United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 13, 2004 Decided March 8, 2005

No. 03-3024

UNITED STATES OF AMERICA,

APPELLEE

v.

GEORGE THOMAS COUMARIS,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 01cr00438-01)

Leslie Ann Gerardo, appointed by the court, argued the

cause and filed the brief for appellant.

Valinda Jones, Assistant U.S. Attorney, argued the cause

for appellee. With her on the brief were Kenneth L. Wainstein,

U.S. Attorney, and John R. Fisher, Thomas J. Tourish, Jr.,

Barbara E. Kittay, and Stuart G. Nash, Assistant U.S. Attorneys.

Before: EDWARDS, HENDERSON, and GARLAND, Circuit

Judges.

Opinion for the court filed by Circuit Judge GARLAND.
2

GARLAND, Circuit Judge: A jury convicted defendant

George Coumaris of conspiring to help another person evade

arrest by using fraudulent identification documents and Social

Security numbers. Coumaris challenges his conviction,

disputing several evidentiary rulings by the district court, and

also challenges his sentence. We affirm Coumaris’ conviction.

Upon the government’s motion, we remand the case for

resentencing in light of United States v. Booker, 125 S. Ct. 738

(2005).

I

In November 2002, a federal jury in the District of

Columbia convicted Coumaris, an attorney with the Internal

Revenue Service (IRS), of conspiring to commit crimes against

the United States, in violation of 18 U.S.C. § 371. The objects

of the conspiracy were to help Coumaris’ lover, Chris Jenkins,

evade arrest for violating probation and parole obligations in the

Commonwealth of Virginia, and to obtain and use fraudulent

identification documents and Social Security numbers in

furtherance of that end.

The government’s trial evidence showed that Jenkins and

Coumaris began their relationship in March 1998. At the time,

Coumaris was aware that Jenkins was on probation and parole

supervision in Virginia stemming from the latter’s 1989

convictions for burglary, grand larceny, and robbery, and that

the terms of Jenkins’ probation required him to abstain from

using alcohol. Nevertheless, Jenkins continued drinking, and in

December 1998 he failed a urinalysis test and was directed by

his probation officer to enter a 90-day inpatient treatment

program. After the 90 days, Jenkins was transferred to a

residential outpatient program that allowed him to work during

the day. Instead of working, Jenkins spent his days with
3

Coumaris, who falsely represented that he was Jenkins’

employer -- the fictitious “T and T Construction” company. 

When Jenkins returned to the outpatient facility drunk one

day, he was ordered to enter an 18-month inpatient program.

Instead of enrolling in the program, Jenkins began hiding from

Virginia authorities at Coumaris’ home in the District of

Columbia. As a result, the Virginia Parole Board and the

Fairfax County Circuit Court issued warrants for Jenkins’ arrest.

Coumaris helped Jenkins evade the authorities by providing

him with false identification. Coumaris first obtained an

identification card for Jenkins in the name of Brian Flowers, one

of Coumaris’ former lovers. After Jenkins was arrested under

Flowers’ name for driving without a license, Coumaris gave

Jenkins identification belonging to another former lover, Louis

Geiman, who had died a few years earlier. In addition to

numerous membership cards, Coumaris helped Jenkins procure

West Virginia and District of Columbia voter registration cards,

a “Federal Identification System” card, and a West Virginia nondriver’s identification card, all in Geiman’s name. To obtain

these cards, Coumaris and Jenkins used Flowers’ and Geiman’s

Social Security numbers.

In November 1999, Jenkins ended his relationship with

Coumaris and moved out of the latter’s home. After Jenkins left

him, Coumaris falsely reported to both Fairfax County, Virginia

and Washington, D.C. police that Jenkins had robbed him at

gunpoint, leading to another warrant for Jenkins’ arrest. Over

the next several months, Coumaris called the Fairfax County

police several times with information regarding Jenkins’

whereabouts, sometimes remaining anonymous and sometimes

identifying himself as an IRS agent.
4

Jenkins was finally arrested in March 2000 and spent almost

three months in pretrial detention on the false robbery charge.

Based on information that Jenkins provided after his arrest,

federal and state authorities began investigating Coumaris. In

May 2000, officers executed a search warrant at Coumaris’

home, where they discovered marijuana, drug paraphernalia, and

child pornography. Coumaris was subsequently interviewed by

a Metropolitan Police Department (MPD) officer and an FBI

agent about both the Jenkins conspiracy and the incriminating

evidence discovered in his home. In an effort to hinder their

investigation, Coumaris told the FBI’s Washington Field Office

that the MPD officer and FBI agent were trafficking drugs in his

neighborhood. 

On December 7, 2001, a federal grand jury indicted

Coumaris on a single count of conspiracy, and on numerous

counts of fraud in connection with identification documents and

Social Security numbers. The case proceeded to trial in October

2002. At trial, Coumaris informed the court that he planned to

present several character witnesses, who would testify to his

honesty and truthfulness. The government filed an in limine

motion seeking permission to cross-examine those witnesses

about whether they had heard of several past acts by Coumaris

that were assertedly inconsistent with those character traits. In

response to the motion, the court first ruled that the government

would be allowed to cross-examine regarding Coumaris’ prior

arrests for grand larceny and shoplifting, and a District of

Columbia Court of Appeals opinion that found Coumaris to

have made false representations to a city regulatory board.

Upon hearing the trial court’s ruling, Coumaris’ counsel stated:

“I will listen to the other rulings, but I would suspect based upon

at least your initial ruling” that “I would just withhold any

character witnesses.” 10/29/02 p.m. Tr. at 15. The court then

ruled that it would also allow the government to cross-examine

the character witnesses about Coumaris’ importation of
5

marijuana from the Netherlands under a false name, and about

his non-consensual recording of telephone conversations made

by guests from his home. Coumaris never called the character

witnesses to testify. 

During the trial, Coumaris also attempted to introduce as

exhibits a scrapbook and a police report. The scrapbook

contained memorabilia concerning Geiman, the former lover

whose identification Coumaris had given to Jenkins. The police

report concerned the anonymous telephone calls that Coumaris

had made about Jenkins. The court barred the introduction of

both exhibits.

The jury convicted Coumaris of conspiracy but deadlocked

on the remaining counts. The court declared a mistrial on the

deadlocked counts and, pursuant to the United States Sentencing

Guidelines, sentenced Coumaris to 48 months’ imprisonment on

the conspiracy count. Coumaris appealed, challenging the

court’s ruling on the in limine motion, its decisions barring

introduction of the scrapbook and police report, and its

calculation of the sentence. 

After the parties filed their appellate briefs, the Supreme

Court decided Blakely v. Washington, 124 S. Ct. 2531, 2538

(2004), which held that Washington State’s determinate

sentencing regime violated the Sixth Amendment. Coumaris

then filed a letter with this court, pursuant to Federal Rule of

Appellate Procedure 28(j), contending that Blakely also cast

doubt on the constitutionality of the United States Sentencing

Guidelines. The day Coumaris’ letter was filed, the Supreme

Court granted certiorari in United States v. Booker, No. 04-104,

and United States v. Fanfan, No. 04-105, each of which

presented the question of whether an application of the

Guidelines violated the Sixth Amendment. We ordered the

parties to file supplemental briefs after Booker and Fanfan were
6

decided, and deferred resolution of this case until that time. On

January 12, 2005, in United States v. Booker, the Supreme Court

held that the imposition of enhanced sentences under the

Guidelines violated the Sixth Amendment, and that the statutory

provision that made the Guidelines mandatory had to be severed

and excised. 125 S. Ct. 738, 756 (2005). Thereafter, the

government moved to vacate Coumaris’ sentence and remand

for resentencing. 

In Part II, we address Coumaris’ challenges to his

conviction. In Part III, we discuss the disposition of his

sentence in light of Booker. 

II

A district court’s decision regarding the admissibility of

evidence or the scope of cross-examination constitutes error

only if it is an abuse of discretion. See United States v.

Whitmore, 359 F.3d 609, 616 (D.C. Cir. 2004); United States v.

White, 887 F.2d 267, 274 (D.C. Cir. 1989). If the defendant

timely objected to such an error at trial, appellate review is still

limited by the “harmless error” standard: an error may be

corrected only if it affects the defendant’s “substantial rights.”

FED. R. CRIM. P. 52(a). “[I]n most cases,” this “means that the

error must have been prejudicial: It must have affected the

outcome of the district court proceedings.” United States v.

Olano, 507 U.S. 725, 734 (1993). If the defendant did not

timely object at trial, review is limited by the “plain error”

standard: “[T]here must be (1) error, (2) that is plain, and (3)

that affect[s] substantial rights. If all three conditions are met,

an appellate court may then exercise its discretion to notice a

forfeited error, but only if (4) the error seriously affect[s] the

fairness, integrity, or public reputation of judicial proceedings.”

Johnson v. United States, 520 U.S. 461, 466-67 (1997) (internal
7

1The question of whether the defendant’s substantial rights were

affected “normally requires the same kind of inquiry” under the

harmless and plain error standards, “with one important difference.”

Olano, 507 U.S. at 734. Under the plain error standard, it “is the

defendant rather than the Government who bears the burden of

persuasion with respect to prejudice.” Id.

citations and quotation marks omitted); see FED. R. CRIM. P.

52(b).1

With this understanding of the limitations on our authority,

we proceed to examine the evidentiary rulings that Coumaris

maintains require reversal of his conviction.

A

Coumaris first contends that the district court erred in

granting the government’s in limine motion to cross-examine his

proposed character witnesses as to whether they had heard (1)

that he had imported marijuana from the Netherlands using a

false name, and (2) that he had illegally recorded telephone

conversations without the consent of the participants. Coumaris

concedes that, when a defendant offers witnesses to testify

regarding his character, on cross-examination “inquiry is

allowable into relevant specific instances of conduct,” FED. R.

EVID. 405(a), “including prior convictions or arrests of the

accused,” United States v. Lewis, 482 F.2d 632, 638 (D.C. Cir.

1973). Coumaris Br. at 19. But Coumaris also correctly notes

that such inquiry is limited to instances that are relevant to the

traits of character about which the witnesses have testified. See

FED. R. EVID. 404(a)(1); Lewis, 482 F.2d at 638 (holding that a

character witness may be asked “whether he has heard reports

of particular events . . . which are inconsistent with the

reputation to which he has testified”). Coumaris’ counsel

notified the district court that he intended to call the character
8

witnesses to testify to Coumaris’ honesty and truthfulness.

10/29/02 p.m. Tr. at 8. Coumaris contends that the two

instances of conduct in question go not to his honesty and

truthfulness, but to his general law-abidingness, which was not

to be the subject of the witnesses’ testimony. 

Whatever its merits, Coumaris clearly waived his objection

to the district court’s in limine ruling by failing to call the

character witnesses to testify. In Luce v. United States, the

Supreme Court held that a defendant who elects not to testify

waives his right to challenge an in limine ruling that would have

allowed the government to use a prior conviction to impeach

him. 469 U.S. 38, 43 (1984). The Court concluded that, when

the defendant does not take the stand, any harm flowing from

the decision to allow the government to use the prior conviction

is “wholly speculative.” Id. at 41. As the Court explained:

The ruling is subject to change when the case unfolds,

particularly if the actual testimony differs from what

was contained in the defendant’s proffer. . . . When the

defendant does not testify, the reviewing court also has

no way of knowing whether the Government would

have sought to impeach with the prior conviction. . . .

[Additionally,] a reviewing court cannot assume that

the adverse ruling motivated a defendant’s decision not

to testify. . . . Even if these difficulties could be

surmounted, the reviewing court will still face the

question of harmless error. . . . Requiring that a

defendant testify in order to preserve [such] claims will

enable the reviewing court to determine the impact any

erroneous impeachment may have had in light of the

record as a whole . . . .

Id. at 41-42. We see no reason -- and Coumaris has not

suggested any -- why these considerations are not equally
9

applicable when it is a character witness, rather than the

defendant himself, who might have testified but for the in limine

ruling. 

Moreover, in this case the conclusion that the defendant

waived his objection is even clearer than it was in Luce. Here,

the district court initially granted the government’s request to

cross-examine Coumaris’ character witnesses about three other

matters: Coumaris’ prior arrests for grand larceny and

shoplifting, as well as a District of Columbia Court of Appeals

opinion finding that Coumaris had made false representations to

the District’s Alcohol Beverage Control Board. Coumaris did

not object then -- and does not object now -- to the court’s ruling

that cross-examination on those topics was permissible. See

Coumaris Br. at 20 n.6. Rather, in response to that ruling,

Coumaris’ trial counsel said: “I would suspect based upon at

least your initial ruling on [the prior arrests], that I would just

withhold any character witnesses.” 10/29/02 p.m. Tr. at 15.

Counsel added that he would “talk it over with Mr. Coumaris,”

but “probably the character witnesses have already been

scratched based upon” the court’s initial ruling. Id. 

Coumaris thus represented to the district court that he likely

would not call his character witnesses irrespective of the court’s

subsequent decision on the pseudonymous marijuana purchases

and the non-consensually recorded conversations. In this

context, any prejudice to Coumaris as a result of the court’s

decision to allow cross-examination on those topics is “wholly

speculative,” since we “cannot assume that the adverse ruling

motivated [the] decision not to” call the witnesses. Luce, 469

U.S. at 41-42. Accordingly, the conclusion that Coumaris

waived his objection follows a fortiori from Luce.

B
10

Coumaris also challenges the district court’s refusal to

admit two proposed exhibits. 

The first rejected exhibit was a scrapbook containing

memorabilia of Coumaris’ deceased lover, Louis Geiman. The

scrapbook included identification documents belonging to

Geiman, as well as pictures and a funeral program. At trial, the

government proved that Coumaris had given Jenkins

identification documents in Geiman’s name, and that he had

helped Jenkins acquire other such documents. Coumaris sought

to introduce the scrapbook in order to demonstrate that he had

saved Geiman’s documents for “sentimental, not illicit,

reasons,” and that “Jenkins could have independently obtained

the information necessary to assume Geiman’s identity.”

Coumaris Br. at 22-23. 

Coumaris correctly argues that the district court erred in

finding the scrapbook inadmissible because it contained hearsay.

As the defendant notes, he offered the scrapbook for the

nonhearsay purposes of showing why he had Geiman’s

identification documents and how Jenkins might have obtained

them, and not to prove the truth of the matters asserted by those

documents (e.g., Geiman’s identity). See FED. R. EVID. 801(c).

Nonetheless, we conclude that the error was harmless, because

it did not have a “substantial and injurious effect or influence in

determining the jury's verdict.” Kotteakos v. United States, 328

U.S. 750, 776 (1946);see United States v. Powell, 334 F.3d 42,

46 (D.C. Cir. 2003) (noting that the Kotteakos harmless error

standard is applicable to misapplications of the Federal Rules of

Evidence). Although the district court held that “the whole book

is not going to come in,” it permitted Coumaris’ witness to

describe the contents of the scrapbook to the jury and to testify

that the scrapbook was kept in a place that was accessible to

Jenkins. 10/29/02 p.m. Tr. at 89-91; see id. at 84-85. Indeed,

Jenkins himself testified that he had looked at the scrapbook and
11

had had access to it. 10/25/02 a.m. Tr. at 60; 10/28/02 a.m. Tr.

at 27-29. Any additional benefit that Coumaris would have

received from admission of the scrapbook itself was minimal

and speculative. See United States v. Warren, 42 F.3d 647, 656

(D.C. Cir. 1994) (finding a hearsay error harmless because the

excluded evidence “was cumulative of other evidence heard by

the jury”). 

Coumaris’ second evidentiary challenge is to the district

court’s refusal to admit a police report “that detail[ed] what

police officers did in relation to an anonymous call . . . with

respect to arresting Christopher Jenkins.” 10/29/02 a.m. Tr. at

28-29. Coumaris offered the report to show that he had not

harbored Jenkins, but rather had assisted the Fairfax County

police in apprehending him. At trial, Coumaris offered -- and

the court rejected -- the report under the hearsay exception for

business records set forth in Federal Rule of Evidence 803(6).

On appeal, Coumaris argues that the report should have been

admitted either under Rule 803(6) or under Federal Rule of

Evidence 803(8)(C), which provides a hearsay exception

“against the Government in criminal cases” for reports setting

forth “factual findings resulting from an investigation made

pursuant to authority granted by law, unless the sources of

information or other circumstances indicate lack of

trustworthiness.” FED. R. EVID. 803(8)(C). 

As we have noted above, a district court’s evidentiary ruling

is error only if it constitutes an abuse of discretion. See United

States v. Whitmore, 359 F.3d 609, 616 (D.C. Cir. 2004). But

even if we were to conclude that the district court abused its

discretion by excluding the police report (an issue we do not

decide), the exclusion of the report, like the exclusion of the
12

2Because Coumaris did not raise the Rule 803(8)(C) argument in

the district court, we review the court’s failure to admit the report on

that theory only for plain error. See Warren, 42 F.3d at 657

(reviewing a Rule 803(8)(C) argument for plain error because the

defendant’s argument at trial had been limited to Rule 803(6)). As

discussed at note 1, supra, under the plain error standard it “is the

defendant rather than the Government who bears the burden of

persuasion with respect to prejudice.” Olano, 507 U.S. at 734. Thus,

the conclusion that there was no plain error in the exclusion of the

report follows a fortiori from the conclusion (set out in the text above)

that any error was harmless. 

scrapbook, was harmless.2 Although the district court refused

to admit the document, it allowed testimony on the same point

that Coumaris had offered the report to prove: The police officer

called by Coumaris to introduce the report was permitted to

testify that Coumaris’ anonymous tips regarding Jenkins’

whereabouts were “accurate.” 10/29/02 a.m. Tr. at 26-27.

There is no reason to believe that admission of the report itself

would have made any difference in the outcome of the trial. 

In sum, we conclude that none of Coumaris’ attacks on the

district court’s evidentiary rulings are sufficient to justify

reversal of his conviction.

III

Finally, Coumaris challenges several of the district court’s

Sentencing Guidelines determinations. Those challenges

include claims that the court improperly applied enhancements

to his base offense level for abuse of a position of trust, for

obstruction of justice, and for more-than-minimal planning. See

U.S.S.G. §§ 3B1.3, 3C1.1, 2F1.1(b)(2)(A). We do not reach

these challenges because we grant the government’s motion to

remand the case for resentencing in light of United States v.

Booker, 125 S. Ct. 738 (2005).
13

In Blakely v. Washington, the Supreme Court held that

Washington State’s determinate sentencing regime violated the

rule of Apprendi v. New Jersey: “Other than the fact of a prior

conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to

a jury, and proved beyond a reasonable doubt.” Blakely, 124

S.Ct. 2531, 2536 (2004) (quoting Apprendi, 530 U.S. 466, 490

(2000)); see id. at 2538. In Booker, the Court applied Blakely to

the United States Sentencing Guidelines, holding that the

imposition of enhanced sentences under the Guidelines violates

the Sixth Amendment. 125 S. Ct. at 756. The Supreme Court

cured this constitutional defect by severing the provisions of the

Sentencing Reform Act that made the Guidelines mandatory,

thereby rendering them “effectively advisory.” Id. at 757.

Under this new sentencing regime, a sentencing court is required

“to consider Guidelines ranges” applicable to the defendant, but

is permitted “to tailor the sentence in light of other statutory

concerns as well.” Id.

The United States has moved to vacate Coumaris’ sentence

and to remand for resentencing. The government concedes that

the mandatory enhancements of Coumaris’ sentence were

unconstitutional under Booker. It further agrees with Coumaris

that, by noting in his objections to the Presentence Investigation

Report that Apprendi had rendered the Guidelines problematic,

Coumaris “made a sufficient objection in the district court to

preserve a Sixth Amendment challenge to his sentence.” Gov’t

Mot. to Vacate and Remand for Resentencing at 2-3. This

means that the Booker challenge here is governed by the

harmless error standard appropriate for constitutional error,

which the Government states it cannot satisfy. That is, the

government concedes that it cannot demonstrate “beyond a

reasonable doubt that the error complained of did not contribute

to the [sentence] obtained.” Id. at 3 (quoting Chapman v.

California, 386 U.S. 18, 24 (1967)); see Powell, 334 F.3d at 45
14

(noting that the Chapman harmless error standard applies to

constitutional errors). 

Although Coumaris agrees that his sentence should be

vacated and remanded, he urges us to resolve his specific

challenges to the district court’s application of the Guidelines

before remanding. Coumaris Resp. to Gov’t Mot. to Vacate and

Remand for Resentencing at 2. We decline to do so. Because

the district court might impose a different sentence on remand,

and because the parties might choose not to appeal that sentence,

consideration of objections to the court’s original guidelines

calculations would be premature at best and unnecessary at

worst. 

IV

For the foregoing reasons, we affirm George Coumaris’

conviction. We also grant the government’s motion to vacate

his sentence and to remand the case for resentencing in

conformity with United States v. Booker.

So ordered.