United States v. Figueroa

• Decision Date: 03 September 2013
• Docket Number: No. 12–3575.,12–3575.
• Citation: 729 F.3d 267
• Parties: UNITED STATES of America v. Antonio FIGUEROA a/k/a Baby Fat Face, Antonio Figueroa, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

729 F.3d 267

UNITED STATES of America

v.Antonio FIGUEROA a/k/a Baby Fat Face, Antonio Figueroa, Appellant.

No. 12–3575.

United States Court of Appeals, Third Circuit.

Argued July 17, 2013.

Opinion Filed: Sept. 3, 2013.

Ralph A. Jacobs, Esquire (argued), Jacobs Singer Kivitz & Herman LLC, Haddonfield, NJ, for Appellant.

Glenn J. Moramarco, Esquire (argued), Office of United States Attorney, Camden, NJ, Mark E. Coyne, Esquire, Office of United States Attorney, Newark, NJ, for Appellee.

Before: RENDELL, SMITH and ROTH, Circuit Judges.

OPINION

ROTH, Circuit Judge:

Antonio Figueroa appeals the District Court's September 11, 2012, judgments of conviction and sentence. Figueroa was convicted of civil rights violations under 18 U.S.C. §§ 241 and 242 and sentenced to ten years imprisonment. On appeal, he challenges his conviction on four grounds: (1) the District Court erred by admitting the out-of-court statement of co-defendant Robert Bayard, (2) the District Court erred by excluding, as cumulative, police reports that Figueroa offered into evidence, (3) the District Court erred by allowing improper expert opinion testimony from a prosecution fact witness on issues of constitutional law, and (4) the District Court erred by refusing to give the jury Figueroa's requested instruction concerning specific intent. Figueroa challenges his sentence on two grounds: (1) the District Court erred by applying the drug distribution sentencing guideline to Figueroa's civil rights violations, and (2) his sentence was substantively unreasonable. For the following reasons, we will affirm the District Court's judgments of conviction and sentence.

I. Background

Figueroa joined the police force in Camden, New Jersey, in 2003. In July 2008, he was transferred to a new Special Operations Unit created to target guns, drugs and violence in Camden's most crime ridden neighborhoods. Figueroa was assigned to the “fourth platoon” with his regular partner, Robert Bayard, as well as Sergeant Dan Morris, and officers Jason Stetser and Kevin Parry. On September 6, 2011, Figueroa and Bayard were charged in a six count superseding indictment with a series of civil rights violations. In addition to five substantive civil rights violations, they were charged with conspiring with Stetser, Parry, and Morris to deprive others of their civil rights. A three week jury trial began on November 15, 2011. Stetser, Parry, and Morris all testified at trial as cooperating witnesses with plea agreements. Other law enforcement officers and citizens who were victims of or witnesses to the activities alleged in the indictment also testified. Over the course of trial, the government presented evidence regarding twelve incidents in which Figueroa allegedly deprived individuals of their civil rights. There are six specific incidents of misconduct described below that are relevant to Figueroa's arguments on appeal.

August 9, 2008: Figueroa and Stetser were conducting surveillance on an open-air drug market and observed “A.K” sell drugs to “T.C.” When they arrested the participants, Stetser found a bundle of crack cocaine and Figueroa found a bag filled with money. Morris, Figueroa, and Stetser took some of this money for themselves. After the arrest, T.C. cooperated with the officers and gave them information about other drug-dealing activity, but A.K. did not. Stetser and Figueroa attributed to A.K. drugs and a gun that were not actually found on him. Specifically, they attributed to him (1) drugs that Stetser had stashed in a nearby tree, (2) a handgun located in a house that T.C. told them about, and (3) the “re-up stash” of drugs they found in a nearby garage. Figueroa wrote the falsified police report about this incident.

September 14, 2008: Figueroa, Stetser, Parry, and Morris conducted illegal searches in the Winslow Court apartment complex based on information from an informant. The officers broke into Apartment C, where they found between $1,500 and $2,000, and then searched, without consent or a warrant, Apartment G, where they found $10,000. When they found no drugs, they confronted their informant who pointed them to a mailbox in the complex, where they found a large stash of cocaine. Figueroa wrote the police report, in which he falsely claimed that they had seen someone take drugs out of the mailbox, throw a bag in Apartment G and flee through Apartment C. The report stated that they had recovered only $1,531 in cash.

September 17, 2008: Figueroa and Bayard arrested “D.B.# 1” on the street who then told them that he had a gun at home. The officers then drove to his house, coerced his mother into signing a consent to search form, and found a firearm in a bedroom closet. Figueroa's police report falsely claimed that he found the firearm in plain view after chasing D.B.# 1 into the house and arresting him there. Figueroa also underreported the amount of money that was seized during the events.

September 17, 2008: Figueroa, Bayard, Stetser, and Parry apprehended “A.F” and “T.R.” Angry that A.F. and T.R. had fought them, Figueroa, Bayard, Stetser, and Parry decided to plant drugs on A.F. and T.R. Bayard wrote the false police report about this incident.

April 3, 2009: Figueroa, Stetser, and Parry, based on information from an informant, found “L.M.” in a car and searched the car, expecting to find drugs. They found no drugs in L.M.'s car, but Parry found crack cocaine in the gas cap of a vehicle that was parked on the opposite side of the street and several cars away. Figueroa falsely stated in the police report that he had seen L.M. walking down the street carrying the drugs in his right hand. Parry gave the drugs he found in the gas cap to Figueroa, and Figueroa turned the drugs in as evidence.

August 21, 2009: Stetser conducted a warrantless search of a trailer based on a tip that “J.M.” was selling drugs out of it. He found 32 bags of crack cocaine in a compartment on the door of the trailer. Figueroa falsely claimed in his police report that he had observed J.M. engage in a hand-to-hand drug transaction and that J.M. had 32 bags of a rock-like substance in his right pocket.

On December 9, 2011, the jury returned a guilty verdict against Figueroa on Count 1 of conspiracy to deprive others of civil rights and on Counts 2 and 3 of substantive civil rights violations relating to incidents occurring between September 14 and September 17, 2008. The jury acquitted Figueroa of the remaining counts and acquitted Bayard on all counts. Figueroa filed motions for a judgment of acquittal, or in the alternative, a new trial under Federal Rules of Criminal Procedure 29 and 33 on December 23, 2011. The District Court denied both motions. He was sentenced to ten years imprisonment on September 7, 2012. This appeal followed.

II. Discussion¹

Figueroa challenges both his conviction and sentence on appeal. Because the most significant issue in this appeal is the application of the drug distribution sentencing guideline to Figueroa's civil rights violations, we will deal with that issue first.

A. Application of the Drug Distribution Guideline

Figueroa argues that the District Court erred in applying the drug distribution sentencing guideline, U.S.S.G. § 2D1.1, to his civil rights violations in this case because he was not convicted of offenses involving the distribution of drugs.²

Figueroa was convicted of violations of 18 U.S.C. §§ 241 and 242. The applicable sentencing guideline for these violations is U.S.S.G. § 2H1.1. Under U.S.S.G. § 2H1.1(a), the base offense level should be the greatest of the enumerated options, including “the offense level from the offense guideline applicable to any underlying offense.” U.S.S.G. § 2H1.1(a). Application Note 1 explains that “offense guideline applicable to any underlying offense” refers to “the offense guideline applicable to any conduct established by the conviction that constitutes an offense under federal, state, or local law....” U.S.S.G. § 2H1.1, Application Note 1. Where the conduct established by the conviction constitutes more than one underlying offense, the court should look to the underlying offense that carries the highest offense level. U.S.S.G. § 2H1.1, Application Note 1. Additionally, under U.S.S.G. § 2H1.1(b), if the defendant was a public official or the offense was committed under color of law, the base offense level should be increased by 6 levels. U.S.S.G. § 2H1.1(b).

Here, the presentence report, in accordance with U.S.S.G. § 2H1.1, presented an analysis of the conspiracy's underlying offenses and offense levels. The presentence report concluded that applying U.S.S.G. § 2D1.1, the drug distribution sentencing guideline, would produce the highest offense level in Figueroa's case: an offense level of 26.³ Once increased by 6 levels as provided in U.S.S.G. § 2H1.1(b), Figueroa's proposed offense level was 32. At sentencing, the District Court adopted this base offense level over Figueroa's objection.

In using U.S.S.G. § 2D1.1 to determine Figueroa's base offense level, the District Court relied heavily on a recent case, United States v. Cortes–Caban, 691 F.3d 1, 16 (1st Cir.2012), in which the First Circuit Court of Appeals held that police officers who conspired to plant drugs on individuals to fabricate criminal offenses were properly convicted of conspiracy to possess controlled substances with an intent to distribute in violation of 21 U.S.C. §§ 841(a) and 846.⁴ The court reasoned that the plain language of 21 U.S.C. § 841(a), which deems it “unlawful for any person knowingly or intentionally—(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance ...”, encompassed the police officers' conduct. Cortes–Caban, 691 F.3d at 16 (quoting 21 U.S.C. § 841(a)). The court focused on the meaning of “distribute” in the statute, noting that the Controlled Substances Act defines “to distribute” as “to deliver (other than by administering...