United States v. Jean Robert-Mario Lazarre, Jr. , 414 F. App'x 254 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14733 ELEVENTH CIRCUIT
FEB 14, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 97-00687-CR-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEAN ROBERT-MARIO LAZARRE, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 14, 2011)
Before EDMONDSON, BLACK, and PRYOR, Circuit Judges.
PER CURIAM:
Jean Robert-Mario Lazarre, Jr. appeals his drug conspiracy and drug
possession with intent to distribute convictions, 21 U.S.C. §§ 841(a)(1), 846.1 No
reversible error has been shown; we affirm.
On appeal, Lazarre argues that the admission of three pieces of evidence
violated Fed.R.Evid. 404(b) because they showed only his prior bad acts: (1) a
witness’s testimony that he thought the substance discovered in a brick-shaped
object2 was cocaine because it caused his mouth to become numb; (2) a fingerprint
card taken of Lazarre in the Dominican Republic where he had used an alias; and
(3) testimony by Pascal Garoute about a drug smuggling route (that Lazarre’s
father had used) offered to him by Lazarre to transport drugs. We review a district
court’s evidentiary rulings for an abuse of discretion. United States v. Eckhardt,
466 F.3d 938, 946 (11th Cir. 2006).
Under Rule 404(b), extrinsic evidence of other crimes is not admissible to
1
Lazarre also was convicted of money-laundering conspiracy, 18 U.S.C. § 1956(h). But
on appeal, Lazarre makes no challenges to this conviction.
2
The witness, who was the brother of Lazarre’s girlfriend, testified about an event that
occurred at his mother’s house where his mother discovered a wrapped, brick-shaped object in a
vase. The witness confronted Lazarre about the object, saying that he believed the brick was
cocaine. Lazarre denied that it was cocaine. The witness tasted the contents of the brick and said
that it had a numbing sensation. The witness had testified that, based on a drug training program
he had participated in, he knew that cocaine produced a numbing sensation.
2
show proof of bad character. But it may be admissible to prove other things,
including motive, knowledge, or intent as long as the evidence is relevant to an
issue other than defendant’s character and the risk of undue prejudice from the
evidence does not outweigh substantially its probative value. See Fed.R.Evid.
404(b); see also Fed.R.Evid. 403. Evidence of uncharged crimes is not extrinsic
under Rule 404(b) if it is, among other things, inextricably intertwined with the
evidence about the charged offense. United States v. Ellisor, 522 F.3d 1255, 1269
(11th Cir. 2008).
We will reverse an erroneous evidentiary ruling only if it was harmful: that
“there is a reasonable likelihood that [the error] affected the defendant’s substantial
rights.” United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir. 1990). We
conclude that, even if the testimony about the single brick believed to be cocaine
belonging to Lazarre was inadmissible Rule 404(b) evidence, its admission was not
harmful to Lazarre. Evidence showed that Lazarre sold between 10 and 40
kilograms of cocaine to Keenen Paicely, the government’s chief witness, between
100 and 150 times. This evidence showed sufficiently that Lazarre possessed with
intent to distribute five kilograms or more of cocaine, as charged in the indictment;
and evidence showing that he arguably possessed one kilogram of cocaine did not
affect Lazarre’s substantial rights. See id. (explaining that reversal is not
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warranted where an error had no substantial influence on the outcome, and
sufficient evidence uninfected by error supports the verdict).
The fingerprint card was not introduced, as Lazarre asserts, to show that he
had a prior drug arrest; but it was admitted to substantiate witness testimony that
Lazarre had fled the United States to Haiti or the Dominican Republic after the
conspiracy ended. Lazarre stipulated that his fingerprints were “taken by law
enforcement officers of the Dominican Republic,” and the district court explained
to the jury that the fingerprint card did not relate to any arrest by the Drug
Enforcement Administration. So, the fingerprint card was not Rule 404(b)
evidence; and the court abused no discretion in admitting it.3
Lazarre says the evidence about his father’s drug smuggling route shows a
different, uncharged conspiracy. He also argues that this evidence caused an
impermissible amendment to the indictment because the proof at trial differed so
substantially from the drug conspiracy charged in the indictment and varied
materially from the indictment such that he was unable to defend fairly against the
drug conspiracy charge.
3
Given his stipulation, Lazarre’s present argument that admission of the card constituted
reversible error is invited error. See United States v. Jernigan, 341 F.3d 1273, 1289-90 (11th
Cir. 2003) (concluding that defendant whose counsel had affirmatively stipulated to the playing
of a tape-recorded statement had invited any error resulting from the jury’s hearing the tape and,
thus, any error was not reversible).
4
Constructive amendment of the indictment is per se reversible error and
occurs “when the essential elements of the offense contained in the indictment are
altered to broaden the possible bases for conviction beyond what is contained in
the indictment.” United States v. Narog, 372 F.3d 1243, 1247 (11th Cir. 2004)
(citation omitted). “A material variance between an indictment and the
government’s proof at trial occurs if the government proves multiple conspiracies
under an indictment alleging only a single conspiracy.” United States v. Alred, 144
F.3d 1405, 1414 (11th Cir. 1998) (citation and quotations omitted).
The indictment charged that Lazarre, along with seven named co-
conspirators, conspired with “each other and with other persons known and
unknown to the Grand Jury,” to possess with intent to distribute five kilograms or
more of cocaine. The indictment also alleged that the conspiracy began as early as
1988 and ended in May 1999 and occurred in the Southern District of Florida and
elsewhere.
Garoute’s testimony that, in 1996, Lazarre offered him a drug route that
Lazarre’s father earlier had used was consistent with the time frame of the charged
conspiracy and showed a conspiracy agreement between Lazarre and Garoute to
import and then to distribute cocaine. In addition, Lazarre’s importation and
distribution of five kilograms of cocaine for Garoute using this route was
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inextricably intertwined with the instant conspiracy to import cocaine from Haiti to
the United States, and then to distribute the cocaine within the United States. See
United States v. Richardson, 764 F.2d 1514, 1521-22 (11th Cir. 1985) (concluding
that prior uncharged narcotics dealings between a defendant and a cooperating
witness are admissible as intrinsic evidence where the evidence about the prior
crime inextricably is intertwined with the evidence of the charged drug offense).
Based on this trial evidence, Lazarre also has shown no constructive
amendment to or material variance from the drug conspiracy charge. That Garoute
was not named specifically in the indictment does not alter an essential element of
the conspiracy because the indictment also included “other persons known and
unknown” and an agreement between Garoute and Lazarre was plain from the
evidence. See United States v. Keller, 916 F.2d 628, 634 (11th Cir. 1990)
(quotation and citation omitted) (when a defendant is charged with conspiracy,
“[t]he general rule is that the existence of the conspiracy agreement rather than the
identity of those who agree is the essential element to prove conspiracy”).
And Lazarre’s argument that the drug smuggling route evidenced multiple,
uncharged conspiracies is unavailing. “[T]he arguable existence of multiple
conspiracies does not constitute a material variance from the indictment if, viewing
the evidence in the light most favorable to the government, a reasonable trier of
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fact could have found that a single conspiracy existed beyond a reasonable doubt.”
Alred, 144 F.3d at 1414. “In finding a single conspiracy, there is no requirement
that each conspirator participated in every transaction, knew the other conspirators,
or knew the details of each venture making up the conspiracy.” United States v.
Taylor, 17 F.3d 333, 337 (11th Cir. 1994). Based on the evidence presented at trial
-- including that Garoute had delivered cocaine to a named conspirator and worked
with Lazarre to import five kilograms of cocaine from Haiti to the United States --
“a reasonable trier of fact could have found that a single conspiracy existed beyond
a reasonable doubt.” Alred, 144 F.3d at 1414.
AFFIRMED.
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