     13-3110 (L)
     United States v. Howard

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 8th day of February, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RICHARD C. WESLEY,
 8                DEBRA ANN LIVINGSTON,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               13-3110 (L)
16                                                                       14-1086 (Con)
17       HAROLD HOWARD,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        PHILIP R. SCHATZ, Wrobel, Schatz &
22                                             Fox LLP, New York, New York.
23
24       FOR APPELLEES:                        MONICA J. RICHARDS, Assistant
25                                             united States Attorney, for
26                                             William J. Hochul, Jr., United
27                                             States Attorney for the Western


                                                  1
 1                              District of New York, Buffalo,
 2                              New York.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Western District of New York (Arcara, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        Harold Howard appeals from the judgment of conviction
12   and sentence of the United States District Court for the
13   Western District of New York (Arcara, J.). We assume the
14   parties’ familiarity with the underlying facts, the
15   procedural history, and the issues presented for review.
16
17        1.   Howard contends that the trial court improperly
18   prevented him from demonstrating inconsistent statements
19   made by Myron Johnson (a cooperating witness for the
20   prosecution), which Howard proposed to do by the testimony
21   of police officers. However, these inconsistencies were
22   brought out on direct examination of Mr. Johnson, who
23   admitted that he initially denied ownership of the cocaine
24   found in his house and that he later admitted ownership when
25   he realized the police were going to arrest his mother
26   instead of him. Howard contends that he was deprived of the
27   “special impact” of a police officer admitting that Mr.
28   Johnson had lied, but provides no legal support that he was
29   entitled to have this evidence introduced by one means
30   rather than another.1
31
32        2.   The prosecution introduced hearsay evidence of
33   Andrew Willis during the re-direct examination of Officer
34   Joe Pitts. This was not error. Pitts testified regarding
35   information he obtained from Willis, a confidential
36   informant, which led to a traffic stop of Howard’s car, in
37   which the officer found $100,000 and a gun.


         1
              Additionally, because the police officers
     testified before Johnson, the requirements of Federal Rule
     of Evidence 613(b) were not satisfied. Fed. R. Evid. 613(b)
     (“Extrinsic 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.”).
                                  2
 1       “Curative admissibility” allows the trial court
 2   discretion to permit a party to introduce otherwise
 3   inadmissible evidence on an issue (a) when the opposing
 4   party has opened the door by introducing inadmissible
 5   evidence on the same issue, and (b) when needed to rebut a
 6   false impression that may have resulted from the opposing
 7   party's evidence. United States v. Rosa, 11 F.3d 315, 335
 8   (2d Cir. 1993). Howard’s counsel asked the officer whether
 9   Willis told him there would be money in the car. Howard’s
10   counsel then proceeded to cross examine on the officer’s
11   inability to identify the source of the money, leaving the
12   impression that the money may have been Willis’s instead of
13   Howard’s. On re-direct, the prosecution asked if Mr. Willis
14   said anything about the source of the money, and the officer
15   testified that Willis told him that Howard was contacting
16   Willis in an attempt to purchase four kilograms of cocaine.
17   This limited use of hearsay corrected a false impression
18   raised by defense counsel’s question, and was thus within
19   the bounds of Rosa.2 See Id.
20




         2
              Howard argues that his counsel’s questions did not
     elicit any inadmissible evidence because Pitt’s cross-
     examination merely “amplified themes that had already been
     established” on direct examination. App’t Br. at 26.
     However, prior to this point in the trial, the prosecution
     had been careful to elicit no testimony about what the
     confidential informant had actually said. See App’x at 117
     (Testimony of Officer Pitts) (“Based upon the information
     that we received, we believed that a large amount of U.S.
     currency would be coming into that vehicle in the state that
     afternoon.”).

          To the extent information from the confidential
     informant was before the jury prior to defense counsel’s
     questioning, it was to show the course of investigation (the
     traffic stop and search of Howard’s car), and was not for
     the truth of the matter asserted; i.e., the informant’s
     statements were not put in to show that there actually was a
     large amount of currency in the car but rather to show why
     Howard’s car was being targeted for a traffic stop and
     seizure at all.
                                  3
 1        The officer also testified that Willis said he had sold
 2   multiple kilogram quantities to Howard in the past.3 Even
 3   had the district court erred in admitting this testimony –-
 4   which it did not –- such error would have been harmless.
 5   See Kotteakos v. United States, 328 U.S. 750, 764-65 (1946);
 6   United States v. Lyles, 593 F.2d 182, 196 (2d Cir. 1979) (“A
 7   nonconstitutional error . . . is harmless if it is highly
 8   probable that the error did not contribute to the verdict.
 9   Where there is overwhelming evidence of guilt, as there was
10   here, erroneous evidentiary rulings on such collateral
11   matters are often harmless.” (citations, quotation marks,
12   and alterations omitted)). The verdict reflects that Howard
13   was held accountable only for amounts seized in November
14   2011 -- not for prior dealings with Willis. Furthermore,
15   there was testimony from Johnson that he and Howard sold
16   multiple kilograms of cocaine monthly throughout 2008. It
17   is highly probable that any error in the introduction of
18   Willis’s hearsay statement did not contribute to the
19   verdict, and was therefore harmless.
20
21        3.   In its closing, the prosecution argued that
22   anybody to whom defendant sold drugs could be a
23   coconspirator. The prosecution thus misstated the law;
24   however, this was not raised before the district court and
25   is reviewed for plain error. See Fed. R. Crim. P. 52(b).
26   “[B]efore an appellate court can correct an error not raised
27   at trial, there must be (1) error, (2) that is plain, and
28   (3) that affect[s] substantial rights.” Johnson v. United
29   States, 520 U.S. 461, 466-67 (1997). “If all three
30   conditions are met, an appellate court may then exercise its
31   discretion to notice a forefeited error, but only if (4) the
32   error seriously affect[s] the fairness, integrity, or public
33   reputation of judicial proceedings.” Id.
34
35        As the defendant observes, our law of conspiracy allows
36   a narrow exception for a mere buyer-seller relationship.
37   See United States v. Parker, 554 F.3d 230, 234 (2d Cir.
38   2009). However, Howard was not engaged in selling
39   street-level or personal-use quantities. He was a
40   distributor who bought and possessed cocaine in kilogram
41   quantities, which he then supplied to others in smaller


         3
              The charged conspiracy began in November 2008, and
     this traffic stop occurred in July 2008, so any prior
     dealings between Willis and Howard would have predated this
     traffic stop and thus concerned uncharged transactions.
                                  4
 1   wholesale quantities (in 125- and 250-gram amounts). See
 2   United States v. Borelli, 336 F.2d 376, 384 (2d Cir. 1964)
 3   (“A seller of narcotics in bulk surely knows that the
 4   purchasers will undertake to resell the goods . . . .”).
 5   Additionally, there was evidence that, at a minimum, Howard
 6   was in a conspiracy with Johnson because they cooperated to
 7   transport quantities of cocaine from Atlanta for re-sale in
 8   Buffalo. Defendant does not dispute that the jury was
 9   properly instructed as to what constitutes a conspiracy, and
10   advised that if any attorney states a legal principle
11   differently, it is the judge’s instructions that they must
12   follow. In any event, because the buyer-seller exception
13   was not at play in this case, the absence of a curative
14   instruction was not plain error.
15
16        4.   Howard contends that he was improperly restricted
17   in his cross-examination of Johnson because the court
18   declined to instruct Johnson to answer questions concerning
19   other coconspirators and buyers. Johnson demurred
20   (variously) by invoking the Fifth Amendment and by stating
21   that he did not want to get others in trouble. The refusal
22   to answer was, in substance and effect, Johnson’s answer to
23   the question. The refusal did not bear directly on the many
24   specific details of his testimony about Howard’s
25   participation in the conspiracy. See United States v.
26   Treacy, 639 F.3d 32, 45 (2d Cir. 2011) (“testimony should
27   ordinarily be stricken when the invocation of the privilege
28   against self-incrimination prevents the defendant from
29   cross-examining the witness with respect to his credibility
30   regarding the specific details of his direct testimony.”
31   (emphasis added)). Furthermore, the refusal was itself an
32   indicator of Johnson’s credibility; and Howard argued in
33   summation that Johnson’s refusal to identify other
34   coconspirators made his testimony unworthy of belief. The
35   district court did not abuse its discretion by declining to
36   order Johnson to identify other members of the conspiracy.
37
38        5.   Howard argues for the first time on appeal that
39   the prosecution’s DNA expert lacked the necessary experience
40   or training in statistical analysis to testify about the
41   infinitesimal chances the genetic profile he determined was
42   Howard’s would match an unrelated individual. At trial
43   Howard challenged the expert’s testimony under Federal Rule
44   of Evidence 403, not Federal Rule of Evidence 702, which
45   governs the admission of expert testimony. As such, the
46   current challenge is reviewable for plain error only. See
47   Johnson, 520 U.S. at 466-67.

                                  5
 1        We regularly approve the reliability of DNA profiling.
 2   See, e.g., United States v. Jakobetz, 955 F.2d 786, 797-98
 3   (2d Cir. 1992). Although the probability testified to by
 4   the DNA expert is an astounding number, nothing in
 5   defendant’s appeal seriously questions the reliability of
 6   the DNA evidence in this case -- certainly not to a level
 7   that would undermine the “fairness, integrity, or public
 8   reputation” of these judicial proceedings. See Johnson,
 9   520. U.S. at 466-67.
10
11        6.   Howard’s last contention is that the “cumulative
12   effect” of these evidentiary errors cast doubt on the
13   fairness of the proceedings and require a new trial. As
14   discussed above, the evidence in this case was overwhelming:
15   In November 2009 (within the charged conspiracy) Howard was
16   pulled over by law enforcement while driving a car while in
17   possession of a loaded weapon and three eight balls of
18   cocaine. On November 16, 2011, Howard was a passenger in
19   Johnson’s Jeep, in which officers found cocaine. The same
20   day, after using Howard’s keys to enter a house, its garage,
21   and Howard’s vehicle, officers found three kilograms of
22   cocaine, three guns, and ammunition. We rejected all of
23   Howard’s evidentiary challenges. Nevertheless, given the
24   weight of the evidence in this case, we have little trouble
25   concluding that, even assuming the validity of the errors
26   Howard identifies, those errors would have been harmless.
27
28        For the foregoing reasons, and finding no merit in
29   Howard’s other arguments, we hereby AFFIRM the judgment of
30   the district court.
31
32                              FOR THE COURT:
33                              CATHERINE O’HAGAN WOLFE, CLERK
34




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