223 F.3d 1286 (11th Cir. 2000), 98-5923, United States v Campbell

Docket Nº:98-5923.
Citation:223 F.3d 1286
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAMION ANTHONY CAMPBELL, Defendant-Appellant.
Case Date:August 22, 2000
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1286

223 F.3d 1286 (11th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

DAMION ANTHONY CAMPBELL, Defendant-Appellant.

No. 98-5923.

IN THE UNITED STATES COURT OF Appeals, FOR THE ELEVENTH CIRCUIT.

August 22, 2000

Page 1287

Appeal from the United States District Court for the Southern District of Florida

Before COX, GODBOLD and MESKILL[*], Circuit Judges.

PER CURIAM:

Damion Anthony Campbell appeals his convictions for importation of cocaine, in violation of 21 U.S.C. § 952(a), and possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a). We affirm.

I. Facts1 and Procedural History

Following Campbell's arrival at Miami International Airport on a flight from Jamaica, he was required to pass through United States Customs. There, he told a Customs agent that he had packed his own luggage and that everything in the luggage belonged to him. The agent searched one of Campbell's suitcases, found two packages of cocaine, arrested Campbell, and took him into the enforcement area. A second agent had observed the search and noted that as Campbell's suitcase was opened, Campbell appeared nervous and started looking around for points of exit. The second agent then searched Campbell's luggage; during this search, as a pair of shoes was examined, Campbell commented that nothing would be found in the shoes.

Approximately thirty minutes later, a third Customs agent read Campbell his Miranda rights; Campbell signed a waiver and agreed to make a statement. The agent wrote out Campbell's statement for him, in the third person, and included Campbell's comment that no one could have put anything in his suitcase. The agent also inserted his personal opinion in the statement, commenting that he had told Campbell that "nobody gives this amount of cocaine to someone they don't trust." (R.2 at 60.) Campbell read the statement, requested a few additions, and signed the revised statement.

According to the third Customs agent, Campbell did two other things that were consistent with guilt. First, although Campbell gave the agent the name and description of the person who was supposed to pick him up at the airport, he refused to identify the person. Next, while transporting Campbell to jail, the third Customs agent and his partner discussed a pamphlet that described the penalties for smuggling drugs into foreign countries. When the third agent told Campbell that the penalty for smuggling drugs into Iran was death, Campbell responded that it did not pay enough to smuggle drugs into Iran.

At trial, the principal issue was whether Campbell knew that the cocaine was in his suitcase before it was discovered by Customs.

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One defense witness testified that he had seen another person tampering with Campbell's luggage during the trip to the Jamaican airport and that he had told Campbell about this. The other defense witness, Campbell's cousin, with whom he normally stayed during his visits to Miami, testified that the person who was supposed to meet Campbell at the airport telephoned her, desperately trying to locate Campbell, several times on the day of Campbell's arrest.

The jury convicted Campbell on both counts. Campbell appeals, arguing that the district court erred by admitting the Customs agent's hearsay opinion contained in his written, post-arrest statement and by permitting the Government to comment on his silence, depriving him of his Fifth Amendment right to a fair trial.2

II. Discussion

Because Campbell did not object to these alleged errors at trial, we review only for plain error. See United States v. De Castro, 113 F.3d 176, 180 (11th Cir. 1997). To prevail, Campbell must prove three things: (1) an error, (2) that is plain, and (3) that affects substantial rights. See Jones v. United States, 527 U.S. 373, 389, 119 S.Ct. 2090, 2102 (1999) (citations omitted); see also Fed. R. Crim. P. 52(b). In order to "affect substantial rights," in most cases, 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, 113 S.Ct. 1770, 1777-78 (1993). Moreover, the Supreme Court has cautioned us to exercise our discretion to correct plain error only if the error "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Jones, 527 U.S. at 389, 119 S.Ct. at 2102 (citations omitted).

Campbell's first contention of error is the admission of and emphasis on the Customs agent's opinion. Campbell argues that this hearsay opinion was improperly admitted as part of Campbell's post-arrest statement. The Government discussed this hearsay three times during the agent's trial testimony and again during closing argument. During closing, the Government treated the hearsay opinion as if it had been the agent's trial testimony. Finally, the trial was extremely short and, according to Campbell, the evidence of his guilty knowledge was not otherwise overwhelming. In light of these facts, Campbell contends that the admission of this hearsay opinion was plain error.

The Government responds that Campbell never objected to the admission of the opinion or its use by the Government and that the district court's admission of the statement was not plain error. The Government also argues that hearsay is not prejudicial if the declarant is available for cross-examination. See United States v. Bright, 630 F.2d 804, 815 (5th Cir. 1980) (holding that the admission of a hearsay statement over objection was not prejudicial because the hearsay problem was "adequately cured because [the declarant] was the next government witness and thus was available for cross-examination on that point."). Thus, the Government contends that because the Customs agent testified and was available for cross-examination at trial, no prejudice resulted from the admission of his hearsay statement.

We agree that the admission of the agent's opinion does not satisfy the plain error standard. Indeed, we do not think that any of the components of plain error are present. First, we are unwilling to say that a trial court's failure to sua sponte redact a defendant's statement to remove hearsay is error. And if it is error, it is

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certainly not plain; Campbell cites no authority supporting the notion that the trial court's failure to sua sponte redact a defendant's statement to remove hearsay is error. But, even assuming that the admission was an error that was plain, we cannot say that it affected Campbell's substantial rights for three reasons. First, the declarant Customs agent testified and was cross-examined. Second, the Customs agent could have stated the same opinion as an expert witness. Third, Campbell's knowledge that the cocaine was in his luggage could have been inferred from other evidence presented at trial.

First, Campbell cannot establish prejudice because the Customs agent who made the hearsay statement was called as a witness and was thoroughly cross-examined at trial. See Bright, 630 F.2d at 815. The jury heard and understood that Campbell's statement had been transcribed, in the third person, by the Customs agent. The agent acknowledged on the stand that he had inserted his own opinion into Campbell's statement. Furthermore, within the written statement, the agent clearly labeled his opinion as his own, writing, "Agent McKenney explained to the defendant that nobody gives this amount of cocaine to someone they don't trust." (R.2 at 60.) Finally, the agent even admitted that individuals are sometimes unknowing couriers of illegal drugs. Accordingly, the jury had ample opportunity to understand that the agent's opinion was only the agent's opinion, not an admission of guilty knowledge by Campbell.

Second, we note that, at the time of trial, Agent McKenney had been a special agent for Customs for eleven years. His experience may well have qualified him as an expert under Fed. R. Evid. 702 to state opinions of this kind. Perhaps this is why Campbell's trial counsel raised no objection to the admission of the agent's opinion.

Finally, contrary to Campbell's contention that the evidence of his guilty knowledge was not otherwise overwhelming, substantial evidence supported the inference that Campbell knew the cocaine was in his luggage. Campbell told the agents that he had packed his own luggage, that everything in the luggage belonged to him, and that no one else had access to his luggage. A Customs agent, who observed the initial search of Campbell's luggage, testified that as Campbell's suitcase...

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