United States v. Maes

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: CARL E. STEWART, Circuit Judge
• Citation: United States v. Maes, 961 F.3d 366 (5th Cir. 2020)
• Decision Date: 01 June 2020
• Docket Number: No. 18-60881,18-60881
• Parties: UNITED STATES of America, Plaintiff-Appellee v. Michael MAES, Defendant-Appellant

961 F.3d 366

UNITED STATES of America, Plaintiff-Appellee

v.Michael MAES, Defendant-Appellant

No. 18-60881

United States Court of Appeals, Fifth Circuit.

FILED June 1, 2020

REVISED June 2, 2020

Gaines H. Cleveland, Assistant U.S. Attorney, John Arthur Meynardie, Esq., U.S. Attorney's Office, Southern District of Mississippi, Gulfport, MS, for Plaintiff-Appellee

Grady Morgan Holder, Smith & Holder, P.L.L.C., Gulfport, MS, for Defendant-Appellant

Before WIENER, STEWART, and WILLETT, Circuit Judges.

CARL E. STEWART, Circuit Judge:

A jury convicted Michael Maes of crimes stemming from a methamphetamine distribution and money laundering conspiracy. The district court sentenced him to life imprisonment. Maes now appeals both his conviction and his sentence, challenging a number of rulings that the district court made before, during, and after trial. For the following reasons, we affirm Maes's conviction and sentence.

I. Background

In August 2018, a nine-count Second Superseding Indictment charged Michael Maes with participating in a methamphetamine distribution and money laundering conspiracy. The case proceeded to trial in September 2018. Maes's four co-conspirators—who had by then pleaded guilty to single-count bills of information—testified for the Government. Maes testified in his own defense. Other witnesses also testified.

The jury found Maes guilty on eight of the nine counts he faced.¹ In December 2018, the district court sentenced Maes to a within-Guidelines term of life imprisonment on counts one and two, the methamphetamine-related charges.² The court sentenced Maes to within-Guidelines terms of 240 months each for counts three and five through nine, the money laundering charges.³ The court ordered the sentences to be served concurrently.

II. Discussion

Maes raises a number of issues in this appeal. We address them individually in the same order he presents them.

A. Fabeon Minor's testimony

Maes met Fabeon Minor while the two were housed in the same area of a Mississippi jail. Later on, Minor was housed separately from Maes in a different area of the same jail. Also housed in this different area of the jail at the same time as Minor were three of Maes's four co-conspirators: Sean Ufland, Michael Denham, and Roland Jackson.⁴

After the Government rested at trial, Maes made it known that he intended to call Minor as a surprise witness. Maes's counsel explained that he had just learned that Minor had overheard three of Maes's co-conspirators concocting a plan in jail to coordinate their testimony in a way that would help them and hurt Maes. During a lunch break at trial, lawyers for both sides met with Minor to hear what he had to say. Following this meeting, the Government objected to Minor's testimony on hearsay grounds. Maes's counsel argued that the testimony was admissible.

The district court decided to hear proffered testimony from Minor outside the presence of the jury. During his proffer, Minor explained that he heard Maes's three co-conspirators hatch a plan to pin methamphetamine on Maes so they could reduce their potential prison time. The district court then heard additional argument about whether Minor should be allowed to testify.

The Government reiterated its position that Minor's testimony was textbook hearsay—he would testify to what he heard the others say—that did not fit into any exception. Maes's counsel responded that the testimony was not hearsay because it was not being offered for the truth of the matter asserted and, even if it was hearsay, it nonetheless qualified for the admission against a party opponent exception. The district court recessed to consider the issue.

Returning to the bench, the district court orally explained, in great detail, its ruling on the issue. It began by recognizing that Maes's failure to timely identify Minor as a witness prejudiced the Government because it lacked time to investigate his assertions. The court then rejected Maes's arguments that the proposed testimony was not hearsay and that it qualified for the admission against a party opponent exception. Finally, it sua sponte considered whether a portion of Minor's testimony nevertheless qualified as an exception to hearsay under Federal Rule of Evidence 803(3) as a then-existing mental, emotional, or physical condition.⁵ Citing two Fifth Circuit cases, the district court explained that Minor would be allowed to testify about what he heard the trio planning. That is, he could testify that he heard them concocting a plan to coordinate their testimony and pin methamphetamine on Maes because such statements fit within the 803(3) exception. See FED. R. EVID. 803(3) (excepting from the hearsay rule a "statement of the declarant's then-existing state of mind (such as motive, intent, or plan)"). Minor could not, however, testify that he heard the trio describe why they wanted to form the plan, because such statements did not fall within the exception. See Bedingfield ex rel. Bedingfield v. Deen , 487 F. App'x 219, 227 (5th Cir. 2012) (per curiam) (unpublished) ("We have explained that Rule 803(3) ‘does not permit the witness to relate any of the declarant's statements as to why he held the particular state of mind, or what he might have believed that would have induced the state of mind.’ ") (quoting United States v. Cohen , 631 F.2d 1223, 1225 (5th Cir. 1980) (emphasis added)).

The jury returned to the courtroom to hear Minor's testimony. Maes's counsel asked Minor on direct examination "what, if anything, did you hear [Maes's three co-conspirators] say with respect to" Maes. Minor responded that they "were stating that they were going to get time cut—[,]" which clearly violated the district court's limiting instruction because it related to why the trio had taken this action. At this point, Maes's counsel interrupted Minor and re-stated his question as whether he heard "them say anything with respect to meth[.]" Minor responded that Denham⁶ "was saying he was going to put a lot of ice on Michael Maes." Minor explained that "ice" was a synonym for methamphetamine.⁷

Maes now argues for the first time on appeal that the district court reversibly erred by limiting Minor's testimony because his statements as to why the co-conspirators had formed the alleged plan should have been admissible as extrinsic evidence of prior inconsistent statements under Federal Rule of Evidence 613(b). That is, Maes argues that Ufland, Denham, and Jackson each testified on cross-examination that they never said they intended to coordinate their testimony in an effort to reduce their sentences. And because Minor sought to testify that these statements by each co-conspirator were not true, Minor's testimony should have been admitted as extrinsic evidence to show that the three had lied.

A challenge to a district court's ruling excluding evidence is reviewed for abuse of discretion subject to the harmless error analysis if the challenge was preserved below. United States v. Demmitt , 706 F.3d 665, 670 (5th Cir. 2013). Unpreserved errors of the same variety are reviewed for plain error. United States v. Johnson , 943 F.3d 214, 221–22 (5th Cir. 2019). To be considered preserved for appeal, a defendant's objection to a district court's ruling must be "on the specific grounds" raised below. Id. (quoting United States v. Warren , 720 F.3d 321, 332 (5th Cir. 2013) ).

Here, Maes argued below that Minor's testimony was admissible because it was not hearsay and, in the alternative, because it fit into the admission against a party opponent exception. He never argued that the testimony should be admissible under Rule 613(b). He therefore never "alert[ed] the district court to the nature of the alleged error" so as "to provide an opportunity for correction," which is required to preserve the error. Id. at 221 (quoting United States v. Neal , 578 F.3d 270, 272 (5th Cir. 2009) ). Because this case is like United States v. Johnson , and Maes failed to properly preserve the specific error raised on appeal, we review his Rule 613(b) challenge for plain error. Id. at 221–22 (holding that a defendant failed to preserve a challenge that testimony should have been excluded as an improper opinion on an ultimate issue by an expert where the defendant only challenged the testimony on relevance and speculation grounds below).

To succeed on plain error review, a defendant must show that: "(1) the district court committed an error, (2) the error is plain, (3) the error affects [the] appellant's substantial rights, and (4) failure to correct the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings." Id. at 222 (quoting United States v. del Carpio Frescas , 932 F.3d 324, 332 (5th Cir. 2019) ). Maes has failed to establish any of the four necessary elements to succeed on this challenge.

Under Federal Rule of Evidence 613(b), "[e]xtrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires." If a witness never denies making a certain statement, there can be no showing of inconsistency, and Rule 613(b) does not apply. See United States v. Hale , 685 F.3d 522, 539 (5th Cir. 2012). Here, none of the three co-conspirators housed with Minor denied coordinating a plan to reduce their sentences . Accordingly, 613(b) did not apply to Minor's proposed testimony regarding the trio's motives in coordinating testimony, and the district court did not err, let alone plainly err, by declining to admit it on those grounds.

Even if the court had plainly erred, Maes cannot show that the ruling partially excluding Minor's proposed testimony affected Maes's substantial rights. He cannot make this showing because the jury actually heard the "disallowed" testimony. In violation of the district court's order, Minor testified that the trio hatched a plan to...