U.S. v. Coumaris
| Citation | 399 F.3d 343 |
| Decision Date | 08 March 2005 |
| Docket Number | No. 03-3024.,03-3024. |
| Parties | UNITED STATES of America, Appellee, v. George Thomas COUMARIS, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
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.
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, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
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 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 non-driver'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.
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 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, ___ U.S. ___, ___, 124 S.Ct. 2531, 2538, 159 L.Ed.2d 403 (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 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. ___ U.S. ___, ___, 125 S.Ct. 738, 756, 160 L.Ed.2d 621 (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.
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, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). If the defendant did not timely object at trial, review is limited by the "plain error" standard: Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (internal citations and quotation marks omitted); see FED. R. CRIM. P. 52(b).1
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