United States v. Awer , 770 F.3d 83 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-2068
UNITED STATES OF AMERICA,
Appellee,
v.
KENT AWER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Thompson, Baldock,* and Selya,
Circuit Judges.
Arza R. Feldman, with whom Feldman and Feldman was on brief,
for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, was on brief, for
appellee.
October 29, 2014
*
Of the Tenth Circuit, sitting by designation.
BALDOCK, Circuit Judge.
A federal jury convicted Defendant Kent Awer of
possessing cocaine base with intent to distribute. He appeals.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. The Facts1
A. The Malibu
In the cool, early morning hours of May 2, 2006, an
officer with the East Providence Police Department noticed a Chevy
Malibu driving well over the speed limit in Rhode Island. He
attempted to pull the car over. The Malibu, however, continued
driving for a half-mile and changed lanes without signaling before
finally submitting. The officer then approached the vehicle on
foot, where he found Dianikqua Johnson behind the wheel, Defendant
Kent Awer in the passenger seat, and a Mr. Simmons in the back.
Upon questioning, Johnson admitted she did not have a driver's
license. At the same time, Defendant leaned over Johnson and told
the officer he had rented the car and they were traveling from New
York City; he also produced the rental agreement. Another officer
soon arrived, after which the officers arrested Johnson for being
an unlicensed driver.
1
We present the facts pertaining to pre-trial evidentiary
rulings, such as suppression, in the light most favorable to the
district court. See United States v. Oquendo-Rivas, 750 F.3d 12,
16 (1st Cir. 2014). Because sufficiency of the trial evidence is
not contested, we present a more neutral description of trial
facts. See United States v. Powers, 702 F.3d 1, 4 (1st Cir. 2012).
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While securing Johnson, the two officers noticed
Defendant moving suspiciously back in the Malibu.2 As a result,
the officers converged on the car's passenger side to investigate.
The officer who stopped the car observed Defendant sweating and
breathing heavily, so he asked Defendant to exit the car.
Defendant reached for the center console instead, prompting the
officer to grab his hand and pull him from the car. Moments later,
Defendant admitted he had marijuana in his pocket. An officer
found it and arrested Defendant. In all, only three minutes or so
passed between the initial stop and Defendant's arrest.
That left Simmons, who did not have a driver's license,
either. Moreover, the Malibu's rental agreement prohibited a third
party from driving. Thus, the officers requested a tow truck for
the Malibu. The officers searched the car before having it towed
away. During this inventory search, the officers found over 500
grams of cocaine inside an unlocked bag in the trunk. The bag also
contained men's clothes and documents bearing Defendant's name.
Defendant was later indicted in the District of Rhode Island for
2
At a suppression hearing, one officer testified Defendant
was "moving around in the passenger compartment" and "you could see
his shoulders moving from side to side." The other officer
testified Defendant "kept looking back at us, kept moving around
the vehicle. . . . He was bending over forward. He was turning to
the left, turning to the right, and it appeared to me at the time
that either he was trying to conceal something or . . . retrieve
something." At trial, the latter officer testified Defendant "kept
looking back towards us. . . . He kept looking around. He kept
making movements to his left and right and kept bending over."
This will come into play later.
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possessing with intent to distribute 50 grams or more of cocaine
base in violation of 21 U.S.C. § 841(a)(1).
B. The Driver
After her arrest, Johnson was placed in a police station
holding cell. That same day, an attorney visited her. Johnson
told this attorney she was responsible for the cocaine in the
Malibu, not Defendant. The attorney advised Johnson to exercise
her right not to incriminate herself. Johnson's silence, the
attorney said, would be helpful for future plea negotiations.
Throughout her time in prison, however, Johnson openly inculpated
herself numerous times, both with handwritten statements and in
conversations with fellow inmates. Her first handwritten
statement, which a Rhode Island Department of Corrections
lieutenant notarized on June 25, 2006, reads as follows:
To the honorable Court's
I Dianikqua Johnson would like to
speak on my behalf. I Dianikqua Johnson want
to notify Providence Superior Court I take
sole Responsibility of this charge I am being
charge with (manufacturing/possessing/delivery
of cocaine.) Mr. Simmons and Mr. Awer that's
Being charge with me had no knowledge of my
criminal activity. I also would like to thank
the courts for taking time out to listen to
this matter
Truthfully
yours
Dianikqua Johnson
Her second statement, which was not notarized or dated, reads:
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I Dianikqua Johnson, would like to make
a statement on my behalf. The charges I am
being charge with Mr. Awer and Mr. Simmons I
take full Responsibility of those charges. I
acted alone. They didn't have no knowledge of
my criminal activity.
On May 01, 2006, I called Mr. Awer to
make sure he could give me a ride to Mass. He
stated that he will give me a Ride. And would
I Be able to drive Because he's Real tierd. I
told him yes. This was around 8 pm. 15 minutes
later he call to let me know he was downstairs
in the parking lot of my grandmother projects
(tompkins).
When I Reached the car Awer was already
Relaxing in the passenger seat. I put my bags
down by the trunk and I walk over to the
driver side to open the door so I can pop the
trunck on the car key chain. While I was at
the trunk of the car, I took the packages of
drugs were being charge out my hand Bag then
put them in Awer's Black Ascot Bag. Because I
felt his Bag had more spots to hide the drugs
in it and it did. I then got in the car and
Mr. Awer told me where to go to pick his
friend Mr. Simmons up Before leaving for Mass.
Picked him up on Wilougbie ave at 9 pm. I Got
the Drugs from my uncle. Well I stole them; I
know we needed the money so I figure instead
of my uncle using all of them, I can get rid
of some. Sell a little and us a little.
Johnson also repeated her story to a later-appointed attorney.
Time and again, Johnson expressed intense worry that Defendant
would be held responsible for her actions. She even refused a plea
agreement because she feared hurting Defendant.
Tragically, in an apparently unrelated imbroglio, Johnson
was murdered before she could appear at Defendant's trial.
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C. The Evidence
Prior to Defendant's trial, the district court declined
to suppress the cocaine found in the Malibu's trunk because: (1)
Johnson's speeding justified the initial stop, (2) the force used
to pull Defendant from the car was reasonable and did not transform
the encounter into a de facto arrest, and (3) the officers'
decision to impound the Malibu was reasonable. See United States
v. Awer, CR. No. 06–061S, 2007 WL 172258 (D.R.I. Jan. 23, 2007).
Later, the district court admitted Johnson's handwritten
statements under Fed. R. Evid. 804(b)(3), which allows for
introduction of certain statements against criminal interest.3 The
court excluded testimony from Johnson's two lawyers, however,
because her statements to them were not against her criminal
interest at the time she made them. The court also held this
testimony was not admissible under the Rule 807 "residual" hearsay
exception because it would be "merely cumulative." See United
States v. Awer, 502 F. Supp. 2d 273 (D.R.I. 2007).
D. The Trial
Defendant's trial lasted two days. Near the beginning,
the district court told the jurors, among other things, that
"statements, arguments, and questions by lawyers are not evidence"
3
In its order, the district court repeatedly referred to the
admissibility of Johnson's written "statement," singular. That
said, both of the above written statements were admitted at trial.
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and that they should disregard any statement or item of evidence if
the court instructed them to do so.
The Government called a number of East Providence police
officers to testify, including two officers who interviewed
Defendant at the police station on the day of his arrest. Both
officers testified they recited Defendant's constitutional rights
to him, and Defendant affirmed he understood these rights.
Afterward, they testified, Defendant said he purchased the cocaine
in New York City. He then gave a few details about his cocaine
supplier and methods before ending the interview, according to the
officers. On cross-examination, the officers conceded they had not
recorded the interview, handwritten notes from the encounter did
not mention Defendant admitting to possession of the cocaine, and
Defendant had never in writing waived his rights or claimed
possession of the cocaine (although they still maintained he had
done so verbally).
Another East Providence officer testified last for the
Government, as an expert witness. On direct examination, he said
one method drug dealers use to avoid detection is to "have females
and children in the car." On cross-examination, he conceded police
did not fingerprint any of the items seized from Defendant's car.
On re-direct, the prosecutor asked him why no fingerprints were
taken. The officer responded, "We had the Defendant rented the
vehicle, the drugs were found in his bag with his paperwork and
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information, and he gave a confession." Defense counsel
immediately objected to the term "confession." The court promptly
instructed the jurors to disregard that term, as they (and not the
witness) were the ultimate deciders of how to characterize
Defendant's statements at the police station.
The prosecutor was then allowed to ask anew about why
fingerprints were not sought. This time, the officer responded:
The different factors regarding the evidence.
The Defendant, the rental car was in the
Defendant's name, the drugs were found in his
bag with male's clothing and items of
paperwork in his name. The probability--also,
the statement that was given. The probability
of finding fingerprints in the hundreds of
drug cases I've been involved in, we've gotten
fingerprints four times. The factors I named
beforehand, that's what we would call a slam-
dunk in the narcotic investigation world. So
we didn't fingerprint.
Defense counsel again quickly objected, this time to "slam-dunk."
The court promptly told the jury to disregard that term, as well.
Moments later, after the prosecution had rested,
Defendant moved for a mistrial. Defense counsel contended "slam-
dunk" was "an extremely inappropriate and extremely prejudicial
comment," especially coming from an expert, and "a bell like that
cannot be unrung" with a cautionary instruction. In response, the
Government observed Defendant had broached the fingerprint issue,
and it argued a curative instruction would suffice. The court,
describing the comment as "very unfortunate and inappropriate,"
requested overnight briefing on the mistrial question because "I
-8-
don't know whether an instruction is going to be sufficient." In
the interim, the court again instructed the jury "to disregard that
statement, and disregard the view of [the officer] that the case
was a so-called slam-dunk." The court then reiterated the jury's
role and concluded by emphasizing that the remark "should have no
bearing on your deliberations in this matter."
The next morning, the court denied the mistrial motion,
relying on precedent indicating that prompt curative instructions
can satisfactorily ameliorate the impact of improper testimony in
all but the most prejudicial of circumstances. See, e.g., United
States v. Sepulveda, 15 F.3d 1161, 1184–85 (1st Cir. 1993). Here,
the court noted, mistrial was not appropriate because "this jury is
a sophisticated jury," the comment was "random," and the comment
could cut against the Government because the jury might view it as
an illegitimate attempt to "shore up" a flawed investigation
process. "The bottom line," the court stated, "is I think this has
been a very fair trial all the way through . . . ."
For his defense, Defendant introduced Johnson's
handwritten statements and the testimony of one of Johnson's
cellmates and the officer who notarized her first statement. The
cellmate testified she and Johnson were friends and she "thought
[Johnson] was honest." She also testified Johnson was often
emotional and upset, and Johnson had asked her for advice about how
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to deal with a distressing situation. According to the cellmate,
she advised Johnson to make a notarized statement on the subject.
During closing arguments, the prosecutor told the jurors
they had learned, from the officer's expert testimony, "that a good
way to transport drugs is to put a woman in the car, have a woman
driving the drugs." After the prosecutor finished closing, defense
counsel objected to this remark. The court informed the prosecutor
she had indeed misstated the expert's testimony: "What he testified
to was it's a common tactic to have a female and children in the
car," the court emphasized, "not driving the car. So this has to
be corrected." Defense counsel quickly moved for a mistrial, which
the court just as quickly denied. The court then explained to the
jury how the prosecutor had misstated the expert's testimony.
Before dismissing the jury to deliberate, the court again
gave instructions on the expert's objected-to statements:
Now, I want to remind you at this point that
an expert witness or any witness, for that
matter, is not entitled to give an opinion on
the overall strength of the Government's case.
No witness is entitled to express such an
opinion. That is the jury's job. And you'll
recall that this is why during the course of
the trial I instructed you to disregard a
statement made by [the expert] in which he
expressed an opinion about the strength of the
case. I gave you an explicit instruction to
disregard that opinion and I struck his
testimony. . . .
By sustaining the objection, I've determined
that the evidence should not be considered by
you. And if I struck testimony that was
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stated by the witness, you are to disregard
it. . . .
Now, you heard evidence in this case that Kent
Awer, the Defendant, made a statement in which
the Government claims he admitted certain
facts. It is for you to decide, one, whether
Mr. Awer made that statement; and two, if so,
how much weight to give it. In making those
decisions you should consider all of the
evidence about the statement, including the
circumstances under which the statement may
have been made and any facts or circumstances
tending to corroborate or contradict the
version of events described in the statement.
The jury ultimately convicted Defendant. A week later,
Defendant moved for a new trial based on the expert's and
prosecutor's remarks. The court denied this motion. All errors,
the court found, were addressed immediately with apt jury
instructions, and the statements' impact was negligible. Also, the
prosecutor's statement was "clearly not intentional and, if
anything, [was] likely the product of the mere 'haste or confusion'
that is normal in the hurly-burly of trial." Thus, combined or
alone, the errors did not justify a new trial. See United States
v. Awer, CR. No. 06-061S, 2007 WL 2206789 (D.R.I. July 30, 2007).
E. The Aftermath
Before sentencing, the court (at Defendant's request)
continued the case for over five years, in part to allow Defendant
to challenge prior convictions that required a life sentence. At
long last, on August 16, 2013, the court sentenced Defendant to 20
years in jail. Defendant appealed, raising three issues for us to
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decide. First, he contends the district court erred by failing to
suppress the cocaine found in the trunk of his car pursuant to the
Fourth Amendment. Second, he argues the court abused its
discretion by excluding the testimony of Johnson's two lawyers.
Third, he asserts the court abused its discretion by not declaring
a mistrial based on certain statements made at trial.
II. The Cocaine
Defendant first argues the district court, per the Fourth
Amendment, should have suppressed the cocaine found in the Malibu's
trunk. "In reviewing a district court's denial of a motion to
suppress, we review the facts 'in the light most favorable to the
district court's ruling on the motion, and we review the district
court's findings of fact and credibility determinations for clear
error.'" United States v. Brake, 666 F.3d 800, 804 (1st Cir. 2011)
(citation omitted). "We review de novo any conclusions of law."
United States v. Mouscardy, 722 F.3d 68, 72 (1st Cir. 2013).
The Fourth Amendment enshrines the people's right "to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures." Defendant bears the burden of
showing a Fourth Amendment violation here, United States v. Werra,
638 F.3d 326, 330 (1st Cir. 2011), and he posits two theories for
why the court should have suppressed the cocaine.4
4
In his opening brief, Defendant initially provides only one
theory for exclusion--i.e., police de facto arrested him without
probable cause. A closer reading of his briefs, however, also
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A. Reasonable Suspicion to Investigate Further
Under well-settled law, police can permissibly detain "an
automobile and its occupants pending inquiry into a vehicular
violation." Arizona v. Johnson, 555 U.S. 323, 327 (2009)
(referencing Terry v. Ohio, 392 U.S. 1 (1968)). Accordingly,
Defendant admits police lawfully stopped his Malibu for speeding.
He also concedes police properly arrested Johnson. He only argues
police did not have sufficient reasons after Johnson's arrest to
justify detaining him any further. The only lawful option
available to police after Johnson's arrest, he asserts, was to let
him go; as such, the subsequent investigation was an illegal
"fishing expedition." The law and the facts belie this contention.
To begin, the Supreme Court has made it perfectly clear
that "during a lawful traffic stop an officer may order a passenger
out of the car as a precautionary measure, without reasonable
suspicion that the passenger poses a safety risk." Brendlin v.
California, 551 U.S. 249, 258 (2007) (emphasis added) (citing
Maryland v. Wilson, 519 U.S. 408, 414–15 (1997)). Here, we have an
undisputedly lawful traffic stop, and we have police ordering
Defendant, a passenger, out of the car. Thus, reasonable suspicion
was almost certainly not needed in this situation.
reveals the reasonable suspicion theory detailed below. Whether
Defendant raised this additional theory at trial is unclear; out of
an abundance of caution we analyze and dismiss it here.
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That said, Defendant contends the initial stop was
complete once Johnson was arrested, and reasonable suspicion was
therefore essential to continue investigating him. See United
States v. Branch, 537 F.3d 328, 337 (4th Cir. 2008) ("[R]easonable
suspicion of a crime is necessary to extend a traffic stop for
investigatory purposes." (emphasis added)); cf. United States v.
Sowers, 136 F.3d 24, 27 (1st Cir. 1998) (Courts must determine
"whether the actions undertaken by the officer following the stop
were reasonably responsive to the circumstances justifying the stop
in the first place, as augmented by information gleaned by the
officer during the stop." (emphasis added)). The record does not
support this claim. Only three or so minutes passed--at most--
between the Malibu pulling over and Defendant's being ordered out
of the car. This strongly suggests, to put it mildly, that the
initial stop was ongoing. Moreover, the officers noticed Defendant
moving around while they were securing Johnson, not after.
Finally, although the record indicates an officer asked Defendant
for his driver's license, nothing shows Defendant was able to
produce a license.5 Thus, the initial stop could not have been
over, as the officers still had to figure out what to do with the
Malibu when they had no licensed or authorized driver on hand.
5
To the contrary, one officer testified if Defendant had
produced the license he would have noted this in his report. The
officer made no such note, suggesting no license was produced.
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Regardless, the officers' telling Defendant to exit the
vehicle was reasonable. At least six facts, taken together, point
to possible criminal activity on the part of Defendant: (1) the
initial violation (traveling well over the speed limit); (2) the
subsequent violation (ignoring the order to pull over); (3)
Defendant's apparent control of the Malibu (as evidenced by his
talking over Johnson and the rental agreement); (4) Defendant's
movements while officers were away (suspicious); (5) Defendant's
visage when officers returned (heavy breathing and sweating); and
(6) the time of day (just past midnight). These facts are
sufficient. See, e.g., United States v. Chaney, 584 F.3d 20, 26
(1st Cir. 2009) ("Here, the officer's initial inquiries into
Chaney's identity took at most a minute or two and did not
measurably extend the duration of the stop. Any additional delay,
including that attributable to the records check, was independently
warranted by the officer's reasonable suspicion, based on Chaney's
implausible answers and nervous demeanor, that Chaney was giving a
false name and might be involved in other criminal activity."
(emphasis added)). Moreover, these facts distinguish United States
v. McKoy, 428 F.3d 38 (1st Cir. 2005), which is the primary case
Defendant relies upon. In McKoy, we held a person's nervousness
and movement in a car parked in a high-crime area were not enough
to justify a Terry frisk. See id. at 41. Although the present
situation bears some resemblance to McKoy, unlike McKoy the
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officers here were faced with more than just nervousness and
furtive movements in questionable surroundings. Chiefly, they were
dealing with a car that had attempted to evade police after being
caught speeding, and with a man who appeared to control that car.
That pushes this case beyond McKoy.
Defendant attacks these facts on an array of grounds.
For starters, he attempts to pawn off the half-mile police evasion
on Johnson: "she was the driver" and he was "merely a passenger,"
he claims, "who had no control over when the vehicle stopped."
Thus, according to Defendant, it was clear error for the district
court to take police evasion into account when analyzing the
decision to investigate him. If true, though, then why did
Defendant attempt to monopolize the conversation with the initial
officer? And was it not his rental car (as he otherwise
steadfastly maintains)? Could not an officer reasonably surmise
that if Defendant was doing the talking and in possession of the
car then it was quite possible he was also in control of Johnson's
driving? We think so.
Defendant also cites the district court's vocal
"skepticism" about the officers' testimony. Even if the court was
skeptical at hearings--for example, about Defendant's profuse
sweating--it resolved these doubts in its written fact findings in
favor of the officers. See, e.g., Awer, 2007 WL 172258, at *1
nn.1–2 (finding the officers' testimony credible). Our job is to
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determine whether the court's fact findings and credibility
determinations are clearly wrong, not to decide such questions de
novo or divine the court's inner thoughts from transcripts of the
hearings.
Next, Defendant assails in a mishmash of ways the
officers' reliance on his "suspicious" movements. Defendant first
protests because the initial officer failed to see any furtive
movements from Defendant when he was following the vehicle. This
is trivial, however, as a lack of suspicious activity at one
instant hardly alters the existence of suspicious behavior at a
later instant. What officers did see and rely upon is the crux of
the matter.6 Defendant next contends his movements were not
suspicious because he was searching for his license. This is sheer
speculation, with no basis in the record. Third, Defendant
attempts to distinguish cases allowing police to rely on furtive
movements, see, e.g., Sibron v. New York, 392 U.S. 40, 66-67 (1968)
(a suspect's deliberately furtive movements when approached by
police officers "are strong indicia of mens rea"), by contending
furtiveness requires more than merely moving a shoulder or bending
and turning. As detailed above, however, the officers testified
Defendant moved his shoulders, moved about the vehicle, kept
6
This same principle squelches a number of other "absence of
evidence" objections raised by Defendant (e.g., Defendant argues it
matters that officers didn't see him breathing heavily or sweating
when they first approached the vehicle).
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looking around, turned left and right, and bent over forward as if
he was trying to conceal or retrieve something. See supra note 1.
Thus, even assuming Defendant is correct about the law on this
point, his own actions still doom him. In the end, the district
court found these various movements were "suspicious," Awer, 2007
WL 172258 at *1, *4, and we see no basis for clear error.
To recap, even if reasonable suspicion was required--
which it likely was not--the facts here gave officers "at least 'a
minimal level of objective justification' for the belief that
criminal activity [was] afoot." Branch, 537 F.3d at 337 (citation
omitted).
B. De Facto Arrest
Defendant's second argument for why the district court
should have suppressed the cocaine is that he was placed under de
facto arrest when officers forcibly removed him from the Malibu.
This arrest was unlawful, Defendant contends, because the officers
lacked probable cause. Even if probable cause was lacking at this
point, however, his removal from the car was not a de facto arrest.
A detention becomes a de facto arrest when "'a reasonable
person in the suspect's position would have understood his
situation' . . . to be tantamount to being under arrest." United
States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994) (quoting
Berkemer v. McCarty, 468 U.S. 420, 442 (1984)). "But . . . the
mere presence of arrest-like features is not fatal to the validity
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of a particular stop." United States v. Pontoo, 666 F.3d 20, 30
(1st Cir. 2011). Even a significant use of force, if proportional
to the circumstances, does not transform a brief detention to a de
facto arrest requiring probable cause. See id.
Again, "the [Supreme] Court has held that officers may
order the driver and any passengers to get out of the car until the
traffic stop is complete." United States v. Fernandez, 600 F.3d
56, 59 (1st Cir. 2010) (citing Maryland, 519 U.S. at 415).
Furthermore, we have held that when a "defendant refused to accede
to [an officer's] request [to exit a vehicle], the officers were
constitutionally entitled to remove him from the vehicle . . . ."
United States v. Ruidíaz, 529 F.3d 25, 33 (1st Cir. 2008). We
explained above that the officers lawfully ordered Defendant to
exit his rental car. And, as the district court astutely observed,
the right to order a passenger out of a vehicle would be a hollow
one indeed if police could not use a reasonable amount of force to
ensure compliance with such an order. Thus, force was proper here.
To the extent Defendant claims the force was excessive
under the circumstances, we cannot agree. The district court found
that, rather than cooperate with the order to get out of the car,
Defendant instead "made a fast motion towards his left side and the
center console area." Awer, 2007 WL 172258, at *1. The officer,
according to the court, then "used just enough force" to pull
defendant from the car. Id. at *4. We see no basis for clear
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error on these points. Defendant asserts he was "violently
extracted" from the car. But the amount of "violence" used was
plainly reasonable given Defendant's actions. See United States v.
Carrigan, 724 F.3d 39, 47–48 (1st Cir. 2013) (no de facto arrest
where two officers "took physical control" of the suspect, put him
on the ground on his stomach, and handcuffed him because they "had
a reasonable belief that such measures were necessary to protect
their own safety"). As such, this force did not transform an
otherwise lawful interaction into a de facto arrest. See Pontoo,
666 F.3d at 31. Accordingly, we affirm the district court's denial
of the motion to suppress.
III. Johnson's Lawyers
Defendant next argues the district court abused its
discretion by not allowing Johnson's attorneys to testify about her
statements claiming responsibility for the drugs. This evidence,
he contends, should have been admitted under either Rule 804(b)(3)
or Rule 807 of the Federal Rules of Evidence. "We review the
district court's evidentiary rulings for abuse of discretion."
United States v. Mojica-Baez, 229 F.3d 292, 300 (1st Cir. 2000).
A. Rule 804(b)(3)
Hearsay is a declarant's out-of-court statement offered
to prove the truth of the matter asserted. Fed. R. Evid. 801.
With certain exceptions, hearsay is not admissible in federal
court. Fed. R. Evid. 802. One exception is Rule 804(b)(3), under
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which hearsay is admissible if the declarant is unavailable to
testify, and the statement--when made--would have tended to expose
the declarant to criminal liability (among other requirements not
in dispute). We look at all surrounding circumstances to determine
whether a statement was against a declarant's criminal interest.
See United States v. Pelletier, 666 F.3d 1, 8 (1st Cir. 2011).
The district court found Johnson's statements to her
attorneys could not come in under Rule 804(b)(3) because they would
not have exposed her to criminal liability. We agree. The limited
case law on point counsels for exclusion, and logically so. See,
e.g., Revels v. Diguglielmo, No. Civ.A. 03-5412, 2005 WL 1677951,
at *7 (E.D. Penn. July 18, 2005) (unpublished) (state court
"correctly held that . . . Mr. Perrin's communications with his
lawyer . . . were protected by attorney-client privilege and
therefore not against his penal interest"); People v. Johnson, 482
N.Y.S.2d 188, 189 (N.Y. App. Div. 1984) ("[A] statement made to an
attorney is confidential and, therefore, not adverse to one's penal
interest . . . ."). Indeed, the primary case relied upon by
Defendant, Morales v. Portuondo, 154 F. Supp. 2d 706 (S.D.N.Y.
2001), actually counsels against his position on Rule 804(b)(3).
In Morales a man named Fornes confessed guilt to an attorney named
Servino, and the court found this confession was against Fornes'
penal interest. Id. at 712, 725—26. But Servino was not Fornes'
attorney; rather, he represented Morales, who was charged with the
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crime to which Fornes confessed. Id. at 712. In short, no
confidentiality or privilege was in play because Fornes "believed
[Servino] would take the information to the prosecuting
authorities." Id. at 726. Furthermore, Fornes confessed to
another attorney (named Cohen) and the court found this confession
was not against Fornes' criminal interest because Fornes had sought
Cohen out for legal advice and thus "fully expected" that "Cohen
would keep his conversations . . . confidential." Id. at 713–14,
726. Again, on Rule 804(b)(3), Morales in no way favors Defendant.
Nevertheless, Defendant puts forth several additional
arguments for why Johnson's statements to her attorneys were
against her criminal interest. None of them hold water. First, he
contends we must take "context" into account, see Williamson v.
United States, 512 U.S. 594, 603 (1994) ("[W]hether a statement is
self-inculpatory or not can only be determined by viewing it in
context."), the pertinent context (according to Defendant) being
that Johnson made identical statements to other people that were
against her criminal interest. Defendant essentially asks us to
adopt a sort of legal osmosis: Johnson made several statements
against her criminal interest, so any statement containing the same
information was against her criminal interest as well. This is
nonsensical, as it would require us to do the very thing Defendant
urges us not to do--ignore context. Although Johnson made a number
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of similar statements, those made in the context of the attorney-
client privilege were simply not against her criminal interest.
Defendant tries a different twist along the same lines.
Even if Johnson's statements to her attorneys were confidential, he
asserts, her later statements to third parties waived the attorney-
client privilege, subjecting her to criminal liability. See In re
Keeper of the Records (Grand Jury Subpoena Addressed to XYZ Corp.),
348 F.3d 16, 22 (1st Cir. 2003) ("[T]he attorney-client privilege
may be waived . . . . When otherwise privileged communications are
disclosed to a third party, the disclosure destroys the
confidentiality upon which the privilege is premised."). Defendant
did not contend there was a privilege waiver before the district
court, however, meaning this argument is, ironically, waived. See
Vázquez-Rivera v. Figueroa, 759 F.3d 44, 49 (1st Cir. 2014).
We decline to evade logic and case law. Johnson's
statements to her attorneys were not against her criminal interest
because, when made, they were confidential and protected by the
attorney-client privilege. Thus, the district court correctly
found her attorneys' proffered testimony about those statements to
be inadmissible under Rule 804(b)(3).
B. Rule 807
Another exception to hearsay exclusion is the "Residual
Exception," by which hearsay is admissible if: "(1) the statement
has equivalent circumstantial guarantees of trustworthiness; (2) it
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is offered as evidence of a material fact; (3) it is more probative
on the point for which it is offered than any other evidence that
the proponent can obtain through reasonable efforts; and (4)
admitting it will best serve the purposes of these rules and the
interests of justice." Fed. R. Evid. 807(a). In general,
"Congress intended the residual hearsay exception to be used very
rarely, and only in exceptional circumstances." United States v.
Trenkler, 61 F.3d 45, 59 (1st Cir. 1995) (internal quotation marks
omitted).
The district court excluded the testimony of Johnson's
attorneys under Rule 807(a)'s third element. The attorneys'
testimony would have been cumulative rather than more probative,
the court found, because it was duplicative of Johnson's own
notarized statements. Awer, 502 F. Supp. 2d at 276.
Defendant again relies on Morales to argue for admission.
There, after ruling out Rule 804(b)(3), the court admitted Fornes'
statements to attorney Cohen under Rule 807, in part because
Cohen's testimony was "vital" to Morales' case. Morales, 154 F.
Supp. 2d at 726. In line with this, Defendant argues the lawyers'
testimony here was vital--i.e., more probative than Johnson's
statements. He gives scattered reasons for this purported
vitality, which we put into three broad categories: identity,
context, and drama. First, identity: Defendant asserts the
testimony is more probative because it comes from seasoned lawyers.
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Second, context: Defendant contends the attorneys would have
testified Johnson: (a) spoke confidentially, bolstering her
credibility; (b) told the attorney on the day of her arrest the
cocaine was hers, making it unlikely she concocted the story later;
(c) talked to both attorneys outside Defendant's presence,
decreasing the possibility of coercion; (d) was very emotional and
distressed that Defendant was being accused, bolstering her
credibility, and (e) told them specifics of how she put the drugs
in Defendant's bag without him knowing. Third, drama: Defendant
argues the jury would have been more persuaded by live testimony
than by "a piece of paper."
Defendant makes a reasonable--albeit flawed--argument.7
Problem is, a reasonable argument can also be made that a jury
would find a detailed handwritten confession far more compelling
than a lawyer's third-party account, no matter how much context the
lawyer can provide.8 Likewise, a written account from soon after
the incident removes all need to rely on a witness's memory of
events long past. Because reasonable minds can disagree on whether
7
To give just one example of a flaw, Defendant's context and
drama arguments are undercut by the fact that Johnson's cellmate
testified in person, labeled Johnson "honest," and detailed
Johnson's distressed emotional state.
8
The public view of lawyers, after all, is verifiably dismal.
See Public Esteem for Military Still High, Pew Research Center
(July 11, 2013), http://www.pewforum.org/2013/07/11/
public-esteem-for-military-still-high/ ("Among the 10 occupations
the survey asked respondents to rate [for contribution to society],
lawyers are at the bottom of the list." (emphasis added)).
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the attorneys' testimony was vital, the district court's position--
that the testimony was not more probative than Johnson's written
statements--cannot be an abuse of discretion, especially when Rule
807 is "to be used very rarely" and only in "exceptional
circumstances." See United States v. Hughes, 535 F.3d 880, 882–83
(8th Cir. 2008) (district court did not abuse its discretion in
declining to admit testimony under Rule 807 in part because "the
excluded testimony was cumulative of Hughes's own testimony").
IV. Improper Statements
Finally, Defendant argues the district court erred by not
declaring a mistrial on the basis of three improper statements made
at trial: (1) the expert officer's use of the term "confession";
(2) the same expert's "slam-dunk" remark; and (3) the prosecutor's
statement that drug dealers use female drivers. We consider de
novo whether these statements were actually improper and, if so,
whether they were harmful. See United States v. Manor, 633 F.3d
11, 16-17 (1st Cir. 2011). "But we review the judge's decision
denying [Defendant's] mistrial and new-trial motions only for
'manifest abuse of discretion.'" Id. at 17 (quoting United States
v. Potter, 463 F.3d 9, 22 (1st Cir. 2006)).
Defendant tacitly admits each alleged error would not
itself merit a mistrial. Rather, he only contends the district
court abused its discretion by not declaring a mistrial based on
their cumulative prejudicial effect. We cannot agree.
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In a different context, say, where a defendant's
inculpatory statement was entirely excluded, the use of the term
"confession" at trial could be devastating. Here, however, two
officers testified at trial that Defendant made inculpatory
comments to them after his arrest. And 18 U.S.C. § 3501(e) defines
a confession as "any self-incriminating statement made or given
orally or in writing." Thus, Defendant arguably did make a
confession, like the expert stated, as that term is defined in
federal statutes. Moreover, defense counsel made clear only the
term "confession" was objectionable, not the expert's reference to
Defendant's underlying statements.9 In a scenario such as this,
"[t]he use of the word 'confession' without more . . . simply is
not 'serious' misconduct, if misconduct at all." United States v.
Scott, 267 F.3d 729, 742 (7th Cir. 2001); see also United States v.
Goodlow, 105 F.3d 1203, 1207 (8th Cir. 1997) ("Whether a statement
given to law enforcement officials should be referred to as a
confession . . . appears, at best, to be a question of semantics
and not a potential ground for misconduct."). And the court's
prompt and accurate instructions suffice to assuage any fair-trial
concerns. See, e.g., Scott, 267 F.3d at 742.
9
Indeed, moments after the "confession" comment, defense
counsel did not object when the expert testified one reason police
did not look for fingerprints was because of "the statement that
was given [by Defendant]." Supp. App'x at 557 (emphasis added).
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Similarly, the prosecutor's challenged comment during
closing argument was just a slight misstatement of the evidence,
and it was swiftly corrected by the court. Again, the expert
testified drug dealers often avoid detection by having women in the
car, whereas the prosecutor stated they often have women driving
the car. This was incorrect and improper, to be sure, but it was
hardly harmful given that the officer's original statement was
applicable to the situation here--Johnson was in the car, after
all--and therefore probably just as damning. See United States v.
Dancy, 640 F.3d 455, 463 (1st Cir. 2011)("Any error is harmless if
the government shows it is 'highly probable that the error did not
influence the verdict.'" (citation omitted)). Also, nothing
indicated this misrepresentation was intentional. "This court has
consistently held that where the prosecutor unintentionally
misstates the evidence during closing argument, a jury instruction
ordinarily is sufficient to cure any potential prejudice,
particularly where, as here, the instruction was given immediately
after the statement." Olszewski v. Spencer, 466 F.3d 47, 60–61
(1st Cir. 2006) (internal quotation marks omitted).
This leaves Defendant's cumulative argument resting
almost exclusively on the "slam-dunk" comment. The district court
rightly acknowledged this comment was more problematic. As
Defendant points out, this case was not a "slam-dunk" given
Johnson's claims of sole culpability. That said, the court
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immediately and repeatedly admonished the jury to disregard this
statement, and we have long presumed juries obey curative
instructions. See United States v. Rodriguez, 675 F.3d 48, 63 (1st
Cir. 2012); Sepulveda, 15 F.3d at 1184–85. Defendant has provided
us with no case where a mistrial was granted based on a similar
statement by itself or in conjunction with other more minor
improper statements. Trial judges are "best situated to make a
battlefield assessment of the impact that a particular piece of
improper information may have on a jury." United States v.
DiSanto, 86 F.3d 1238, 1248 (1st Cir. 1996) (citation omitted).
Here, the district court declined to grant a mistrial because the
"slam-dunk" comment was random and could have hurt the prosecution,
and because proper instructions were given. We find no manifest
abuse of discretion in that decision.
V. Conclusion
Accordingly, we AFFIRM.
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