* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 30 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 00-2052 ALEXIS MIRANDA, Defendant-Appellant. (D.C. No. CR-98-935-BB) (D. N.M.)

ORDER AND JUDGMENT *

Before KELLY, ANDERSON, and BRISCOE , Circuit Judges .
Alexis Miranda appeals his four convictions under 2 1 U.S.C. § 841 on the ground that the trial court erred by excluding evid ence of bias on the part of the police. We affirm. I. Miranda was one of approximately thirty defendants charged with various drug offenses as a result of a Drug Enforcement Adm inistration (DEA) task force2

investigation. His defense to the charges was thathe was misidentified on the videotapes. He was acquitted. According to Mirand a, law enforcement officers present when the acquittal was announced were hosti le and looked at him with hatred. After the acquittal, Juan Valencia, Mirand a’s attorney, advised Miranda to leave town because of the hostility of law enfor cement officers toward him. The events giving rise to the present prosecution o ccurred sometime after the acquittal. According to testimony at the trial in the present prosecution, Albuquerque Police Detective Jay Rajaee purchased $20 rocks of cocaine from Miranda on October 19 and 23, 1998. After the October 19 purc hase, DEA Special Agent Steve Lillerd contacted Rajaee to inform him that h e had seen Miranda while he was conducting surveillance in a separate investigation. Lillerd had been the cocase agent in the case where Miranda was acquitted. On October 28, Police Officer Andrew Perez purchased a rock of crack coca ine from Miranda using a marked $20-bill. Miranda was arrested approximatel y five minutes later. The $20-bill was not found, but a bag containing six ro cks of crack cocaine was found. At trial, Miranda sought to introduce testi mony from Valencia that law enforcement officials had reacted with hostility to Miranda’s acquittal and that Valencia had warned Miranda to leave town. The tri al court refused admission of the testimony, concluding it was not relevant and w as prejudicial. A jury3

convicted Miranda of three counts of distributing c ocaine base and one count of possession with intent to distribute, in violation of 21 U.S.C. § 841. Miranda was sentenced to thirty-three months in prison. II. We review the trial court’s decision to exclude evi dence for an abuse of discretion. See United States v. McVeigh , 153 F.3d 1166, 1199 (10th Cir. 1998), cert. denied , 526 U.S. 1007 (1999). We will not find an abuse of discretion unless we develop a definite and firm conviction th at the trial court made a clear error of judgment. See United States v. Levine , 970 F.2d 681, 688 (10th Cir. 1992). “‘Relevant evidence’ means evidence having any tend ency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be wit hout the evidence.” Fed. R. Evid. 401. Evidence of witness bias is generally considered relevant. See United States v. Abel , 469 U.S. 45, 52 (1984). However, evidence of a p rior acquittal is generally not considered relevant except as it affe cts questions of double jeopardy or collateral estoppel. See United States v. Jones , 808 F.2d 561, 566 (7th Cir. 1986). Miranda argues that Valencia’s testimony would have supported his defense that the police had framed him because they were biased against him as a1 The trial court found that whatever probative val ue the testimony might

have was outweighed by its confusing and prejudicia l effect. We agree. A general indictment of law enforcement with no speci fic allegations regarding any officer testifying or involved with the current cas e is likely to confuse the jury and cause the jury to erroneously distrust the test imony of all police officers. 4 result of the prior acquittal. A similar issue was raised in United States v. Gambino , 818 F. Supp. 536, 539 (E.D. N.Y. 1993). Gambino sought to introduce evidence of his prior acquittal to show the governm ent’s bias toward him. The court concluded such evidence was not relevant, not ing that “[i]t takes a quantum leap of logic and a fractured syllogism to say thatevidence of an acquittal tends to make government bias more probable than it would be without that evidence.” Id. Since Valencia would have testified about law enfo rcement officials in general rather than about any specific officer, his testimony would have added little. To get from Valencia’s testimony to the co nclusion that Miranda was framed would require many leaps of logic. Valencia ’s testimony is not probative enough to be considered relevant. 1 Even if the evidence was relevant, any error by the trial court in excluding it was harmless. “ A non-constitutional error, such as a decision whether to admit or exclude evidence, is considered harmless ‘unless a substantial right of [a] party is affected.” United States v. Charley , 189 F.3d 1251, 1270 (10th Cir. 1999) (quoting Fed. R. Evid. 103(a)), cert. denied , 120 S. Ct. 842 (2000). Miranda argues that the err or was not harmless because the officers’ credibility was critical to the government’s case. There are several5

bases to support the conclusion that any error made with respect to admission of this evidence was harmless. First, Miranda himself testified that the law enfor cement officials looked at him with hatred and that he was advised to leave to wn. Valencia’s testimony, while potentially more credible than Miranda’s, wou ld have been duplicative. Second, Miranda’s testimony would have supported th e alleged bias of officers who were in the courtroom at the time the acquittal was announced. None of the officers who were involved in the drug purchases at issue in the present case (and whose testimony was most importan t for the government) were in the courtroom when the acquittal was announced. In fact, there is no evidence that any of the law enforcement officials in the co urtroom when the acquittal was announced were involved in this case in any manner. Third, the evidence against Miranda in the present case was very strong. Two officers testified that they had purchased rock s of cocaine from Miranda on three separate occasions and the jury heard audiotapes of two of the drug purchases. A bag containing rocks of cocaine was f ound near Miranda on the night that he was arrested and was located where Pe rez saw Miranda bury it. None of this evidence is directly refuted by Valenc ia’s proffered testimony. Fourth, only Lillerd’s testimony is arguably placedin question by Valencia’s testimony. However, counsel conceded atoral argument there is no2 Miranda argues that Lillerd’s call to Rajaee prov es bias. However,

Rajaee had already made the first drug purchase at the time of the call and there is no reason to believe that Lillerd’s call was part of a set up. 6 evidence that Lillerd was in the courtroom when the acquittal was announced so Valencia’s testimony would not directly place eithe r Lillerd’s motives or testimony in question. Further, Lillerd’s role in the present case was minor. His testimony helped establish the chain of evidence wi th respect to the rocks of crack cocaine that Miranda sold to Rajaee. Lillerd also laid the foundation for admission of exhibits. He testified that he saw Mi randa on the street the day of the first drug purchase and he called Rajaee to inf orm him of Miranda’s
presence. 2 Even if Valencia’s testimony would have cast doub ts in the minds of the jury about Lillerd’s credibility, it is unlikel y those doubts would have resulted in a different verdict because of the relative unimportance of Lillerd’s testimony. AFFIRMED. Entered for the Court Mary Beck Briscoe Circuit Judge