United States v. Halteh , 224 F. App'x 210 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5245
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NICK HALTEH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CR-05-68)
Argued: January 31, 2007 Decided: March 15, 2007
Before WILKINS, Chief Judge, and WILLIAMS and DUNCAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: John Cady Kiyonaga, KIYONAGA & KIYONAGA, Alexandria,
Virginia, for Appellant. Olivia Rose Hussey, Special Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee. ON BRIEF: Chuck Rosenberg,
United States Attorney, Jonathan L. Fahey, Assistant United States
Attorney, Michael Davis, Special Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This is an appeal from a conviction for conspiracy to obstruct
interstate commerce by robbery, in violation of 18 U.S.C. § 1951,
and using a firearm in furtherance of the conspiracy, in violation
of 18 U.S.C. §§ 2 and 924(c)(1). Appellant Nick Halteh
("Appellant") argues that the district court erred in suppressing
evidence of his prior acquittal in state court of charges relating
to a robbery at issue in the federal proceeding and by denying his
motion for a mistrial when the government elicited evidence from a
witness concerning Appellant's gang affiliation. For the reasons
that follow, we find no error in the district court's rulings on
these issues.
Appellant further contends that his Sixth Amendment right to
confrontation was violated in two respects: (1) by admission of a
911 call in contravention of Crawford v. Washington, 541 U.S. 36,
53-54 (2004) and (2) by admission of the statements of his
nontestifying codefendant, in which references to Appellant were
redacted and replaced with neutral pronouns. Because both the
caller and the operator involved in the admitted 911 call testified
in Appellant's trial, giving him the opportunity to confront them,
we find that Crawford is not implicated. Additionally, the
statements of Appellant's nontestifying codefendant were
appropriately redacted and the jury instructed to consider these
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only against Appellant's codefendant. We therefore affirm
Appellant's conviction.
I.
Appellant and Joshua Fritter were tried jointly for crimes
relating to a conspiracy that resulted in three robberies of drug
dealers within a ten-day span. In the first robbery, Appellant
planned to rob Christopher Campero, a marijuana dealer, and
recruited other men to help him. On the date of the robbery,
Appellant, Milton Jurardo, and another friend entered Campero's
home, where Campero was sleeping. Jurardo bludgeoned Campero to
death with a crow bar, and the three intruders ransacked the home
for marijuana. Campero's mother discovered her son's body upon her
return to the home. Mrs. Campero called 911 to report the murder,
describing the battered body and the blood-spattered state of the
room. Mrs. Campero testified at trial, and the tape of her 911
call was played for the jury. The 911 operator testified as well.
Appellant did not cross-examine either the mother or the operator.
In the second robbery, Appellant and four others entered
marijuana-dealer Chi Hoon Han's home. Appellant beat Han with a BB
gun and stole valuables from his home.
In the third robbery, Appellant, Jurardo, and Pierre Alvarez
planned a marijuana deal with dealer Siro Alexander Hernandez. At
Jurardo's suggestion, the three picked up a real gun from his uncle
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before the meeting. Appellant inspected the gun, which the
conspirators planned to use along with the BB gun Appellant had
used to beat Han. At the meeting, Hernandez got into a car with
the three conspirators, sitting in the back seat next to Jurardo.
When Hernandez stopped complying with instructions from the three,
however, Jurardo fired the gun at him. Alvarez punched and dragged
Hernandez from the car. Jurardo then shot Hernandez execution-
style, which miraculously did not kill him. Appellant, Jurardo,
and Alvarez then torched the car, which had been damaged and
bloodied during the altercation.
Appellant was arrested and charged in Virginia state court
with, inter alia, the aggravated malicious wounding of Hernandez.
The state charges related only to crimes involving Hernandez, the
third victim of Appellant's crime spree that underpins the federal
conspiracy charges. While in jail awaiting his state-court trial,
Appellant wrote a letter to Fritter urging him to offer Hernandez
a bribe to drop the charges against him and to threaten Hernandez's
life. Appellant was ultimately acquitted of the state charges.
Fritter, however, turned the letter over to police, and it was
admitted into evidence in the federal prosecution.
Appellant was later arrested, along with Fritter and Alvarez,
and charged with conspiring to affect interstate commerce by
robbery, in violation of 18 U.S.C. § 1951, and using a firearm in
furtherance of the conspiracy, in violation of 18 U.S.C. §§ 2 and
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924(c)(1). Alvarez entered into a plea agreement with the
government.
Before the trial of Appellant and Fritter, the government
moved in limine to exclude reference to Appellant's acquittal of
the state charges. The district court granted the motion,
directing the parties to refer to the state proceedings as "another
proceedings [sic] related to this case" or "another hearing in
connection with this case," and barring any reference to
Appellant's acquittal. J.A. 357.
Nevertheless, at trial a government witness referred to the
state proceedings as a "previous hearing," not using the exact
phrasing as directed by the court. J.A. 1499. Appellant did not
object to this phrasing at trial. Later, the government sought to
introduce tapes of telephone conversations made by Appellant while
he was in jail awaiting trial on the state charges. In laying the
foundation for introducing the tapes, the government asked a
jailer-witness if Appellant was an inmate at the jail. Appellant
objected after the entire foundation was laid, arguing that he
would be prejudiced if the jury knew he was in jail but never
learned that he was acquitted of those charges. The district court
overruled the objection.
The district court also granted Appellant's motion in limine
to exclude reference to Appellant's gang membership, declaring it
unduly prejudicial. Nevertheless, at trial the government asked
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Jurardo, called by the United States as a witness, a question to
which Jurardo's response revealed that Appellant was a member of a
street gang. Appellant moved for a mistrial. The district court
immediately admonished the government and issued a curative
instruction to the jury, telling jurors "to disregard entirely the
witness'[s] statement." J.A. 1431. The district court denied
Appellant's motion for a mistrial.
Finally, the district court admitted the out-of-court
statements regarding the charged crimes that Fritter had made to a
detective. The district court did, however, require that the
statements be redacted to supplant references to Appellant with
neutral pronouns (i.e., "friend" or "individual"). J.A. 1495,
1497. In its final jury instructions, the district court
instructed the jury not to consider Fritter's statements in the
case against Appellant, but rather only to consider them against
Fritter himself.
The jury returned a verdict convicting Appellant on both
counts and acquitting Fritter. Appellant now appeals, making three
arguments which we consider in turn.
II.
We first consider Appellant's argument that the district court
erred in suppressing evidence of his acquittal on state charges
relating to the robbery and attempted murder of Hernandez. As
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noted above, Appellant was tried and acquitted in Virginia state
court for the aggravated malicious wounding of Hernandez and sought
to introduce this evidence in his federal trial on conspiracy
charges relating not only to the robbery and attempted murder of
Hernandez but also to two other incidents.
We review the district court's evidentiary rulings for abuse
of discretion. United States v. Moore, 27 F.3d 969, 974 (4th Cir.
1994). Although the Fourth Circuit has never specifically
addressed the admissibility of a verdict of acquittal in a prior
state proceeding relating to the same conduct at issue in a federal
proceeding, doing so requires a straightforward application of the
rules governing the admissibility of evidence generally. Such
rules, of course, include an assessment of whether the risk of
confusion of the issues from evidence's introduction substantially
outweighs its probative value. See Fed. R. Evid. 403. Several
other circuits to have confronted this precise evidentiary question
have upheld a lower court's exercise of its discretion to exclude
a verdict of acquittal in a prior state proceeding. See, e.g.,
United States v. Smith, 145 F.3d 458, 462 (1st Cir. 1998); United
States v. Tirrell, 120 F.3d 670, 678 (7th Cir. 1997); United States
v. Riley, 684 F.2d 542, 546 (8th Cir. 1982). We are aware of no
case, and Appellant cites to none, in which a court held such an
exclusion to be an abuse of discretion.
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Rather, the courts in the opinions cited above have concluded
that the district courts did not abuse their discretion in
excluding evidence of an acquittal, reasoning that the fact of
acquittal on a different charge arising out of the same criminal
conduct is simply not relevant to a later trial on another charged
crime. See, e.g., Tirrell, 120 F.3d at 678; Riley, 684 F.2d at
546. A prior acquittal, especially when the elements of the
charged crimes are different, does not tend to prove innocence.
Additionally, the limited probative value of an acquittal on prior
charges relating to the same conduct at issue in a later trial may
be substantially outweighed by the danger of unfair prejudice or
jury confusion. See Fed. R. Evid. 403; United States v. Kerley,
643 F.2d 299, 300-01 (5th Cir. 1981). We are unpersuaded that the
district court abused its discretion in so concluding here.
Appellant argues further that even if the district court's
initial decision to exclude the evidence of his state-court
acquittal was appropriate, the government "opened the door" to this
evidence at two points during the trial: (1) when a witness
referred to "a previous hearing" rather than the using the exact
language the district court had prescribed for referring to the
relevant state court proceedings and (2) when evidence revealed
that Appellant had been in jail.
Our precedent is clear that otherwise inadmissible evidence
may be permitted for the limited purpose of removing any unfair
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prejudice injected by an opposing party's "open[ing] the door" on
an issue. United States v. Higgs, 353 F.3d 281, 329-30 (4th Cir.
2003). Such rebuttal evidence "must be reasonably tailored to the
evidence it seeks to refute," and its admission or exclusion, like
all evidentiary rulings, is "addressed to the sound discretion of
the trial judge." United States v. Stitt, 250 F.3d 878, 896-97
(4th Cir. 2001).
For example, in Higgs, the defendant offered as mitigating
evidence testimony that he was a model prisoner and that he was
working to establish a positive relationship with his son. 353
F.3d at 329. In rebuttal, the government was permitted to
introduce otherwise inadmissible evidence of the defendant's prison
infractions. Id. The district court instructed the jury that such
rebuttal evidence was only to be considered for the limited purpose
of rebutting the defendant's mitigating evidence. Id. at 330.
We hold here, however, that the district court did not abuse
its discretion in refusing to admit evidence of Appellant's
acquittal after the government introduced the evidence described
above. We fail to see how the government witness's reference to "a
previous hearing" rather than "another hearing in connection with
this case"--a reference to which Appellant did not object at trial-
-bears the potential to prejudice Appellant. Furthermore, we find
no abuse of discretion in the district court's overruling
Appellant's objection to the evidence that he had previously been
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in jail, which objection was lodged only after a foundation for
that evidence had been laid. Appellant's objection to this
evidence was not that it was prejudicial but rather that it was not
accompanied by evidence that he was acquitted. See J.A. 1469-70.
Given the tardiness and limited scope of Appellant's objection, we
find no abuse of discretion in the district court's overruling it.
The district court could have reasonably concluded that such
additional evidence was not "reasonably tailored" to the evidence
it sought to explain, that Appellant was incarcerated at one time
in the past. Stitt, 250 F.3d at 897.
Finding no error in the district court's exclusion of evidence
of Appellant's state-court acquittal on charges relating to the
robbery and attempted murder of Hernandez, we now turn to
Appellant's argument that his motion for a mistrial was improperly
denied.
III.
Appellant next argues that a government witness's mention of
his gang affiliation required that a mistrial be declared and that
the district court erred in denying his motion for a mistrial. The
denial of a motion for mistrial is reviewed for abuse of
discretion. United States v. Dorlouis, 107 F.3d 248, 257 (4th Cir.
1997). The reversal of a district court's denial of a motion for
a mistrial is only warranted when there is a "reasonable
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possibility that the jury's verdict was influenced by . . .
improper[] . . . material." United States v. Seeright, 978 F.2d
842, 849 (4th Cir. 1992) (internal quotations omitted).
Prior to trial, the district court granted Appellant's motion
to suppress reference to a gang to which Appellant and Fritter
allegedly belonged, because none of the charges related to gang
activity. Here, however, the government was not the first party to
introduce the specter of gang involvement. In his opening
statement, Appellant's counsel referred to the victim Campero's
alleged membership in the same gang to which Appellant and Fritter
allegedly belonged. Next, Fritter's counsel cross-examined the
witness Jurardo about gang involvement without objection by
Appellant. It was not until redirect examination of Jurardo that
the government elicited a response that both Appellant and Fritter
were members of a gang. At this point, Appellant moved for a
mistrial. The district court reprimanded the government, denied
the motion, and issued an immediate curative instruction to the
jury:
Ladies and gentlemen, just a moment ago, Mr. Jurardo made
a statement and I want to address it right away. And, I
instruct you as follows . . . . First, there is no
evidence in this case that either Mr. Nick Halteh or Mr.
Joshua Fritter were members of any gang. And there is no
evidence that any of the actions alleged in the
indictment are in any way gang[-]related. You are
instructed to disregard entirely the witness'[s]
statement that Mr. Halteh and Mr. Fritter were members of
any gang. This is not a gang case.
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J.A. 1430-31. At the end of the trial, the district court
reiterated that "the defendants are not on trial for any act or
conduct not specifically charged in the indictment." J.A. 1699.
The government maintains that its questioning of Jurardo in
this regard was appropriate, because the codefendants opened the
door by using evidence about gangs to place the victims and
witnesses in a negative light as compared to the codefendants. We
need not reach that issue, however, because of our conclusion that
any error in the government's eliciting of testimony about
Appellant's gang membership was harmless.
In reaching that conclusion, we rely on the three-factor
framework introduced in United States v. Nyman, 649 F.2d 208, 211-
12 (4th Cir. 1980), examining (1) the closeness of the case; (2)
the centrality of the issue affected by the error; and (3) the
district court's mitigating steps. Id. Here, we find that all
three factors weigh in favor of denying the motion for a mistrial.
First, this case was not close. The evidence against
Appellant, including physical evidence and his letter to Fritter
from jail, was substantial. Second, gang membership was not a
central issue in the case; it was, at most, a tangential matter.
Appellant was not charged with gang activity. Indeed, the fact
that Fritter was acquitted despite mention that he, too, was a gang
member supports our conclusion that the jury was able to consider
the evidence underlying the conspiracy charges independently from
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the taint of the gang-affiliation comment. Finally, the district
court immediately chastised the government for eliciting the
testimony regarding Appellant's and Fritter's gang affiliations and
issued curative jury instructions. We therefore conclude that the
district court did not abuse its discretion in denying Appellant's
motion for a mistrial.
IV.
Finally, Appellant argues that his rights under the
Confrontation Clause of the Sixth Amendment were violated by the
admission of (1) a transcript of Campero's mother's 911 call and
(2) the statements of his nontestifying codefendant Fritter.
Alleged Confrontation Clause violations are legal issues we review
de novo. United States v. Rivera, 412 F.3d 562, 566 (4th Cir.
2005).
A.
The Confrontation Clause bars "admission of testimonial
statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior
opportunity for cross-examination." Crawford, 541 U.S. at 53-54.
A 911 call, the "primary purpose [of which] was to enable police
assistance to meet an ongoing emergency," is admissible over a
Confrontation Clause challenge, because it is considered
nontestimonial. Davis v. Washington, 126 S. Ct. 2266, 2277 (2006).
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The Supreme Court suggested, however, that portions of 911 calls
may be testimonial, as where an emergency situation is neutralized
and a caller's statements "evolve into testimon[y]." Id. at 2277.
Because both Campero's mother and the 911 operator testified at
Appellant's trial, however, we need not reach the issue of when a
911 call becomes testimonial.
Crawford's holding explicitly applies only to "[t]estimonial
statements of witnesses absent from trial" for which no prior
opportunity to cross-examine was available. See Crawford, 541 U.S.
at 59 (emphasis added). Appellant's argument that Crawford
requires exclusion of the 911 call even though both the caller and
operator appeared at trial is untenable. A Confrontation Clause
violation does not occur when the witness is before the court and
subject to cross-examination about her prior testimonial statement.
That a defendant opts not to cross-examine the witness does not
compel a different conclusion. Even if part of the 911 call at
issue could be considered testimonial under Crawford and Davis, and
we express no opinion on that point, the appearance of both the
caller and the 911 operator as trial witnesses available for cross-
examination negated any Confrontation Clause violation that could
flow from its admission.
B.
We turn now to Appellant's contention that the admitted out-
of-court statements of the nontestifying codefendant Fritter also
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violated Appellant's Confrontation Clause rights. Fritter gave
several statements to a police detective that corroborated evidence
against Appellant and himself. The district court permitted these
statements to be admitted into evidence with Appellant's name
redacted and replaced with neutral pronouns. Fritter's out-of-
court statements were discussed at the following points of the
trial: Fritter's cross-examination of Jurardo; Appellant's cross-
examination of the detective to which the statements were given;
and in both the government's and Fritter's closing arguments. The
statements noted that a "friend" had a stash of marijuana just
after the Campero murder, and that Fritter surmised that "maybe
this individual had something to do with the murder." J.A. 1495.
Fritter's out-of-court statements also revealed that an "individual
told him that he had pistol[-]whipped . . . [an] Asian kid." J.A.
1497-98. The jury did not see copies of Fritter's statements, nor
were they told of any modifications to them. Furthermore, the
district court issued instructions advising that jurors "may not in
any way . . . consider the alleged statements of the defendant, Mr.
Joshua Fritter when evaluating the case against Mr. Nick Halteh and
determining whether the government has proven the charges against
Mr. Halteh." J.A. 1684-85.
The seminal case of Bruton v. United States, 391 U.S. 123(1968), prohibits admission of a statement of a nontestifying
codefendant "if it could be fairly understood to incriminate the
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accused." United States v. Campbell, 935 F.2d 39, 43 (4th Cir.
1991). However, if a nontestifying codefendant's statement is
redacted to eliminate any reference to the defendant, Richardson v.
Marsh, 481 U.S. 200, 211 (1987), or if "the defendant's name is
replaced by a symbol or neutral pronoun," United States v. Vogt,
910 F.2d 1184, 1191-92 (4th Cir. 1990), such statement is
admissible. If a proffered statement of one nontestifying
codefendant becomes incriminating against another by virtue of an
inference from other evidence at trial, the Confrontation Clause
may not be offended if those statements are redacted and a proper
limiting jury instruction is given. Richardson, 481 U.S. at 208-
09; see also United States v. Locklear, 24 F.3d 641, 646 (4th Cir.
1994).
On the other hand, redactions that obviously identify the
defendant, even without naming him, effect a constitutional
violation that cannot be cured by a jury instruction. See Gray v.
Maryland, 523 U.S. 185, 195-96 (1998). Gray differentiates between
statements that incriminate by inference or only when linked with
later evidence and those that obviously refer to a particular
person or involve inferences a jury could make even without
additional evidence. Id. at 196. Only in the latter instance does
a constitutional violation occur. Id.For example, in response to the question, "Who was in the
group that beat [the victim]?," the response "Me, deleted, deleted,
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and a few other guys" obviously incriminates two codefendants of
the crime of murdering the victim. See id. After Gray, however,
this court has continued to allow general references to "another
person" or "another individual" in such statements, because "[t]he
Supreme Court has strongly implied that such statements do not
offend the Sixth Amendment." United States v. Akinkoye, 185 F.3d
192, 198 (4th Cir. 1993). The implication to which Akinkoye refers
is the Supreme Court's explicit pondering in Gray about "why could
the witness not, instead, have said: 'Question: Who was in the
group that beat [the victim]? Answer: Me and a few other guys,'"
suggesting that such a neutral response would have been acceptable.
See Gray, 523 U.S. at 196.
In Akinkoye, nontestifying codefendants' confessions were
retyped, with the defendants' respective names replaced with the
neutral phrase "another person" or "another individual," and the
statements were read to the jury. 185 F.3d at 198. So redacted,
neither confession facially implicated the other defendant. Id.
We find no constitutional violation on the facts of
Appellant's case. The redacted statements here are like those in
Akinkoye and unlike the offending statements in Gray. In Gray, the
deleted reference to the defendants appeared in a statement
regarding the ultimate issue in the case; on trial for murder, the
defendants' names were redacted in response to the direct question
of who beat the victim. It was clear to the jury upon hearing the
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nontestifying codefendant's response that the statement had been
altered by the deletion of two names. Gray, 523 U.S. at 196.
Here, as in Akinkoye, there was no way to facially identify the
"friend" or "individual" as Appellant after hearing the redacted
statements without more information; there were four named
conspirators in the indictment. Also, unlike in Gray, it would
have been unclear to the jury that the statements had been altered
at all.
Indeed, only when Fritter's out-of-court statement is linked
with in-court testimony, which Appellant had an opportunity to
challenge through cross-examination, might one infer that the out-
of-court statement refers to Appellant. For example, Jurardo
testified at trial that Appellant emerged from Campero's home after
Campero's murder with a quantity of marijuana. It is this in-court
statement that creates an inference that the "friend" of Fritter's
whom he believed might have "had something to do with [Campero's]
murder" was Appellant. See J.A. 1495. Additionally, the second
robbery victim Han testified at trial that Appellant struck him
with a pistol. Only when linked with this in-court testimony does
Fritter's statement that an "individual told him that he had
pistol[-]whipped . . . [an] Asian kid" implicate Appellant. See
J.A. 1497-98.
Richardson holds that where a nontestifying codefendant's
redacted out-of-court statement identifies the defendant by
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implication when linked with evidence at trial, such statement is
admissible so long as a proper limiting jury instruction is given.
481 U.S. at 208-09. Here, the district court issued jury
instructions admonishing jurors not to consider Fritter's out-of-
court statements in the case against Appellant.
We therefore find no constitutional violation in either the
admission of the 911 call or Appellant's non-testifying co-
defendant's redacted out-of-court statement. Having also concluded
that the district court did not abuse its discretion in suppressing
evidence of Appellant's prior state-court acquittal or in denying
Appellant's motion for a mistrial, Appellant's conviction is
AFFIRMED.
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