Beruflich Dokumente
Kultur Dokumente
No. 14-4370
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Fox, Senior
District Judge. (5:12cr00376F1)
Argued:
Before DUNCAN
Circuit Judge.
and
DIAZ,
Decided:
Circuit
Judges,
and
DAVIS,
Senior
ARGUED: Paul K. Sun, Jr., ELLIS & WINTERS, LLP, Raleigh, North
Carolina, for Appellant.
Kristine L. Fritz, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
cocaine
in
to
and
violation
188
of
possess
21
months
with
U.S.C.
intent
to
841(a),
imprisonment.
On
distribute
846.
appeal,
He
was
Garcia-
introduction
of
ethnically
charged
evidence.
He
also
I.
On appeal from a criminal conviction, we recite the facts
in the light most favorable to the government.
United States
March
Fayetteville,
charges.
27,
North
2012,
Ronnie
Carolina
on
Reed
federal
was
drug
arrested
in
trafficking
J.A. 92.
next
warrants
on
day,
the
the
three
police
simultaneously
trailers.
The
executed
officers
found
search
Garcia-
At 294 Maple
exit
the
353
trailer
from
the
back,
and
identified
himself
to
the
J.A. 248.
officers
as
Alex.
GarciaBoth
Garcia-Lagunas and Jacobs told the officers that they did not
live in the trailer.
Later
found a handgun and several small baggies about one inch by one
inch in size.
grams
cocaine.
of
white
powder;
and
small
baggie
of
crack
grand
jury
charged
Garcia-Lagunas 1
with
conspiring
to
cocaine,
in
violation
of
21
U.S.C.
841(a),
846,
and
He pleaded
utilized
by
drug
traffickers
J.A. 32.
to
operate
and
protect
and
the
relevant
searches.
After
hearing
cocaine
there . . .
wasnt
enough
cocaine
in
it
to
even
J.A.
111.
Collins
also
told
the
jury
that
Garcia-Lagunas
asked
assisted
Collins
with
the
if
he
help
saw
of
an
J.A. 150.
that
was
After the
Garcia-Lagunas
interpreter
an
in
was
court,
J.A. 150-51.
J.A. 151.
Four
drug
dealersReed,
Jacobs,
Thomas
Brewington,
and
had
spoken
to
Garcia-Lagunas
in
They
also
Hernandez, the
353
Orellano,
Westcott
the
trailer.
defense
During
elicited
its
cross-examination
testimony
regarding
of
the
redirect,
Orellano
told
the
jury
that
he
had
extensive
J.A. 270.
J.A. 271.
7
that
Orellano
had
not
been
qualified
as
an
expert.
After
to
lifestyle.
Several
referred
to
explain
this
testimony
Garcia-Lagunass
during
lack
of
its
The
closing
an
extravagant
the
government.
J.A. 520.
other
officers
testified
for
J.A. 411.
testified,
and
based
on
his
training
Detective Stein
experience,
that
the
J.A. 437-38.
finding
it
sufficient
that
guilty
of
conspiring
to
the
verdict
distribute
and
possess
the
court
sua
sponte
form
directed
the
with
After the
parties
to
brief
occurred.
The
presentence
investigation
report
(the
PSR)
found
zero,
putting
him
in
criminal
history
category
I.
drug
enhancement,
weight
but
calculation
sustained
the
9
and
the
objections
dangerous
to
the
weapon
other
two
An offense
range
of
188
to
235
months
imprisonment.
The
variance
that
is
based
upon
related
to
the
Attorney
the
proposed
Generals
amendment
recent
to
the
J.A. 678-79.
Garcia-
resulting
J.A. 679-80.
offense
level
of
34
yielded
Guidelines
because
conviction.
Garcia-Lagunas
this
constitutes
J.A.
680-81,
to
the
683.
consecutive
defendants
The
court
sentence
first
also
of
felony
sentenced
24
months
Only after
10
II.
Garcia-Lagunas
first
challenges
several
of
the
district
of
them
discretion,
and
subject
to
harmless
error
review.
United States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010).
An
all
that
happened
without
stripping
the
erroneous
action from the whole, that the judgment was not substantially
swayed by the error.
F.3d
365,
371
(4th
1997)).
But
we
may
disregard
Chapman v.
United States v.
error, the defendant must show there was an error, the error
was plain, and the error affected [the defendants] substantial
rights.
protection,
testimony
(2) the
from
district
several
11
of
court
the
allowed
improper
governments
lay
as
an
failure
to
comply
(4) the
expert
admission
witness
in
with
expert
of
evidence
spite
of
disclosure
the
governments
requirements,
regarding
and
Garcia-Lagunass
objected
to
this
testimony
at
trial,
See Fed.
R.
at
Evid.
103(a)(1)(B).
Nonetheless,
the
government
oral
14-4370
(Sept.
17,
2015),
available
at
http://coop.ca4.uscourts.gov/OAarchive/mp3/14-4370-20150917.mp3.
12
prejudice
defendants
Fifth
during
Amendment
the
course
right
to
of
a
trial
fair
violate
trial.
United
States v. Cabrera, 222 F.3d 590, 594 (9th Cir. 2000); accord
United States v. Runyon, 707 F.3d 475, 494 (4th Cir. 2013) (The
Supreme
Court
capable
of
degrade
the
has
long
inflaming
made
clear
jurors
administration
of
that
racial
or
justice.
statements
ethnic
(quoting
that
are
prejudices
Battle
v.
F.3d 1206, 1213 (8th Cir. 1994); see also United States v. Cruz,
981 F.2d 659, 664 (2d Cir. 1992) (Injection of a defendants
ethnicity into a trial as evidence of criminal behavior is selfevidently
improper
and
prejudicial
for
reasons
that
need
no
elaboration here.).
Several
of
our
sister
circuits
have
held
that
the
trade
is
[constitutional
error].
United
States
v.
We accept
that these circuits correctly applied the law, but find that the
governments
use
of
an
ethnic
stereotype
here,
while
error
surrounding
the
use
of
ethnically
based
trade,
that
the
defendant
belonged
to
that
ethnic
or
14
national group, and that the defendant was therefore more likely
to be a drug dealer.
For example, in Doe, the government presented an expert
witness who testified that [t]he Jamaicans . . . have had a
phenomen[al]
Columbia,
impact
and
Jamaicans,
on
the
drug
trade
the
market
has
been
where
there
was
reason
in
taken
to
the
District
of
over
basically
by
believe
that
the
The D.C.
in
Id. at 2023.
Vue,
the
government
introduced
custom
13 F.3d at
the
injection
of
ethnicity
into
the
trial
clearly
invited the jury to put the Vues racial and cultural background
into the balance in determining their guilt.
relevant . . . ;
the
reference
15
merely
made
it
seem
more
likely in the eyes of the jury that [the defendants] were drug
dealers because of their ethnicity.).
Here, in contrast, the government did not ask the jury to
put
Garcia-Lagunass
indicating
Hispanic
trade.
ethnicity
guilt
by
stating
descent
is
more
or
likely
on
the
side
implying
that
to
be
of
a
involved
the
scale
defendant
in
the
of
drug
it
inappropriately
relied
on
an
ethnically
based
States.
While
he
does
have
two
children
living
in
money
was
its
generalization
about
Hispanic
drug
traffickers.
Nonetheless, although the government made improper use of
an ethnic stereotype, it did not encourage the jury to consider
Garcia-Lagunass
ethnicity
as
evidence
of
his
guilt.
Testing the
F.3d
146,
155
(4th
Cir.
2011).
evidence
17
At trial,
four
testified
witnesses
who
did
not
know
each
other
See United
States v. Briley, 770 F.3d 267, 277 (4th Cir. 2014) (finding
evidentiary error harmless where [a]n array of witnesses gave
clear,
compelling,
and
consistent
accounts
about
[the
associated
which
with
matched
Garcia-Lagunas.
that
of
Reeds
Finally,
source
of
his
phone
supply,
number,
Alex,
was
pondering
all
that
happened
without
stripping
the
not
substantially
swayed
by
Orellanos
testimony.
erred
in
admitting
evidence
regarding
his
immigration
Such
Id. 404(b)(2).
we use a four-part test to assess admissibility: (1) the prioract evidence must be relevant to an issue other than character,
such as intent; (2) it must be necessary to prove an element of
the crime charged; (3) it must be reliable; and (4) . . . its
probative
value
must
prejudicial nature.
not
be
substantially
outweighed
by
its
448 (4th Cir. 2013) (quoting United States v. Queen, 132 F.3d
991, 995 (4th Cir. 1997)).
1.
The government presented evidence that Garcia-Lagunas was
an alien illegally in the United States.
At trial,
and
Robeson
Counties.
Appellees
Br.
at
42.
We do not
agree.
Collins
previously
testified
deported
solely
from
the
that
United
[t]he
States
and
has
almost
no
probative
value
defendant
is
was
an
alien
J.A. 150.
This
concerning
Garcia-
inference
of
Mexican
nationality.
And,
importantly,
the
See Fed. R.
made
whether
the
danger
of
undue
prejudice
outweighs
the
Garcia-Lagunass
immigration
status,
especially
without
was
not,
therefore,
permissible
404(b)
evidence.
See
215 (4th Cir. 2014) (quoting United States v. Olano, 507 U.S.
725, 734 (1993)).
An
outcome
of
the
district
court
proceedings.
Ramirez-
need
not
address
whether
the
improper
admission
of
status
conspiracy
was
not
to
distribute
referenced
cocaine,
again
after
and
his
Collinss
21
immigration
testimony.
2.
Garcia-Lagunas also challenges the governments references
to his use of an interpreter at trial, arguing that they were
intended to paint him as a faker for relying on an interpreter
when he did not need one.
was
the
man
who
dealt
with
witnesses,
the
might
governments
relevant
to
substantially
have
created.
references
to
identity,
and
outweighed
by
We
therefore
Garcia-Lagunass
their
any
probative
threat
of
find
that
interpreter
value
was
prejudice.
the
were
not
See
22
bases
and
reasons
qualifications.
for
Fed.
those
R.
opinions,
Crim.
P.
and
the
witnesss
16(a)(1)(G).
Rule
unexpected
opponent
with
expert
fair
testimony . . .
opportunity
to
and
test
to
the
provide
merit
of
the
the
United
States v. Smith, 701 F.3d 1002, 1007 (4th Cir. 2012) (quoting
Fed. R. Crim. P. 16(a)(1)(G) advisory committees note to 1993
amendment).
Garcia-Lagunas points out that the governments notice that
Collins would testify about drug trafficking investigations and
methods
their
utilized
by
business,
qualifications,
opinions.
drug
J.A.
opinions,
traffickers
32,
or
to
failed
the
operate
to
bases
and
state
and
reasons
protect
Collinss
for
his
While
governments
Garcia-Lagunas
short
and
has
summary
viable
notice
argument
failed
to
that
the
meet
the
23
jury
contextual
the
background
of
how
drug
trafficking
evidence.
Given
the
limited
scope
of
the
physical
in
the
laboratory,
Garcia-Lagunas
cannot
establish
See
United States v. Jones, 739 F.3d 364, 370 (7th Cir. 2014) (We
need
not
testimony
consider
without
whether
notice]
the
could
error
be
[of
admitting
considered
plain,
expert
because
without
complying
with
the
expert
24
testimony
2.
Garcia-Lagunas
also
contends
that
Collinss
testimony
tested
negative
in
the
laboratory
for
any
controlled
Counsel objected at
In particular,
testimony
adequately
demonstrated
This
Collinss
III.
Garcia-Lagunas next challenges his sentence.
We review a
25
Washington,
743 F.3d at 943 (citing Gall v. United States, 552 U.S. 38, 51
(2007)).
First,
we
must
ensure
that
the
district
court
(or
improperly
calculating)
the
Guidelines
range.
did
not
object
to
any
of
the
Id.
alleged
United States v.
first
challenges
the
district
courts
instruct
the
jury
to
determine
the
quantity
of
cocaine
drug
offenses,
penalty
scheme
21
U.S.C.
based
on
841(b)
the
sets
quantity
forth
of
drugs
sentence
of
no
less
than
five
and
no
more
than
40
years
imprisonment.
However,
in
United
individual
defendant,
841(a),
[should
States
found
not]
v.
guilty
be
Collins,
of
we
held
conspiracy
sentenced
under
that
to
an
violate
841(b)
by
regarding
the
amount
of
cocaine
the
defendant
as
the
statutory
sentencing
threshold
under
841(b).
J.A. 639.
We hold that this was not plain error.
Although Williams
See
of
five
years
imprisonment,
and
thus
Garcia-Lagunas
Garcia-Lagunas
argues
that
the
district
court
agree,
and
also
find
that
the
error
was
plain
and
to
go
offense
down
those
level
two
should
levels.
have
been
Thus,
34,
Garcia-Lagunass
which
would
have
J.A. 683.
Additionally,
in its Statement of Reasons form, the court scored GarciaLagunass total offense level at 36, noting that it sustained
one
of
Garcia-Lagunass
anticipated
Guidelines
objections
amendment
28
to
the
PSR
reduction,
and
used
but
the
not
Thus, the
1350, 1356 (4th Cir. 1996) (finding plain and prejudicial error
where
the
erroneous
addition
of
points
to
the
defendants
Thus, had it
defendant could not show that the plain error in sentencing him
under the wrong offense level affected his substantial rights
because (1) his sentence under the wrong level fell within the
range for the correct level, and (2) he could not point to
additional evidence in the record, other than the difference
in
ranges,
to
Molina-Martinez,
show
588
an
F.
effect
Appx
at
29
on
his
33435.
substantial
Indeed,
rights.
the
Fifth
30
Knight,
606
F.3d
at
177-78.
The
district
court
Id. at 178-79.
Id. at 179.
Knight
argued that the courts intent was to sentence her, like the
other defendant, to roughly half of her Guidelines range, and
so the sentencing error affected her substantial rights because
the court would have sentenced her to roughly half of 77-96
months under the correct range.
Id.
Id.
We
the
explicitly
distinguished
hypothetical
case
where
the
60-month
rangefor
sentence
example,
by
ultimately
stating
that
imposed
it
to
intended
the
to
did
explicitly
connect
the
Id.
sentence
imposed
to
the
Garcia-Lagunas
therefore
31
has
shown
that
his
Id. at 178.
Fairness dictates
integrity,
proceedings.).
and
public
reputation
of
the
judicial
Id. 9
thing.
IV.
In
sum,
Lagunass
we
trial
hold
that
were
either
substantial rights.
any
evidentiary
harmless
or
errors
did
not
in
Garcia-
affect
his
32
Lagunass
conviction,
vacate
his
sentence,
and
remand
for
resentencing.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
33
Government
correctly
concedes
that
it
was
the
Alejandro
prove
jury
draw
Garcia-Lagunas.
beyond
testimony
would
did
reasonable
not
inferences
Because
doubt
contribute
to
adverse
the
that
the
to
Government
its
Appellant
failed
reliance
jurys
on
verdict,
to
such
as
my
distinction,
Garcia-Lagunas
utilized
questions
To make
during
follow
high-volume
distributor.
For
example,
when
about
the
assets
discovered
at
the
residences
of
J.A. 153-55.
J.A. 154-55.
arrest,
the
cross-examinations
of
Detective
Collins
and
detectives
arrested
Garcia-Lagunas,
he
was
found
J.A. 176.
this testimony would cause the jury to ask: how can a man who is
allegedly
dollars
responsible
in
cocaine 1
transactions?
Assistant
United
Any
for
have
selling
no
proceeds
experienced
States
hundreds
Attorney
(and
even
of
to
an
prosecuting
thousands
evidence
of
those
inexperienced)
cases
in
this
35
however,
time
the
the
Government
absence
of
seemingly
drug
the
ostensible
weakness
recognized
trafficking
for
proceeds
the
as
the
introduction
of
Either
to
adequately
prepare
its
case,
it
instead
sought
to
J.A.
36
J.A. 520.
The relative ability of this particular stereotype to sway
the jury is evidenced by its effect on the presiding judge.
response
to
renewed
objection
to
Detective
In
Orellanos
drug
dealers
or
not. 3
J.A.
273.
The
Government
J.A. 273.
prejudice
during
the
course
of
trial
violate
United v.
A number of our
constitutional
error
occurs
when
the
Government
37
United
This is
perceived
hole
generalizations
in
its
about
case,
the
Garcia-Lagunass
Government
ethnicity
offered
to
the
up
jury.
The Government hoped that, like the presiding judge, the jurors
would
believe
that
Garcia-Lagunass
modest
lifestyle
did
not
like
distinguish
pauper
the
here.
ethnic
And
while
generalization
the
majority
tactically
seeks
elicited
to
and
cases
specific
decided
method
in
for
our
sister
injecting
circuits,
the
Garcia-Lagunass
Governments
ethnicity
as
tellingly,
even
the
Government
concedes
that
the
recitation
of
the
testimony
38
at
the
outset
of
closing
Oral Argument at
2015),
available
at
http://coop.ca4.uscourts.gov/OAarchive/mp3/14-4370-20150917.mps.
During oral argument, when asked whether the error amounted to
constitutional
error,
counsel
unequivocally, Yes.
Id.
for
the
Government
responded
it
was
the
Governments
burden
to
prove
beyond
Id.
Id.
of
four
drug
dealers
testifying
pursuant
to
plea
By
standard,
the
majority
affirms
the
I respectfully dissent.
39
conviction