USA v. Robert Hansman

Filing

UNPUBLISHED OPINION FILED. [09-50674 Affirmed ] Judge: WG , Judge: ECP , Judge: CH Mandate pull date is 10/25/2010 for Appellant Robert Hansman [09-50674]

USA v. Robert Hansman

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Case: 09-50674

Document: 00511252148

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Date Filed: 10/04/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50674 S u m m a r y Calendar October 4, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. R O B E R T HANSMAN, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 3:08-CR-1908-1

B e fo r e GARWOOD, PRADO, and HAYNES, Circuit Judges. P E R CURIAM:* A fte r Border Patrol agents found marijuana secreted in a truck driven by R o b e r t Hansman, a jury convicted him of importing and possessing with intent t o distribute marijuana. Hansman was sentenced to a 60-month prison term to b e followed by four years of supervised release. On appeal, Hansman challenges o n ly his conviction. H a n s m a n first argues that the district court erred in declining to grant a m is t r ia l after one of the Government's witnesses remarked that Hansman had
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 09-50674

Document: 00511252148 Page: 2 No. 09-50674

Date Filed: 10/04/2010

b e e n detained in jail since he was arrested. In Hansman's view, a mistrial was w a r r a n te d because the investigator's comment undermined the presumption of in n o c e n c e . We review for abuse of discretion the district court's denial of a m o t i o n for a mistrial. United States v. McCall, 553 F.3d 821, 826-27 (5th Cir. 2 0 0 8 ), cert. denied, 129 S. Ct. 2018 (2009). The court will not reverse as long as a n y error was harmless, meaning that there was not a significant possibility that t h e evidence had a substantial impact on the verdict. United States v. Lucas, 5 1 6 F.3d 316, 345 (5th Cir. 2008). To the extent that the comment was improper because it inappropriately in s in u a t e d Hansman's guilt, see United States v. Dawson, 563 F.2d 149, 151 (5th C ir . 1977), any error was harmless. The statement was a single, isolated

r e m a r k , unprompted by the Government, during the course of a two-day trial. See United States v. Valles, 484 F.3d 745, 756 (5th Cir. 2007). Moreover, the d is t r ic t court immediately provided a curative instruction, explaining to the jury t h a t the comment was not responsive to the question posed and should be d is r e g a r d e d . No further instruction was requested. We presume that juries fo llo w the court's instructions. Zafiro v. United States, 506 U.S. 534, 540 (1993). In addition, there was significant evidence of Hansman's guilt, including that t h e truck he was driving and claimed to own contained over 50 kilograms of m a r iju a n a in a concealed compartment built into the back seat, testimony that h e engaged in what was apparently a dry run with the identical truck the week b e fo r e , testimony that he exhibited nervous behavior both times that he a t t e m p t e d to cross the border, and testimony describing his inconsistent stories. In the context of the proceedings as a whole it is highly unlikely that the w it n e s s 's brief, isolated remark caused the jury to reach a verdict it otherwise w o u ld not have reached.1

We note that no defense evidence (apart from cross-examination) or witness was presented to the jury.

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H a n s m a n next argues that the district court improperly limited defense c o u n s e l's cross-examination of one of the Government's witnesses regarding the G o v e r n m e n t 's investigation of a man identified as Omar, who, according to H a n s m a n 's pretrial statements, employed him, sold him the truck, and set him u p . Hansman does not argue that his Sixth Amendment right to confront w it n e s s e s against him was violated; thus, we review for abuse of discretion the d is t r ic t court's decision to limit the cross-examination of the investigator. See U n ite d States v. Ramos, 537 F.3d 439, 448 (5th Cir. 2008). Hansman must also e s t a b lis h that the district court's limitation clearly prejudiced him. See United S ta te s v. Skelton, 514 F.3d 433, 438 (5th Cir. 2008). Here, the district court lim it e d the witness's testimony only to the extent that it constituted i n a d m is s ib le hearsay. Hansman was not limited in eliciting testimony about w h a t the investigator personally knew. Indeed, the witness was permitted to t e s t ify that another agent was investigating a man named Omar; however, the w it n e s s did not have enough information to know whether it was the same Omar t h a t Hansman identified. Hansman has failed to demonstrate an abuse of d is c r e t io n or clear prejudice. F in a lly , Hansman contends that the district court should have allowed his s o le potential witness, the director of nursing at the detention facility where H a n s m a n was held, to testify as to Hansman's medical condition and the m e d ic a t io n s he was taking at the time he was booked at the detention facility a ft e r his arrest.2 At trial, Hansman's counsel admitted that he did not know w h e t h e r the nurse participated in Hansman's medical screening when he was b o o k e d and that the witness would be testifying solely based on the information o n Hansman's intake chart. According to defense counsel, this testimony could

Because the court ruled that this potential witness could not so testify, the defense did not call her.

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p r o v id e a "possible explanation" for the nervous behavior Border Patrol agents t e s t ifie d that Hansman exhibited at the border checkpoint. We review for abuse of discretion the district court's decision to exclude e v id e n c e . United States v. Arledge, 553 F.3d 881, 892 (5th Cir. 2008), cert. d e n ie d , 129 S. Ct. 2028 (2009). A district court may exclude even relevant e v id e n c e if its probative value is substantially outweighed by the danger of, a m o n g other things, misleading or confusing the jury. FED. R. EVID. 403; United S ta te s v. Saldana, 427 F.3d 298, 307 (5th Cir. 2005). Assuming that Hansman's medical condition at the time he was taken into c u s t o d y was relevant, we find that there was no abuse of discretion. There was n o indication that the nurse in question either examined Hansman or would be a b le to explain the significance of the unspecified medical conditions or m e d ic a t io n s , given that she was not a physician (and was not otherwise shown t o be able to do so). The testimony would have had slight probative value and t h e r e would have been a high probability of jury confusion. Accordingly, there w a s no error in the district court's exclusion of this testimony. Accordingly, the judgment of the district court is AFFIRMED.

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