                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-1-2008

USA v. Calhoun
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3794




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                                 NOT PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT


                 No. 06-3794


      UNITED STATES OF AMERICA,

                      v.

             DAVID CALHOUN,

                           Appellant




On Appeal from the United States District Court
   for the Eastern District of Pennsylvania
     (D.C. Criminal No. 05-cr-00363-6)
      District Judge: Hon. Marvin Katz


                 No. 06-3842


      UNITED STATES OF AMERICA,

                      v.

             PEDRO RISQUET,

                           Appellant




On Appeal from the United States District Court
   for the Eastern District of Pennsylvania
     (D.C. Criminal No. 05-cr-00363-4)
      District Judge: Hon. Marvin Katz
                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 9, 2008

             BEFORE: SMITH, HARDIMAN and COWEN, Circuit Judges

                                  (Filed: May 1, 2008)


                                        OPINION


COWEN, Circuit Judge.

       Defendants-Appellants David Calhoun and Pedro Risquet were convicted by a jury

of a number of narcotics charges, including, inter alia, conspiracy to distribute more than

five kilograms of cocaine. They were each sentenced to a 20-year term of imprisonment

and 10 years of supervised release. Each has appealed.

       The District Court had jurisdiction under 18 U.S.C. § 3231. Calhoun’s appeal was

timely filed, but Risquet’s was not. See Fed. R. App. P. 4(b)(1)(A). However, because

the Government does not object on timeliness grounds, we will consider Risquet’s appeal

on the merits. See Eberhart v. United States, 546 U.S. 12, 13 (2005) (per curiam)

(Federal Rule of Criminal Procedure 33’s seven-day limit for filing new trial motions is

not jurisdictional and may be waived); United States v. Frias, __ F.3d ___, 2008 WL

833973, *4 (2d Cir. Mar. 31, 2008) (Fed. R. App. P. 4(b)’s deadline is not jurisdictional,

but is “mandatory and inflexible” when timeliness bar is properly invoked by the

government); United States v. Mitchell, 518 F.3d 740, 744 (10 th Cir. 2008) (same); but cf.

                                             2
DL Resources, Inc. v. FirstEnergy Solutions Corp., 506 F.3d 209, 214 n.3 (3d Cir. 2007)

(noting open question on issue). We exercise appellate jurisdiction pursuant to 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a).

       Calhoun asserts claims of sufficiency of the evidence, trial court error, and

prosecutorial misconduct. Additionally, Risquet alleges trial court error and a violation of

his Sixth Amendment rights. We address each claim in turn.

       Calhoun contends that he had nothing more than a mere buyer-seller relationship

with Raul Estevez 1 , and thus there is insufficient evidence to support his conspiracy

conviction. The standard of review on a sufficiency of the evidence claim is whether,

“after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). While an

isolated purchase or sale of drugs, without more, is insufficient to sustain a conviction for

conspiracy, “even an occasional ... buyer for redistribution[] can be shown to be a

member of the conspiracy by evidence, direct or inferential, of knowledge that she or he

was part of a larger operation.” United States v. Price, 13 F.3d 711, 728 (3d Cir. 1994).

In determining whether this requisite knowledge exists, a factfinder may consider factors

such as: “the length of affiliation between the defendant and the conspiracy; whether




  1
    Estevez is a co-defendant in the case, but pled guilty and testified for the Government
against Calhoun and Risquet.

                                              3
there is an established method of payment; the extent to which transactions are

standardized; and whether there is a demonstrated level of mutual trust.” United States v.

Gibbs, 190 F.3d 188, 199 (3d Cir. 1999).

        The evidence presented at trial indicated that in the six months preceding his

arrest, Calhoun purchased cocaine from Estevez on a monthly basis, in one-kilogram

quantities, for approximately $26,000 per kilogram. See id. (“[a] large transaction or an

accumulation of deals suggests more trust ... as well as a greater likelihood” that the

parties were engaged in common enterprise). The exchanges were always arranged

beforehand through coded phone conversations, and always took place at Estevez’s

residence. Calhoun’s inquiries of “the boy from New York,” 2 and that he recognized

Risquet on sight before they both entered Estevez’s residence, where Calhoun obtained a

kilogram of cocaine, all support the inference that Calhoun was aware of Risquet’s role as

Estevez’s supplier. Furthermore, the evidence showed that on at least one occasion,

Calhoun obtained drugs on credit – paying Estevez a portion of the purchase price up

front and the balance at a later time. See id. at 200 (“[a] credit relationship ... often

evidences the parties’ mutual stake in each other’s transactions”); United States v.

Carbone, 798 F.2d 21, 27 (1 st Cir. 1986) (“[t]he conspiracy began when the cocaine was

sold on credit and continued until final payment was made”). Accordingly, there was

ample evidence upon which the jury could have concluded beyond a reasonable doubt


  2
      Risquet lived Union City, New Jersey, just a few miles outside of New York.

                                               4
that Calhoun was engaged in a conspiracy to distribute narcotics.

       There is similarly no merit to Calhoun’s argument that the District Court erred

when it denied his request for a continuance of trial. We review such denials for abuse of

discretion. United States v. Olfano, 503 F.3d 240, 245 (3d Cir. 2007). Denying a

continuance request is an abuse of discretion “only when it is so arbitrary as to violate due

process.” United States v. Khorozian, 333 F.3d 498, 507 (3d Cir. 2003); see also Gov’t

of V.I. v. Charleswell, 115 F.3d 171, 174 (3d Cir. 1997) (“[t]he matter of a continuance

is traditionally within the discretion of the trial judge who must be given wide latitude in

arranging the court’s schedule”).

       Here, two weeks prior to trial, Calhoun filed a pro se continuance motion, alleging

that he and his counsel did not have adequate time to prepare a defense because they were

unable to meet. However, the Government contended in its opposition that contrary to

this claim, Calhoun and counsel had met on several occasions in the weeks before trial,

and no physical illness or other impediment prevented Calhoun from doing so. Calhoun

did not proffer anything to contradict these representations, and while his counsel did, at

Calhoun’s request, renew the pro se continuance motion at the start of trial, counsel did

not join in the motion nor express any concerns about inadequate preparation. On this

record, the District Court’s denial was not an abuse of discretion, nor did it violate

Calhoun’s due process or Sixth Amendment rights. Cf. United States v. Faison, 679 F.2d

292, 297 (3d Cir. 1982) (where important government witness’s illness prevented his live



                                              5
cross-examination, trial court abused its discretion in refusing to continue the trial for a

reasonable period to allow the witness to recover); United States v. Santos, 201 F.3d 953,

958-59 (7 th Cir. 2000) (denial of unopposed continuance was abuse of discretion where

postponement was sought because defense counsel had a scheduling conflict; denial

implicated right to choice of counsel as counsel was then forced to withdraw).

       Next, Calhoun and Risquet both claim that the District Court erred in (1) denying

their acquittal motions in the presence of the jury, and (2) in leaving the bench during

trial. Risquet further contends that the Court’s above actions, coupled with its allegedly

improper remarks pertaining to the flow of the trial constituted structural error. We

review a trial court’s decisions pertaining to trial management for abuse of discretion.

Reed v. Phila., Bethlehem & New England R.R. Co., 939 F.2d 128, 133 (3d Cir. 1991)

(district courts are “entrusted with wide discretion” in “matters of trial procedure”). On

the other hand, the question of whether a judge’s absence from the bench arises to a

constitutional structural error is reviewed de novo. United States v. Mortimer, 161 F.3d

240, 241 (3d Cir. 1998). However, because none of these claims, with the exception of

the one alleged absence objected to by Calhoun, were raised below, we review only for

plain error. United States v. Olano, 507 U.S. 725, 732 (1993).

       Calhoun and Risquet argue that the District Court erred when it denied their

respective Rule 29 motions for judgments of acquittal without first excusing the jury.

While it may be better practice to entertain such legal matters outside the presence of the



                                              6
jury, United States v. Coke, 339 F.2d 183, 186-87 (2d Cir. 1974), no plain error resulted

here from the failure to do so. Where all that the jury heard was that Defendants’ “29"

motions were denied, neither Calhoun nor Risquet were prejudiced because jurors would

not have known that the motions pertained to the judge’s perception of the sufficiency of

the prosecution’s evidence, and could not have been unduly swayed as a result. Cf.

United States v. Diharce-Estrada, 526 F.2d 637, 640-41 (5 th Cir. 1976) (cumulative effect

of commencing the hurried jury trial at 7:30pm, denying a “motion for acquittal” in open

court, and prosecutorial misconduct warranted reversal); Coke, 339 F.2d at 185-86

(judge’s “excessive interference in the examination of witnesses, [] repeated rebukes and

disparaging remarks directed at [defense] counsel,” and denial of “motion for a judgment

of acquittal” in front of the jury violated defendant’s due process rights).

       Nor does the District Judge’s alleged absence warrant reversal. Where a judge is,

without explanation and without the consent of the parties, physically absent during a

“critical stage” of trial, a structural error occurs and prejudice is presumed. Mortimer,

161 F.3d at 242 (prosecutor objected during defense’s summation but withdrew objection

upon observing that judge was not in the courtroom). However, not every judicial

absence arises to an error of constitutional dimension. E.g., United States v. Burke, 345

F.3d 416, 425 (6 th Cir. 2003) (affirming conviction obtained where judge presided over

portion of proceedings via video-conference); United States v. Grant, 52 F.3d 448, 449

(2d Cir. 1995) (while absence is not favored, it was not error for judge to leave courtroom



                                              7
while testimony was read back to jury as “[t]here [was] nothing for the judge to rule on”).

       In this case, during his counsel’s cross-examination of Estevez, Calhoun objected

that the District Judge was not on the bench. However, the record indicates that the trial

judge responded immediately that he was in fact present in the courtroom. See Calhoun’s

Supp. App., at 8 (“Mr. Calhoun: I object ... The Judge is not on the bench. The Court:

Yes, I am.”). Therefore, no structural error occurred since it appears that the District

Judge was merely outside of Calhoun’s view, was not actually absent from the

proceedings, and certainly did not “completely abdicate[] his judicial responsibilities.”

United States v. Kone, 307 F.3d 430, 443 (6 th Cir. 2002) (no structural error where trial

judge had another judge preside telephonically over jury deliberations, verdict, and

polling); cf. Riley v. Deeds, 56 F.3d 1117, 1120 (9 th Cir. 1995) (reversal warranted where

judge was nowhere to be found during jury deliberations; that law clerk presided and

granted the jury’s read-back request demonstrated a “complete absence of judicial

discretion” sufficient to constitute structural error).

       Similarly, Risquet merely alleges that the District Judge left the bench and sat

outside of the view of the jury and the parties a few times during the course of trial, not

that the Judge was physically absent. Indeed, Risquet expressly concedes that the Judge

was present in the courtroom at all times. Because his failure to object below means there

is no record of when the absences occurred, and because he fails, even on appeal, to

elaborate upon the circumstances surrounding the alleged absences, Risquet has simply



                                                8
failed to demonstrate any prejudice resulting from the complained-of conduct. See

United States v. Love, 134 F.3d 595, 605 (4 th Cir. 1998) (no plain error where judge was

in chambers during portions of the closing argument but remained “available to exercise

his discretion with respect to objections made by either side”); Kone, 307 F.3d at 443

(affirming conviction where defendant did not establish that he was prejudiced from

judge’s physical absence from courthouse).

       Furthermore, there was no error, plain or otherwise, in the District Court’s remarks

prodding counsel to proceed faster at various points in the trial.3 Initially, since five of

the seven statements identified as inappropriate by Risquet on appeal were actually

directed at the Government, we fail to understand, nor has Risquet explained, how any

such remarks could have prejudiced the defense. Furthermore, there is nothing improper

in either of the two remarks that were made to Calhoun’s counsel: “[You may continue

only] [i]f it is terribly important. We have to have some limits”; and “may I ask how

much more [] you have.” Risquet’s Opening Brief, at 6 (citing App. at 58, 67). Such

comments do not come close to demonstrating judicial bias, and they certainly did not

deprive Risquet of his right to a fair trial. See, e.g., United States v. Carson, 455 F.3d

336, 358 (D.C. Cir. 2006) (judge’s comments that defense objections were “frivolous”


  3
    Among the comments characterized by Risquet as inappropriate include, inter alia:
“We have to economize the time of the jury, counsel. We have to get right down to the
essentials and skip the rest”; “Counsel, get down to the meat of it and no formalities”; and
“This is trivia. Get to the rest of the story ... We can’t proceed at this pace, it is almost
impossible.” Risquet’s Opening Brief, at 6 (citing App. at 54, 44, 55-56).

                                               9
and its evidence was “irrelevant” “did not reach a level of hostility that prevented a fair

trial”); see also United States v. Donato, 99 F.3d 426, 434 (D.C. Cir. 1996) (“a district

judge has wide discretion in monitoring the flow of a criminal trial”).

       Additionally, Calhoun claims the prosecutor impermissibly vouched for Estevez’s

credibility during summation. To prevail on this claim, Calhoun must demonstrate: (1)

the prosecutor assured the jury that Estevez’s testimony is credible; and (2) the assurance

was based on the prosecutor’s personal knowledge or on other information not found in

the trial record. United States v. Walker, 155 F.3d 180, 187 (3d Cir. 1998). We review

here only for plain error.

       The prosecutor’s statements that the terms of Estevez’s plea agreement required

his full and truthful cooperation did not constitute vouching. The agreement was a part of

the Government’s evidence at trial, and the prosecutor’s references to its terms were

therefore permissible argument. Id. (no vouching occurs “where a prosecutor argues that

a witness is being truthful based on the testimony given at trial”). Furthermore, the

prosecutor did not err in saying to the jury: “I suggest to you that Estevez’s testimony

rang true. You are to decide.” Calhoun’s Supp. App., at 11; see Walker, 155 F.3d at 188

(a phrase like “I submit to you” is “merely a method of prefacing an argument and does

not by itself constitute vouching ... it ... does not assure the jury that the witness is

credible, but instead asks the jury to find that the witness was credible”) (emphasis in

original). Moreover, the Government’s summation did not reference information



                                               10
contained outside the trial record, and the Court duly instructed the jury that they were the

sole judges of credibility. Viewed in the context of the entirety of the proceedings, the

challenged statements were not erroneous; even if they were, they were not sufficiently

“serious as to undermine the fundamental fairness of the trial and to contribute to a

miscarriage of justice” so as to warrant reversal. United States v. Pungitore, 910 F.2d

1084, 1126 (3d Cir. 1990) (internal quotations omitted); see also United States v. Beaty,

722 F.2d 1090, 1097 (3d Cir. 1983) (even where prosecutor’s statement that cooperators

“promised to tell the truth and were telling the truth” constituted vouching, no prejudice

resulted since the cooperators’ credibility “was a hotly contested issue” at trial and thus

the jury was more likely to view the statement as argument).

       Finally, Risquet contends that the District Court violated his Sixth Amendment

right at sentencing when it relied on his criminal history in determining that he was

subject to a 20-year mandatory minimum. This argument is clearly foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998), which remains valid and

binding precedent. United States v. Vargas, 477 F.3d 94, 104 (3d Cir. 2007).

       In conclusion, finding the claims of error to be without merit, we affirm the

judgments of the District Court.




                                             11
