# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 13, 2004 Decided March 8, 2005

No. 03-3024

U NITED S TATES OF A MERICA

, A PPELLEE

v.

G EORGE T

HOMAS C OUMARIS

, A PPELLANT

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.

Valin d a Jones

, Assistant U.S. Attorney, argued the cause

for appellee. With her on the brief were K enneth L. Wainstein

, U.S. Attor

ney, and J

ohn R. Fisher

, Thomas J. Tourish, Jr.

, Barbara E. Kittay , and Stuart G. Nash

, Assistant U.S. Attorneys.

Before: E

DWARDS

, H

ENDERSON

, and G A RLAND

, Circuit

Judges

.

Opinion for the court filed by Circuit Judge G ARLAND

.2

G ARLAND

, Circuit Judge : A jury convi cted defendant

George Coumaris of conspiring to help another per son evade

arrest by using fraudulent identificati o n documents and Social

Securi t y numbers. Coumaris challenges his conviction,

disputing several evidentiary rulings by the district court, a n d

also challenges his sentence. We affirm Coumaris’ conviction.

Upon the government’s motio n, we remand the case for

resentencing in light of United States v. Booker

, 125 S. Ct. 738

(2005).

I

I n November 2002, a federal jury in the Distr ict of

Columbia convicted Coumaris, an attorn ey with the Internal

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

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

of the conspiracy were to help Coumaris’ lover, C hris Jenkins,

evade arrest for violat

i ng probation and parole obligations in the

Commonwealth of Virginia, and to obtain and use fraudulent

identification d ocuments 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 V irginia stemming from the latter’s 1989

convictions for burglary, grand larceny, and ro b bery, and that

the terms of Jenkins’ probation r equired 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 inpa tient treatment

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

residential outpatient program th at allowed him to work during

the day. Instead of working, Jenkins spent his days with3

Coum aris, 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-mon th inpatient program.

Instead of enrolling in the prog ram, 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 author ities by providing

h im with false identification. Coumaris first obtained an

identif ication card for Jenkins in the name of Brian Flowers, one

of Co u maris’ former lovers. After Jenkins was arrested under

Flowers’ name for driving without a license, Coumaris gave

Jenkins identificat

ion belonging to another former lover, Louis

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

numerous membership cards, Coumaris helped Jenkins pr ocure

West Virginia and District of Columbia voter registration cards,

a “Federal Identif

ication 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 ende d 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 W ashington, D.C. police that Jenkins had robbed him at

gunpoin t, leading to another warrant for Jenkins’ arrest. Over

the next several months, Coumaris called the Fairfax County

police several times with informatio n regarding Jenkins’

w hereabouts, sometimes remaining anonymous and sometime s

identifying himself as an IRS agent.4

Jenkins was finally arr e sted in March 2000 and spent almost

three months i

n pretrial detention on the false robbery charge.

Based on information that Jenkins provided after his arrest,

federal and state authorities began investigating C oumaris. In

May 2000, officers executed a search warrant at Coumar i s’

home, where they discovered mari juana, drug paraphernalia, and

child pornography. Coumaris was subsequently interviewed by

a Metropolitan Police Department (MPD) officer and a n FBI

agent about both the Jenkins conspi racy 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 in dicted

Coumaris on a single count o f conspiracy, and on numerous

counts of fraud in connection with ide n tification 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 seek ing permission to cross-examine those witnesses

about whether they had heard of several past act s by Coumaris

th at were assertedly inconsistent with those character traits. In

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

would be al

lowed to cross-examine regarding Coumaris’ prior

arrests for gra

nd larceny and shoplifting, and a District of

Columbia Court of Appeals opinion tha t found Coumaris to

have mad e false representations to a city regulatory board.

Upon heari

ng the trial court’s ruling, Coumaris’ counsel stated:

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

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

character witness e s.”

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

ruled that it would also allow the government to cro ss-examine

the character witnesses about Coumar is’ importation of5

marijuana from t

h e Netherlands under a false name, and about

his non-consensual recording of tel ephone conversations made

by guests from his home. Coumaris never called the character

witnesses to testify.

During the tria l

, Coumaris also attempted to introduce as

exhibits a scrapbook and a police report. The scrapbook

contained memorabilia concerning Geiman, the former lover

whose identificat

ion Coumaris had given to Jenkins. The police

re port concerned the anonymous telephone calls that Coumaris

had made a

bout Jenkins. The court barred the introduction of

both exhibits.

The jury convicted Coumaris of conspiracy but deadlocked

on the remai

ning counts. The court declared a mistrial on the

deadlocked counts a nd, pursuant to the United States Sentencing

Guidelines, sentenced Coumaris to 48 months’ imprisonment on

the cons piracy count. Coumaris appealed, challenging the

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

in troduction of the scrapbook and police report, and its

calculation of the sentence.

After the parti

es 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 Amen dment. Coumaris

then filed a letter

with this court, pursuant to Federal Rule of

Appellate Procedure 28(j), conten d ing that Blakely also cast

doubt on the constitut ionality 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 a n application of the

Guidelines violated the Sixth Amendm ent. We ordered the

parties to file supplemental briefs af ter B ooker and Fanfan were6

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 t he statutory

provision that

made the Guidelines mandatory had to be severed

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

government moved to vacate Coumaris’ senten c e 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. S e e 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 rev iew is still

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

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

F ED

. R. C RIM

. 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] sub stantial rights. If all three conditions are met,

an appellate court may then exercise its di scretion 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) (internal7

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

aff ected “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 b ears the burden of

persuasion with respect to prejudice.” Id. citations and qu

otation marks omitted); s ee F ED

. R. C RIM

. P.

52(b). 1

With this un

derstanding 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

conc edes that, when a defendant offers witnesses to testify

regarding his character, on cross-examination “inquiry is

allowable into relevant specific instances of conduct,” F ED

. R.

E VID

. 405(a), “including prior convictions or ar rests 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. S ee

F ED

. R. E

VID

. 404(a)(1); Lewis

, 482 F.2d at 638 (holding that a

character witness may be asked “whethe r 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 character8

witnesses to testify to Coumaris’ honesty and truthfulness.

10/29/02 p.m. T

r. 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, w hich was not

to be the subject of the witnesses’ testimony.

Whatever its merits, Coum aris clearly waived his objection

to the district court’s in limine ruling by failing to call t h e

character witnesses to tes tify. In L uce 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 do es 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 u nfolds,

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 imp each with the prior conviction. . . .

[Additionally,] a reviewing court cannot assume that

t he adverse ruling motivated a defendant’s decision not

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

sur mounted, the reviewing court will still face the

question of harmless error.

. . . Requir ing that a

defendant testify in order to preserve [ s uch] claims will

e n able the reviewing court to determine the impact any

erroneous impeachment may have had in light o f the

record as a whole . . . .

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

suggested any

-- why these considera tions are not equally9

applicable when it is a charac ter witness, rather than the

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

ruling.

Moreov er, in this case the conclusion that the defendant

waived his objec t ion is even clearer than it was in Luce

. Here,

the district court initially granted the government’s request to

cross-examine Co umaris’ character witnesses about three o ther

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 represen tations 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. S ee

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 witnes ses.” 10/29/02 p.m. Tr. at 15.

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

but “probably th

e character witnesses have already been

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

Coumaris thus represented to the di strict court that he likely

wo u ld not call his character witnesses irrespective of the court’s

subsequent decision on the pseudonymous marijuana pu rchases

and the non-consensually recorded convers a tions. In this

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

dec ision 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. L uce

, 469

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

waived his objection follows a fortiori from Luce

.

B10

Coumaris also challenges the district court’ s refusal to

admit two proposed exhibits.

The first rejec ted exhibit was a scrapbook containing

memorabilia of Coumaris’ deceased lover, Louis Geiman. The

scrapbook included ident ification documents belonging to

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

government proved that Cou maris had given Jenkins

iden tification 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 “sent imental, not illicit,

reasons,” and that “Jenkins could have independ ently 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 s crapbook for the

nonhearsay purposes of showing why h e had Geiman’s

identification documents and how Jenkins might have obtained

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

documents (e.g., Geiman’s identity). S ee F ED

. R. E VID

. 801(c).

Noneth eless, 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 K otteakos harmless error

standard is applicable to misapplications of the Federal Rules of

E vidence). Although the district court held that “the whole book

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

describe the contents of the scr apbook 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; s ee id. at 84-85. Indeed,

Jenkins himself testif

ied that he had looked at the scrapbook and11

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. 199 4) (finding a hearsay error harmless because the

excluded evidence “was cumulative of other evidence heard by

the jury”).

Coumaris’ seco nd 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 ap prehending him. A t trial, Coumaris offered

-- and

the cour t rejected -- the report under the hearsay exception for

business records set forth in Federal Rule of Evi d ence 803(6).

On appeal, Coumaris argues that the repor t should have been

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

Evidence 803(8)(C), which prov ides a hearsay exception

“against the Government in criminal cases” for reports setting

forth “factual findings resulting from an i nvestigation made

pursuant to aut hority granted by law, unless the sources of

information or other circumstances indicate lack of

trustworthiness.” F

ED

. R. E

VID . 803(8)(C).

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

is error only if it constitutes an abuse of discretion. S ee U nited

States v. Whitmore

, 359 F.3d 609, 616 (D.C. Cir. 200 4). But

even if we were to conclude that the dis trict court abused its

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

decide), t he exclusion of the report, like the exclusion of th e12

2 Because 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 er ror. S ee 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 l imited 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. sc rapbook, 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

testif y that Coumaris’ anonymous tips regarding Jenkins’

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

There is no reason to belie ve 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 Guide lines determinations. Those challenges

include claims th

at the court improperly applied enhancements

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

obstruction of jus tice, and for more-than-minimal planning. S ee

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

these challenges because we grant the gover nment’s motion to

remand the case for resentencing in light of Uni ted States v.

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

In Blakely v . Washington , the Supreme Court held that

Washington State’s determina te 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 statutor y 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 Sta t es Sentencing Guidelines, holding that the

imposition of enhanced sentences under the G uidelines 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 mad e the Guidelines mandatory,

thereby rendering them “effectively advisory.” I d. at 757.

Under this new sentencing regime, a sentencing court i s required

“to cons ider Guidelines ranges” applicable to the defendant, but

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

concerns as well.” Id.

Th e United States has moved to vacate Coumaris’ sentence

and to rema n d for resentencing. The government concedes that

the mandatory enhancements of Coumaris’ sentence were

unconstitutional under Booker . It further agrees with Coumaris

th at, 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 Resente ncing at 2-3. This

means that the Bo oker 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

r easonable doubt that the error complained of did not contribute

to the [sentence] obtained.” I d. at 3 (quoting Chapman v. California , 386 U.S. 18, 24 (1967)); see Powell , 334 F.3d at 4514

(noting that the Chapma n harmless error standard applies to

constitutional errors).

Although Coumaris agrees that his sentence should be

v acated and remanded, he urges us to resolve his speci fic

challenges to th

e district court’s application of the Guidelines

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

Remand for Resentencing a t 2. We decline to do so. Because

the district cour t 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

c alculations would be premature at best and unnecessary at

worst.

IV

For the foregoing reasons, we affirm Georg e 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

.