2003 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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# U S A v . S mith

P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ock e t 02-1973

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### No. 02-1973

UNITED S TATES OF AMERI CA

v. TI MOTHY SMI TH, a/k/a Musa Appellant Appeal from the United States District Court for the District of New Jersey (D.C. Criminal Action No. 00-cr-00205-1) District Judge: Honorable Joel A. Pisano Submitted Under Third Circuit LAR 34.1(a)

March 11, 2003

Before: RENDEL

L, AMBRO and MAGI

LL *, Circuit Judges (Opinion filed: May 13, 2003)

OPINION

*Honorable Frank J. Magill, Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by desig nation.1 Sev eral e xpe rt w itnes ses a lso te stifie d ab out dru g de aling pra ctice s. 2 AMBRO, Circu it J udge Timothy Smith was c onvicted

of conspi ring to d istribute and to poss ess with in

tent to distribute more than 5 kilograms of cocaine and more tha n 50 grams of crack coca

ine, a violation of 21 U.S.C. § 846. Smith challenges his conviction on two grounds: first, that the Government erroneously r

eferred to all four of the Government f act witnesses as co-conspirators; and second, that the District Court erroneously a dmitted testimony describing a thr eat made by

Smith to a witness as that witness testified at his trial. We reject both challenges and af firm. 1. Facts

and Background On January 13, 2000, New Jersey police officers and agents of the United States Drug Enforce ment Admin

istration arrested Smith, Jose A

rias and Ramon Sanc

hez afte r a seve n-month investigation into interstate crack cocaine tra fficking activities. The Government alleg ed that Sanchez and Arias sold cocaine powder in New Yor k and that Smith, a resident of Bridgeton, New Jerse

y, p urchased cocaine powder on a reg ular bas is from San

chez and A

rias and sold it in the form o f cocaine and c rack co caine in

New Jerse

y. A rias and Sanchez p leaded g

uilty to conspira cy . Sanche z testified

agains t Smith and r

eceive d a downw ard depa rture a s a resul

t of his cooperation. Four fact witnesses 1 testified for the Government at Smith’s trial: Sanchez, who testified that Smith had purchased cocaine powder from him; Donald Moss, who testified that he ha d acted a s a couri er for Sm

ith by distributing drug s to and co llecting pay ments from street s ellers; and Monroe Wesley a

nd Linda McGriff, who testified that they had purchased crack or coc aine from Smith. Sanchez’ s testimony included a descr iption of how, on at l east one occasion, Smith2 The Government’s ar gument was as foll ows: “The government ca lled four former cocons pirators of T im S mith. L et me call them coop erating witn esses. If you belie ve on ly one of them, Ti m Smith is gui lty of conspir acy. That’s al l it takes, the te sti mony of any one of them if be lieve d will s atis fy t he legal inst

ructi ons the Court

gave you wit

h respect to the r equirement s of conspi racy .” 3 had sent another person to New York to pick up the coca ine powder and deliver the pay ment, and that on another oc casion a woman ha

d accomp anied Smith

to New Yo

rk so that she could

sample his purch ase to en sure tha t it was of appropr iate qua lity . McGrif

f testified that she

would go to Wesley’s house to pick up her pur chase of cocaine powder, and tha t at least once Wesley ha

d collected her pay

ment. Wesley also testified that, prior to his arre st, Smith had put a gun to his head and threatened to kill him should he ever talk to law enforcement officials about Smith’s drug-related activitie s. During

a side-b ar conf

erence in the middle of Wesle

y’ s direct t

estimony , a Deput

y United States Marshal observed Smith raise his hand to shield his mouth and whisper something to Wesley. Wesley

testified that Smith had mouthed to him, “You’re dead.” The District Court allowed Wesley to testify about the threatening remark Smith had alleg edly made, c oncluding that the evidence was relevant under F ed. R. Evid. 404(b) because it tended to show consciousness of guilt. The District Court instructed the jury on the limited purpose for which the evidence was deemed releva nt, and the purposes for which the evidence was not to be used. During closing argume nts, the Go vernmen

t argued to the jur

y th at the tes timony , if believed, of any

one of the four government witnesses re ferred to by

the Government as Smith’s

co -c on sp ir at or s w as su ff

ic ie nt to co nv ic t S mi th of co ns pi ra cy. 2 The jury subseque ntly found Sm it h g ui lt y of

co ns pi ra cy.3 We decline the Government’s i nvitat ion to conc lude tha t the s tate ment that “[t]he government cal led four former co-conspi rator s of Tim Smith” was not error because the prosecut or immediat ely correct ed himself by r eferri ng to the f

our as “cooper ating witnesse s.” The pros ecutor di d not admit that c haract erizi ng these witnesses as coconspir ators was an error or a sl ip of the tongue. Rather, he said “[ l]et me call t hem cooperat ing witnes ses, ” there by i mplyi ng that t he witness es could be c orrectly descri bed eithe r as co- conspir ators or as cooper ating wit nesses. This is not a si tuati on where the prosecut or’s gar

bled sy ntax made a st atement ambi guous and subje ct to i nterpr etat ion eithe r as a cor rect o r as a n in cor rect s tatem ent o f the law

. See Bro wn , 254 F.3d at 465 (dismissing ch allenge to a “m ere prosecu torial slip of the tongue ” wh ere prosecu tor’s closing argu men t includ ed va gue s tatem ent in h alf-sen tence form that w as “im med iately correct ed with a prope r refer ence”). Inste ad we have a clear sentence using the term “co4 2. Discussion A. Charge to the Jury Smith argues that the Government invited the jury to convict him on legally insuff icient evidence by

instructing the jury tha

t Smith could be convicted on the testimony of any of the Government’s four fact witnesses, refe rred to by the Government as Smith’s four coconspirators. Smith argues that because neither Sanc hez nor McGriff could legally be considered Sm it h’ s c o- co ns pi ra to rs , i f t he ju ry w er e t o h av e b el ie ve d o nl y Sa nc he z’ s o r M cG ri ff ’s te st im on y, that evid ence would be leg ally

insuffic ient to co nvict him of conspira cy . Beca use it is imp ossible to tell fr om the jury ’s verdi ct what te stimony they did believe, Smith a

rgues t hat his ve rdict must be overt urned. He concedes that b ecause he raised no objec

tion to the G

overnme nt’s state ment, our review is for plain error affecting a substantial right. United States v. Brown , 254 F.3d 454, 462 (3d Cir. 2001); Fed. R. Crim. P. 52(b). We do not agree with Smith’s ultimate conclusion. If the Government characterized witnesses as co-conspirators and those witnesses lega lly could not have bee

n considered coconspirators, then that characterization was error

. 3 But the admission of that statement is notconspir ators ,” fol lowed by anot her cle ar sent ence using t he term “cooper ating wit ness. ” In the abs ence of a cle ar corr ecti on or garbl ed sy ntax, we cannot conclude that t he charact eriza tion of t

he witness es as co- conspir ators was a mere misst atement and therefore no t error. 5 plain er ror unle ss the er

ror coul d have a

ffected the jury ’s verdi ct. Fed . R. Crim. P. 5 2(b); see also United States v. Walker , 153 F.3d 180, 188 (3d Cir. 1998) (“In or der to be plain error, an error must not only be obvious, it must also have af fected the outcome of the District Court procee ding. ”) (cit ing United States v. Bethancourt , 65 F.3d 1 074, 1079 ( 3d Cir. 199 5)); see also United States v. Turcks , 41 F.3d 893, 898 (3d Cir. 1994) (“Because the bur den of establishing prejudice is one that [the defendant] bears, we will reverse only if [the defendant] can show that the erroneous charge a

ctually aff

ected the jury ’s verdict in his case.”). We are unconvinced by

Smith’s argument that this alleged misstatement affected the jury’s verdict. That argument is based on the faulty premise that the jury c ould only rely on the testimony of a co-c onspirator to find evidence of the agreement necessary to convict Smith of conspiracy . To have evidence sufficient to convict Smith of conspiracy , the evidence before the jury needed to include the following elements: “(1) a unity of purpose between the alleged conspira tors; (2) an intent

to achieve a comm

on goal ; and (3) an agr

eement to work tog ether to achieve that goal.” United States v. Pressler , 256 F .3d 14 4, 149 (3d Ci r. 200 1) (ci ting United States v. Gibbs , 190 F.3d 188, 197 (3d Cir. 1999)). The Government needed to provide evidence that the defendant conspired with “someone–any one.” Pressler , 256 F.3d at 148. But that evidence could come either from the testimony of the individual with whom the person conspired or from the testimony of anothe r person. The possible prejudicial effect of the Governme nt’s

statemen t to the jur

y (that they

would hav e sufficient evid ence to c onvict Smith

if they were to4 Because the ques tion whethe r the ot her two Government wit nesses coul d legal ly be con side red Sm ith’s co- con spira tors i s ultim ately im ma teria l, we do n ot ad dre ss it. 6 believe the testimony of a ny one of his four c o-conspirators) does not depend on whether all four witnesses were actually

co-conspirators, but rather on whether the testimony of all four witnesses included evidence that Smith conspired with another person. Becau se the te stimony

of all fou r witness es includ

ed evide nce from which the

jury could conclude that Smith conspired with another person to distribute cocaine, we dete rmine that the Government’s allegedly

erroneous reference

to all four of the Government fact witnesses as coconspirators did not affect the jury ’s verdict. Smith concedes that the testimony of Wesley or Moss, if believed, would be sufficient to convict him of conspiracybecause both were his coconspira tors. 4 As the Gov ernment notes, the

testimony

of Sanchez included evidenc e that Smith sent another person to New York to purchase a nd transport the cocaine powder from New York to Bridgeton, and that Smith came to New York with another pe rson who tested the quality of the cocaine that Smith w as purch asing. F urther, the testim

ony of McGriff includ

ed evide nce that , when purchasing cocaine fr om Smith, she would go to Wesley’s house to obtain the coca ine, and that on at least one occasion it was Wesley , not Smith, who gave her the cocaine and collected her payme

nt. Because the testimony of each witness contained evidence suff icient to convict Smith of co nspirac y, t

he Gover nment’s p ossibly

errone ous state

ment did not affect the outc ome of the District Court proceedings, and as a re sult could not be plain error. B. Admission of Death Threat Evidence Smith argues that Wesley should not have been permitted to testify a bout Smith’s allegedly threatening comment. Under Fed. R. Evid. 404(b) , evidence of a defendant’s other ba d5 We reject t he Government’s ar gument that because Smith fail ed to rai se an app rop riate obj ectio n w e m ust re view the D istrict Co urt’s con clus ion onl y for p lain e rror. Smith’s counsel di d object to the i ntroduction of the evidence, and did not l imit the object ion, s tati ng that “ based on what the Court has r ead of Gue rrero , and I have not[,] let me be clear f

or the r ecord[, ] read t

he case, but the appropri ate sec tions that t he court ha s cite d, I would s ubmit, Judge, t hat it is i nappropri ate t o have that informat ion before the jury.” 7 acts is not admissible “to prove a defendant’s propensity for crime or to suggest to the jury unfavorable inferences re flecting on his character.” United States v. Scarfo , 850 F.2d 1015, 1018 (3d Cir. 1988). It is admissible, however, for other purposes, such as “proof of motive, opportunity, intent, prepara tion, plan, knowledge, identity , or absence of mistake or accident.” Fed. R. Evid. 404(b). Smith contends that the District Court failed properly to a nalyze whether the

evidence was admissible. 5 Admissibility under Rule 404(b) requires: “( 1) a proper evidentiary purpose; (2) relevance under [Fed. R. Evid.] 402; (3) a weig hing of the probative value of the evidence against its prejudicial effect under [Fed. R. Evid.] 403; and (4) a limiting instruction concerning the purpose for which the evidence may be used.” United Sta

tes v. Mas trange

lo , 172 F.3d 288, 294-9 5 (3d C ir. 19 99) (ci ting Huddleston v. United States , 485 U.S. 6 81, 692 (1 988)). We hold that while the Distr ict Court d

id not fully

weigh t he proba tive valu e of the e

vidence agains t its prejudicial effect, our own review demonstr

ates tha t the prob ative va

lue likely outweig hed its prejudicial effect. And to the extent that it did not, any error in admitting the evidence was harmless

. To begin, we note that the District Court’s analy sis complied with prongs one, two and four of the Mastrangelotest. Smith does not challenge the District Court’s analy sis under the8

first two p

rongs o f that tes t. It i s well-e stablished in this Cour t that thre at evide

nce is re levant to show consciousness of guilt, a permitted purpose under Rule 404(b). United States v. Guerrero , 803 F.2d 783, 786 (3d Cir. 1986). Further, the District Court satisfied the fourth prong of the Mastrangelotest by properly giving a limiting instruction. The District Court “recogniz[ed] the need for an appro priate c autionar

y lim iting inst ruction to instruct t he jury that they are not t o utilize this evidence for an improper purpose, but rather for the limited purpose of demonstrating consciousness of guilt of the defendant.” Smith argues that the District Court failed to analyze correctly , under the third prong of the Mastrangelotest, whether the probative value of the evidence outweighed its prejudicial effect. The admission of Rule 404(b) evidence is a ma tter left to the discretion of the District Court, pro vided the

Court “expl ains how th

e probat ive value of the evidence o

utweighs its prejudicial effect.” Id. If th e District Court doe s not explain , “and the record does not c learly support the finding of probative value, the court of appe als will do the balancing itself.” Id. In Guerrero , 803 F.2d at 786, our Court noted the factors that should be considered whe n weighing the p

robative value of threat e vidence under F ed. R. Evid . 403. A co

urt should consider “the importance and centrality to the ultimate issue in the case of the fact sought to be prove[n] by the threat evidenc e, and the availability of other evidence to establish the fact sought to be proven by use

of the threat evidence.” Id. at 786. To assess the prejudicial effect of evidenc e, a cou

rt should c onsider “the tende ncy of the pa rticular conduct a

lleged to sugg est decision on an improper basis, commonly, thoug h not necessarily, a

n emotional one; the nature or style of the specific witness’s narrative; the likelihood that the testimony is true; and the sufficiency

of the other evidence presented to make a reasonable connection between the6 The reference to the s pontanei ty of the defendant ’s st atement i s perhaps r elat ed to an

earli er comment of the Distri ct Court, which noted that the threat in question was “not introdu ced b y the gov ernm ent bu t rather c alled to the atten tion of the co urt spo ntane ously by the witness .” The Dist rict Court thus may have been t ry ing to conve y that, because the evidence was not

intr oduced by t

he Government, i t was not nece ssaryto anal yze i t under Fed . R. E vid. 40 3. Th is distinctio n is un helpf ul, and in any ca se no t descr iptive. W hile the thr eat was fi rst br ought to t he att ention of

the Court by

the witne ss, t

he Government activ ely pu rsue d th e intr odu ction of th is ev iden ce.

9 defendant and the offense char ged[; and] . . . the extent to which any possible inflaming of the jury can be

cured by limiting instructions either at the time the testimony is tendered or when the case is submitted to the jury.” Id. The District Court’s analysis, while citing to the Guerrero case, do es not explicitly discuss the factors set forth above. The Court concluded that the e vidence was probative under Rule 404( b) to show

consciou sness of g

uilt, but tha

t “the g overnme

nt doesn’ t need thi s evidence.” In disc

ussing the evidence’s prejudicial effe ct, the Court stated that because “the communication was made spontaneously by the defe

ndant himself[,] I do not think that he can now be heard to complain that the prejudice he suffe rs as a result of his own communication outweig hs the pro bative va lue of the evidenc e.” The

District C ourt’s c onclusion --that because Smith’s communication was spontaneous he has somehow waived the right to object to the evidenc e as pre

judicial- -is conf

using, a s it is not cl ear how the sponta

neity of the sta tement is relevant to the analy sis either of probativeness or prejudice. 6 Becau se the Dis trict Cour t did not fully e

xplain “how

the proba

tive valu e of the [d

eath threat] evidence outweighs its prejudicial effec t,” we will do the balancing ourselves. Mastrangelo , 172 F.3d 288, 294-95. The balance favors the Gove rnment.10

First, the evidence was highly probative. Guerrero , 803 F.2d at 786 (noting tha

t death threats made to a testify

ing witness are “highly

probative of consciousness of guilt.”). There was, however, other evidence that showed Smith’s consciousness of his own guilt. Wesley had previously testified, without objection, that Smith had on another occ asion threatened Wesley with death. While the fact that evidence of a previous death threa t had already

been presented to the jury does, to some extent, reduce the probative value of this evidence, so too does it reduce any possible prejudicial e ffect. If e

vidence of death threats might suggest to the jury an improper basis for its decision, Smith opened the door by not objecting to testimony of his ear lier death threat to Wesley. Moreover, none of the other Guerrero factors are implicated by this evidence. The fact that a marshal observed Smith whisper something to Wesley increases the likelihood that the evidence was true. And there was suf ficient evidence presented to make a r easonable connection between Smith and a conspiracy to sell narcotics. Finally, a ny remaining

prejudicial effect was mitigated by the f

act that the District Court gave the jury a limiting instruction. We conclude that the proba tive valu e of this e

vidence outweig hed its pos sible pre

judicial e ffect. We fur ther n ote th at, to the ex tent t hat th e preju dicia l effec t of th is evi dence d id ou tweigh its probative value, and the evidence was there fore erroneously

admitted, that error was harmless. United Sta

tes v. Cros s , 308 F.3d 308, 326 (3d Cir. 2002) (noting that “the improper admission of evidence does not require reversing a conviction if it is highly proba ble that the error did not contribute to the judgment”). I n this case, it is highly proba ble that the error, if any , in admitting the death threat evidence did not contribute to the judgment because the jury had already

heard evidence that Smith had threatened Wesley with death.11 * * * * * We af fi rm th e v er di ct of

th e j ur y.12

TO THE CLERK: Please file the foregoing Opinion.

By the Court,

/s/ Thomas L. Ambro Circu it J udge