FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCTOBER 15, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-10322

Non-Argument Calendar

________________________

D. C. Docket No. 07-20470-CR-JEM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GUY SALOM,

a.k.a. Roberto Falcon,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(October 15, 2009)

Before BLACK, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
Guy Salom, proceeding pro se, appeals his convictions for conspiracy to

possess with intent to distribute at least 100 marijuana plants, and to maintain a

drug-involved premises, 21 U.S.C. § 846, possession with intent to distribute at

least 100 marijuana plants, 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(vii), and

maintaining a drug-involved premises, 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2.

Salom raises a number of issues on appeal: (1) the district court erred by denying

his motion to suppress evidence; (2) the district court made various procedural and

evidentiary errors during his trial; (3) the evidence presented at trial is insufficient

to support the jury’s finding that he possessed at least 100 marijuana plants; (4) the

Government failed to provide him with certain potentially exculpatory evidence, as

required by Brady v. Maryland, 83 S. Ct. 1194 (1963); (5) his trial counsel

provided him with ineffective assistance; and (6) the errors which he has identified

had the cumulative effect of depriving him of his right to a fair trial. We address

each issue in turn, and upon careful review we affirm Salom’s convictions.

I.

On appeal, Salom argues the district court erred in denying his motion to

suppress evidence seized during the officers’ search of his van and a subsequent

search of a house located at 14780 S.W. 159th Street in Miami (159th Street

house).

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In reviewing a district court’s denial of a motion to suppress, we review the

district court’s factual findings for clear error and its application of the law to those

facts de novo. United States v. Mercer, 541 F.3d 1070, 1073-74 (11th Cir. 2008).

When a district court denies a motion to suppress on the basis that it is untimely,

however, we review only for an abuse of discretion. United States v. Smith, 918

F.2d 1501, 1509 (11th Cir. 1990).

The Federal Rules of Criminal Procedure provide that a motion to suppress

evidence must be made before trial. Fed. R. Crim. P. 12(b)(3)(C). In addition, a

district court has discretion to set a deadline for the parties to file pretrial motions.

Fed. R. Crim. P. 12(c). Any Rule 12(b)(3) defense that is not raised by a deadline

set by the court under Rule 12(c) is waived, although the district court may grant

relief from that waiver rule for good cause shown. Fed. R. Crim. P. 12(e); see also

United States v. Milan-Rodriguez, 828 F.2d 679, 682-84 (11th Cir. 1987) (holding

the district court did not abuse its discretion by denying as untimely a motion filed

after deadline set under Fed. R. Crim. P. 12(c)). This waiver rule applies even if

the district court also addressed the merits of the untimely motion.

Milan-Rodriguez, 828 F.2d at 683.

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In this case, the district court informed the parties that all motions in limine

needed to be filed no later than August 15, 2007. Salom’s codefendant Echavarria

did not file his motion to suppress until August 24, 2007, and Salom did not file his

motion to adopt Echavarria’s motion to suppress until August 27, the morning of

the first day of trial. Therefore, the district court did not abuse its discretion by

denying Salom’s motion as untimely.

II.

Salom argues the district court made various procedural and evidentiary

errors during his trial, which we address in turn.

A. Opening Statements

Salom argues the district court abused its discretion in limiting his defense

counsel’s opening statement. Salom also argues it was improper for the district

court to remark that Fernando Quintana, a codefendant who later pled guilty and

agreed to cooperate with the Government, had to “please” the court, as well as the

prosecutor, to receive the benefit of a substantial assistance motion.

We review a district court’s conduct during trial for an abuse of discretion.

United States v. Verbitskaya, 406 F.3d 1324, 1337 (11th Cir. 2005). As Chief

Justice Burger explained, the purpose of an opening statement “is to state what

evidence will be presented, to make it easier for the jurors to understand what is to

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follow, and to relate parts of the evidence and testimony to the whole; it is not an

occasion for argument.” United States v. Dinitz, 96 S. Ct. 1075, 1082 (1976)

(Burger, J., concurring). The district court may “exclude irrelevant facts and stop

argument if it occurs.” United States v. Zielie, 734 F.2d 1447, 1455 (11th Cir.

1984), abrogated on other grounds by United States v. Chestang, 849 F.2d 528,

531 (11th Cir. 1988).

Generally, a trial judge must scrupulously avoid expressing any opinion on

the merits of a case or on the weight of particular evidence. United States. v.

Sorondo, 845 F.2d 945, 949 (11th Cir. 1988). “[I]n order to amount to reversible

error, a judge’s remarks must demonstrate such pervasive bias and unfairness that

they prejudice one of the parties in the case.” Verbitskaya, 406 F.3d at 1337

(citation and quotation marks omitted).

In this case, the district court did not abuse its discretion in limiting defense

counsel’s opening statement because defense counsel was challenging the motives

of the Government’s main witness, Quintana, rather than simply explaining the

evidence to the jury. Moreover, it does not appear that the district court’s

statement, “He has to please me, too,” was intended as a comment on Quintana’s

credibility or on the merits of the defense’s case. Also, it is unlikely that the

court’s brief remark, made at the beginning of trial, had any influence on the jury’s

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verdict.

B. Rule 404(b) Evidence

Next, Salom argues he was denied a fair trial due to the improper

introduction of evidence that he committed other crimes. Moreover, he notes the

Government did not provide notice that it was going to introduce this evidence, as

required by Fed. R. Evid. 404(b).

Generally, we review a district court’s evidentiary rulings for an abuse of

discretion. United States v. Edouard, 485 F.3d 1324, 1343 (11th Cir. 2007).

Because Salom did not raise any Rule 404(b) objections during trial, however, we

are reviewing this claim only for plain error. Id.

Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity

therewith.” Fed. R. Evid. 404(b). However, such evidence is not extrinsic, and

therefore is admissible, if it is: “(1) an uncharged offense which arose out of the

same transaction or series of transactions as the charged offense, (2) necessary to

complete the story of the crime, or (3) inextricably intertwined with the evidence

regarding the charged offense.” Edouard, 485 F.3d at 1344 (citation and quotation

marks omitted).

In this case, Quintana’s testimony concerning mortgage fraud he and Salom

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had committed when Quintana purchased the 159th Street residence, and the theft

of electricity to conceal the fact that they were using powerful lamps to grow

marijuana, reflected uncharged conduct that arose out of the same series of

transactions as the charged drug offenses because it showed how Quintana and

Salom conducted their marijuana-growing conspiracy. In addition, Quintana’s

testimony concerning Salom’s use of aliases was inextricably intertwined with the

charged offenses because it showed that Salom tried to conceal his involvement

with the 159th Street house by placing a false name on the lease. Because this

evidence was intrinsic to the charges against Salom, the district court did not abuse

its discretion by admitting it.

C. Limitations on Cross-Examination

Salom also asserts the district court improperly limited his crossexamination of Quintana.

Under the Confrontation Clause of the Sixth Amendment, a criminal

defendant has the right to cross-examine a witness in order to show bias, prejudice,

or ulterior motives for testifying. Davis v. Alaska, 94 S. Ct. 1105, 1110 (1974).

The need for full cross-examination is particularly important “where the witness is

the star government witness or participated in the crimes for which the defendant is

being prosecuted.” United States v. Williams, 526 F.3d 1312, 1319 (11th Cir.

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2008). Nevertheless, “trial judges retain wide latitude . . . to impose reasonable

limits on such cross-examination based on concerns about, among other things,

harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation

that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 106 S. Ct.

1431, 1435 (1986). The test is “whether a reasonable jury would have received a

significantly different impression of the witness’ credibility had counsel pursued

the proposed line of cross-examination.” Williams, 526 F.3d at 1319 (citation and

quotation marks omitted).

In this case, Salom was allowed to cross-examine Quintana concerning his

motives for testifying, and Quintana acknowledged he was hoping to receive a

reduced sentence in exchange for his testimony. Therefore, the jury was aware that

Quintana had a motive for giving testimony that was favorable to the Government.

Any additional questions concerning whether Quintana was trying to avoid a

sentencing enhancement based on his son’s overdose would merely have

reinforced that impression, and would not have given the jury a significantly

different picture of Quintana’s credibility. Therefore, the district court’s decision

to disallow that line of questioning did not violate the Confrontation Clause.

D. Hearsay/Confrontation Clause

Next, Salom argues Detective Rodriguez’s testimony concerning a tip he

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received from a confidential informant constituted inadmissible hearsay.

As noted above, we review a district court’s evidentiary rulings for an abuse

of discretion. United States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005).

Generally, we review constitutional claims de novo. United States v. Williams, 527

F.3d 1235, 1239 (11th Cir. 2008). However, because Salom did not offer a

Confrontation Clause objection during trial, we review that claim for plain error

only. See United States v. Jiminez, 564 F.3d 1280, 1286 (11th Cir. 2009) (noting a

hearsay objection does not preserve a Confrontation Clause issue for appellate

review).

Hearsay is “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Fed. R. Evid. 801(c). “Statements by out of court witnesses to law

enforcement officials may be admitted as non-hearsay if they are relevant to

explain the course of the officials’ subsequent investigative actions, and the

probative value of the evidence’s non-hearsay purpose is not substantially

outweighed by the danger of unfair prejudice. . . .” Baker, 432 F.3d at 1209 n.17.

“[T]he Confrontation Clause of the Sixth Amendment prohibits the

admission of out of court statements that are testimonial unless the declarant is

unavailable and the defendant had a previous opportunity to cross-examine the

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declarant.” Jiminez, 564 F.3d at 1286. “[T]he Confrontation Clause prohibits only

statements that constitute impermissible hearsay.” Id.

In this case, Detective Rodriguez’s testimony regarding the confidential

informant’s tip was not introduced to show that there actually was a marijuana

hydroponic laboratory at the 159th Street house. Rather, Detective Rodriguez was

simply explaining why he decided to investigate the 159th Street house. In

addition, this testimony did not result in any unfair prejudice to Salom because the

confidential informant did not suggest that Salom was involved with the 159th

Street house. Accordingly, the district court did not abuse its discretion by

admitting the confidential informant’s statement as non-hearsay. Finally, because

the confidential informant’s statement was not hearsay, admission of that statement

did not violate the Confrontation Clause.

E. Improper Vouching

Next, Salom argues the prosecutor improperly vouched for the truthfulness

of Detective Rodriguez’s testimony by asking him on redirect examination whether

he stood upon his oath, and whether he knew that he was under oath.

A claim of improper vouching by the prosecution presents a mixed question

of law and fact that is subject to plenary review. United States v. Eyster, 948 F.2d

1196, 1206 (11th Cir. 1991). Normally, a prosecutor may not personally vouch for

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the credibility of a witness. Eyster, 948 F.2d at 1206. The test for improper

vouching is whether “the jury could reasonably believe that the prosecutor

indicated a personal belief in the witness’ credibility.” Id. In applying that test, we

consider whether the prosecutor: (1) “placed the prestige of the government behind

the witness by making explicit assurances of the witness’s credibility,” or (2)

“implicitly vouched for the witness’s credibility by implying that evidence not

formally presented to the jury supports the witness’s testimony.” United States v.

Castro, 89 F.3d 1443, 1457 (11th Cir. 1996).

In this case, the prosecutor’s questions to Detective Rodriguez were intended

to show that Detective Rodriguez continued to stand by his direct testimony,

despite the fact that there were inconsistencies with his report. The prosecutor did

not express a personal belief that Detective Rodriguez was telling the truth, nor did

he suggest that there was evidence not presented to the jury that supported

Detective Rodriguez’s testimony. Thus, the prosecutor did not engage in any

improper vouching.

F. Comment on Failure to Testify

Next, Salom asserts the district court should have granted his motion for a

mistrial based on the prosecutor’s improper comments concerning Salom’s

decision not to testify at trial.

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We review a district court’s denial of a motion for a mistrial based on a

prosecutor’s statements during closing argument for abuse of discretion. United

States v. Knowles, 66 F.3d 1146, 1163 (11th Cir. 1995). “A prosecutor’s statement

violates the defendant’s right to remain silent if either (1) the statement was

manifestly intended to be a comment on the defendant’s failure to testify; or (2) the

statement was of such a character that a jury would naturally and necessarily take it

to be a comment on the failure of the accused to testify.” Id. at 1162-63 (citation

and quotation marks omitted). The prosecutor’s remarks “must be examined in

context, in order to evaluate the prosecutor’s motive and to discern the impact of

the statement.” Id. at 1163.

During closing arguments, the prosecutor noted that Quintana and Salom

knew each other since 2004 or 2005 and acknowledged that Quintana was a

convicted felon who had committed mortgage fraud. The prosecutor then stated,

Guess who his partner in the mortgage fraud was? Now, is that a big

stretch to believe under all of this what they were doing on June 4th to

go back in time, to go back in time, to go back in time to 2004, to

2005, when he’s not saying he didn’t know him. Nobody said

specifically with reference to Mr. Salom - -

After defense counsel objected and reserved a motion, the prosecutor continued:

“There’s no suggestion from Mr. Quintana’s testimony that was found to be

untrue. He was cross examined on that issue. He was cross-examined vigorously.”

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It is unclear whether pronoun “he” in the prosecutor’s statement “he’s not

saying he didn’t know him,” was meant to refer to Salom or Quintana. Moreover,

it is not clear what the prosecutor meant by saying, “Nobody said specifically with

reference to Mr. Salom,” because the prosecutor never completed that sentence.

Given the ambiguity of the prosecutor’s remarks, it does not appear that a jury

would “necessarily and naturally” interpret those remarks as a comment on

Salom’s decision not to testify. Also, there is no indication that the prosecutor

“manifestly intended” to comment on Salom’s failure to testify. Accordingly, the

district court did not abuse its discretion in denying Salom’s motion for a mistrial.

G. Salom’s Requested Jury Instruction

Salom also asserts the district court erred by declining to issue his proposed

jury instruction.

We review a district court’s refusal to give a requested jury instruction for an

abuse of discretion. United States v. Fulford, 267 F.3d 1241, 1245 (11th Cir.

2001). A court’s failure to give a requested jury instruction only constitutes

reversible error if: “(1) the requested instruction correctly stated the law; (2) the

actual charge to the jury did not substantially cover the proposed instruction; and

(3) the failure to give the instruction substantially impaired the defendant’s ability

to present an effective defense.” Id.

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Here, Salom requested an instruction that, if the jury were to find that a

witness was lying about a particular fact, then it could infer the opposite of that

witness’s testimony. Although Salom’s proposed instruction was essentially a

correct statement of the law, the district court’s jury instructions concerning

witness credibility covered the substance of Salom’s proposed instruction.

Moreover, the court’s failure to give the requested instruction did not substantially

impair Salom’s defense, as he was still permitted to suggest to the jury during

closing argument that they could believe the exact opposite of Quintana’s

testimony. Therefore, the district court did not abuse its discretion by denying

Salom’s proposed jury instruction.

III.

Salom argues the evidence introduced at trial was not sufficient to support

the jury’s finding that he was responsible for at least 100 marijuana plants.

A. Admissibility of the Photographs of the Drug Enforcement

Administration (“DEA”) Warehouse

Salom asserts the photographs of the DEA warehouse were “false and

misleading” because they showed plants that were taken from a different and

completely separate grow house. He argues the photographs of the DEA

warehouse should not have been admitted into evidence because they were

irrelevant to his case.

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A district court’s evidentiary rulings are reviewed for a clear abuse of

discretion and “[t]he district court has broad discretion to determine the relevance

and admissibility of any given piece of evidence.” United States v. Merrill, 513

F.3d 1293, 1301 (11th Cir. 2008). Evidence is relevant if it has “any tendency 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 without the evidence.” Fed.

R. Evid. 401.

In this case, Special Agent Molina testified that the photographs of the DEA

warehouse accurately depicted the manner in which the 159th Street plants were

stored at the warehouse. This evidence was relevant because it suggested that the

agents had, in fact, seized marijuana plants from the 159th Street house. Although

Salom argues the plants depicted in the photographs actually came from a different

grow house, it is the jury’s role to choose between different constructions of the

evidence, and Salom had an opportunity to cross-examine Agent Molina

concerning the possible discrepancy. The district court did not abuse its discretion

by admitting those photographs.

B. Sufficiency of the Evidence

Salom also argues that, if the photographs of the warehouse had been

properly excluded, the evidence introduced at trial would have been insufficient to

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support his convictions.

We review de novo whether there is sufficient evidence to support the jury’s

verdict in a criminal case. United States v. Beckles, 565 F.3d 832, 840 (11th Cir.

2009). Evidence is sufficient to support a conviction where “a reasonable trier of

fact could find that the evidence established guilt beyond a reasonable doubt.” Id.

(citation and quotation marks omitted). We “view[] the evidence in the light most

favorable to the government, and draw[] all reasonable factual inferences in favor

of the jury’s verdict.” Id.

In this case, the applicable penalty statute for Counts One and Two, 21

U.S.C. § 841(b)(vii), establishes a mandatory minimum sentence of five years’

imprisonment for offenses involving 100 or more marijuana plants. As this Court

has previously explained, cuttings or seedlings do not count as marijuana plants

unless there is “some readily observable evidence of root formation.” United

States v. Foree, 43 F.3d 1572, 1581 (11th Cir. 1995) (citation and quotation marks

omitted).

Salom’s argument on appeal is that the law enforcement agents failed to

inspect the marijuana plants for roots while the plants were still at the 159th Street

house, and then inspected the wrong group of plants after they were transported to

the DEA warehouse. However, Special Agent Molina testified she counted 166

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plants while she was at the 159th Street house, she did not recount the plants after

they were taken to the warehouse, and she later explained that she only counted

those plants that had observable root systems. A jury could reasonably have

concluded the plants inspected at the DEA warehouse were the same plants that

were seized from the 159th Street house. Accordingly, we conclude the jury’s

finding that Salom possessed over 100 marijuana plants is supported by sufficient

evidence.

IV.

Salom asserts the Government failed to disclose potentially exculpatory

evidence, as required by Brady v. Maryland, 83 S. Ct. 1194 (1963).

We review a defendant’s Brady objection for plain error where the defendant

failed to raise that objection in his motion for a new trial. United States v. Lindsey,

482 F.3d 1285, 1293 (11th Cir. 2007). “[T]he Supreme Court has made it clear

that the Brady rule is not an evidentiary rule that grants broad discovery powers to

a defendant and that ‘[t]here is no general constitutional right to discovery in a

criminal case.’” United States v. Quinn, 123 F.3d 1415, 1421 (11th Cir. 1997)

(quoting Weatherford v. Bursey, 97 S. Ct. 837, 846 (1977)). In order to prevail on

a Brady claim, a defendant must establish: (1) the government possessed evidence

favorable to him; (2) the defendant did not possess the evidence, nor could he have

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obtained it himself through reasonable diligence; (3) the government suppressed

the evidence; and (4) if the evidence had been revealed to the defense, there is a

reasonable probability that the outcome of the proceedings would have been

different. United States v. Perez, 473 F.3d 1147, 1150 (11th Cir. 2006).

Salom has failed to identify any potentially exculpatory evidence that was

improperly withheld by the Government. The record indicates the Government

did provide defense counsel with the photographs taken at the 159th Street house

and the DEA warehouse. Salom states in his reply brief his defense counsel was

given a DVD with the photographs on it and Salom even introduced one of those

photographs as a defense exhibit at trial. In addition, Salom describes in his reply

brief what the recordings of Quintana’s phone calls and personal visits will show,

therefore, it appears Salom was able to independently obtain the information

contained on those recordings. Finally, although the videotapes of Salom’s

conversations with his trial counsel might potentially be relevant to an ineffective

assistance claim, it does not appear those videotapes would have had any impact on

Salom’s trial. Therefore, Salom has failed to establish any Brady error.

V.

Salom argues his trial counsel provided him with ineffective assistance by

making a “unilateral concession of guilt” and by failing to subject the

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Government’s case to any meaningful challenge.

Generally, we will not review a claim of ineffective assistance of counsel

raised on direct appeal where the district court neither addressed that claim nor

developed a factual record. United States v. Bender, 290 F.3d 1279, 1284 (11th

Cir. 2002); see also Massaro v. United States, 123 S. Ct. 1690, 1694 (2003)

(noting that it is usually preferable to address ineffective assistance of counsel

claims on collateral review rather than on direct appeal).

In this case, the district court did not address the merits of Salom’s

ineffective assistance claim, nor did the court develop a factual record with respect

to that claim. Therefore, Salom’s ineffective assistance claim is not cognizable on

direct appeal.

VI.

Salom asserts that, even if the individual errors he has identified are not

sufficient to merit reversal, the cumulative effect of these errors deprived him of

his right to a fair trial.

We have held that “the cumulative effect of multiple errors may so prejudice

a defendant’s right to a fair trial that a new trial is required, even if the errors

considered individually are non-reversible.” United States v. Khanani, 502 F.3d

1281, 1295 (11th Cir. 2007) (citation and quotation marks omitted).

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As described above, Salom has not shown that the district court committed

any errors. Therefore, he also cannot establish any cumulative error.

Accordingly, for the above-stated reasons, we affirm Salom’s convictions.

AFFIRMED.

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