for sure that [Platas-Rodriguez] would identify your clien t. But you were certainly never told that he wouldn't identify y o u r client. So he's just like any other witness. And if you had w a n te d to confirm that, you could have done that earlier. The district court then denied the motion for a continuance.
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No. 09-40140 I n light of these findings, we cannot say that the district court abused its d is cr e tio n by denying the motion for a continuance on this ground. Harper has n o t demonstrated that he was unfairly surprised when the government revealed t h a t Platas-Rodriguez could identify him. Consequently, he has not shown that th e denial of his motion resulted in serious prejudice. See German, 486 F.3d at 8 5 4 ; Messervey, 317 F.3d at 462. Harper also asserts, for the first time on appeal, that the government's filin g of a motion in limine on the day of trial merited a continuance. We review th is issue for plain error. Jasso, 587 F.3d at 709. Harper claims that the late filin g left him unable to defend against the motion. At the time of the motion, h o w e v e r , Harper failed to indicate that he was unprepared to defend against it a n d did not request a continuance on this basis. When the district court asked H a r p e r 's counsel if he "had a chance to look at" the motion, Harper's counsel r e p lie d "Yes I have, Your Honor." Harper's counsel also stated that the motion fo r a continuance was a "totally separate issue" from the motion in limine. The d is tr ic t court did not commit plain error by not granting a continuance on this b a s i s .4 C . Harper's Fair Cross-Section Claim " T h e Sixth Amendment and the Due Process Clause of the Fifth A m e n d m e n t require that a jury be drawn `from a fair cross-section of the c o m m u n it y ." ' United States v. Williams, 264 F.3d 561, 567 (5th Cir. 2001) (q u o tin g Taylor v. Louisiana, 419 U.S. 522, 527 (1975)). Harper claims that
In his opening brief, Harper claims that he was prejudiced by the late arrival of the government's "Notice of Sentence Enhancement." We do not address this claim, as Harper has dedicated little more than one sentence to it and makes no specific argument as to why the notice caused him prejudice. See Davis v. Maggio, 706 F.2d 568, 571 (5th Cir. 1983) ("Claims not pressed on appeal are deemed abandoned.") (citation omitted); cf. F.D.I.C. v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994) ("[I]f a litigant desires to preserve an argument for appeal, the litigant must press and not merely intimate the argument during the proceedings before the district court.").
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No. 09-40140 t h e s e rights were violated because only two of the forty-six prospective jurors w e r e African-American. In order to establish a prima facie violation of the fair c r o s s -s e c tio n requirement, Harper must show: (1) that the group alleged to be excluded is a "distinctive" group in t h e community; (2) that the representation of this group in venires fr o m which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this u n d e r r e p r e s e n ta tio n is due to systematic exclusion of the group in th e jury-selection process. Williams, 264 F.3d at 568 (quoting Duren v. Missouri, 439 U.S. 357, 364 (1979)). I f Harper makes out a prima facie case, the burden shifts to the government to d e m o n s t r a te that attainment of a fair cross section is incompatible with a s ig n ific a n t state interest. Duren, 439 U.S. at 368. Harper challenges the district court's denial of his motion to strike the jury p a n e l, arguing that he had presented a sufficient prima facie cross-section claim. W h e n a district court denies a defendant's motion to strike a jury panel, we r e v ie w the district court's factual findings for clear error and its conclusions of la w de novo. United States v. Alix, 86 F.3d 429, 434 (5th Cir. 1996). In this in s ta n c e , the district court rejected Harper's claim after finding that he had fa ile d to present "any evidence that this jury was selected by some method other t h a n the jury plan that has been approved by [the United States District Court fo r the Eastern District of Texas] and the Fifth Circuit Judicial Council." The d is tr ic t court ruled that "[a]bsent some evidence that this panel was improperly c h o s e n , the court is going to deny your motion to quash this panel and dismiss th e panel." W e find no error in this holding. The district court correctly ruled that H a rp e r had failed to establish a prima facie cross-section claim because he p r o v id e d no evidence of the relationship between the representation of AfricanA m e r ic a n s on the venire and the number of African-Americans in the relevant
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No. 09-40140 c o m m u n it y . "[A] defendant cannot establish a prima facie violation of the fairc r o ss -s e c tio n requirement by relying solely on the composition of the jury panel a t his own trial." Alix, 86 F.3d at 434 n.3 (citing Timmel v. Phillips, 799 F.2d 1 0 8 3 , 1086 (5th Cir. 1986)); accord United States v. Olaniyi-Oke, 199 F.3d 767, 7 7 3 (5th Cir. 1999). Instead, Harper must demonstrate that the percentage of A fr ic a n -A m e r ic a n s in the community differs from the composition of the venires d r a w n from the judicial district. See Williams, 264 F.3d at 56869 ("Absent e v id e n c e of the percentage of African-Americans in the community, we have no b a s e lin e against which to compare the composition of Defendant's venire."). On a p p e a l, Harper again relies solely on the composition of his own panel to make h is prima facie case. This is legally insufficient to meet the requirements of the D u r e n test.5 Alix, 86 F.3d at 434 n.3. H a r p e r also contends that even if he had failed to make a prima facie case, t h e district court should have granted him a continuance to allow him to r e s e a r ch and brief the issue. We review this issue for abuse of discretion
r e s u ltin g in serious prejudice. German, 486 F.3d at 854. The district court does n o t appear to have addressed the request for a continuance apart from ruling on t h e merits, and the government does not address it in its brief. However, our p r io r decision in Alix, 86 F.3d at 435, is instructive. There, the defendant b e c a m e suspicious of the venire's racial profile during jury selection and sought a continuance to investigate the racial makeup of the jurisdiction. Id. at 43334. T h e district court denied the motion, and we affirmed, concluding that "[i]n light o f the district court's findings, and especially in light of [the defendant's] failure
The same failure also defeats Harper's parallel Equal Protection claim alluded to in the briefing of his Sixth Amendment claim. See United States v. McKinney, 53 F.3d 664, 671 (5th Cir. 1995) ("The disparity between 2.28% eligible African-American population, and no African Americans on the venire panel does not raise the inference that racial discrimination rather than chance produced the result." (citing Alexander v. Louisiana, 405 U.S. 625, 630 (1972))).
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No. 09-40140 t o present any evidence to the contrary, we hold that the district court did not a b u s e its discretion when it denied [the defendant's] motion for a continuance." I d . at 435. The district court in Alix made the following findings: I do not feel it's in the best interest of justice to grant the motion to h a v e that type of delay in this trial. Again, while you may conduct t h o s e studies, surveys, or whatever, I am not convinced that they w o u ld indicate or prove that any of the irregularities that you are c o n c e r n e d with have actually happened or taken place. I am not c o n v i n c e d that, at least from my knowledge of the racial makeup of t h e Victoria Division that the Jury would be any different if we s tr u c k this panel and summoned a new panel. I think that we have s e l e c t e d these potential jurors in manner that has been used t h r o u g h o u t the Southern District. I am not aware of any ir r e g u la r itie s involved in that process. Id. at 435 n.4. The district court in this case likewise made specific findings that H a rp e r had failed to present any evidence that the jury was selected in a m a n n e r other than that which had been approved by the district court and the F ift h Circuit Judicial Council. And like the defendant in Alix, Harper has not id e n tifie d any evidence that he might have been able to discover had the c o n t in u a n c e been granted. Therefore, we hold that the district court did not a b u s e its discretion when it denied Harper's motion for a continuance. D . Adequacy of the Voir Dire W e review challenges to the scope of voir dire proceedings under an abuse o f discretion standard. United States v. Munoz, 150 F.3d 401, 412 (5th Cir. 1 9 9 8 ) . "The district court has broad discretion in determining how best to c o n d u c t voir dire and in deciding whether to excuse a juror," and "[a] court a b u s e s its discretion when the scope of voir dire is inadequate to discover bias a n d deprives the defendant of an opportunity to make reasonable use of p e r e m p t o r y challenges." United States v. Greer, 968 F.2d 433, 435 (5th Cir. 1 9 9 2 ) (en banc) (per curiam) (citations omitted). Harper challenges the district c o u r t 's voir dire on two grounds. First, he argues that the district court abused
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No. 09-40140 it s discretion by refusing his request to ask the veniremembers general q u e s t io n s about their education and their children. Second, Harper contends t h a t the district court allowed the prosecutor to mislead the jury during voir d ir e . Harper submitted a proposed written voir dire questionnaire with several q u e s tio n s , including one that sought information regarding the veniremembers' le v e l of education, and one that sought information regarding the sex, age, and o c c u p a t io n of the veniremembers' children. During a pretrial hearing, the
d is t r ic t court voiced concern that the questions were "too personal" and " e n c o u r a g e d comparing jurors with each other." The district court stated that it "didn't want anybody to feel embarrassed who comes here for jury service." T h e district court later entered an order denying Harper's request to submit the q u e s tio n n a ir e , noting that many of the questions in the questionnaire were c u s to m a r ily asked by the district court. During voir dire, the district court permitted the parties to question in d iv id u a l members regarding personal matters, some of which involved the v e n ir e m e m b e r s ' children. The district court began by asking the members of
t h e venire a set of nine basic questions. Afterwards, the parties were allowed to p o s e questions to the group, with follow-up questions for individual members of t h e venire. The examination explored the venire for bias, and elicited a free and o p e n exchange between the venire, the district court, and counsel. The district c o u r t and the parties asked the members of the venire whether they knew a n y o n e who had prior involvement with drugs or who worked in law e n fo r c e m e n t . The district court and the parties also asked the veniremembers w h e th e r they knew anyone associated with the case and whether their personal b e lie fs would interfere with their impartiality. Harper challenged three
p r o s p e c tiv e jurors for cause, all of which the district court granted. Harper did n o t object to the jury that was empaneled. 14
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No. 09-40140 U n d e r these facts, the district court did not abuse its discretion by denying H a r p e r the opportunity to submit his proposed questionnaire. A district court's fa ilu r e to ask a proposed question does not constitute an abuse of discretion if th e overall voir dire examination and the instructions given at trial adequately p r o te c t a party's interests. United States v. Harper, 527 F.3d 396, 40910 (5th C ir . 2008); United States v. Williams, 573 F.2d 284, 287 (5th Cir. 1978). The p r o p e r test is whether the district court's "inquiry reasonably assured that any b ia s or prejudice against [Harper] would have been discovered if present." U n ite d States v. Quiroz-Hernandez, 48 F.3d 858, 869 (5th Cir. 1995). Having r e v ie w e d the record in this case, we are satisfied that this standard was met. Harper next argues that the district court permitted the prosecutor to m is le a d the jury during voir dire. To the extent that Harper objected to the c o n d u c t of the voir dire, our review is for abuse of discretion. Munoz, 150 F.3d a t 412. Alleged errors that were not preserved for review by a timely objection a r e reviewed for plain error. United States v. Fambro, 526 F.3d 836, 847 (5th C ir .), cert. denied, 129 S. Ct. 625 (2008). Harper's first objection came after the g o v e r n m e n t described the crime of conspiracy as follows: A conspiracy is an illegal agreement. It's not violating the law, it's a n agreement to violate the law. It's the defendant and one other p e r s o n on one occasion entering into an agreement to break the law . . . . The defendant has to enter into it voluntarily, willfully, with th e intent to further the agreement. Harper objected to this characterization, arguing that there must be "an [overt] a c t in furtherance of [the conspiracy]." This argument is without merit; United States v.
c o n s p ir a c y under 21 U.S.C. § 846 requires no overt act.
S h a b a n i , 513 U.S. 10, 11 (1994) ("This case asks us to consider whether 21 U .S .C . § 846, the drug conspiracy statute, requires the Government to prove that a conspirator committed an overt act in furtherance of the conspiracy. We c o n c lu d e that it does not."). 15
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No. 09-40140 H a r p e r 's second objection came when the prosecutor examined the m e m b e rs of the venire regarding testifying codefendants. Harper objected that t h e prosecutor's inquiry was "getting into the internal operating procedures of t h e United States Attorney's Office, committee meetings and things." The
d i s tr ic t court sustained that objection and limited the government's discussion o f that topic. On appeal, Harper argues that this line of questioning also
c o n f u s e d the venire to the point that the potential jurors were unable to u n d e r s ta n d that the government was referring to cooperating witnesses. This o b je c tio n was never raised before the district court, however, and the district c o u r t did not commit plain error by allowing the inquiry after limiting its scope. O t h e r than these two objections, Harper presents only a running d e s c r ip t io n of the proceedings without specific argument. By failing to
a d e q u a te ly brief these issues, Harper has waived them. United States v. S k illin g , 554 F.3d 529, 568 n.63 (5th Cir.), cert. granted, 130 S. Ct. 393 (2009). E . Agent York's Testimony H a r p e r argues that the district court improperly admitted audio tapes of c o n v e r s a tio n s between himself and Savage based on the testimony of Agent Y o r k , who recorded them. Harper also argues that the district court erred in p e r m it t in g Agent York to testify about his understanding of the contents of the c o n v e r s a t io n s . We review a district court's determination of the admissibility of e v id e n c e under a heightened abuse of discretion standard. United States v. Y a n e z Sosa, 513 F.3d 194, 199200 (5th Cir. 2008). T h e admissibility of opinions by lay witnesses is governed by Federal Rule o f Evidence 701, which provides: I f the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or i n f e r e n c e s which are (a) rationally based on the perception of the w it n e s s , (b) helpful to a clear understanding of the witness' t e s tim o n y or the determination of a fact in issue, and (c) not based
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No. 09-40140 o n scientific, technical, or other specialized knowledge within the s co p e of Rule 702. "T e s tim o n y by a witness that he recognized the accused by his voice is a d m is s ib le , provided that the witness has some basis for comparison of the a c c u s e d 's voice with the voice which he has identified as that of the accused." U n ite d States v. Ladd, 527 F.2d 1341, 1343 (5th Cir. 1976) (citation omitted); see a l so United States v. Lampton, 158 F.3d 251, 259 (5th Cir. 1998) (holding that it was not an abuse of discretion for the district court to permit an FBI agent to id e n t ify the voice of the defendant based on prior personal contact with him). O n c e the basis for voice identification is established, it is up to the jury to decide w h e th e r the testimony is credible and how much weight to give it. United States v . Mendoza, 522 F.3d 482, 489 (5th Cir.), cert. denied, 129 S. Ct. 269 (2008). Similarly, an agent may offer lay testimony of his opinions concerning the m e a n in g of terms used by drug dealers if those opinions are based on his p e r s o n a l perceptions from the investigation. See United States v. Miranda, 248 F .3 d 434, 441 (5th Cir. 2001) ("[The agent's] extensive participation in the in v e s t ig a t io n of this conspiracy . . . allowed him to form opinions concerning the m e a n in g of certain code words used in this drug ring based on his personal p e r c e p tio n s ."); see also United States v. Rollins, 544 F.3d 820, 83132 (7th Cir. 2 0 0 8 ) ("We find that the trial judge did not err in concluding that [the agent's] `im p r e s s io n s ' testimony was rationally based on his first-hand perception of the in te r c e p te d phone calls about which he testified as well as his personal, e x te n s iv e experience with this particular drug investigation."). The district court did not abuse its discretion by admitting the tapes of H a r p e r 's conversations with Savage through Agent York's testimony. Agent Y o r k 's interview with Harper in Memphis provided him with a "basis for c o m p a r is o n of [Harper's] voice with the voice . . . he . . . identified as that of [ H a r p e r ] ." Ladd, 527 F.2d at 1343 (citation omitted). Agent York's impressions
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No. 09-40140 o f the meanings of some of the terms in the recorded conversation were likewise p r o p e r ly admitted. Having served as the lead agent in the investigation, Agent Y o r k became familiar with the drug ring. He participated in the search at the a p a rt m e n t, interviewed Platas-Rodriguez, helped to set up the sting operation, a n d was interviewing Savage when the conversations with Harper were r e c o rd e d . This experience is sufficient to render his testimony admissible under R u le 701. See Miranda, 248 F.3d at 441.6 F . Prosecutor's Closing Argument H a r p e r 's last argument focuses on allegedly improper comments made by t h e prosecutor during her closing argument. As Harper did not raise the issue o f the prosecution's closing argument before the district court, our review of that is s u e is for plain error only. United States v. Munoz, 150 F.3d 401, 415 (5th Cir. 1 9 9 8 ). We take a two-step approach in reviewing a charge of prosecutorial m i s c o n d u c t during closing argument. Id. at 414. We first decide whether the p r o s e c u to r made an improper remark. Id. (citation omitted). If a statement
w a s improper, we then consider whether it prejudiced the defendant's s u b s ta n tiv e rights. Id. at 415 (citation omitted). In making this determination, w e assess "`(1) the magnitude of the statement's prejudice, (2) the effect of any c a u tio n a r y instructions given, and (3) the strength of the evidence of the d e fe n d a n t 's guilt."' Id. at 415 (quoting United States v. Tomblin, 46 F.3d 1369, 1 3 8 9 (5th Cir.1995)). Harper claims that the prosecutor improperly commented on his posta r r e s t silence during closing argument. It is the general rule that a prosecutor m a y not argue that a jury should infer a defendant's guilt from his post-arrest
Harper also argues that the district court permitted Agent York to render legal conclusions regarding two assets that were seized. Harper did not raise this objection at trial and Agent York's testimony conveyed facts rather than legal conclusions. The district court did not plainly err in admitting this testimony.
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No. 09-40140 s ile n c e . United States v. Rodriguez, 260 F.3d 416, 42021 (5th Cir. 2001)
(c it a tio n omitted). In this instance, the prosecutor made the following statement r e g a r d in g Harper's interview with Agent York: Again it's important what Brian Harper doesn't say at this point. " W h a t do you mean? What load got knocked off? Why wouldn't he w o r k with me? What load got knocked off." Never says that. D o e s n 't say anything. He says, "Maybe. He might keep working w it h me." An admission? Oh you bet. What you don't say is just as im p o r t a n t as what you do say. I n United States v. Laury, we found that the prosecution had improperly used t h e defendant's post-arrest silence to impeach him. 985 F.2d 1293, 1303 (5th C ir . 1993). In that case, the defendant had made statements to the FBI, but did n o t mention his whereabouts at the time of the alleged robbery. Id. We held t h a t the prosecution impermissibly used the defendant's statements on those u n r e la te d issues to discredit his alibi. Id. We noted that although the defendant " d i d not remain completely silent following his arrest" the prosecutor did not h a v e "unbridled freedom to impeach [him] by commenting on what he did not say f o llo w in g his arrest." Id. at 1304 n.10. Harper also contends that the prosecutor improperly vouched for the c r e d ib ilit y of certain trial witnesses. "[A] personal assertion by a prosecutor of a government witness's credibility is impermissible." United States v. Gracia, 5 2 2 F.3d 597, 601 (5th Cir. 2008) (citation omitted). Harper points to seven s t a te m e n ts made by the prosecution that he alleges improperly bolstered the c r e d i b i l i t y of certain witnesses for the government. The first two statements o c c u r r e d while the prosecutor argued to the jury that Savage had been truthful. T h e prosecutor asked the jury to "imagine the fear and panic" experienced by S a v a g e at the moment of his arrest and then infer that Savage was "going to the t e ll the truth." The prosecutor then argued that it would be "quite a
s o p h is tic a t e d lie on Frank Savage's part" to falsely implicate Harper "within an
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No. 09-40140 h o u r of his very stressful arrest" and asserted that the jury should infer that S a v a g e was "telling the truth." The third statement was made while the
p r o s e c u t o r was explaining that Savage had honestly told the agents that a p a r tic u la r photograph did not depict Harper. The prosecutor observed: "Frank S a v a g e , just like he has all along, told the truth and he said, `[n]o that is not [ H a r p e r ] . '" These statements give us some pause, as they could be read as " p e r s o n a l assertion[s]" of Savage's credibility. Gracia, 522 F.3d at 601. The fourth, fifth, and sixth statements make up a large part of the p r o s e c u tio n 's argument that the testimony of Platas-Rodriguez was consistent w it h Savage's testimony and we do not recite them in their entirety. Having r e v ie w e d the entire exchange, however, we conclude that the prosecutor's a rg u m e n ts highlighted the consistencies between Platas-Rodriguez's and S a v a g e 's testimony, and urged the jury to infer that both men were being t r u th fu l. "[A] prosecutor may recite to the jury those inferences and conclusions [s h e ] wishes them to draw from the evidence so long as those inferences are g r o u n d e d upon the evidence." United States v. Loney, 959 F.2d 1332, 1343 (5th C ir . 1992). The seventh comment was made as part of the prosecution's rebuttal a rg u m e n t. Harper's counsel had previously argued to the jury that the
g o v e r n m e n t had been dilatory in interviewing Savage and playing the recorded c o n v e r s a tio n s for him. The prosecution responded: [i]n terms of when to interview the witnesses and when to in v e s t ig a t e the case, if we talked to the witnesses five or six times, im a g in e what the flip-side of that argument would be . . . . The flips id e of the argument would be that we were over there coaching h im . We weren't. We asked them to tell us the truth, and that is w h a t they told us. W e are somewhat troubled by the prosecutor's use of the first-person pronoun. T h is statement arguably suggests that the prosecutor had additional knowledge
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No. 09-40140 t h a t Savage was telling the truth based on her out-of-court interactions with h im . Even if we conclude that some of the prosecutor's comments "fell beyond t h e bounds of permissible behavior," they did not prejudice Harper's substantive r ig h t s . Munoz, 150 F.3d at 415. The district court instructed the jury
im m e d i a t e ly before closing argument that "any statements, objections, or a r g u m e n t s made by the lawyers are not evidence." This cautionary instruction m i t i g a te d any prejudicial effect of the prosecutor's comments. See id. (citing U n ite d States v. Lokey, 945 F.2d 825, 837 (5th Cir. 1991)). As Harper has failed t o demonstrate prejudice to his substantial rights, he cannot obtain relief under th e plain error standard. United States v. Pillado-Chaparro, 543 F.3d 202, 205 (5 th Cir. 2008). For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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