United States v. Antoine Davis ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-2483
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UNITED STATES OF AMERICA
v.
ANTOINE PARIS DAVIS,
Appellant
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On Appeal from the District Court
for the Middle District of Pennsylvania
(M.D. Pa. Crim. No. 4-16-cr-00006-002)
District Judge: Honorable Matthew W. Brann
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Submitted Under Third Circuit L.A.R. 34.1(a)
on March 15, 2018
Before: JORDAN, SHWARTZ, and KRAUSE, Circuit Judges
(Opinion filed: March 26, 2018)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
KRAUSE, Circuit Judge.
Antoine Davis appeals his convictions for conspiracy to possess with intent to
distribute and to distribute heroin and cocaine, in violation of 21 U.S.C. § 846, and
possession with intent to distribute heroin and cocaine, in violation of 21 U.S.C.
§ 841(a)(1), arguing the District Court erred in excluding certain impeachment evidence.
For the reasons set forth below, we will affirm.
I. Background
This prosecution arose from three separate undercover cocaine purchases by
Pennsylvania State Police from Raheem Ruley—Davis’s co-conspirator and co-defendant
at trial—and the execution of a search warrant on Ruley and Davis’s residence. Inside
the house, the police discovered a safe bolted to the floor of a closet containing heroin,
cocaine, and drug packaging equipment such as black rubber bands, a straw, a razor
blade, and a digital scale. Some of the heroin was packaged into 136 small multi-folded
Ziploc bags, with black rubber bands wrapped around every ten bags. In a kitchen
drawer, the police found Ruley’s wallet and $380 in cash, alongside bags of crack
cocaine and vials of marijuana. And in Davis’s bedroom, they found another safe, this
one containing over $1,000 in cash, five cell phones, and another bag of cocaine. Of the
cash seized from the house, $160 came from the pre-recorded marked bills that law
enforcement had used to buy cocaine from Ruley. In total, law enforcement seized from
the house approximately 133 grams of heroin and 95 grams of cocaine.
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At trial, in addition to that evidence, the jury was shown a series of text-message
exchanges on one of the cell phones seized from Davis’s safe, establishing that Davis had
offered others “fire” (a street term for heroin) and “balls” (cocaine). D. Ct. Dkt. 173, at
63, 73–74. Likewise, records for that same phone showed that Davis had exchanged
many calls and text messages with the same number the police had used to arrange their
undercover cocaine buys from Ruley and that he had done so around the same time as
those buys. Multiple witnesses testified they had bought cocaine from Davis, with one
saying Davis had told him heroin was also “available.” D. Ct. Dkt. 172, at 169.
Still another witness, Dana Rockwell, testified to having actually purchased heroin
from Davis several times. Rockwell typically bought from Davis a “normal amount” of
heroin—$400 worth, or “50 bags.” App. 92. According to Rockwell, Davis usually sold
heroin in single-folded bags. When defense counsel showed Rockwell a photograph of
single-folded bags during cross-examination, she testified: “They are the same baggies.
Sometimes it was different than that. Sometimes it was the same.” App. 95. However,
when she was shown a photograph of multi-folded bags, she characterized them as
“different.” App. 95.
Davis’s counsel then subpoenaed Pennsylvania State Trooper Havens, who,
around the same time other investigators had seized heroin from Davis’s house, had
conducted a sting unrelated to this case that led to a separate seizure of heroin. Davis’s
counsel intended to show that the heroin from the two seizures had been improperly
“intermingled” and, thus, some heroin was “wrongfully attributed” to Davis. App. 133.
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The District Court quashed the subpoena, finding Davis had not established a sufficient
basis for his allegation of intermingling and concluding the subpoena “raise[d] serious
concerns under Federal Rule of Evidence 403,” because “the risk of prejudice and of
misleading the jury [wa]s exceptionally high.” App. 145–46. Davis’s counsel also
sought to admit into evidence the photograph of the single-folded bags of heroin that
Rockwell had said resembled the bags she regularly bought from Davis, explaining that
he sought to clarify for the jury that the photograph actually depicted heroin from
Trooper Havens’s unrelated seizure and not heroin found in his house. The District Court
granted the Government’s objection to admitting the photograph, reasoning that it
likewise would “confuse the jury” and be “contrary to” the decision to quash the
subpoena for Trooper Havens. App. 148.
At the conclusion of trial, the jury found Davis guilty of both the conspiracy and
possession counts. In response to special interrogatories, the jury also determined that
the weight of all such substances containing heroin exceeded 100 grams. The District
Court then sentenced Davis to 144 months in prison, and Davis filed this timely appeal.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have
jurisdiction under 28 U.S.C. § 1291. We review a District Court’s decision to exclude
evidence for abuse of discretion. United States v. Stimler, 864 F.3d 253, 269 (3d Cir.
2017).
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III. Discussion
On appeal, Davis contends the District Court abused its discretion in quashing his
subpoena for Trooper Havens and in excluding from evidence the photograph of heroin
from the unrelated case. Specifically, he argues this evidence was necessary to impeach
Rockwell, the “only trial witness who connected Davis to heroin sales[] [and] to the
heroin found in [the closet] safe.” Appellant’s Br. 16. We conclude, however, that even
if these rulings constituted error, such error was harmless.
A non-constitutional trial error, such as the improper exclusion of evidence, will
not justify reversing a conviction if the error was harmless, i.e., if it is “highly probable
that the error did not contribute to the judgment.” United States v. Brown, 765 F.3d 278,
295 (3d Cir. 2014). “While the Government bears the burden of showing that the error
was harmless, we can affirm for any reason supported by the record,” United States v.
Cross, 308 F.3d 308, 326 (3d Cir. 2002) (citation omitted), and we may conclude an error
was harmless “without disproving every ‘reasonable possibility’ of prejudice,” United
States v. Tyler, 281 F.3d 84, 101 n.26 (3d Cir. 2002) (citation omitted).
Here, the evidence connecting Davis to illegal drug trading was overwhelming.
Heroin aside, investigators seized cocaine from both the safe in his bedroom and the one
in the closet and found in his house $160 in the marked bills that had been used in the
undercover buys from Ruley.1 Multiple witnesses testified that Davis sold them cocaine,
While Davis argues the Government “could not establish a link between the
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Ruley buy money and the cash seized from Davis,” Appellant’s Br. 16, it is undisputed
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and records from his cell phone reflected both sales of cocaine and contemporaneous
communications with the same number that law enforcement had been using to arrange
the cocaine purchases from Ruley. There also was significant evidence establishing
Davis’s involvement in selling heroin. Not only were 133 grams of heroin found in his
house, with some of it packaged for street sales, but his phone records also showed him
offering to sell heroin (“fire,” as he put it), D. Ct. Dkt. 173, at 63, and a witness at trial
confirmed Davis had made clear to him that heroin was “available” for sale, D. Ct. Dkt.
172, at 169. Based on the strength of the evidence alone, it is “highly probable” that the
exclusion of the Rockwell impeachment evidence—even if it was error—“did not
contribute to the judgment.” Brown, 765 F.3d at 295.
The nature and context of the impeachment evidence only reinforces that
conclusion. The discrepancy that defense counsel sought to highlight in Rockwell’s
testimony concerned the type of heroin bags she bought from Davis, but that would not
undermine Rockwell’s testimony that Davis regularly sold her heroin, or that the single-
folded bags of heroin appearing in the photograph—even if the photograph depicted
heroin seized in the unrelated case—were the “same” type of bags she “[s]ometimes”
bought from Davis. App. 95.
That is, the central relevance of Rockwell’s testimony was not to link Davis to the
specific heroin in the photograph but to show that he “offered heroin to [his] customers
that the marked bills were seized from the house where Davis resided with Ruley.
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and regularly had supplies available for sale,” Appellee’s Br. 25. The photograph served
as a basis only for her testimony regarding how that heroin was occasionally packaged.
The source of the bags in the photograph was thus beside the point and would have done
nothing to disturb Rockwell’s testimony about buying heroin from Davis on multiple
occasions and “[s]ometimes” in single-folded bags like those depicted in the photograph.
App. 95.
In sum, given the weak impeachment value of this evidence and the powerful and
uncontroverted evidence of Davis’s drug trafficking, any error in excluding Trooper
Havens’s testimony and the photograph that defense counsel showed Rockwell was
harmless and Davis’s convictions will therefore be affirmed.
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