United States v. Robert Hansman , 397 F. App'x 57 ( 2010 )


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  •      Case: 09-50674     Document: 00511252148          Page: 1    Date Filed: 10/04/2010
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    October 4, 2010
    No. 09-50674
    Summary Calendar                         Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    ROBERT HANSMAN,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 3:08-CR-1908-1
    Before GARWOOD, PRADO, and HAYNES, Circuit Judges.
    PER CURIAM:*
    After Border Patrol agents found marijuana secreted in a truck driven by
    Robert Hansman, a jury convicted him of importing and possessing with intent
    to distribute marijuana. Hansman was sentenced to a 60-month prison term to
    be followed by four years of supervised release. On appeal, Hansman challenges
    only his conviction.
    Hansman first argues that the district court erred in declining to grant a
    mistrial after one of the Government’s witnesses remarked that Hansman had
    *
    Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
    R. 47.5.4.
    Case: 09-50674    Document: 00511252148 Page: 2          Date Filed: 10/04/2010
    No. 09-50674
    been detained in jail since he was arrested. In Hansman’s view, a mistrial was
    warranted because the investigator’s comment undermined the presumption of
    innocence. We review for abuse of discretion the district court’s denial of a
    motion for a mistrial. United States v. McCall, 
    553 F.3d 821
    , 826-27 (5th Cir.
    2008), cert. denied, 
    129 S. Ct. 2018
     (2009). The court will not reverse as long as
    any error was harmless, meaning that there was not a significant possibility that
    the evidence had a substantial impact on the verdict. United States v. Lucas,
    
    516 F.3d 316
    , 345 (5th Cir. 2008).
    To the extent that the comment was improper because it inappropriately
    insinuated Hansman’s guilt, see United States v. Dawson, 
    563 F.2d 149
    , 151 (5th
    Cir. 1977), any error was harmless.        The statement was a single, isolated
    remark, unprompted by the Government, during the course of a two-day trial.
    See United States v. Valles, 
    484 F.3d 745
    , 756 (5th Cir. 2007). Moreover, the
    district court immediately provided a curative instruction, explaining to the jury
    that the comment was not responsive to the question posed and should be
    disregarded. No further instruction was requested. We presume that juries
    follow the court’s instructions. Zafiro v. United States, 
    506 U.S. 534
    , 540 (1993).
    In addition, there was significant evidence of Hansman’s guilt, including that
    the truck he was driving and claimed to own contained over 50 kilograms of
    marijuana in a concealed compartment built into the back seat, testimony that
    he engaged in what was apparently a dry run with the identical truck the week
    before, testimony that he exhibited nervous behavior both times that he
    attempted to cross the border, and testimony describing his inconsistent stories.
    In the context of the proceedings as a whole it is highly unlikely that the
    witness’s brief, isolated remark caused the jury to reach a verdict it otherwise
    would not have reached.1
    1
    We note that no defense evidence (apart from cross-examination) or witness was
    presented to the jury.
    2
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    No. 09-50674
    Hansman next argues that the district court improperly limited defense
    counsel’s cross-examination of one of the Government’s witnesses regarding the
    Government’s investigation of a man identified as Omar, who, according to
    Hansman’s pretrial statements, employed him, sold him the truck, and set him
    up. Hansman does not argue that his Sixth Amendment right to confront
    witnesses against him was violated; thus, we review for abuse of discretion the
    district court’s decision to limit the cross-examination of the investigator. See
    United States v. Ramos, 
    537 F.3d 439
    , 448 (5th Cir. 2008). Hansman must also
    establish that the district court’s limitation clearly prejudiced him. See United
    States v. Skelton, 
    514 F.3d 433
    , 438 (5th Cir. 2008). Here, the district court
    limited the witness’s testimony only to the extent that it constituted
    inadmissible hearsay. Hansman was not limited in eliciting testimony about
    what the investigator personally knew. Indeed, the witness was permitted to
    testify that another agent was investigating a man named Omar; however, the
    witness did not have enough information to know whether it was the same Omar
    that Hansman identified. Hansman has failed to demonstrate an abuse of
    discretion or clear prejudice.
    Finally, Hansman contends that the district court should have allowed his
    sole potential witness, the director of nursing at the detention facility where
    Hansman was held, to testify as to Hansman’s medical condition and the
    medications he was taking at the time he was booked at the detention facility
    after his arrest.2 At trial, Hansman’s counsel admitted that he did not know
    whether the nurse participated in Hansman’s medical screening when he was
    booked and that the witness would be testifying solely based on the information
    on Hansman’s intake chart. According to defense counsel, this testimony could
    2
    Because the court ruled that this potential witness could not so testify, the defense
    did not call her.
    3
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    No. 09-50674
    provide a “possible explanation” for the nervous behavior Border Patrol agents
    testified that Hansman exhibited at the border checkpoint.
    We review for abuse of discretion the district court’s decision to exclude
    evidence. United States v. Arledge, 
    553 F.3d 881
    , 892 (5th Cir. 2008), cert.
    denied, 
    129 S. Ct. 2028
     (2009). A district court may exclude even relevant
    evidence if its probative value is substantially outweighed by the danger of,
    among other things, misleading or confusing the jury. F ED. R. E VID. 403; United
    States v. Saldana, 
    427 F.3d 298
    , 307 (5th Cir. 2005).
    Assuming that Hansman’s medical condition at the time he was taken into
    custody was relevant, we find that there was no abuse of discretion. There was
    no indication that the nurse in question either examined Hansman or would be
    able to explain the significance of the unspecified medical conditions or
    medications, given that she was not a physician (and was not otherwise shown
    to be able to do so). The testimony would have had slight probative value and
    there would have been a high probability of jury confusion. Accordingly, there
    was no error in the district court’s exclusion of this testimony.
    Accordingly, the judgment of the district court is
    AFFIRMED.
    4