United States v. Casanova , 886 F.3d 55 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 16-2334
UNITED STATES OF AMERICA,
Appellee,
v.
JAQUAN CASANOVA, a/k/a Cass, a/k/a Joffy, a/k/a Joffy Joe,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Lynch, Stahl, and Kayatta,
Circuit Judges.
Chauncey B. Wood, with whom Eva Jellison, Meredith Shih, and
Wood & Nathanson, LLP were on brief, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
William D. Weinreb, Acting United States Attorney, was on brief, for
appellee.
March 26, 2018
LYNCH, Circuit Judge. After an eight-day jury trial,
Jaquan Casanova was convicted of tampering with a witness (Darian
Thomson) by attempting to kill him (and almost succeeding), in
violation of 18 U.S.C. § 1512(a)(1)(C), and of making false statements
to a federal agent, in violation of 18 U.S.C. § 1001.
On appeal, Casanova asks this court to reverse his
conviction and raises three unpreserved claims of error, described
below. We affirm. We reiterate that criminal defendants do not
ordinarily have a right to individual voir dire of every prospective
juror as to potential racial bias, whether in lieu of or in addition
to group voir dire. See United States v. Parker, 872 F.3d 1, 8
(1st Cir. 2017). Here, the district court individually questioned
at sidebar any prospective juror who had expressed racial bias during
group voir dire. There was no plain error.
I.
We recount the relevant facts "in the light most favorable
to the verdict." United States v. Van Horn, 277 F.3d 48, 50 (1st Cir.
2002) (citing United States v. Escobar-de Jesus, 187 F.3d 148, 157
(1st Cir. 1999)). On the evening of April 30, 2013, Boston police
officers investigating a report of a gunshot in Dorchester,
Massachusetts found a man later identified as Darian Thomson in the
driver's seat of a parked car, bleeding from a head wound. 1 The
individual who had alerted the authorities, Shaqukurra Thomas,
1 Thomson survived, but was left permanently disabled.
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reported that she had been in the passenger's seat when Thomson was
shot. In an interview with investigators later that evening, and
again at Casanova's trial, Thomas recounted the events leading up
to the attack. Her account at trial was supplemented by the testimony
of two other witnesses: Anthony Harris and Jacquelyn Lungelow.
On the afternoon of April 30, Thomas met with Thomson, whom
she had first met a few days earlier. After driving around Dorchester
and Mattapan for a few hours, the two of them visited Raymond Jeffreys,
purportedly Thomson's "friend[]," at Jeffreys's apartment in Roxbury.
There, Thomson and Thomas briefly socialized with Jeffreys, Lungelow,
Harris, and Casanova -- none of whom Thomas had previously met.
Jeffreys led a multi-state sex-trafficking organization,
a drug-dealing business, and a fraudulent check-cashing operation.
Lungelow was a prostitute who worked for Jeffreys at the time. Harris
was Jeffreys's childhood friend. Casanova was longtime friends with
Harris and Jeffreys, occasionally sold drugs for Jeffreys, and had
reportedly told Harris that he would "do anything for [Jeffreys]."
As for Thomson, he ran a sex-trafficking operation of his own, but
at times partnered with Jeffreys and shared information with him.
Earlier in 2013, Jeffreys had told Harris and others that he suspected
Thomson was a "rat," i.e., a government informant, who was "snitching"
on him.
At Jeffreys's apartment, Harris saw Jeffreys and Casanova
talking in the kitchen and observed Jeffreys pat his waist, raise
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his left arm, and make a shooting motion with his hand. Shortly
thereafter, Jeffreys asked Thomson to take Harris to McDonald's.
Thomson drove Thomas, Harris, and Casanova to a nearby McDonald's
in Dorchester, and Harris went inside to order food. When Harris
returned, Casanova stated that he wanted to "pick up something from
his boy" and instructed Thomson to park the car at an intersection
nearby. Casanova then got out of the car, shot Thomson through the
driver's seat window, and fled from the scene with Harris.
Thomas did not know, and was initially unable to identify,
any of the individuals involved in the shooting other than the victim.
On May 1, she was presented with a photo array that did not contain
pictures of any of the defendants; she did not identify anyone in
the array. That same day, Jeffreys was questioned by investigators
and admitted that Thomson had visited his apartment on the afternoon
of April 30th and had left with a woman and two men, but he claimed
that he did not know their identities. The investigation continued.
Nearly two years later, the police presented Thomas with
a second photo array. Thomas stated that one of the photographs,
depicting Casanova, looked somewhat like the shooter, but she
expressed doubt because she recalled the shooter as having a tattoo
on his neck whereas Casanova's picture did not show any tattoo. When
Casanova was interviewed by law enforcement in January 2015, "he
denied knowing Jeffreys well, denied having seen Jeffreys since 2011,
and denied knowing where Jeffreys lived in 2013."
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Investigators ultimately concluded that Casanova was the
shooter and that Harris was the man who had accompanied him in the
back seat of Thomson's car. Security footage from the McDonald's to
which Thomson had driven on the night of the shooting showed a man
matching Thomas's description entering the restaurant and interacting
with an employee. That employee identified Harris as the man in the
surveillance video. Harris, testifying at trial pursuant to an
immunity agreement, in turn identified Casanova as the individual
who had traveled to the McDonald's with him, Thomson, and Thomas,
and as the individual who later shot Thomson. Lungelow corroborated
Harris's account, testifying that Jeffreys had told her on the evening
of April 30th that Casanova and Harris had "handled the situation"
by shooting Thomson because he was "ratting." Finally, forensic
investigators analyzed prints collected from certain items recovered
from the inside of Thomson's car the day after the shooting, and
determined that some belonged to Harris and one belonged to Casanova.
On April 16, 2015 a grand jury returned a twenty-five count
third superseding indictment charging Casanova, Jeffreys, and Corey
Norris (a friend and associate of Jeffreys) with multiple crimes.
Norris and Jeffreys faced various counts of sex trafficking and
related offenses. The indictment charged Casanova and Jeffreys with
tampering with a witness by attempting to kill Thomson, in violation
of 18 U.S.C. § 1512(a)(1)(C), and conspiracy to engage in the same,
in violation of 18 U.S.C. § 1512(k), and charged Casanova with making
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false statements to a federal agent regarding his relationship with
Jeffreys, in violation of 18 U.S.C. § 1001. Norris and Jeffreys pled
guilty and were sentenced to fifteen and thirty years' imprisonment,
respectively.
Casanova went to trial. The jury found him guilty of
witness tampering and making false statements, but acquitted him on
the conspiracy count. Casanova was sentenced to twenty-eight years'
imprisonment and five years of supervised release. He now appeals
and asks this court to vacate his conviction and remand for a new
trial.
II.
Casanova makes three claims of error: that (1) the district
court violated his Sixth Amendment right to a fair and impartial jury
trial when it failed to individually question all prospective jurors
about potential racial bias; (2) the government's fingerprint expert
made a prejudicial false statement exaggerating the accuracy of
fingerprint analysis as a method of forensic identification; and
(3) the district court violated Federal Rule of Evidence 403 when
it allowed the government to introduce prejudicial testimonial
evidence as to Jeffreys's physically abusive treatment of the
prostitutes who worked for him.
Casanova did not preserve any of his claims, and thus our
review is for plain error. Casanova "must show that (1) an error
occurred, (2) the error was obvious, (3) the error affected
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substantial rights, and (4) the error seriously impaired the fairness,
integrity, or public reputation of judicial proceedings." United
States v. Espinal-Almeida, 699 F.3d 588, 600 (1st Cir. 2012) (citing
United States v. Delgado-Hernández, 420 F.3d 16, 19-20 (1st Cir.
2005)).
A. Voir Dire
Casanova first challenges the district court's failure to
individually question every prospective juror about racial bias after
at least one juror at sidebar professed to harbor such prejudice
despite not having revealed that prejudice during group voir dire.
Before trial, the parties filed lists of proposed questions
they wished the court to ask during voir dire. Casanova did not submit
any question pertaining to racial bias. On the first day of jury
selection, the court asked defense counsel if he "wanted [the court]
to ask a racial bias question." Defense counsel assented, without
making any suggestions or requests regarding the form or substance
of the court's questioning.
At the start of voir dire, the court addressed the entire
pool of prospective jurors and explained that it would ask them a
series of questions. The court instructed the group of jurors to stand
up to answer "yes," and informed them that anyone who did so in response
to any question would be subsequently questioned at sidebar. The
court then asked the group of jurors questions on various topics.
When it reached the topic of racial bias, the court stated that
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Casanova was African American and admirably noted, "[i]t is difficult
sometimes in our society for people to talk openly about issues such
as race or racial bias or prejudice . . . but your duties and obligations
as citizens and as potential jurors in this case require your complete
honesty and candor." The court followed up with two questions to the
group: (1) whether any juror had "any feelings of any kind that may
affect [his or her] ability in any way to be a fair and impartial
juror in the trial of an African American defendant," and (2) whether
any juror "fe[lt] that the defendant, Mr. Casanova, [was] more likely
to have committed the offenses charged against him because of his
race." Three jurors (Nos. 7, 67, and 70) stood up to the first
question; none to the second.
Once it finished questioning the jury pool as a group, the
court individually interviewed those jurors who had provided
affirmative responses. With respect to the three jurors who had
acknowledged potentially harboring racial prejudices, the court
questioned Juror 7 but filled all juror slots before reaching Jurors
67 and 70. Juror 7 explained that he was concerned about the large
number of African Americans in prison, and felt that "something needs
to be done" about it. In addition, two other jurors, who had answered
affirmatively to questions unrelated to racial bias, made statements
at sidebar that touched upon race. Juror 28, who indicated she had
previously been involved with the criminal justice system, explained
at sidebar that her daughter had been hit by a car and that the driver
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had been criminally charged. When asked whether she thought the
incident would affect her impartiality as a juror in Casanova's case,
she responded, "I would like to think I hate the person and not the
color of his skin, so I think I could be impartial." Juror 34, who
had responded to multiple voir dire questions, volunteered at sidebar
that he harbored racial prejudice: he acknowledged that he "ha[d]n’t
been the same since they let OJ Simpson go," and added that he had
not responded to the court's group questions regarding racial bias
because he "didn’t want to be embarrassed by it." The court excused
Jurors 7, 28, and 34.
Casanova argues that the district court's reliance on group
voir dire as a mechanism for exposing prospective jurors' potential
racial biases was inadequate to safeguard his right to an impartial
jury. He argues that the court instead should have individually
questioned each prospective juror regarding whether they harbor any
such prejudice. This court reviews a district court's conduct of voir
dire for abuse of discretion, see United States v. Gelin, 712 F.3d
612, 621 (1st Cir. 2013), but where the defendant failed to object
contemporaneously to the district court's procedure, we review only
for plain error, see Espinal-Almeida, 699 F.3d at 600. At no point
during the jury selection process did Casanova request that the court
individually question the prospective jurors regarding racial bias.
Accordingly, plain error review applies.
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Casanova's attempt to establish plain error is foreclosed
by United States v. Parker, 872 F.3d 1 (1st Cir. 2017). Parker
squarely rejected the categorical "theory . . . that if the case facts
suggest the judge should voir dire on race, then only an individual
voir dire will do." Id. at 8.2 To the contrary, the court emphasized
that
where "the subject of possible racial bias must
be 'covered' by the questioning of the trial
court in the course of its examination of
potential jurors," the Supreme Court has been
"careful not to specify the particulars by which
this could be done" -- noting, for example, that
it has "not . . . require[d] questioning of
individual jurors about facts or experiences
that might have led to racial bias."
Id. (quoting Mu'Min v. Virginia, 500 U.S. 415, 431 (1991)); see also
United States v. Hosseini, 679 F.3d 544, 555 (7th Cir. 2012) (holding
that "ordinarily, questioning jurors as a group" is constitutionally
sufficient "even when the defendant belongs to a racial, ethnic, or
religious minority and juror bias on one or more of these grounds
might be a concern").
Casanova makes two attempts at distinguishing Parker.
First, he argues that the district court here had actual evidence
that the group voir dire was inadequate at ferreting out racial bias
because one juror disclosed harboring such prejudice at sidebar after
2 We need not address the parties' disagreement as to whether
the court's inquiry into racial prejudice in Casanova's case was
constitutionally mandated. If group voir dire suffices when the
inquiry into racial bias is mandatory, then a fortiori it suffices
when the inquiry is performed at the court's discretion.
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remaining silent during group questioning. Second, he argues that
his case is particularly "racially charged" because he was charged
with a violent offense (attempt to kill) and the trial evidence showed
that one of his alleged co-conspirators had abused white prostitutes,
whereas in Parker the defendant was charged with a non-violent crime
(possession of a firearm) and there was, in Casanova's words, no
"cross-racial perpetrator-victim dynamic."
As to Casanova's first argument, we reject the proposition
that upon discovering that a prospective juror was not forthcoming
during group voir dire, a district court is required to conduct an
individualized inquiry as to racial bias for every other juror in
the pool. Such a rule would impose a potentially significant burden
on the court and on jurors. It would also withdraw defense counsel's
discretion to decide, as a tactical matter, whether to ask the court
for individual voir dire and so provide the prosecution the
opportunity to challenge any jurors who would -- at sidebar but not
before their peers -- disclose a pro-defendant bias. In Casanova's
case, the evidence of racial bias in the jury pool cut both ways.
Juror 7 disclosed bias favoring the defendant, whereas Juror 34
disclosed bias against the defendant.
And in any event, the fact that one or more jurors who are
not forthcoming during group voir dire later reveal a prejudice does
not render it any more likely that the remaining members of the jury
pool harbor hidden prejudice. It cannot be that, as Casanova would
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have us find, group voir dire is generally constitutionally
satisfactory but is rendered infirm whenever a juror discloses his
prejudice for the first time at sidebar. In such an instance, it is
sufficient for the court to excuse the biased juror(s), as the court
did here.
We also reject Casanova's second argument that this case
differs from Parker because it, in his view, raises greater concerns
regarding the possibility of racial prejudice affecting the jury's
deliberations. We reject the argument's premise from the outset, as
the testimony introduced at trial actually revealed that Jeffreys
had abused prostitutes of different racial backgrounds, not just white
prostitutes. In addition, Casanova and his victim were of the same
race. Thus, the case lacked the cross-racial perpetrator-victim
dynamic Casanova suggests. In any event, Parker soundly held that
group voir dire was ordinarily adequate even where the inquiry into
racial bias is constitutionally required because "[r]ace [is] . . .
'inextricably bound up with the conduct of defendant's trial.'"
Parker, 872 F.3d at 7 (quoting United States v. Brown, 938 F.2d 1482,
1485 (1st Cir. 1991)).
B. Finger and Palm Print Expert Testimony
Casanova next asserts on appeal, for the first time, that
one of the government's witnesses provided what he characterizes as
demonstrably false testimony regarding the reliability of fingerprint
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analysis as a technique of forensic identification. He did not object
to or move to strike this purportedly misleading testimony.
At trial, Ioan Truta, a senior criminalist in the Latent
Print Unit of the Boston Police Department, testified about the
history of fingerprint examinations in criminal investigations, the
"ACE-V" method (analysis, comparison, evaluation, and verification)
his department uses to compare fingerprints and perform
identifications, and the results of analyses he performed on prints
collected from the scene of Thomson's shooting. Truta identified one
particular palm impression, located on a straw wrapper found in the
back seat of the car in which Thomson was shot, as belonging to
Casanova. Witnesses had testified that Casanova was in that back
seat. On cross-examination, Truta testified, "[a]s far as I know,
in the United States the[re] are not more than maybe 50 erroneous
identification[s], which comparing with identification[s] that are
made daily, thousands of identification[s], the error rate will be
very small." Truta had previously cautioned that it would be
inappropriate to claim that the rate of false-positive
identifications is zero. Truta then made similar assertions on
redirect regarding the number of instances of false positives known
to him and the prevalence of fingerprint identifications. Truta
emphasized that his testimony was based on what he had read in the
literature, and expressly acknowledged that at the time of his
testimony, there was "no known database of latent prints" that would
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permit a statistical analysis of false-positive rates for fingerprint
identifications.
The crux of Casanova’s challenge is that Truta "claimed
falsely that the error rate in fingerprint comparisons was effectively
zero" but that it is undisputed in the scientific community that the
false-positive rates for fingerprint analyses are "greater than
zero." 3 Casanova argues that this alleged misrepresentation was
prejudicial because Truta’s palm-print identification of Casanova
provided corroboration to testimony from unreliable witnesses who
had placed Casanova in Thomson's car on the night of the shooting.
But Casanova's argument mischaracterizes what happened.
Truta never testified that the error rate for fingerprint examinations
was "effectively zero," "virtually zero," or "functionally
indistinguishable from zero." Rather, Truta testified that in light
of the number of recorded errors he knew of from his own review of
the literature, and the number of fingerprint identifications made
daily, he expected the error rate to be "very small." He did not
calculate or assert any particular error rate and he specifically
cautioned that whatever the rate may be, it would not be zero. On
redirect he acknowledged that there was no statistical method
3 Casanova does not renew on appeal his argument to the
district court that expert testimony based on fingerprint analysis
should be generally inadmissible. Any such challenge is waived, see
United States v. Henry, 848 F.3d 1, 7 (1st Cir. 2017), and would fail
in any event, see United States v. Pena, 586 F.3d 105, 109-11
(1st Cir. 2009) (noting generally that expert testimony on latent
fingerprint identifications has been routinely allowed).
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generally accepted in the field for determining actual statistical
probabilities of erroneous identifications. This is the classic
stuff of cross-examination and redirect.
Even assuming, arguendo, that the jury had understood Truta
as suggesting that the false-positive rate for fingerprint
identifications was as low as "50 . . . out of millions," Casanova
has not shown that such implied rate would have been so off base as
to have made its introduction plain error.
Casanova grounds his entire challenge on a single
post-trial report that provided recommendations to the executive
branch regarding the use of fingerprint analysis as forensic evidence
in the courtroom. See President's Council of Advisors on Sci. and
Tech., Forensic Science in Criminal Courts: Ensuring Scientific
Validity of Feature-Comparison Methods (2016). The report, issued
after Casanova's trial had already ended, is not properly before this
court, and in any event it does not endorse a particular false-positive
rate or range of such rates.
C. Testimony About Jeffreys's Treatment of Women Prostitutes
Finally, Casanova challenges the admission at trial of
evidence as to Jeffreys's abusive treatment of the women who worked
for him as prostitutes. Several former prostitutes described in
detail Jeffreys's sex-trafficking enterprise and his resort to
predatory and coercive tactics -- isolating and exploiting vulnerable
women, withholding their income, and prohibiting them from
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interacting with other men -- as well as outright violence in order
to maintain control over them. Casanova contends that the admission
of this testimony violated Federal Rule of Evidence 403 in that the
risk of unfair prejudice to him substantially outweighed the
testimony's probative value.
We review preserved objections to evidentiary rulings for
abuse of discretion, United States v. Ford, 839 F.3d 94, 109 (1st
Cir. 2016), and unpreserved objections for plain error, United States
v. Almeida, 748 F.3d 41, 50 (1st Cir. 2014). Before trial, the
government moved in limine to admit evidence as to "Casanova's
involvement in Jeffreys' criminal organization." Casanova objected
on the basis that evidence of his alleged participation in Jeffreys's
activities would be more prejudicial than probative as to him, but
did not specifically argue that testimony regarding Jeffreys's
treatment of his prostitutes would be unduly prejudicial. And when
that testimony was given at trial, Casanova did not challenge it.4
Casanova did not preserve the Rule 403 claim that he now brings on
appeal. See id. (holding that objecting to a motion in limine to admit
evidence does not by itself preserve an objection to the admission
of that evidence where the district court's in limine ruling admitting
4 Casanova cites in his brief a few objections that he made
to testimony relating to Jeffreys's criminal activities, but none
of the objections concerned Jeffreys's resort to violence against
his prostitutes.
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the evidence was not final and the appellant failed to object at
trial).
The district court committed no error, much less plain
error, in admitting testimony as to Jeffreys's abusive treatment of
the prostitutes who worked for him. The testimony had substantial
probative value. The government's theory of the case was that
Jeffreys ordered Casanova to kill Thomson to prevent him from
cooperating with law enforcement. The testimony at issue was
probative of Jeffreys's motive in ordering Thomson killed because
it delineated the scope and seriousness of the criminal enterprise
Jeffreys wanted to protect by ordering the murder.
Moreover, Casanova's claim of "spillover" prejudice rings
hollow. No witness at trial testified that Casanova himself engaged
in any of the abusive acts attributed to Jeffreys. One former
prostitute testified, on the contrary, that Casanova "was always
really nice to [her] and polite. . . . A lot of guys were really
disrespectful, and he wasn't." Casanova himself acknowledges in his
brief that the "[w]itnesses consistently described Casanova as having
no real involvement with Jeffreys' sex trafficking enterprise." The
jury clearly distinguished between Casanova and Jeffreys and
acquitted Casanova of the conspiracy charge. To the extent Casanova
nonetheless feared that the jury might be inclined to punish him for
Jeffreys's acts, he could have requested a limiting instruction, but
never did so. Under these circumstances, Casanova's speculative
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assertion on appeal that testimony regarding Jeffreys's violence
inflamed the jury against him lacks force. We conclude that the
admission of the testimony did not clearly violate Federal Rule of
Evidence 403.
III.
We affirm Casanova's conviction.
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