United States v. Figaro , 126 F. App'x 75 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
3-25-2005
USA v. Figaro
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3967
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEAL
FOR THE THIRD CIRCUIT
No: 03-3967
UNITED STATES OF AMERICA
v.
KURT FIGARO,
a/k/a "Tony",
a/k/a Donnell Constantine,
a/k/a Anthony Constantine,
a/k/a "Boy",
a/k/a "Dread",
Kurt Figaro,
Appellant
On appeal from the United States District Court
for the Middle District of Pennsylvania
(Case No. 01-CR-366-03)
District Judge: Hon. Malcolm Muir
Submitted Pursuant to Third Circuit LAR 34.1
September 30, 2004
Before: RENDELL, FUENTES and SMITH, Circuit Judges
(Filed: March 25, 2005 )
_________________
OPINION OF THE COURT
_________________
SMITH, Circuit Judge.
Appellant, Kurt Figaro, challenges his conviction and sentencing for conspiracy to
distribute in excess of 50 grams of cocaine base and in excess of 100 grams of heroin,
possession with intent to distribute in excess of 50 grams of cocaine base and aiding and
abetting, and conspiracy to commit money laundering. Figaro contends that he was
denied a fair trial because the District Court erred in admitting certain testimony under the
Federal Rules of Evidence and that he received ineffective assistance of counsel.1 For the
reasons that follow, we will affirm the District Court’s judgment of conviction but
remand for resentencing.
I.
Because we write only for the parties, we set forth merely a brief recitation of the
facts. On November 17, 2001, Pennsylvania State Police effected a traffic stop of a Toyota
Corolla which ultimately led to the discovery of crack cocaine in the stopped vehicle. Trial
testimony revealed that through subsequent investigation, the State Police learned that the
1
Although Figaro argues that review of his ineffective assistance claims is appropriate
at this stage, we see no reason to depart from our longstanding practice of “defer[ring] the
issue of ineffectiveness of trial counsel to a collateral attack.” United States v. Thornton,
327 F.3d 268, 271 (3d Cir. 2003). While we “may address the claim of ineffective
assistance of counsel on direct appeal when the record is sufficient to allow determination
of the issue,” id., the errors that Figaro identifies were neither so egregious nor so obvious
from the record that the need for an evidentiary hearing is obviated. We therefore do not
consider Figaro’s claims that his trial counsel rendered ineffective assistance of counsel
in failing to object to or request a motion to strike Ralston Smith’s testimony or in failing
to object to or request a motion to strike Linda Cottrell’s testimony that she knew Figaro
had possessed firearms at this stage. Our affirmance of Figaro’s convictions is without
prejudice to his right to raise this claim on collateral attack brought pursuant to 28 U.S.C.
§ 2255. See id. at 272.
2
occupants of the vehicle were bound for Altoona, Pennsylvania, and that the drugs were
being transported at the behest of Figaro. According to the testimony at trial, this was one
of many trips of its kind associated with Figaro’s management of a significant operation
involving transportation of drugs from New York and Connecticut for distribution in
Altoona, and guns and ammunition from Altoona to Connecticut. The Grand Jury charged
Figaro with conspiracy to distribute in excess of 50 grams of cocaine base and in excess of
100 grams of heroin, possession with intent to distribute in excess of 50 grams of cocaine
base and aiding and abetting, and conspiracy to commit money laundering, in violation of 21
U.S.C. §§ 846 and 841(a)(1) and 18 U.S.C. § 1956(h), respectively. Figaro pled not guilty
to each of the charges. Following a trial, on September 4, 2002, a jury found Figaro guilty
on all counts.2
Figaro argues that the District Court erred in overruling two hearsay objections made
by his trial counsel. He further asserts that the cumulative effect of other evidentiary errors,
to which his attorney did not object, denied him a fair trial.
II.
This Court undertakes plenary review of the District Court’s “interpretation of the
Federal Rules of Evidence but review[s] a ruling based on a permissible interpretation of
a rule for abuse of discretion.” United States v. Reilly, 33 F.3d 1396, 1410 (3d Cir. 1994).
Figaro argues that the District Court erred in overruling his hearsay objection to testimony
2
The District Court utilized special verdict interrogatories with respect to the drug
quantities.
3
from Trooper Hutson regarding witness Linda Cottrell’s identification of Figaro. The
Government initially asked Trooper Hutson what he had learned from Cottrell regarding
the drugs that were recovered in the trunk of the stopped vehicle. Figaro’s counsel
objected on hearsay grounds and the District Court sustained the objection. The
Government revised its question, asking Hutson, “Based on what you learned from Linda
Cottrell, what did you do after that?” Figaro’s counsel repeated his objection and the
Government explained that “the statement was not offered for the truth of the matter but
for the effect on the listener or the hearer.” The District Court overruled the objection.
Federal Rule of Evidence 801(c) defines hearsay as “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.” (emphasis added). It is clear from both the
Government’s question and Trooper Hutson’s response that the testimony did not
constitute hearsay because it was not offered to prove the truth of the matter asserted.
Instead, the Government introduced the testimony to explain how the Trooper identified
Figaro from the evidence collected from the stopped vehicle. The District Court therefore
properly overruled Figaro’s objection to that testimony.
Figaro also argues that the District Court improperly overruled his objection to
testimony from Trooper Hutson regarding wire transfers made by Cottrell. The
Government asked Trooper Hutson, “Now, in addition to identifying telephone
information, did you recover evidence from any other locations in the Altoona area based
4
on what Cottrell told you?” Trooper Hutson began to answer, stating, “Yes, she later
contacted us on the 18 th of December and spoke of the various money order transactions
that were –.” Figaro’s attorney objected, “Again, objection, Your Honor, concerning the
statements of Linda Cottrell.” The Government proffered that Trooper Hutson was going
to testify that he recovered Western Union records as a result of what Cottrell had told
him and explained that the testimony was not hearsay because it was not being offered
“for the truth of the matter but for the effect on the hearer.” The District Court overruled
the objection. We find no error inasmuch as the testimony did not qualify as hearsay.
Figaro contends that the cumulative effect of numerous evidentiary errors resulting
from the admission of Trooper Hutson’s testimony—to which his trial attorney did not
object—denied him a fair trial. This Court reviews arguments as to evidentiary errors
where no objection was made for plain error. United States v. Olano, 507 U.S. 725, 732
(1993). If an error is identified, it must be one that is “plain” and that “affects substantial
rights,” in order for relief to be appropriate. Id. (brackets omitted). Courts of Appeals
have discretion to correct a forfeited error, if the error “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id. (quotations and citations
omitted). Upon consideration of the assignments of error alleged by Figaro, we conclude
that none constituted plain error such that relief is warranted.
Specifically, in regard to Figaro’s argument that Trooper Hutson’s testimony
constituted improper “overview testimony,” we note first that Trooper Hutson’s testimony
5
was not of the sort described by the two Courts of Appeals to have addressed the
propriety of “overview testimony.” See United States v. Casas, 356 F.3d 104, 117-24 (1st
Cir. 2004) (DEA Agent testimony describing scope of drug smuggling “organization” and
providing conclusory testimony as to the identity of the members of the “organization”
was unacceptable overview testimony); United States v. Griffin, 324 F.3d 330 (5th Cir.
2003) (FBI Agent testimony using chart and providing overview of case against
defendants improperly allowed). In the two cases cited by Figaro, the testimony at issue
provided a comprehensive view of the case against the defendants at the start of testimony
and included conclusory statements as to the identities of the participants of the
conspiracies. Trooper Hutson’s testimony does bear some similarity to that discussed in
Casas and Griffin in that it came from a law enforcement official at the start of the trial.
It is, however, distinguishable because, rather than telling the story of the conspiracy
according to the Government, it told the story of Trooper Hutson’s investigation in the
case. Trooper Hutson did not attempt to explain the operations of the alleged conspiracy,
nor did he identify the members of the conspiracy. Although Trooper Hutson did use the
word “coconspirators,” he did not associate the label with anyone in particular as did the
witness in Casas.
Trooper Hutson’s testimony did not constitute reversible “background testimony”
as Figaro argues either. This Court has recognized that, although “officers generally
should be allowed to explain the context in which they act,” such background testimony is
6
subject to the limitation that hearsay testimony admitted for that reason must have a valid
purpose. United States v. Sallins, 993 F.2d 344, 346 (3d Cir. 1993); see also United
States v. Lopez, 340 F.3d 169, 176 (3d Cir. 2003). Trooper Hutson provided a certain
amount of testimony regarding the traffic stop that arguably exceeded what was necessary
to explain how he became involved in the investigation. The admission of that testimony
does not constitute plain error, however, because Figaro was not alleged to have been
involved in the events leading to the vehicle stop. Thus, it is highly unlikely that
testimony regarding the details of the stop influenced the jury’s verdict as to Figaro.
Further, to the extent that Trooper Hutson’s testimony preempted subsequent witnesses’
testimony on the details of the stop or as to Figaro’s connection to the stop, the resulting
hearsay was harmless because the witnesses corroborated Trooper Hutson’s testimony.
We reach the same conclusion as to the portions of Trooper Hutson’s testimony to
which Figaro takes exception under this overview testimony theory for reasons other than
hearsay. Trooper Hutson’s testimony regarding the photo of Figaro from a prior arrest
did not constitute bad character evidence under Fed. R. Evid. 404(b) because the
transcript reveals that the information was introduced for a valid purpose, i.e., explaining
how the investigators were able to get a proper identification of Kurt Figaro, including
biographical information such as his Social Security number and his date of birth.
Trooper Hutson’s testimony that he obtained telephone numbers for Figaro and
Cottrell from a piece of paper contained in an envelope containing the personal effects of
7
one of the occupants of the stopped vehicle was not hearsay because the piece of paper
was not offered for the truth of the matter asserted, but rather to explain how Trooper
Hutson came to identify Figaro in connection with the stop. Nor was Hutson’s testimony
that the investigators had “learned” that Figaro had been using a Pontiac Grand Am
hearsay, as it was introduced to explain why they searched an abandoned Grand Am,
which led the investigators to determine, on the basis of the documentation found inside
the vehicle, that Figaro had used the car.
Finally, the Government’s closing argument did not support Figaro’s theory that
Trooper Hutson’s testimony constituted improper overview testimony. The Government
only mentioned Trooper Hutson in passing, mid-way through the closing argument. The
mention of Trooper Hutson once by name and the Government’s suggestion to the jury
that it should “work backwards the way the investigators did,” did not support Figaro’s
overview theory. In fact, the absence of more references to Trooper Hutson’s testimony
is telling because it is clear from the closing argument that the Government was not
relying on Trooper Hutson’s testimony to provide structure to his case. Rather, as the
Government acknowledged in its closing, the jury needed to “connect the dots” during
their deliberations as to Figaro’s guilt.
Accordingly, we will affirm the District Court’s judgment of conviction. Figaro
challenges his sentence, however, under United States v. Booker, 543 U.S. __, 125 S. Ct.
738 (2005). Having determined that the sentencing issues appellant raises are best
8
determined by the District Court in the first instance, we will vacate the sentence and
remand for resentencing in accordance with Booker.