U.S. v. Duffaut, 01-30984.

• Decision Date: 03 December 2002
• Docket Number: No. 01-30984.,01-30984.
• Citation: 314 F.3d 203
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Byron DUFFAUT, also known as Byron Dufaunt, and Kevin Huff, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

314 F.3d 203

UNITED STATES of America, Plaintiff-Appellee, v. Byron DUFFAUT, also known as Byron Dufaunt, and Kevin Huff, Defendants-Appellants.

No. 01-30984.

United States Court of Appeals, Fifth Circuit.

December 3, 2002.

Matthew M. Coman (argued), Stephen A. Higginson, Asst. U.S. Atty., New Orleans, LA, for Plaintiff-Appellee.

Valerie Welz Jusselin, Asst. Fed. Pub. Def. (argued), New Orleans, LA, for Duffaut.

Deborah Pearce Reggio (argued), Powell & Reggio, New Orleans, LA, for Huff.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before HIGGINBOTHAM, DUHÉ and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Byron Duffaut and Kevin Huff were both charged in a three-count indictment with conspiracy, possession with intent to distribute over 50 grams of cocaine base, and possession with the intent to distribute approximately 250 grams of cocaine hydrochloride. A jury returned guilty verdicts against Duffaut and Huff on all counts. Duffaut was sentenced to concurrent 200-month terms of imprisonment, and Huff was sentenced to concurrent 300-month terms of imprisonment. Both Duffaut and Huff filed timely notices of appeal.

BACKGROUND

The charges against Duffaut and Huff stem from the following events. Acting on a tip from a confidential informant (CI), Drug Enforcement Administration (DEA) agents established surveillance on a black Lincoln Continental parked in front of a Pauger Street residence in New Orleans. The CI informed agents that a black male named "Kevin" would be using this vehicle to transport a large amount of cocaine. The CI further indicated that the Lincoln had a hidden compartment in the front dashboard, and that another individual would actually drive the vehicle while "Kevin" followed in a green Camaro. A computer check of the Lincoln's license plate revealed that the vehicle was registered to Huff. Agents observed Huff exit the Pauger Street residence and enter a green Camaro, where he retrieved a plastic bag that appeared to be containing something. Huff carried the bag to the Lincoln, opened the driver's side door, and sat in that vehicle. At some point,¹ Duffaut came out of the house and was handed "something" by Huff near the Camaro. Duffaut then got in the Lincoln and Huff got in the Camaro, and they drove off in separate directions.

DEA agents followed the Lincoln eastbound on Interstate-10 until it exited the highway and pulled into an Exxon station. There, Duffaut used a public telephone before Huff arrived in the Camaro. Huff, who was now accompanied by his nephew, Jermaine Stovall, gave Duffaut "some type of hand signal." Both vehicles then returned to the interstate and traveled eastbound.

When the vehicles reached Slidell, Louisiana, local law enforcement officers, working in tandem with the DEA agents, pulled the Lincoln over for speeding. The Camaro was also stopped. Duffaut stated that he was on his way to the casinos in Mississippi. However, during a pat-down for weapons, it was discovered that Duffaut had no cash or credit cards. Duffaut consented to search the Lincoln, and a drug-sniffing canine alerted to the passenger side of the vehicle. Once inside the Lincoln, the canine began "scratching aggressively" at the air bag compartment. A plastic shopping bag containing a large amount of crack cocaine and a large amount of powder cocaine was found inside the compartment.² Duffaut and Huff were subsequently placed under arrest.

While en route to a holding cell, Duffaut told DEA Agent Eric Covell that he wanted to cooperate. Duffaut stated that he had made three prior trips to Houston to deliver drugs, and that he was paid $100 to $500 per trip.

Prior to trial, the Government filed a notice of its intent to introduce evidence of prior bad acts in its case-in-chief against Huff, pursuant to FED.R.EVID. 404(b). In particular, the Government sought to introduce evidence of a 1991 drug conviction, and two drug arrests that occurred in 1994 and 1999, respectively. Huff filed a memorandum opposing the introduction of the prior bad acts evidence. The district court ruled that the 1999 drug arrest was admissible, but denied the Government's request with respect to the 1991 and 1994 offenses.

In other pretrial motions, Huff moved to suppress introduction of the seized drugs, arguing that the officers lacked probable cause to stop the vehicles because the alleged traffic violation was fabricated. He also asserted that the officers were required to obtain his, rather than Duffaut's, consent to search the Lincoln since the officers knew he owned the vehicle, and because he was present during the stop. The district court denied the motion.

At trial, the Government called former New Orleans police officer Clinton Hajek for the purpose of introducing Huff's prior 1999 arrest. Hajek testified that, on May 18, 1999, he and his partner stopped a Pontiac because they saw its passenger drinking from an open container. The passenger, identified as Huff, fled and Hajek gave chase. Huff was apprehended and brought back to the Pontiac, which was registered in Huff's name, and drugs were found in the car as well as in Huff's underwear.

Hajek testified that $5,702 in cash was found under the passenger seat of the car, and that a digital scale was discovered in the trunk. A subsequent search of Huff's residence turned up a handgun, vehicle registration documents, a Greyhound bus ticket from Houston to New Orleans in Stovall's name, and numerous telephone records in Huff's name which documented calls between Houston, Slidell, and New Orleans. Hajek acknowledged that the 1999 incident was pending trial.

The Government introduced the physical evidence, as described by Hajek, that was retrieved in connection with the 1999 arrest, including: 1) the drugs seized from the car and from Huff's underwear; 2) the digital scale found in the trunk; 3) the property receipt for the cash; 4) the handgun found at Huff's residence; and, 5) the vehicle registration, travel, and phone documents. The district court permitted the Government to publish this evidence to the jury, and Huff did not renew his 404(b) objection during Hajek's testimony or at the time the physical evidence was offered by the Government. Although the district court did not give a limiting instruction to the jury when the 404(b) evidence was introduced, such an instruction was later included in the jury charge at the conclusion of the trial.

During closing arguments, the prosecutor made the following statements:

What you all have to decide today is whether or not these two guys are guilty, individually; whether or not they worked together; whether or not they were in possession of the drugs; and whether or not it's right what they did. If their behavior or what they did is okay, then they should go free. If having three quarters of a kilogram of crack and powder cocaine is okay, they should go home right now, because they deserve it; if that behavior is acceptable. But, I don't think it is. The law says it isn't.

Duffaut objected to the prosecutor's statement regarding his personal belief, which the district court sustained. Shortly thereafter, the prosecutor argued:

And, that's what this is. From New Orleans to St. Tammany. It doesn't just affect one street and one corner at 2341 Pauger Street. This goes a long way. As you heard the expert, Chris Ortiz, talk about the amount, thousands and thousands of hits. That's not just one guy doing his own business in the back of his house, wanting to be left alone. That's on the street, that's one person, two people, three people, four people, family after family, person after person.

Duffaut and Huff moved for a mistrial, arguing that the prosecutor's comments were "clearly designed to inflame[]." The district court denied the motion and admonished the jury:

Ladies and gentlemen, you're here to determine whether there's been a violation of law. It has nothing to do with any lawyer's argument as to what he thinks or she thinks is right or wrong. So, at this point, ... I think Counsel is almost finished, but that's your job ... to apply the law, as I explain it to you, to the facts that you have heard here today and testified to by the witnesses and the evidence that will be brought to you in the jury room. So, you're to determine whether a crime has occurred and whether the government has proven it.

So, as I told you before, what the lawyers say is not evidence. It's their presentation of what the evidence is, but their personal opinion as to whether something was proven or whether it's right or wrong is not significant to you.

Later, when recounting the sequence of events, the prosecutor indicated that the DEA agents saw Huff and Duffaut talking outside the house on Pauger while Huff was holding the plastic bag.

Mr. Huff has the bag. Ms. Jusselin says that [Duffaut] is an unwitting and unknowing "mule."

Kevin Huff is standing there in front of him with the bag.

Duffaut again objected, arguing that the prosecutor's statements were unsupported by the trial testimony. The district court overruled the objection, stating that "the jury can remember." The prosecutor continued:

He's standing there with the bag. Kevin Huff is not hiding it. He didn't do it outside of Mr. Duffaut's presence. He didn't come there with the car. He's standing out front, Kevin Huff has got the bag in his hand, standing there. Byron Duffaut is standing right next to him.

During deliberations, the jury sent out the following note:

Is there any actual testimony by any of the witnesses that place both defendants outside the cars with the bag at the same time?

The district court instructed the jury to rely upon its recollection of the testimony as presented at trial. The jury subsequently returned guilty verdicts against Duffaut and Huff on all counts.

Duffaut was sentenced to concurrent 200-month terms of imprisonment. Prior to trial, the Government filed a Bill of...