752 F.3d 1227 (10th Cir. 2014), 12-2145, United States v. Smalls

Docket Nº:12-2145
Citation:752 F.3d 1227
Opinion Judge:TYMKOVICH, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PAUL OTHELLO SMALLS, Defendant-Appellant
Attorney:Amy Sirignano, Albuquerque, New Mexico, for Appellant.[*] Richard C. Williams, Assistant United States Attorney (Kenneth J. Gonzales, United States Attorney, with him on the brief), Las Cruces, New Mexico, for Appellee.
Judge Panel:Before TYMKOVICH, BALDOCK, and PHILLIPS, Circuit Judges.
Case Date:April 28, 2014
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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752 F.3d 1227 (10th Cir. 2014)



PAUL OTHELLO SMALLS, Defendant-Appellant

No. 12-2145

United States Court of Appeals, Tenth Circuit

April 28, 2014

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Amy Sirignano, Albuquerque, New Mexico, for Appellant.[*]

Richard C. Williams, Assistant United States Attorney (Kenneth J. Gonzales, United States Attorney, with him on the brief), Las Cruces, New Mexico, for Appellee.

Before TYMKOVICH, BALDOCK, and PHILLIPS, Circuit Judges.


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TYMKOVICH, Circuit Judge.

After a suspicious death in a New Mexico prison cell, police eventually identified Paul Smalls, the victim's cellmate, and two other men as the perpetrators of murder. Their scheme was to smother the victim, and then claim he died of an asthma attack. At trial, the government pointed to " signature quality" evidence that Smalls had threatened his asthmatic ex-wife in a similar fashion five months before the murder. Smalls and the other men were found guilty of the murder of Phil Gantz, who at the time was cooperating with federal and state authorities against members of a drug trafficking ring.

Smalls appeals his conviction, arguing that he received a fundamentally unfair trial because (1) the district court erred in several of its evidentiary rulings, including allowing the testimony of his ex-wife about his prior statement; (2) the government committed prosecutorial misconduct; (3) the court abused its discretion in denying certain jury instructions; and (4) there was insufficient evidence to sustain his convictions. Smalls asserts that he is entitled to a new trial because the aggregate effect of these errors amounts to cumulative error.

Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM. We conclude the district court did not abuse its discretion or plainly err in admitting the challenged pieces of evidence; the government did not commit prosecutorial misconduct by introducing co-conspirator testimony or vouching for the witnesses; the court did not abuse its discretion denying Smalls's proposed jury instructions because the instructions adequately conveyed the law and Smalls's theory of the case; and there was sufficient evidence to sustain the convictions. Because the district court did not commit error, a cumulative error analysis is unwarranted.

I. Background

At the time of Gantz's murder, Smalls was being held in pre-trial custody at the Doña Ana County Detention Center in New Mexico, where he was formerly a corrections officer. He was awaiting trial on state charges for an August 2004 assault on his then-wife.

Smalls shared a medical unit cell with three other prisoners. One cellmate, Gantz, had been arrested in May 2003 as part of an investigation into methamphetamine trafficking in Roswell, New Mexico. After being charged in federal court, he decided to cooperate with law enforcement. His plea agreement stipulated that

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he would testify as a witness for the government in the future. Based in part on the information Gantz provided, law enforcement approached, and eventually indicted, an alleged drug trafficker. Another cellmate was Glenn Dell Cook, who had been placed in the cell after fighting with his former cellmate. Cook was in pre-trial custody on charges of methamphetamine trafficking. The fourth cellmate was Walter Melgar-Diaz (Melgar), who was in pre-trial custody for illegal reentry into the United States and had moved into the cell only a week before the murder. Although Melgar spoke only Spanish, he was nevertheless able to communicate to some extent with his cellmates.

Before Smalls's murder trial, Cook and Melgar made agreements with federal prosecutors and testified against Smalls. According to them, Smalls was the ringleader of the plot to kill Gantz. Melgar testified that Smalls had told him that Gantz was a " rat" and had to be killed. He also described how Smalls pressured him into committing the murder by explaining that Gantz had helped capture four " Michoacanos," who Smalls referred to as Melgar's " people." R., Vol. V at 648. Melgar further testified that Smalls said that no one would suspect anything because Gantz had asthma, and the death would look like a result of natural causes.

Cook testified that Smalls told him about Gantz's cooperation with authorities, that certain people wanted Gantz dead, and there was a hit on Gantz. Cook did not like Gantz because he was a " snitch" and bragged about getting a reduced sentence. Cook also testified that he did not know they were going to kill Gantz--he thought they were just going to hurt him and that Melgar and Smalls planned the murder.

According to Melgar, at 1:30 a.m. on December 30, 2004, Smalls woke up Melgar, and Cook handed Melgar a plastic bag. Then, Smalls instructed Melgar to put the bag over Gantz's face, which he did using closed fists. Smalls held down Gantz's legs and Cook restrained Gantz's chest and arms. After the murder, according to Melgar, Smalls instructed the other two not to talk about the murder because " they" would think Gantz suffocated because of the asthma. Cook's description of the murder was almost identical, and he explained that the murder took about twenty seconds and there were only eight seconds of silent struggle. Smalls testified that he slept through the murder.

The next morning, Gantz's body was found, but there were no apparent signs of foul play. On December 31, an autopsy revealed a hemorrhage in three layers of the neck, indicating that Gantz had died by carotid strangulation, not by suffocation. There were also no defensive wounds found on the body, which was consistent with being restrained. According to expert testimony offered by the government at trial, the assailant could have caused the strangulation by holding a plastic bag with two fists and wrapping it around the bottom of the jaw.

The sheriff's office initially investigated the murder, and federal investigators joined in April 2005. That summer, Cook told a fellow inmate about the murder. Unbeknownst to Cook, the inmate was cooperating with investigators and wearing a wire. Meanwhile, Melgar suffered severe mental turmoil after the murder. He claimed to have seen Gantz's ghost and began to cut himself. He was transferred to a treatment facility in Missouri and, upon his return, received medication and was declared competent by the court. In February 2006, Melgar met with his attorney after the government informed her it was interested in talking to Melgar about Gantz's murder. In a conversation with his attorney, he confessed to killing Gantz

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along with Smalls and Cook and gave a videotaped statement to the FBI on February 24, 2006.

After a trial in which Melgar and Cook testified against Smalls, Smalls was found guilty of five federal offenses:

o Conspiracy to retaliate against a witness, victim, or informant in violation of 18 U.S.C. § 1513(f);

o Retaliating against a witness, victim or informant in violation of 18 U.S.C. § 1513(a)(1)(B); o Conspiracy to tamper with a witness, victim, or informant in violation of 18 U.S.C. § 1512(k); o Tampering with a witness, victim, or informant in violation of 18 U.S.C. § 1512(a)(1)(A) and (C); o Killing a person aiding in a federal investigation in violation of 18 U.S.C. § 1121(a)(2).

On appeal, Smalls argues that the district court's numerous errors constitute cumulative error and warrant a new trial.

II. Analysis

Smalls asserts four classes of errors relating to (1) evidence that was admitted at trial; (2) prosecutorial misconduct; (3) the jury instructions; and (4) sufficiency of the evidence. As we explain, none of these contentions amounts to reversible error, nor is there any basis for finding cumulative error.

A. Evidentiary Issues

Smalls asserts the district court erroneously admitted a number of pieces of evidence relating to his conduct and the conduct of the other persons involved in the murder: (1) Smalls's statement to his wife during her asthma attack admitted as " signature quality" evidence pursuant to Rule 404(b) of the Federal Rules of Evidence; (2) his prior felony convictions admitted as impeachment evidence pursuant to Rule 609(a)(1); (3) statements by Cook and Melgar admitted as statements by co-conspirators pursuant to Rule 801(d)(2)(E); (4) statements by Cook and Melgar admitted as prior consistent statements pursuant to Rule 801(d)(1)(B); and (5) video surveillance, still photos, and accompanying testimony related to Smalls's conversations with a fellow inmate.1

As long as there was an objection to the admission of evidence, " [w]e review for abuse of discretion the district court's evidentiary rulings, considering the record as a whole." United States v. Becker, 230 F.3d 1224, 1228 (10th Cir. 2000). We will not reverse a district court's decision if it " falls within the bounds of permissible choice in the circumstances." United States v. Cardinas Garcia, 596 F.3d 788, 797 (10th Cir. 2010). Nor will we reverse that decision " absent a distinct showing it was based on a clearly erroneous finding of fact or an erroneous conclusion of law or manifests a clear error of judgment." United States v. Stiger, 413 F.3d 1185, 1194 (10th Cir. 2005).

If there was no objection, we review for plain error. " We find plain error only when there is (1) error, (2) that is plain, (3) which affects substantial rights, and...

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