                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0066n.06

                                           No. 08-6136
                                                                                         FILED
                             UNITED STATES COURT OF APPEALS                           Feb 01, 2011
                                  FOR THE SIXTH CIRCUIT                         LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )         ON APPEAL FROM THE
                                                         )         UNITED STATES DISTRICT
v.                                                       )         COURT FOR THE MIDDLE
                                                         )         DISTRICT OF TENNESSEE
PIERRE M. RODRIGUEZ,                                     )
                                                         )                           OPINION
       Defendant-Appellant.                              )
                                                         )
                                                         )

BEFORE: MOORE and STRANCH, Circuit Judges; COHN, District Judge.*

       COHN, District Judge. This is a criminal case. Defendant-Appellant Pierre M. Rodriguez

(“Rodriguez”) appeals his conviction and sentence of 385 months after a jury found him guilty of

two counts of conspiracy to commit robbery, two counts of robbery in violation of 18 U.S.C. § 1951,

and two counts of brandishing a firearm during and in relation to a crime of violence in violation of

18 U.S.C. § 924(c). Rodriguez argues that the district court erred by prohibiting his lawyer from

cross-examining a government witness about his prior theft conviction and allowing fingerprint

evidence in the absence of the original source of the fingerprints. He also argues that there was

insufficient evidence to support his conviction. For the reasons set forth below, Rodriguez’s

conviction will be affirmed.




       *
       The Honorable Avern Cohn, United States District Judge for the Eastern District of
Michigan, sitting by designation.
United States v. Rodriguez
No. 086136

                                        I. BACKGROUND

       Rodriguez’s case involves two robberies. The first robbery occurred at Las Americas

Musicas, a music store, and the second robbery occurred at Russell’s Market, a convenience store.

       The Las Americas Musicas robbery occurred on the evening of February 14, 2006. Two men

entered the store carrying guns and demanded that the pregnant clerk on duty, Maria Fragosa

(“Fragosa”), give them the money in the register; Fragosa complied.

       The Russell’s Market robbery took place on March 23, 2006. Two men entered the store in

the early morning hours. One man pointed a handgun at the store owner, Russell Reed (“Reed”), and

demanded he turn over the money in the cash register; Reed complied. The two men left the store

at which time Reed grabbed a gun, went outside, and saw the two men leaving the parking lot in a

black pickup truck. Reed fired the gun at, but did not hit, the truck.

       Rodriguez was arrested less than two months later after being implicated by another robbery

suspect. After the arrest, the lead investigator on the case, Charlie Wilder (“Wilder”), interrogated

Rodriguez. Wilder asked Rodriguez questions in English. Rodriguez responded to Wilder’s

questions in Spanish, Rodriguez’s native language. After the interrogation, Wilder transcribed

Rodriguez’s confession and Rodriguez signed it.1 Rodriguez was later identified by Reed during a

preliminary court appearance, which Rodriguez asserts was orchestrated by Wilder.

       In May, 2008, Rodriguez went to trial on a six-count indictment charging him with the

Russell’s Market and Las Americas Musicas robberies, conspiracy to commit both robberies, and


       1
           Rodriguez does not challenge his confession on appeal; thus, it is not addressed in this
opinion.

                                                 -2-
United States v. Rodriguez
No. 086136

brandishing a firearm during both robberies. Prior to the start of trial, the government moved to

exclude Rodriguez’s planned cross-examination of Wilder about a past misdemeanor theft

conviction, for the purpose of impeaching Wilder’s credibility. The government objected on the

ground that the prior conviction was not admissible under Fed. R. Evid. 609. Rodriguez responded

that, while the conviction was “generally inadmissible” because it was over ten years old, the court

should allow the cross-examination because “in the interest of justice [sic] the probative value of the

conviction [was] supported by specific facts and circumstances substantially outweigh[ing] its

prejudicial effect.” The government relied on a decision from this Court, United States v. Rattigan,

No. 91-00106, 1993 WL 190910, *5 (6th Cir. June 2, 1993), to argue that theft is not a crime of

dishonesty. The district court judge agreed with the government and granted the motion, stating, “if

the Sixth Circuit finds that robbery is not a crime of dishonesty, or false statement, how can I

conclude that it’s in the interest of justice?” The district court judge further stated,

       under Rule 609(a), I don’t think it’s a felony; it’s a misdemeanor. I think it is beyond
       the time limits. I also find that, given that the Ra[tt]igan case finds that the crime of
       robbery is not a crime of dishonesty or false statement, that the motion in limine to
       exclude this reference should be granted.

       Several witnesses testified at Rodriguez’s trial. Reed identified Rodriguez as one of the two

men who committed the Russell’s Market robbery and testified that Rodriguez stole money from him

at gunpoint. Two sheriff’s deputies testified that Rodriguez confessed to the Russell’s Market

robbery. The deputies said Rodriguez’s confession included details related to the brandishing of the

gun, the other individuals involved, and the get-away cars used during the commission of the crime.

Fragosa testified that two men in ski masks robbed her at gunpoint, and the second robber, Carlos


                                                 -3-
United States v. Rodriguez
No. 086136

Hernandez (“Hernandez”), testified that he and Rodriguez committed the robbery together with

assistance from two other individuals who waited in a getaway car.

       An officer on the scene of the Las Americas Musicas robbery testified that he viewed a

surveillance video at the store, which depicted one of the robbers picking up a CD during the

robbery, but not taking it. After seeing the video, the officer testified that he directed a crime scene

detective to the area where the CD was located. The crime scene detective testified that he was able

to lift a fingerprint from the CD, which he placed onto a fingerprint card, and which was later entered

into evidence by the government. A fingerprint expert testified that she compared the fingerprint

card to Rodriguez’s fingerprints and the two fingerprints matched.

       Prior to the fingerprint expert’s testimony, Rodriguez objected on chain of custody grounds

that the government failed to link the CD from which the fingerprints were lifted to the exact CD

touched by one of the robbers. The district court overruled Rodriguez’s objection, concluding that

“there ha[d] been a sufficien[t] showing of the chain of custody.”

       At the close of the government’s case-in-chief, Rodriguez moved for a judgment of acquittal,

which was denied. As previously stated, at the end of trial, the jury found Rodriguez guilty on two

counts of conspiracy to commit robbery, two counts of robbery in violation of 18 U.S.C. § 1951, and

two counts of brandishing a firearm during and in relation to a crime of violence in violation of 18

U.S.C. § 924(c). Rodriguez did not renew the Rule 29 motion after the verdict was read. Rodriguez

was sentenced to a term of imprisonment of 385 months.




                                                 -4-
United States v. Rodriguez
No. 086136

                                         II. DISCUSSION

                               A. Wilders’ Prior Theft Conviction

       Rodriguez challenges the district court’s refusal to allow admission of evidence on or cross

examination of Detective Wilder regarding a 1992 misdemeanor theft conviction: theft of two horses

valued at less than $500. Rodriguez contends that the district court erred in denying him the

opportunity to impeach Wilder’s credibility under Fed. R. Evid. 609 and pursuant to his Sixth

Amendment right of confrontation. Rodriguez’s claims are without merit.

       Because Wilder’s theft conviction was a misdemeanor, Rule 609(a)(2) applies to its

admission, as does the staleness provision of Rule 609(b). A district court’s evidentiary rulings are

ordinarily reviewed by this Court for an abuse of discretion. United States v. Johnson, 581 F.3d 320,

332 (6th Cir. 2009). This standard applies to a district court’s Rule 609(b) decisions. See, e.g.,

United States v. Franco, 484 F.3d 347, 353 (6th Cir. 2007).

       Fed. R. Evid. 609(b) limits, for the purpose of impeachment, the admissibility of prior

conviction evidence “more than 10 years old.” Fed. R. Evid. 609(b). That is, “Rule 609(b) creates,

in effect, a rebuttable presumption that convictions over ten years old are more prejudicial than

helpful and should be excluded.” United States v. Sims, 588 F.2d 1145, 1150 (6th Cir. 1978).

Particularly, after reviewing the legislative history of Rule 609(b), this Court has held that “evidence

of convictions more than ten years old should be admitted very rarely and only in exceptional and

circumstances.” United States v. Sloman, 909 F.2d 176, 181 (6th Cir. 1990) (internal quotations

omitted).



                                                 -5-
United States v. Rodriguez
No. 086136

       In this case, the district court found that Wilder’s 14-year-old conviction was inadmissible

for staleness under Rule 609(b). Thus, even if we assume that the theft evidence was admissible

under Rule 609(a)(2) as a crime involving an element of dishonesty or false statement,2 the district

court did not abuse its discretion by excluding the conviction under Rule 609(b).

       Rodriguez also challenges the exclusion of Wilder’s theft conviction as a violation of his

Sixth Amendment right to confront his accusers. However, Rodriguez did not make a Confrontation

Clause objection to the district court’s evidentiary rulings at the trial level, and thus we review his

argument now for plain error. See United States v. Deitz, 577 F.3d 672, 683 (6th Cir. 2009).

       “[T]he Confrontation Clause affords the right to impeach a witness with his criminal record,

subject to the trial court’s discretion to impose reasonable limitations to prevent harassment and

annoyance of the witness.” Vasquez v. Jones, 486 F.3d 135, 143 (6th Cir. 2007) (discussing

Delaware v. Van Arsdall, 475 U.S. 673 (1986) and Davis v. Alaska, 415 U.S. 308 (1974)). On

review, “[t]he key issue is whether the jury had enough information to assess the defense’s theory

of the case despite the limits placed on cross-examination.” United States v. Holden, 557 F.3d 698,

704 (6th Cir. 2009) (citing Boggs v. Collins, 26 F.3d 728, 739 (6th Cir. 2000)).



       2
          Fed. R. Evid. 609(a)(2) determinations as to whether a specific conviction constitutes a
crime of dishonesty or false statement are reviewed de novo because Rule 609(a)(2) removes
from the district court any discretion in admitting evidence of a prior conviction with an element
of dishonesty or false statement. See United States v. Morrow, 977 F.2d 222, 228 (6th Cir.
1992) (en banc)). Instead, under the rule, evidence that a witness has been convicted of a crime
with an element of dishonesty or false statement “shall be admitted” without any balancing of
prejudice or other factors. Doe v. Sullivan County, 956 F.2d 545, 551 (6th Cir. 1992); United
States v. Peatross, 377 F. App’x 477, 489 (6th Cir. 2010). It is unnecessary to address this issue
because the evidence was properly excluded under Rule 609(b).

                                                 -6-
United States v. Rodriguez
No. 086136

       We must be mindful to view this standard through the lens of plain error. In particular, in

order to show plain error, the district court’s error must have, inter alia, “affected the appellant’s

substantial rights, i.e., affected the outcome of the district court’s proceedings.” Puckett v. United

States, 192 S. Ct. 1423, 1425 (2009) (internal citations omitted). Given the strength of the

prosecution’s evidence with regard to the Russell’s Market robbery, in particular Rodriguez’s

confession and Mr. Reed’s positive identification of Rodriguez as the assailant, it is difficult to

imagine how Rodriguez’s ability to cross-examine Wilder on a 14-year-old misdemeanor theft

conviction would have changed the outcome of the trial. Thus, we find no violation of Rodriguez’s

Confrontation Clause right that rises to a level of plain error.

       For these reasons, we find no error in the district court’s exclusion of Wilder’s conviction

evidence for impeachment purposes.

                                     B. Fingerprint Evidence

       Rodriguez next asserts that the district court abused its discretion by allowing fingerprint

testimony on the ground that the government failed to produce the original source of the fingerprints,

a CD, from which the fingerprints were lifted. Instead, the fingerprint expert testified based on a

fingerprint card, which Rodriguez says broke the chain of custody and tainted the admissibility of

the fingerprint evidence. Rodriguez’s argument is without merit.

       A district court's evidentiary decisions are reviewed for an abuse of discretion. Rush v. Ill.

Cent. R.R. Co., 399 F.3d 705, 715 (6th Cir. 2005). Particularly, fingerprint evidence is admissible

when the possibilities of misidentification or alteration are “eliminated, not absolutely, but as a

matter of reasonable probability.” United States v. McFadden, 458 F.2d 440, 441 (6th Cir. 1972)

                                                 -7-
United States v. Rodriguez
No. 086136

(internal citation omitted). Absent a clear abuse of discretion, challenges to the chain of custody do

not go to the admissibility of the evidence. United States v. Levy, 904 F.2d 1026, 1030 (6th Cir.

1990). Rather, where direct testimony establishes that the defendant handled the item from which

fingerprints were obtained, whether the government has proved an adequate chain of custody goes

to the weight of the evidence. United States v. Crite, No. 92-6015, 1993 WL 445084, *6 (6th Cir.

Nov. 2, 1993) (citing McFadden, supra). In other words, “the verdict depend[s] on whether the jury

believe[s] the United States or the defendant.” Id. “This matter of credibility is for the jury, not the

appellate court.” Id. (internal citations omitted).

        Here, direct testimony reasonably established that one of the robbers touched a CD and that

the fingerprints lifted from a CD matched Rodriguez’s fingerprints. Further, an adequate chain of

custody was established in that fingerprints were lifted from a CD at the crime scene onto a

fingerprint card, which was entered into evidence and evaluated by a fingerprint expert, who

concluded that the fingerprint on the card matched that of Rodriguez. Thus, Rodriguez has not

proffered evidence to show a clear abuse of discretion and the district court did not err in finding that

Rodriguez’s challenge went to the weight of the evidence and not admissibility. In other words, it

was up to the jury to decide whether it believed the government or Rodriguez, not this Court.

        Rodriguez also challenges the fingerprint evidence on lack of foundation grounds. This

claim is without merit. Under Fed. R. Evid. 703, “[t]he facts or data in the particular case upon

which an expert bases an opinion or inference may be those perceived by or made known to the

expert at or before the hearing.” Further, under Fed. R. Evid. 901(b)(1), evidence is properly

authenticated when a witness testifies that “a matter is what it is claimed to be.”

                                                  -8-
United States v. Rodriguez
No. 086136

       As stated above, the fingerprint expert’s testimony was based on the fingerprint card, which

was given to her prior to trial, and which contained fingerprints lifted from the crime scene. Thus,

the fingerprint card was properly relied on and authenticated under Fed. R. Evid. 703 and Fed. R.

Evid. 901. Accordingly, the district court did not err by admitting the fingerprint evidence.

                                  C. Sufficiency of the Evidence

       Finally, Rodriguez argues that the evidence is insufficient to support his conviction on the

ground that there was no physical evidence tying him to the robberies. Rodriguez also asserts that

the victim identifications were insufficient to establish his guilt. Rodriguez is incorrect.

       “This Court reverses a judgment for insufficiency of the evidence only if [the] judgment is

not supported by substantial and competent evidence upon the record as a whole.” United States v.

Barnett, 398 F.3d 516, 521-22 (6th Cir. 2005) (quoting United States v. Stone, 748 F.2d 361, 363

(6th Cir.1984)) (internal quotation marks omitted). “However, when the defendant moves for

judgment of acquittal at the close of the government's case-in-chief, and defense evidence is

thereafter presented but the defendant fails to renew the motion at the close of all of the evidence,

he waives objection to the denial of his earlier motion, absent a showing of a manifest miscarriage

of justice.” United States v. Price, 134 F.3d 340, 350 (6th Cir. 1998); see also United States v.

Roberge, 565 F.3d 1005, 1008 (6th Cir. 2009). “A miscarriage of justice exists only if the record

is devoid of evidence pointing to guilt.” Id.

       Here, the Russell’s Market robbery victim, Reed, identified Rodriguez as one of the two men

that entered his store and robbed him at gunpoint. The Las Americas Musicas robbery victim,

Fragosa, testified that two men wearing ski masks robbed her at gunpoint, and Hernandez testified

                                                -9-
United States v. Rodriguez
No. 086136

that he and Rodriguez committed the robbery together. Finally, Rodriguez’s fingerprints matched

fingerprints lifted from the Las Americas Musicas crime scene.

       Based on the described evidence, Rodriguez has not shown a manifest miscarriage of justice.

                                     III. CONCLUSION

               For all of the above reasons, we AFFIRM Rodriguez’s conviction.




                                             - 10 -
