United States v. Mercado

296 F. App'x 115
Procedural entryThis page is a short order in United States v. Mercado. Read the opinion of the Court — 573 F.3d 138
Court of Appeals for the Second Circuit·Decided October 7, 2008·No. No. 07-3347-cr·Published

Opinion

SUMMARY ORDER

Defendant Charles Bryant, who was convicted on multiple counts of crack trafficking in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, appeals his conviction, arguing that he was denied a fair trial by the court’s refusal to preclude irrelevant, prejudicial evidence and by improper remarks in the government’s summation. Bryant argues that, in any event, he is entitled to resentencing in light of Kimbrough v. United States, — U.S.-, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.

1. Inadmissible Evidence

Bryant argues that he was prejudiced by the trial court’s decision to admit agent testimony (a) indicating general responsibilities for investigating “street level narcotics trafficking and, in particular, violent crimes associated with narcotics use in the area,” Appellant’s Br. at 15 (citing Trial Tr. 45-46 (emphasis in brief)); (b) identifying the residents of a housing development involved in the crime to include “poor, elderly, and [single parents],” id. at 21; (c) describing direct observations of various persons entering and exiting the development; and (d) summarizing eight crack buys attributed to Bryant.2

At the outset, we note that only the first item of agent testimony drew a defense objection at trial.3 Accordingly, we review Bryant’s other evidentiary challenges only for plain error, which means that defendant must demonstrate error that was plain, that affected substantial rights, and that seriously affected the fairness, integrity, or public reputation of judicial proceedings. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 [117]*117(1998); accord United States v. Regalado, 518 F.3d 143, 147 (2d Cir.2008). A defendant’s burden even at the initial error step of analysis is a heavy one because, absent constitutional concerns, we review a trial court’s evidentiary rulings, including its assessment of the relative probative value and prejudicial effect of the evidence, only for abuse of discretion. See, e.g., United States v. Khalil, 214 F.3d 111, 122 (2d Cir .2000).

Applying these principles to the statement' about “violent crimes,” we caution the government about unnecessarily eliciting testimony about agents’ responsibilities not relevant to the charged crime. We, nevertheless, identify no abuse of discretion in the district court’s ruling because the remark about “violent crimes” was clearly limited to the agent’s general responsibilities, and the government never suggested that Bryant himself was ever involved in any violent conduct.4 Even if the admission of this statement were error, however, we would conclude that it was harmless beyond a reasonable doubt in light of the overwhelming evidence-much of it direct evidence — of Bryant’s sales of crack cocaine. See United States v. Dhinsa, 243 F.3d 635, 649-50 (2d Cir. 2001) (collecting cases).

As for Bryant’s remaining evidentiary challenges, because a sufficient foundation in the record supports the admission of this evidence, and because the probative value of the evidence is not clearly outweighed by unfair prejudice, we identify no error, let alone plain error, in the district court’s failure to exclude the challenged items sua sponte.

2. Prejudicial Summation

Bryant submits that “inflammatory, inaccurate, and improper arguments” in the government’s summation deprived him of a fair trial. Appellant’s Br. at 21. Specifically, he faults the government for (1) misrepresenting the record by arguing that there were eight “face-to-face, hand-to-hand” drug deals with Bryant, when the evidence showed that alleged co-conspirators often delivered the drugs to the undercover officer, id. at 19 (quoting Trial Tr. at 430); and (2) appealing to the jury’s emotions by referring to the law enforcement officers’ jobs as “dangerous,” and arguing that the drugs seized in the course of the investigation would not “go right back out on the streets of the Bronx to be used by addicts,” id. (quoting Trial Tr. at 429).

Significantly, Bryant failed to object to these remarks at trial. Even when an objection is raised, “[i]t is a rare case in which improper comments in a prosecutor’s summation are so prejudicial that a new trial is required.” United States v. Rodriguez, 968 F.2d 130, 142 (2d Cir.1992) (internal quotation marks omitted); see United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). To secure reversal, a defendant must demonstrate “more than mere trial error”; “he must demonstrate misconduct so egregious that, when viewed in the context of the entire trial, it substantially prejudiced him.” United States v. Newton, 369 F.3d 659, 681 (2d Cir.2004) (and cases cited therein). When no objection is raised, a defendant bears the added burdens of the plain error standard. See United States v. Olano, 507 [118]*118U.S. at 732, 113 S.Ct. 1770; accord United States v. Newton, 369 F.3d at 682.

We conclude that the challenged remark about “face-to-face, hand-to-hand” drug deals, when viewed in the context of the summation as a whole, manifests no error because the government itself highlighted the fact that Bryant did not always deliver the crack cocaine himself, but relied on confederates. Thus, a jury would readily have understood the remark to indicate that, in each of the eight crack transactions at issue, Bryant and the undercover officer were face-to-face at some point in the negotiations, and that the undercover received the drugs in a hand-to-hand exchange, whether from Bryant or one of his subordinates.

As for the challenged reference to the “dangerousness” of the officers’ work, the context of this rebuttal comment again demonstrates why there was no error. In the defense summation, counsel challenged the credibility of various testifying officers by noting them failure to employ certain techniques to corroborate their dealing with defendant. Such an argument invited the government to point to record evidence explaining why the suggested corroborative means were not employed: “You heard why during this trial. Forty-one years of law enforcement experience among Agent Byrd, Detective Garcia and Detective Farro led them to conclude that it was too dangerous to do here.” Appellee’s Br. at 35-36 (quoting Trial Tr. at 502-03). This argument, based on record evidence, did not cross the line of fair response. See United States v. Young, 470 U.S.

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Related

United States v. Young
470 U.S. 1 (Supreme Court, 1985)
United States v. Olano
507 U.S. 725 (Supreme Court, 1993)
Kimbrough v. United States
552 U.S. 85 (Supreme Court, 2007)
United States v. Rivera
971 F.2d 876 (Second Circuit, 1992)
United States v. Osaren Ekhator
17 F.3d 53 (Second Circuit, 1994)
United States v. Lafi Khalil, Gazi Ibrahim Abu Mezer
214 F.3d 111 (Second Circuit, 2000)
United States v. Gurmeet Singh Dhinsa
243 F.3d 635 (Second Circuit, 2001)
United States v. Sewn Newton
369 F.3d 659 (Second Circuit, 2004)
United States v. Ogman
535 F.3d 108 (Second Circuit, 2008)
United States v. Regalado
518 F.3d 143 (Second Circuit, 2008)
United States v. Keller
539 F.3d 97 (Second Circuit, 2008)
United States v. Wexler
79 F.2d 526 (Second Circuit, 1935)
United States v. Simmons
923 F.2d 934 (Second Circuit, 1991)
United States v. Rodriguez
968 F.2d 130 (Second Circuit, 1992)