Justia.com Opinion Summary:
Defendant was convicted of possessing over 100 kilograms of marijuana with intent to distribute. While testifying at trial, defendant spoke with a pronounced Haitian accent. On appeal, defendant contended that the district court erred in admitting testimony regarding his accent and prior instances of transporting marijuana. The court held that the district court did not err in permitting the court security officer's testimony that he heard defendant speaking in unaccented English during the trial process under Federal Rule of Evidence 608(b), 612(b), or Rule 403. The court also held that the admission of evidence concerning prior instances of transporting marijuana was admissible under Rule 404(b).Receive FREE Daily Opinion Summaries by Email
Criminal case - Criminal law. District court did not clearly err in allowing a court security officer to testify in rebuttal that defendant, who testified with an accent at trial, did not have an accent during phone conversations overheard by the officer, as the evidence was relevant to trial issues; the evidence was not inadmissible under Rule 608(b), 613(b), or Rule 403; admission of evidence concerning prior trips for the transportation of drugs was admissible under Rule 404(b).
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
United States of America,
* Appeal from the United States
* District Court for the
* Eastern District of Missouri.
Submitted: January 10, 2012
Filed: February 2, 2012
Before MURPHY, BYE, and COLLOTON, Circuit Judges.
MURPHY, Circuit Judge.
Reginald Jean-Guerrier was convicted by a jury of possessing over 100
kilograms of marijuana with intent to distribute. While testifying at trial, JeanGuerrier spoke with a pronounced Haitian accent. Afterward the district court1
permitted rebuttal testimony from a court security officer who had heard JeanGuerrier speaking on the phone during trial recesses in unaccented English.
Testimony was also allowed about prior instances in which the defendant, his
codefendant, and their acquaintances had transported marijuana. Jean-Guerrier
The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
appeals, contending that the district court erred in admitting this evidence and that he
should be granted a new trial. We affirm.
In August 2010 Jean-Guerrier, a native of Haiti, was traveling with Leon Fraser
in a semi truck pulling a stolen trailer en route from Tucson, Arizona to New York
City. Law enforcement officers stopped the truck in Phelps County, Missouri after
observing it leave the interstate near a sign warning of a drug checkpoint ahead. The
truck had driven through a stop sign at the end of the exit ramp and reentered the
interstate headed in the opposite direction before it was stopped. Fraser was driving
at that time, and Jean-Guerrier was in the sleeper berth. The officers who stopped the
truck questioned Fraser about his route and load, inspected the truck's log book,
found several discrepancies between Fraser's claimed route and the log book entries,
and discovered that Fraser did not have a bill of lading. They brought in a drug dog
which alerted on the truck's trailer. Inside the trailer officers discovered
approximately 1000 pounds of marijuana. They then arrested both travelers.
A grand jury returned a two count indictment charging both Jean-Guerrier and
Fraser with knowingly possessing with intent to distribute in excess of 100 kilograms
of marijuana and with conspiracy to do the same. 21 U.S.C. Â§Â§ 841(a)(1), (b)(1)(B),
846. Fraser pled guilty to both counts and agreed to assist the government with JeanGuerrier's prosecution. Jean-Guerrier requested a jury trial, and the prosecution went
forward on the possession count.
Before trial the government filed a notice of intent to introduce other act
evidence pursuant to Federal Rule of Evidence 404(b). It planned to ask Fraser to
testify about previous trips during which he had transported marijuana along the same
route. Some of these previous trips had been taken with Jean-Guerrier and others
with some of their mutual acquaintances. The defense filed a motion in limine to
exclude Fraser's testimony concerning any trips made with Jean-Guerrier other than
the one for which they had been arrested. The district court denied the motion,
concluding that the challenged evidence was admissible to show knowledge and plan.
Jean-Guerrier did not object to introduction of evidence regarding trips Fraser had
made without him, including those involving mutual acquaintances.
The government's case hinged on proving that Jean-Guerrier had knowledge
that the truck in which he was traveling contained marijuana. It presented testimony
from Fraser as well as the law enforcement officers who had stopped the truck and
interviewed the two men following their arrests. The prosecution sought to highlight
inconsistencies between what Jean-Guerrier had told law enforcement regarding the
nature of his trip and the physical evidence including the truck's log books. Agent
Chapman testified that he did not recall Jean-Guerrier having had an accent.
Chapman also testified that when asked about why he was in the semi truck, JeanGuerrier responded that he and Fraser had used the truck to transport a load of
noodles from New York to Los Angeles and had then begun a return trip, stopping
in Missouri to pick up a load of pallets. Chapman explained that Jean-Guerrier's
claim to have been transporting noodles and pallets was not supported by the truck's
log book or a bill of lading and did not correspond to trucking industry practice.
Fraser testified concerning his previous trips transporting marijuana and about
mutual acquaintances of his and Jean-Guerrier's who had participated in these trips.
Fraser also explained that he and Jean-Guerrier had taken a previous cross country
trip transporting marijuana along the same route. Prior to this testimony, the defense
renewed its objection to evidence concerning any previous trip in which JeanGuerrier had been involved.
The defense case consisted solely of Jean-Guerrier's testimony. On the stand
he admitted taking a previous cross country trip with Fraser and knowing the persons
Fraser had testified were involved in previous trips. Jean-Guerrier nevertheless
denied knowing that Fraser had been transporting marijuana on the previous trip or
knowing about the marijuana on the last trip. Jean-Guerrier spoke with a heavy
accent during his testimony and was asked to repeat certain words due to counsel's
difficulty in understanding him. During cross examination, the government asked
Jean-Guerrier about his accent and whether he had told Agent Chapman that he and
Fraser had been transporting a load of noodles cross country. Jean-Guerrier denied
making such a statement and indicated that Chapman may have misunderstood him
due to his accent.
On the final day of trial the district court informed the parties at sidebar that a
court security officer, Leondus Bates, had notified the court that he had heard JeanGuerrier speaking without an accent on a cell phone during a trial recess. The
prosecutor said she would like to call Bates as a witness. Defense counsel simply
replied, "I'd object." The district court suggested that the prosecutor could take "some
time to talk to [Bates] and find out more . . . before you decide to call him as a
witness." Defense counsel also asked to speak with the witness. After a short recess,
the prosecution informed the district court that it would call Bates as a rebuttal
witness. Defense counsel made no objection. Bates then took the stand and testified
that he had been surprised hearing Jean-Guerrier speak with a foreign accent while
testifying because he had twice heard him speaking with no accent during trial
The jury found Jean-Guerrier guilty. At sentencing the district court
determined the applicable guideline range to be 97â€“121 months and imposed a 97
month sentence. Jean-Guerrier appeals, arguing that he is entitled to a new trial
because the district court abused its discretion by allowing the prosecution to call
Bates as a rebuttal witness and to present other act evidence through Fraser's
A district court's evidentiary rulings are ordinarily reviewed for an abuse of
discretion. United States v. Montgomery, 635 F.3d 1074, 1089 (8th Cir. 2011). Our
review is however for plain error if a defendant fails to preserve an error by not
objecting before or during trial. United States v. White Bull, 646 F.3d 1082, 1091
(8th Cir. 2011). To prove plain error the defendant must show that "(1) the district
court committed an error, (2) the error is clear or obvious, and (3) the error affected
his substantial rights." Id. An error is "clear or obvious" if it is not "subject to
reasonable dispute." Puckett v. United States, 556 U.S. 129, 135 (2009). Even if the
defendant meets these three requirements of plain error, an appellate court will only
reverse if the error "seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings." Id. (internal quotations and citation omitted).
We first address appellant's contention that the district court erred by
permitting the court security officer's testimony that he heard Jean-Guerrier speak in
unaccented English during trial recesses. Our review is for plain error because
defense counsel did not properly object to this testimony. To preserve error a party
must state "the specific ground of objection" if it was not "apparent from the context."
Fed. R. Evid. 103(a)(1).2 Defense counsel gave no reason for objecting to the
prospect of Bates's testimony when the possibility was raised, and no basis was clear
from the context. The prosecutor therefore faced nothing requiring a response.
Moreover, defense counsel made no objection when Bates was later called to the
stand. While a party need not renew an objection once the court "makes a definitive
ruling on the record" regarding it, Fed. R. Evid. 103(a); see United States v. Huerta2
A new version of the Federal Rules of Evidence went into effect on December
1, 2011 as part of the Federal Rules Style Project. Changes made as part of this
project are "intended to be stylistic only." See Fed. R. Evid. 101 advisory
committee's note. All quotations here are from the rules in effect during JeanGuerrier's December 2010 trial.
Orosco, 340 F.3d 601, 604 (8th Cir. 2003), here no ruling had been required on
defense counsel's undefined and unrepeated objection. Both counsel decided to speak
with Bates before he was called to the stand but no further objection was made. The
district court may well have thought that after having had the opportunity to speak
with the witness, defense counsel decided not to object to his testimony. We are thus
limited to plain error review.
Jean-Guerrier contends that Bates's testimony was improper impeachment
evidence barred by Rule 608(b). That rule prohibits introducing extrinsic evidence
of specific instances of a witness's conduct for the purpose of attacking his character
for truthfulness. Jean-Guerrier also claims that Bates's testimony was extrinsic
evidence of a prior inconsistent statement and thus governed by Rule 613(b). He
finally argues that the potential for unfair prejudice outweighed the probative value
of the testimony. See Fed. R. Evid. 403. The government counters that Bates's
testimony was properly admitted as rebuttal evidence.
We conclude that the district court did not commit plain error by allowing this
evidence in rebuttal. Rebuttal evidence "is offered to explain, repel, counteract, or
disprove evidence of the adverse party." United States v. Harris, 557 F.3d 938, 942
(8th Cir. 2009) (citation omitted). It is distinct from impeachment evidence which is
"an attack on the credibility of a witness." Id. (citation omitted). Like all evidence,
rebuttal evidence must be relevant to be admissible. See id.
On cross examination the prosecutor asked Jean-Guerrier "has your accent
changed from [the night of Agent Chapman's interview] to today?" Jean-Guerrier
responded "[h]ow am I going to change my accent?" When asked if his accent
changed when he became excited, he answered "[o]nly you can tell me. I don't
know." The prosecutor then asked Jean-Guerrier whether he had told Agent
Chapman that he had been transporting a load of noodles, to which he responded "I
did not . . . he probably misunderstood, you know, my accent." Jean-Guerrier argues
that there was nothing to rebut because the prosecution never directly asked him if
he was capable of speaking without any accent. Read as a whole, however, JeanGuerrier's cross examination testimony, especially his suggestion that he was
incapable of changing his accent, could be taken as implying that he always spoke
with a heavy accent. The district court could have reasonably determined that Bates's
testimony was offered to disprove or counteract this implication by providing
evidence that Jean-Guerrier was capable of speaking without the heavy accent heard
at trial. See id.
Whether Jean-Guerrier was capable of speaking without an accent was relevant
on the issue of whether he had knowledge that the truck contained marijuana. A key
part of the government's case consisted of showing the inconsistencies between
statements Jean-Guerrier had made to Agent Chapman concerning the nature of his
trip and what the physical evidence and log books showed. These inconsistencies
suggested that Jean-Guerrier was attempting to hide something, leading to an
inference that he had knowledge of guilt. By saying that Agent Chapman may have
misunderstood him due to his accent, Jean-Guerrier attempted to cast doubt on the
agent's testimony. Bates's rebuttal testimony undermined any suggestion that the
marked accent Jean-Guerrier spoke with at trial necessarily reflected his inability to
be clearly understood during his earlier conversations with law enforcement.
Jean-Guerrier's characterization of Bates's testimony as extrinsic character
evidence is inaccurate. Rule 608(b)'s prohibition on the introduction of extrinsic
evidence does not apply here because Bates's testimony was not offered to impugn
Jean-Guerrier's veracity, but rather to witness how he had sounded while talking
during trial breaks. Bates did not describe a situation in which Jean-Guerrier told a
lie or engaged in conduct such as fraud that inherently involves untruthfulness. Cf.
United States v. Riddle, 193 F.3d 995, 998 (8th Cir. 1999) ("Rule 608(b) forbids the
use of extrinsic evidence to prove that . . . specific bad acts occurred.") (emphasis
added). This testimony rather concerned Bates's own sense impression of Jean-7-
Guerrier's manner of speaking. Rule 613(b), which governs extrinsic evidence of
prior inconsistent statements, is also inapplicable because Bates testified about JeanGuerrier's manner of speaking, not the contents of his speech.
As for Jean-Guerrier's argument that the evidence should have been excluded
under Rule 403 because its probative value was outweighed by a danger of unfair
prejudice, we have recognized that a trial court's determination of such a question is
owed particularly great deference because it requires "on-the-spot balancing."
Bennett v. Nucor Corp., 656 F.3d 802, 811 (8th Cir. 2011) (citation omitted). Bates's
testimony was probative on a relevant issue. Jean-Guerrier asserts that the testimony
was extremely prejudicial because the jury could have developed a rapport with the
security officer through possible interaction during the course of the trial. This theory
is unsupported by evidence and also undermined by the fact that the district court
took steps to ensure that the jury had no further contact with Bates following his
We next address Jean-Guerrier's argument that the district court improperly
admitted Fraser's testimony concerning previous trips he had taken involving
transportation of marijuana. On appeal Jean-Guerrier does not challenge the
admission of evidence concerning the prior trip he and Fraser had taken together, but
only evidence concerning trips Fraser had taken alone or with their mutual
acquaintances. Our review is again for plain error because at trial Jean-Guerrier only
objected to Fraser's testimony concerning prior trips that he and Jean-Guerrier had
made together. See White Bull, 646 F.3d at 1091.
Jean-Guerrier contends that Fraser's testimony was improperly admitted under
Rule 404(b). That rule prohibits "[e]vidence of other crimes, wrongs, or acts . . . to
prove the character of a person in order to show action in conformity therewith"
unless the evidence is offered for one of several permissible purposes, such as to
show proof of knowledge or plan. While the government included the challenged
evidence in its Rule 404(b) notice prior to trial, this evidence does not fall within the
ambit of Rule 404(b) because it was not evidence of Jean-Guerrier's past acts. See
United States v. Halk, 634 F.3d 482, 486 (8th Cir. 2011) ("Rule 404(b) . . . prohibits
the use of evidence of a defendant's other crimes, wrongs, or bad acts . . . .")
Jean-Guerrier also has not demonstrated that the danger of unfair prejudice
outweighed the probative value of this evidence. See Fed. R. Evid. 403. Evidence
that Fraser had previously participated in cross country trips and that mutual
acquaintances had been involved with those trips was relevant because it made it
more likely that Jean-Guerrier had knowledge that marijuana was present on the trip
for which he had been arrested. See Fed. R. Evid. 401. This evidence was less
prejudicial than the properly admitted Rule 404(b) evidence regarding the past trip
Jean-Guerrier had made with Fraser. The district court thus did not err, let alone
plainly err, by allowing this testimony.
Accordingly, we affirm the judgment of the district court.