     Case: 17-10678      Document: 00514722999         Page: 1    Date Filed: 11/14/2018




                       REVISED November 14, 2018

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit


                                      No. 17-10678                              FILED
                                                                          October 4, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

              Plaintiff - Appellee

v.

BALDEMAR SOLIS, also known as Balt,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-242-1


Before HAYNES, HO, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Baledemar Solis appeals his jury conviction for conspiracy to possess
methamphetamine with intent to distribute. The district court imposed a life
sentence, combined with an eight-year term of supervised release.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 17-10678
      Solis alleges six counts of error, including one for cumulative error.
First, Solis objects to portions of Officer Travis Mott’s testimony as violations
of Federal Rule of Evidence 701. Second, he argues that the district court
committed error by overruling defense counsel’s objection to Mott’s
unresponsive answer. Third, Solis contends the district court committed error
by overruling an objection to Mott’s alleged hearsay testimony at trial. Fourth,
Solis argues that the district court erred by not allowing helpful expert
testimony. Fifth, Solis argues that the district court erred by overruling Solis’s
motion that the government acted vindictively by increasing Solis’s sentencing
exposure under 21 U.S.C. § 851. Finally, Solis alleges that the cumulative
error in his trial rendered the trial fundamentally unfair.
      Normally, “[r]eview of a trial court’s evidentiary ruling is for abuse of
discretion, subject to harmless error review.” United States v. Ebron, 683 F.3d
105, 133 (5th Cir. 2012) (citing United States v. Jackson, 636 F.3d 687, 692 (5th
Cir. 2011). But if a party does not preserve error through timely and specific
objections, we may review only for plain error. See FED. R. CRIM. P. 52(b);
United States v. Olano, 507 U.S. 725 (1993). Under the plain error standard,
the appellant must show that there was a clear or obvious error that affected
his substantial rights. See United States v. Rodriguez, 15 F.3d 408, 415 (5th
Cir. 1994). We may exercise our discretion to correct such an error only if we
find that the error seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Id.
      First, Solis claims that the district court erred by admitting nine portions
of Mott’s testimony about the meaning of recorded phone conversations. Mott
was designated as “a probable fact and expert witness,” who would testify to
his investigation of Solis’s activities during the offense alleged in the
indictment. The government responds that Solis did not properly preserve a
Rule 701 objection for all of these statements at trial—he objected to seven of
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                                       No. 17-10678
the challenged portions under general speculation grounds, he did not fully
articulate the reason why he objected to one portion, and he did not object at
trial to the ninth portion of challenged testimony.
       An officer may present lay witness opinions about the meaning of
intercepted words and phrases when she has “a unique perspective and insight
into the [offense] from which the jury could benefit.” United States v. Macedo–
Flores, 788 F.3d 181, 192 (5th Cir. 2015).              Here, Mott is an experienced
narcotics investigator who was responsible for arranging, conducting, and
recording the phone calls that are the subject of this appeal. Further, an officer
may testify as a lay witness regarding the meaning of specific words and terms,
if the officer had extensive involvement in the underlying investigation.
United States v. Haines, 803 F.3d 713, 728–29 (5th Cir. 2015). 1
       Solis claims that even if Mott were qualified to testify as a lay opinion
witness, some of his statements were speculative and outside the permissible
scope of lay opinion testimony. See id. at 728, 733–34 (holding that testimony
purporting to explain common terms like “what,” “she,” “that,” and “stuff,” was
impermissible because it went beyond the witness’s personal knowledge of the
investigation and “instead ventured into speculation, usurping the jury’s
function, which is to draw its own inferences from the evidence presented”).
Solis pointed to instances where Mott testified that: (1) when Solis said “take
it to your brother’s,” Mott believed “it” meant drugs; (2) when Solis said that
he was “done with that,” Mott believed “that” meant drugs and/or selling drugs;
(3) when Solis denied knowing something, Mott believed he was only acting
like he did not know; and (4) when another person referred to someone else as
“homeboy,” Mott believed it was probably a reference to Solis.


       1 Solis examined in detail the standard of review for this objection, but even if Solis
made his objection under Rule 701 and clearly preserved it, the district court did not commit
reversible error. See United States v. St. Junius, 739 F.3d 193, 201 (5th Cir. 2013).
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                                  No. 17-10678
      While interpretation of code words by a lay witness is permissible under
Macedo-Flores, Haines does not allow a lay witness to testify to the meaning of
common words. See Macedo-Flores, 788 F.3d at 192; Haines, 803 F.3d at 733.
This court has held that such speculation on the part of lay opinion witnesses
is impermissible testimony. But Solis did not object to several of these
instances at trial and, collectively, they do not rise to harmful error.
Additionally, there was sufficient evidence presented at trial to sustain the
conviction, even if these statements were improperly admitted. See also United
States v. Perez-Robles, 718 F.2d 700, 700–01 (5th Cir. 1983). Therefore, even
though the district court committed error by allowing such speculation, it did
not rise to the level of harmful error.
      Second, Solis claims that the district court erred when it allowed a
government witness to testify that Solis had been previously arrested with
drugs. During Mott’s testimony, defense counsel asked Mott if he knew “of any
other law enforcement officer that can come in here and testify that they
caught him with drugs in his possession during this conspiracy?” Mott testified
that while he does not know all the details, “I know of previous arrests by Mr.
Solis with drugs.” Defense counsel objected that Mott’s statement was non-
responsive and that it went beyond the scope of the question. The district court
overruled the objection, stating that Mott’s answer was exactly what defense
counsel asked for.
      Solis objects that this introduction of prior bad acts constituted error.
But Solis’s counsel elicited the evidence of prior bad acts, therefore the invited
error doctrine applies. See United States v. Menses-Davila, 580 F.2d 888, 895
(5th Cir. 1978). Additionally, defense counsel did not preserve the objection;
she made no mention that Rule 404(b) was the basis of the objection or that
the testimony should be struck as admission of other bad acts. Therefore,
under a plain error review, the district court made no reversible error. See
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                                  No. 17-10678
United States v. Green, 272 F.3d 748, 754 (5th Cir. 2001) (holding that invited
error claims cannot be raised on appeal and that court will not reverse absent
manifest injustice). See also United States v. Lemaire, 712 F.2d 944, 949 (5th
Cir. 1983) (“[Invited error] would remove the matter from being error requiring
reversal, unless the error was so patent as to have seriously jeopardized the
rights of the appellant.”)
      Third, Solis argues that the district court committed error by allowing
Mott to testify regarding statements made by a cooperating witness and co-
conspirator, Wallace Stevenson. Solis properly objected to this statement as
hearsay, therefore this objection is reviewed for abuse of discretion, subject to
the harmless error rule. See United States v. Dunigan, 555 F.3d 501, 507 (5th
Cir. 2009).
      Mott testified regarding the sequence of events after Mott went to
Stevenson’s house to arrest him. Solis objected to Mott’s statement during his
testimony that “as we were talking to Stevenson, he identified his source.” The
district court responded to the objection by saying “so far he hasn’t asked him
who that was, but if he does, that will be a valid objection, so don’t ask it.” A
few questions later, Mott began to say “Stevenson told us that he had . . . .” but
defense counsel successfully interrupted Mott before he could finish the
statement and the prosecutor rephrased, instructing Mott, “Just say what you
did.” Solis maintains that Mott’s testimony regarding Stevenson’s statement
identifying his source provided enough inferential information that it
constituted harmful error. But Mott’s statement does not rise to the level of
inadmissible hearsay. Mott was not offering the statement as proof of who the
source was, but rather offered to explain why Mott did what he did in the
investigation. See Dunigan, 555 F.3d at 507 (“Out-of-court statements offered
for another purpose, e.g., providing background information to explain the


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                                 No. 17-10678
actions of investigators, are not hearsay.”) The district court did not commit
harmful error by overruling this objection.
      Fourth, Solis contends that the district court abused its discretion by
excluding testimony of Michael Ware, an attorney offered as a defense expert
to assist the jury by contextualizing the testimony of Solis’s accomplices. The
district court declined to qualify Ware as an expert, finding (1) that defense
counsel essentially was offering her law partner as an expert, and (2) that
Ware’s testimony lacked evidentiary support. See United States v. Valencia,
600 F.3d 389, 424 (5th Cir. 2010) (“[T]he judge has discretion in determining
which factors are most germane in light of the nature of the issue, the
particular expertise, and the subject of the expert’s testimony.”). The district
court did not abuse its discretion in excluding Ware as an expert witness.
      Fifth, Solis argues that the government acted vindictively when it filed
a penalty enhancement under to 21 U.S.C. § 851 after Solis decided to proceed
to trial. This objection was properly preserved and we review the district
court’s factual findings concerning claims of prosecutorial vindictiveness for
clear error and its legal determinations de novo.         See United States v.
Saltzman, 537 F.3d 353, 359 (5th Cir. 2008). To make the requisite showing
for prosecutorial vindictiveness, the defendant must show sufficient facts
giving rise to a presumption of vindictiveness or actual vindictiveness. Id. The
mere timing of the filing is insufficient to create a presumption of
vindictiveness. See id. at 361–62. Solis does not bring any “objective evidence
that the government acted solely to punish him for exercising his legal rights,
and that the reasons proffered by the government are pretextual.” Id. at 364;
see also United States v. Cooks, 52 F.3d 101, 105–06 (5th Cir. 1995).
      Solis also argues that § 851 was not meant to apply to him because he is
not a hardened, professional drug trafficker. He offers no definition of what
that might be or why he does not fit the description.         However, Solis’s
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                                  No. 17-10678
conclusory arguments do not provide tangible evidence to find that the
government filed the penalty enhancement solely to punish him for exercising
his right to a jury trial. The district court did not commit reversible error by
overruling this claim.
      Finally, Solis asserts that the cumulative errors rendered Solis’s trial
fundamentally unfair. “The cumulative error doctrine . . . provides that an
aggregation of non-reversible errors (i.e., plain errors failing to necessitate
reversal and harmless errors) can yield a denial of the constitutional right to a
fair trial, which calls for reversal.” United States v. Delgado, 672 F.3d 320,
343–44 (5th Cir. 2012) (en banc) (internal quotation marks and citation
omitted). The “doctrine necessitates reversal only in rare instances,” and
although “the possibility of cumulative error is often acknowledged,” it is
“practically never found persuasive.” Id. at 344 (internal quotation marks and
citation omitted). Where there is substantial evidence of guilt, application of
the cumulative error doctrine is especially uncommon. Id.
      Here, we did not find reversible error in any of Solis’s objections. The
district court did not err in overruling a hearsay objection or in overruling a
non-responsive objection. While the district court did err in allowing Mott to
offer speculative testimony, such error was harmless. Therefore, there cannot
be cumulative error to render the trial fundamentally unfair, and this objection
is overruled.
                                      ***
      Solis has failed to show that any of his objections rise to the level of
reversible error, which would render his trial unreasonable. See United States
v. Warren, 720 F.3d 321, 332–33 (5th Cir. 2013). Accordingly, the district
court’s judgment is AFFIRMED.




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