United States v. Isaac Nosovsky , 269 F. App'x 915 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 17, 2008
THOMAS K. KAHN
No. 06-14493
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 06-20178-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISAAC NOSOVSKY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 17, 2008)
Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.
PER CURIAM:
Isaac Nosovsky appeals his conviction for one count of conspiracy to
defraud the United States and to commit health care fraud, 18 U.S.C. § 371; and
six counts of health care fraud, 18 U.S.C. § 1347. Nosovsky makes three
arguments on appeal. First, he argues that the district court abused its discretion in
excluding evidence of a secretly recorded conversation because the contents of the
conversation qualified for the “state-of-mind” hearsay exception in Fed.R.Evid.
803(3). Second, he argues that the secretly recorded conversation qualified for the
Fed.R.Evid. 807 residual exception to the hearsay exclusion rule, and that error
was preserved because the trial court implicitly considered Rule 807. Finally, he
argues that the prosecutor commenting on an uncharged bad act during the opening
statement and on the existence of defense counsel in the closing argument was
prejudicial and warrants reversal.
I. State-of-Mind Hearsay Exception under Rule 803(3)
We review a district court’s evidentiary ruling for abuse of discretion.
United States v. Magluta, 418 F.3d 1166, 1177 (11th Cir. 2005). The Federal
Rules of Evidence define hearsay as “a statement, other than one made by the
declarant while testifying at trial or hearing, offered in evidence to prove the truth
of the matter asserted.” Fed.R.Evid. 801(c). Generally, hearsay is not admissible
at trial. Fed.R.Evid. 802. Under Fed.R.Evid. 803(3), the following is not excluded
by the hearsay rule:
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A statement of the declarant’s then existing state of mind,
emotion, sensation, or physical condition (such as intent, plan, motive,
design, mental feeling, pain, and bodily health), but not including a
statement of memory or belief to prove the fact remembered or
believed unless it relates to the execution, revocation, identification,
or terms of declarant’s will.
Fed.R.Evid 803(3). The exception is limited to statements about the declarant’s
present state of mind, and not why the declarant held that particular state of mind.
United States v. Samaniego, 345 F.3d 1280, 1282 (11th Cir. 2003) (noting the
example, “I’m scared,” as an admissible statement under Rule 803(3), but the
statement, “I’m scared because someone threatened me,” as inadmissible hearsay).
The statements on the recording were inadmissible under the state-of-mind
exception to hearsay because they explained why Nosovsky held a particular state
of mind and not what the particular state of mind was; instead, they were
statements of memory to prove facts remembered. Therefore, the district court did
not abuse its discretion in excluding them. Id. at 1282. Accordingly, we affirm on
this issue.
II. The Rule 807 Residual Exception
We review a trial court’s implicit determination for plain error when the
ruling is not formally questioned before the trial court. See United States v.
Frazier, 387 F.3d 1244, 1268 (11th Cir. 2004) (holding that qualification for expert
testimony is only reviewed for plain error when a timely objection is not raised
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before the court). Because Nosovsky did not assert Rule 807 as a basis for the
admission of the evidence with the district court, this Court will review for plain
error. United States v. King, 73 F.3d 1564, 1571 (11th Cir. 1996). This Court has
discretion to correct an error under the plain error standard when (1) an error
occurred, (2) the error was plain, (3) the error affected substantial rights, and (4)
the error seriously affects the fairness, integrity or public reputation of judicial
proceedings. United States v. Duncan, 400 F.3d 1297, 1301 (11th Cir. 2005).
An error is not “plain” when the basis for admission of excluded evidence
was not raised at trial. King, 73 F.3d at 1572 (addressing Fed.R.Evid 806 and
explaining that to apply the plain error exception to the contemporaneous objection
rule when trial counsel had an opportunity to assert the basis for admission would
lead to “the exception swallowing the rule”).
Because Rule 807 was not asserted as a basis for admission, any error was
not plain. Id. at 1572. Accordingly, we affirm on this issue.
III. Prosecutorial Misconduct
We review the district court’s denial of a mistrial for abuse of discretion.
United States v. Abraham, 386 F.3d 1033, 1036 (11th Cir. 2004). Reversal on the
basis of prosecutorial misconduct requires that (1) the remarks were improper, and
(2) the misconduct prejudiced the defendants substantive rights such that “a
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reasonable probability arises that, but for the prosecutor’s statements, the outcome
of trial would have been different.” United States v. O’Keefe, 461 F.3d 1338,
1350 (11th Cir. 2006), cert. denied, 127 S. Ct. 1308 (2007). “Reversal on the basis
of prosecutorial misconduct requires that the misconduct be so pronounced and
persistent that it permeates the entire atmosphere of the trial.” United States v.
Weinstein, 762 F.2d 1522, 1542 (11th Cir. 1985) (quotation omitted).
We have addressed an allegation of prosecutorial misconduct to explain the
prohibition on reference to defense counsel. United States v. Frazier, 944 F.2d
820, 822 (11th Cir. 1991). “Comments that penalize a defendant for the exercise
of his right to counsel and that also strike at the core of his defense cannot be
considered harmless error.” United States v. McDonald, 620 F.2d 559, 564 (5th
Cir. 1980). It is improper to make a comment that implies that the use of defense
counsel hints at the defendant being guilty. United States v. Mack, 643 F.2d 1119,
1124 (5th Cir. Apr. 1981). We look at the full context of a remark to determine if
it is improper. United States v. Foley, 508 F.3d 627, 638 (11th Cir. 2007). In
Foley, we rejected a similar argument about a similar remark.
“A prejudicial remark may be rendered harmless by curative instructions to
the jury.” Weinstein, 762 F.2d at 1542. We give considerable weight to the
district court’s assessment of the prejudicial effect of the remarks. Id. A defendant
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may not request a mistrial on appeal when he refused a curative instruction that
would have alleviated any need for a mistrial. See United States v. Granville, 716
F.2d 819, 821 (11th Cir. 1983).
We have reviewed the comment from the opening statement and it was not
highly prejudicial, and because Nosovsky refused the curative instruction, the
district court did not abuse its discretion in denying his motion for a mistrial on
this basis. See Granville, 716 F.2d at 821. We have reviewed the remark from the
closing argument and it did not imply that defense counsel did anything improper
or that the presence of counsel meant that Nosovsky was guilty. Thus, the district
court did not abuse its discretion in denying a motion for mistrial on this basis.
IV. Conclusion
Based on a review of the record and the parties’ briefs, we affirm
Nosovsky’s conviction.
AFFIRMED.1
1
Nosovsky’s request for oral argument is denied.
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