U.S. v. Candler
| Decision Date | 08 December 1997 |
| Docket Number | 96-10570,Nos. 96-10537,s. 96-10537 |
| Citation | 133 F.3d 929,1998 WL 4727 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Stacey Rena CANDLER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Rasheen Demon FAIRLY, Defendant-Appellant. . Submitted: ** |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before: BROWNING, PREGERSON, and HAWKINS, Circuit Judges.
In a consolidated appeal, Appellant Rasheen Demon Fairly ("Fairly") and Appellant Stacey Rena Candler ("Candler") appeal from their convictions for conspiracy to possesses and possession of cocaine base with the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 846. Fairly also appeals from his conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Because the parties are familiar with the facts, we will not recite them here except as necessary.
We affirm the district court's denial of Appellants' motion for a new trial for the following reasons.
1. Denial of a motion for a new trial based on alleged prosecutorial misconduct is reviewed for an abuse of discretion. See United States v. Sayetsitty, 107 F.3d 1405, 1408 (9th Cir.1997). A defendant carries a significant burden to show that the district court abused its discretion in denying the motion for a new trial. See United States v. Endicott, 869 F.2d 452, 454 (9th Cir.1989). The district court's evidentiary rulings during trial are reviewed for an abuse of discretion. See United States v. Manning, 56 F.3d 1188, 1196 (9th Cir.1995). Improperly admitted evidence mandates reversal, unless the reviewing court is fairly assured that the error did not influence the verdict. See United States v. Brooke, 4 F.3d 1480, 1488 (9th Cir.1993).
2. When a defendant records a timely objection at trial, we review for harmless error. See United States v. Valle-Valdez, 554 F.2d 911, 914 (9th Cir.1977). If the error is of constitutional magnitude, it can be disregarded only if it is harmless beyond reasonable doubt. See Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986). If the error is not of constitutional magnitude, the government must show only that the prejudice resulting from the error was more probably than not harmless. See United States v. Morales, 108 F.3d 1031, 1040 (9th Cir.1997) (en banc). When a defendant raises an issue on appeal that was not raised before the district court, however, we review for plain error. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993). Plain error constitutes (1) "error," (2) that is "plain," and (3) that "affects substantial rights." See Johnson v. United States, 117 S.Ct. 1544, 1548-49 (1997) (citing Olano, 507 U.S. at 732). If all three conditions are met, a reviewing court may exercise its discretion to consider a forfeited error, but only if "the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id.
3. Fairly argues that the district court erred in denying his motion for a new trial based on prosecutorial misconduct and by excluding a taped statement by co-defendant Candler. Candler argues that the district court applied an incorrect standard to her motion for a new trial based on prosecutorial misconduct or, in the alternative, erred in finding that the prosecutorial misconduct was harmless. Candler also argues for the first time on appeal that co-defendant Fairly's counsel engaged in unethical conduct that deprived her of a fair trial.
4. To successfully move for a new trial based on prosecutorial misconduct, a defendant must show that it is "more probable than not that the [prosecutorial] misconduct materially affected the verdict." United States v. Hinton, 31 F.3d 817, 824 (9th Cir.1994). Reversal will only be necessary if the alleged prosecutorial misconduct, viewed in the context of the entire trial, actually deprived the defendant of a fair trial. See United States v. Yarbrough, 852 F.2d 1522, 1539 (9th Cir.1988). A reviewing court may defer to the trial court's view of the prosecutor's conduct. See United States v. Sanchez-Robles, 927 F.2d 1070, 1077 (9th Cir.1991).
Fairly's previous convictions
5. Fairly failed to record a timely objection to evidence regarding his prior felony for the sale of a non-narcotic in lieu of an actual controlled substance ("second prior felony"). Therefore, we review for plain error.
6. Fairly refused to stipulate to either of his two previous offenses. As a result, the prosecution introduced Fairly's second prior felony to prove the felony-conviction element of his section 922(g)(1) felon in possession of a firearm charge (count three). Although evidence of Fairly's second prior felony was not admissible under Rule 404(b) of the Federal Rules of Evidence, it was admissible to show the felony-conviction element of count three. See Fed.R.Evid. 401. Therefore, the introduction of Fairly's second prior felony was not plain error. Parole status of Fairly's Father, Fairly's parole and prison status, Candler's prior bad acts.
7. Fairly timely objected at trial to testimony regarding the parole status of his father, therefore we review for harmless error. Fairly, however, failed to object at trial to testimony regarding his parole and prison status or Candler's prior bad acts, therefore we review these claims for plain error.
8. The record clearly shows that Officer Bell's testimony, where he mentioned the parole status of Fairly's father, was used to lay the foundation for the answering machine tape found at the Bullard apartment, which served to establish that Fairly resided at the Bullard apartment. Fairly offers no evidence that the government deliberately elicited information regarding the parole status of Fairly's father to imply Fairly's guilt simply through his association with a "law breaker." Therefore, admission of Officer Bell's testimony that Fairly's father was recently released from prison was not error.
9. Nothing in the record shows that evidence of Fairly's parole status was deliberately elicited by the prosecution to infer his guilt. Evidence of Fairly's parole status was needed to establish that Fairly failed to report residence changes to his parole officer as required. This fact supported the prosecution's argument that Fairly sought to hide his participation in a narcotics conspiracy. Testimony from Fairly's parole officers was also needed to show that Fairly, although unemployed, dressed in expensive clothing and jewelry. This testimony served to show that Fairly's lifestyle was consistent with narcotics trafficking. Lastly, testimony from Fairly's parole officers was needed to identify the men's clothing found in the Bullard apartment as belonging to Fairly. Therefore, the testimony regarding Fairly's parole status was more probative than prejudicial and as such, did not constitute plain error.
10. The record shows that Fairly's witnesses volunteered information about Fairly's prison history, without objection from Fairly's counsel. When the prosecution asked Fairly's mother and former spouse where Fairly was working and residing during the previous two years, they both mentioned that he was in jail. Moreover, Fairly's counsel invited this testimony on cross-examination by asking Officer Bell for more information regarding Fairly's prison history. Therefore, the testimony regarding Fairly's prison status was not plain error.
11. Fairly presents no argument to support his contention that the prosecution deliberately elicited testimony regarding Candler's prior bad acts to imply Fairly's guilt through his association with Candler. Accordingly, this issue is waived. See United States v. Tisor, 96 F.3d 370, 376 (9th Cir.1996). Fairly's marital status
12. Fairly objected at trial to the prosecution's alleged misrepresentation of his marital status, therefore we review for harmless error.
13. There is no evidence that the prosecution misrepresented Fairly's marital status in bad faith, thereby deliberately prejudicing him with the moral implication that he was living with Candler without having divorced his former wife, Hattie Cromer ("Cromer"). In fact, Fairly's own counsel referred to Cromer as Fairly's wife (not his ex-wife) and the mother of his two children. Moreover, the misrepresentation did not affect the outcome of the trial because it was a relatively unimportant description that was effectively clarified by Cromer's own testimony that she and Fairly were divorced. Therefore, the prosecution's misrepresentation of Fairly's marital status was not error.
Fairly's parole violation
14. Fairly timely objected at trial to Officer Bell's unfinished response during the prosecution's redirect examination that the nature of Fairly's 1994 parole violation was "mur." 1 Therefore, we review for harmless error.
15. Defense counsel's "good behavior" line of questioning during his cross-examination of Officer Bell opened the door to the prosecution's question regarding the nature of Fairly's parole violation. Nonetheless, Officer Bell's unfinished response was more prejudicial than probative, therefore in error. Reversal, however, is not warranted because: (1) the jury did not hear the complete statement; (2) the district court immediately admonished the jury to disregard Officer Bell's unfinished response and, further instructed the jury that excluded or stricken testimony is not evidence that they may consider in their deliberations; and (3) the evidence supporting Fairly's conviction was overwhelming. Therefore, viewing the trial in its entirety, Officer Bell's testimony was more likely than not harmless error. See United States v. Aichele, 941 F.2d 761, 765 (9th Cir.1991)....
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