United States v. Guy Salom , 349 F. App'x 409 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 15, 2009
No. 08-10322 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-20470-CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUY SALOM,
a.k.a. Roberto Falcon,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 15, 2009)
Before BLACK, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Guy Salom, proceeding pro se, appeals his convictions for conspiracy to
possess with intent to distribute at least 100 marijuana plants, and to maintain a
drug-involved premises, 21 U.S.C. § 846, possession with intent to distribute at
least 100 marijuana plants, 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(vii), and
maintaining a drug-involved premises, 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2.
Salom raises a number of issues on appeal: (1) the district court erred by denying
his motion to suppress evidence; (2) the district court made various procedural and
evidentiary errors during his trial; (3) the evidence presented at trial is insufficient
to support the jury’s finding that he possessed at least 100 marijuana plants; (4) the
Government failed to provide him with certain potentially exculpatory evidence, as
required by Brady v. Maryland, 83 S. Ct. 1194 (1963); (5) his trial counsel
provided him with ineffective assistance; and (6) the errors which he has identified
had the cumulative effect of depriving him of his right to a fair trial. We address
each issue in turn, and upon careful review we affirm Salom’s convictions.
I.
On appeal, Salom argues the district court erred in denying his motion to
suppress evidence seized during the officers’ search of his van and a subsequent
search of a house located at 14780 S.W. 159th Street in Miami (159th Street
house).
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In reviewing a district court’s denial of a motion to suppress, we review the
district court’s factual findings for clear error and its application of the law to those
facts de novo. United States v. Mercer, 541 F.3d 1070, 1073-74 (11th Cir. 2008).
When a district court denies a motion to suppress on the basis that it is untimely,
however, we review only for an abuse of discretion. United States v. Smith, 918
F.2d 1501, 1509 (11th Cir. 1990).
The Federal Rules of Criminal Procedure provide that a motion to suppress
evidence must be made before trial. Fed. R. Crim. P. 12(b)(3)(C). In addition, a
district court has discretion to set a deadline for the parties to file pretrial motions.
Fed. R. Crim. P. 12(c). Any Rule 12(b)(3) defense that is not raised by a deadline
set by the court under Rule 12(c) is waived, although the district court may grant
relief from that waiver rule for good cause shown. Fed. R. Crim. P. 12(e); see also
United States v. Milan-Rodriguez, 828 F.2d 679, 682-84 (11th Cir. 1987) (holding
the district court did not abuse its discretion by denying as untimely a motion filed
after deadline set under Fed. R. Crim. P. 12(c)). This waiver rule applies even if
the district court also addressed the merits of the untimely motion.
Milan-Rodriguez, 828 F.2d at 683.
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In this case, the district court informed the parties that all motions in limine
needed to be filed no later than August 15, 2007. Salom’s codefendant Echavarria
did not file his motion to suppress until August 24, 2007, and Salom did not file his
motion to adopt Echavarria’s motion to suppress until August 27, the morning of
the first day of trial. Therefore, the district court did not abuse its discretion by
denying Salom’s motion as untimely.
II.
Salom argues the district court made various procedural and evidentiary
errors during his trial, which we address in turn.
A. Opening Statements
Salom argues the district court abused its discretion in limiting his defense
counsel’s opening statement. Salom also argues it was improper for the district
court to remark that Fernando Quintana, a codefendant who later pled guilty and
agreed to cooperate with the Government, had to “please” the court, as well as the
prosecutor, to receive the benefit of a substantial assistance motion.
We review a district court’s conduct during trial for an abuse of discretion.
United States v. Verbitskaya, 406 F.3d 1324, 1337 (11th Cir. 2005). As Chief
Justice Burger explained, the purpose of an opening statement “is to state what
evidence will be presented, to make it easier for the jurors to understand what is to
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follow, and to relate parts of the evidence and testimony to the whole; it is not an
occasion for argument.” United States v. Dinitz, 96 S. Ct. 1075, 1082 (1976)
(Burger, J., concurring). The district court may “exclude irrelevant facts and stop
argument if it occurs.” United States v. Zielie, 734 F.2d 1447, 1455 (11th Cir.
1984), abrogated on other grounds by United States v. Chestang, 849 F.2d 528,
531 (11th Cir. 1988).
Generally, a trial judge must scrupulously avoid expressing any opinion on
the merits of a case or on the weight of particular evidence. United States. v.
Sorondo, 845 F.2d 945, 949 (11th Cir. 1988). “[I]n order to amount to reversible
error, a judge’s remarks must demonstrate such pervasive bias and unfairness that
they prejudice one of the parties in the case.” Verbitskaya, 406 F.3d at 1337
(citation and quotation marks omitted).
In this case, the district court did not abuse its discretion in limiting defense
counsel’s opening statement because defense counsel was challenging the motives
of the Government’s main witness, Quintana, rather than simply explaining the
evidence to the jury. Moreover, it does not appear that the district court’s
statement, “He has to please me, too,” was intended as a comment on Quintana’s
credibility or on the merits of the defense’s case. Also, it is unlikely that the
court’s brief remark, made at the beginning of trial, had any influence on the jury’s
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verdict.
B. Rule 404(b) Evidence
Next, Salom argues he was denied a fair trial due to the improper
introduction of evidence that he committed other crimes. Moreover, he notes the
Government did not provide notice that it was going to introduce this evidence, as
required by Fed. R. Evid. 404(b).
Generally, we review a district court’s evidentiary rulings for an abuse of
discretion. United States v. Edouard, 485 F.3d 1324, 1343 (11th Cir. 2007).
Because Salom did not raise any Rule 404(b) objections during trial, however, we
are reviewing this claim only for plain error. Id.
Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith.” Fed. R. Evid. 404(b). However, such evidence is not extrinsic, and
therefore is admissible, if it is: “(1) an uncharged offense which arose out of the
same transaction or series of transactions as the charged offense, (2) necessary to
complete the story of the crime, or (3) inextricably intertwined with the evidence
regarding the charged offense.” Edouard, 485 F.3d at 1344 (citation and quotation
marks omitted).
In this case, Quintana’s testimony concerning mortgage fraud he and Salom
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had committed when Quintana purchased the 159th Street residence, and the theft
of electricity to conceal the fact that they were using powerful lamps to grow
marijuana, reflected uncharged conduct that arose out of the same series of
transactions as the charged drug offenses because it showed how Quintana and
Salom conducted their marijuana-growing conspiracy. In addition, Quintana’s
testimony concerning Salom’s use of aliases was inextricably intertwined with the
charged offenses because it showed that Salom tried to conceal his involvement
with the 159th Street house by placing a false name on the lease. Because this
evidence was intrinsic to the charges against Salom, the district court did not abuse
its discretion by admitting it.
C. Limitations on Cross-Examination
Salom also asserts the district court improperly limited his cross-
examination of Quintana.
Under the Confrontation Clause of the Sixth Amendment, a criminal
defendant has the right to cross-examine a witness in order to show bias, prejudice,
or ulterior motives for testifying. Davis v. Alaska, 94 S. Ct. 1105, 1110 (1974).
The need for full cross-examination is particularly important “where the witness is
the star government witness or participated in the crimes for which the defendant is
being prosecuted.” United States v. Williams, 526 F.3d 1312, 1319 (11th Cir.
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2008). Nevertheless, “trial judges retain wide latitude . . . to impose reasonable
limits on such cross-examination based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation
that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 106 S. Ct.
1431, 1435 (1986). The test is “whether a reasonable jury would have received a
significantly different impression of the witness’ credibility had counsel pursued
the proposed line of cross-examination.” Williams, 526 F.3d at 1319 (citation and
quotation marks omitted).
In this case, Salom was allowed to cross-examine Quintana concerning his
motives for testifying, and Quintana acknowledged he was hoping to receive a
reduced sentence in exchange for his testimony. Therefore, the jury was aware that
Quintana had a motive for giving testimony that was favorable to the Government.
Any additional questions concerning whether Quintana was trying to avoid a
sentencing enhancement based on his son’s overdose would merely have
reinforced that impression, and would not have given the jury a significantly
different picture of Quintana’s credibility. Therefore, the district court’s decision
to disallow that line of questioning did not violate the Confrontation Clause.
D. Hearsay/Confrontation Clause
Next, Salom argues Detective Rodriguez’s testimony concerning a tip he
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received from a confidential informant constituted inadmissible hearsay.
As noted above, we review a district court’s evidentiary rulings for an abuse
of discretion. United States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005).
Generally, we review constitutional claims de novo. United States v. Williams, 527
F.3d 1235, 1239 (11th Cir. 2008). However, because Salom did not offer a
Confrontation Clause objection during trial, we review that claim for plain error
only. See United States v. Jiminez, 564 F.3d 1280, 1286 (11th Cir. 2009) (noting a
hearsay objection does not preserve a Confrontation Clause issue for appellate
review).
Hearsay is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Fed. R. Evid. 801(c). “Statements by out of court witnesses to law
enforcement officials may be admitted as non-hearsay if they are relevant to
explain the course of the officials’ subsequent investigative actions, and the
probative value of the evidence’s non-hearsay purpose is not substantially
outweighed by the danger of unfair prejudice. . . .” Baker, 432 F.3d at 1209 n.17.
“[T]he Confrontation Clause of the Sixth Amendment prohibits the
admission of out of court statements that are testimonial unless the declarant is
unavailable and the defendant had a previous opportunity to cross-examine the
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declarant.” Jiminez, 564 F.3d at 1286. “[T]he Confrontation Clause prohibits only
statements that constitute impermissible hearsay.” Id.
In this case, Detective Rodriguez’s testimony regarding the confidential
informant’s tip was not introduced to show that there actually was a marijuana
hydroponic laboratory at the 159th Street house. Rather, Detective Rodriguez was
simply explaining why he decided to investigate the 159th Street house. In
addition, this testimony did not result in any unfair prejudice to Salom because the
confidential informant did not suggest that Salom was involved with the 159th
Street house. Accordingly, the district court did not abuse its discretion by
admitting the confidential informant’s statement as non-hearsay. Finally, because
the confidential informant’s statement was not hearsay, admission of that statement
did not violate the Confrontation Clause.
E. Improper Vouching
Next, Salom argues the prosecutor improperly vouched for the truthfulness
of Detective Rodriguez’s testimony by asking him on redirect examination whether
he stood upon his oath, and whether he knew that he was under oath.
A claim of improper vouching by the prosecution presents a mixed question
of law and fact that is subject to plenary review. United States v. Eyster, 948 F.2d
1196, 1206 (11th Cir. 1991). Normally, a prosecutor may not personally vouch for
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the credibility of a witness. Eyster, 948 F.2d at 1206. The test for improper
vouching is whether “the jury could reasonably believe that the prosecutor
indicated a personal belief in the witness’ credibility.” Id. In applying that test, we
consider whether the prosecutor: (1) “placed the prestige of the government behind
the witness by making explicit assurances of the witness’s credibility,” or (2)
“implicitly vouched for the witness’s credibility by implying that evidence not
formally presented to the jury supports the witness’s testimony.” United States v.
Castro, 89 F.3d 1443, 1457 (11th Cir. 1996).
In this case, the prosecutor’s questions to Detective Rodriguez were intended
to show that Detective Rodriguez continued to stand by his direct testimony,
despite the fact that there were inconsistencies with his report. The prosecutor did
not express a personal belief that Detective Rodriguez was telling the truth, nor did
he suggest that there was evidence not presented to the jury that supported
Detective Rodriguez’s testimony. Thus, the prosecutor did not engage in any
improper vouching.
F. Comment on Failure to Testify
Next, Salom asserts the district court should have granted his motion for a
mistrial based on the prosecutor’s improper comments concerning Salom’s
decision not to testify at trial.
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We review a district court’s denial of a motion for a mistrial based on a
prosecutor’s statements during closing argument for abuse of discretion. United
States v. Knowles, 66 F.3d 1146, 1163 (11th Cir. 1995). “A prosecutor’s statement
violates the defendant’s right to remain silent if either (1) the statement was
manifestly intended to be a comment on the defendant’s failure to testify; or (2) the
statement was of such a character that a jury would naturally and necessarily take it
to be a comment on the failure of the accused to testify.” Id. at 1162-63 (citation
and quotation marks omitted). The prosecutor’s remarks “must be examined in
context, in order to evaluate the prosecutor’s motive and to discern the impact of
the statement.” Id. at 1163.
During closing arguments, the prosecutor noted that Quintana and Salom
knew each other since 2004 or 2005 and acknowledged that Quintana was a
convicted felon who had committed mortgage fraud. The prosecutor then stated,
Guess who his partner in the mortgage fraud was? Now, is that a big
stretch to believe under all of this what they were doing on June 4th to
go back in time, to go back in time, to go back in time to 2004, to
2005, when he’s not saying he didn’t know him. Nobody said
specifically with reference to Mr. Salom - -
After defense counsel objected and reserved a motion, the prosecutor continued:
“There’s no suggestion from Mr. Quintana’s testimony that was found to be
untrue. He was cross examined on that issue. He was cross-examined vigorously.”
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It is unclear whether pronoun “he” in the prosecutor’s statement “he’s not
saying he didn’t know him,” was meant to refer to Salom or Quintana. Moreover,
it is not clear what the prosecutor meant by saying, “Nobody said specifically with
reference to Mr. Salom,” because the prosecutor never completed that sentence.
Given the ambiguity of the prosecutor’s remarks, it does not appear that a jury
would “necessarily and naturally” interpret those remarks as a comment on
Salom’s decision not to testify. Also, there is no indication that the prosecutor
“manifestly intended” to comment on Salom’s failure to testify. Accordingly, the
district court did not abuse its discretion in denying Salom’s motion for a mistrial.
G. Salom’s Requested Jury Instruction
Salom also asserts the district court erred by declining to issue his proposed
jury instruction.
We review a district court’s refusal to give a requested jury instruction for an
abuse of discretion. United States v. Fulford, 267 F.3d 1241, 1245 (11th Cir.
2001). A court’s failure to give a requested jury instruction only constitutes
reversible error if: “(1) the requested instruction correctly stated the law; (2) the
actual charge to the jury did not substantially cover the proposed instruction; and
(3) the failure to give the instruction substantially impaired the defendant’s ability
to present an effective defense.” Id.
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Here, Salom requested an instruction that, if the jury were to find that a
witness was lying about a particular fact, then it could infer the opposite of that
witness’s testimony. Although Salom’s proposed instruction was essentially a
correct statement of the law, the district court’s jury instructions concerning
witness credibility covered the substance of Salom’s proposed instruction.
Moreover, the court’s failure to give the requested instruction did not substantially
impair Salom’s defense, as he was still permitted to suggest to the jury during
closing argument that they could believe the exact opposite of Quintana’s
testimony. Therefore, the district court did not abuse its discretion by denying
Salom’s proposed jury instruction.
III.
Salom argues the evidence introduced at trial was not sufficient to support
the jury’s finding that he was responsible for at least 100 marijuana plants.
A. Admissibility of the Photographs of the Drug Enforcement
Administration (“DEA”) Warehouse
Salom asserts the photographs of the DEA warehouse were “false and
misleading” because they showed plants that were taken from a different and
completely separate grow house. He argues the photographs of the DEA
warehouse should not have been admitted into evidence because they were
irrelevant to his case.
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A district court’s evidentiary rulings are reviewed for a clear abuse of
discretion and “[t]he district court has broad discretion to determine the relevance
and admissibility of any given piece of evidence.” United States v. Merrill, 513
F.3d 1293, 1301 (11th Cir. 2008). Evidence is relevant if it has “any tendency to
make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.” Fed.
R. Evid. 401.
In this case, Special Agent Molina testified that the photographs of the DEA
warehouse accurately depicted the manner in which the 159th Street plants were
stored at the warehouse. This evidence was relevant because it suggested that the
agents had, in fact, seized marijuana plants from the 159th Street house. Although
Salom argues the plants depicted in the photographs actually came from a different
grow house, it is the jury’s role to choose between different constructions of the
evidence, and Salom had an opportunity to cross-examine Agent Molina
concerning the possible discrepancy. The district court did not abuse its discretion
by admitting those photographs.
B. Sufficiency of the Evidence
Salom also argues that, if the photographs of the warehouse had been
properly excluded, the evidence introduced at trial would have been insufficient to
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support his convictions.
We review de novo whether there is sufficient evidence to support the jury’s
verdict in a criminal case. United States v. Beckles, 565 F.3d 832, 840 (11th Cir.
2009). Evidence is sufficient to support a conviction where “a reasonable trier of
fact could find that the evidence established guilt beyond a reasonable doubt.” Id.
(citation and quotation marks omitted). We “view[] the evidence in the light most
favorable to the government, and draw[] all reasonable factual inferences in favor
of the jury’s verdict.” Id.
In this case, the applicable penalty statute for Counts One and Two, 21
U.S.C. § 841(b)(vii), establishes a mandatory minimum sentence of five years’
imprisonment for offenses involving 100 or more marijuana plants. As this Court
has previously explained, cuttings or seedlings do not count as marijuana plants
unless there is “some readily observable evidence of root formation.” United
States v. Foree, 43 F.3d 1572, 1581 (11th Cir. 1995) (citation and quotation marks
omitted).
Salom’s argument on appeal is that the law enforcement agents failed to
inspect the marijuana plants for roots while the plants were still at the 159th Street
house, and then inspected the wrong group of plants after they were transported to
the DEA warehouse. However, Special Agent Molina testified she counted 166
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plants while she was at the 159th Street house, she did not recount the plants after
they were taken to the warehouse, and she later explained that she only counted
those plants that had observable root systems. A jury could reasonably have
concluded the plants inspected at the DEA warehouse were the same plants that
were seized from the 159th Street house. Accordingly, we conclude the jury’s
finding that Salom possessed over 100 marijuana plants is supported by sufficient
evidence.
IV.
Salom asserts the Government failed to disclose potentially exculpatory
evidence, as required by Brady v. Maryland, 83 S. Ct. 1194 (1963).
We review a defendant’s Brady objection for plain error where the defendant
failed to raise that objection in his motion for a new trial. United States v. Lindsey,
482 F.3d 1285, 1293 (11th Cir. 2007). “[T]he Supreme Court has made it clear
that the Brady rule is not an evidentiary rule that grants broad discovery powers to
a defendant and that ‘[t]here is no general constitutional right to discovery in a
criminal case.’” United States v. Quinn, 123 F.3d 1415, 1421 (11th Cir. 1997)
(quoting Weatherford v. Bursey, 97 S. Ct. 837, 846 (1977)). In order to prevail on
a Brady claim, a defendant must establish: (1) the government possessed evidence
favorable to him; (2) the defendant did not possess the evidence, nor could he have
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obtained it himself through reasonable diligence; (3) the government suppressed
the evidence; and (4) if the evidence had been revealed to the defense, there is a
reasonable probability that the outcome of the proceedings would have been
different. United States v. Perez, 473 F.3d 1147, 1150 (11th Cir. 2006).
Salom has failed to identify any potentially exculpatory evidence that was
improperly withheld by the Government. The record indicates the Government
did provide defense counsel with the photographs taken at the 159th Street house
and the DEA warehouse. Salom states in his reply brief his defense counsel was
given a DVD with the photographs on it and Salom even introduced one of those
photographs as a defense exhibit at trial. In addition, Salom describes in his reply
brief what the recordings of Quintana’s phone calls and personal visits will show,
therefore, it appears Salom was able to independently obtain the information
contained on those recordings. Finally, although the videotapes of Salom’s
conversations with his trial counsel might potentially be relevant to an ineffective
assistance claim, it does not appear those videotapes would have had any impact on
Salom’s trial. Therefore, Salom has failed to establish any Brady error.
V.
Salom argues his trial counsel provided him with ineffective assistance by
making a “unilateral concession of guilt” and by failing to subject the
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Government’s case to any meaningful challenge.
Generally, we will not review a claim of ineffective assistance of counsel
raised on direct appeal where the district court neither addressed that claim nor
developed a factual record. United States v. Bender, 290 F.3d 1279, 1284 (11th
Cir. 2002); see also Massaro v. United States, 123 S. Ct. 1690, 1694 (2003)
(noting that it is usually preferable to address ineffective assistance of counsel
claims on collateral review rather than on direct appeal).
In this case, the district court did not address the merits of Salom’s
ineffective assistance claim, nor did the court develop a factual record with respect
to that claim. Therefore, Salom’s ineffective assistance claim is not cognizable on
direct appeal.
VI.
Salom asserts that, even if the individual errors he has identified are not
sufficient to merit reversal, the cumulative effect of these errors deprived him of
his right to a fair trial.
We have held that “the cumulative effect of multiple errors may so prejudice
a defendant’s right to a fair trial that a new trial is required, even if the errors
considered individually are non-reversible.” United States v. Khanani, 502 F.3d
1281, 1295 (11th Cir. 2007) (citation and quotation marks omitted).
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As described above, Salom has not shown that the district court committed
any errors. Therefore, he also cannot establish any cumulative error.
Accordingly, for the above-stated reasons, we affirm Salom’s convictions.
AFFIRMED.
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