                              NOT RECOMMENDED FOR PUBLICATION
                                      File Name: 10a0384n.06

                                                   No. 09-1051
                                                                                                         FILED
                                                                                                     Jun 25, 2010
                                                                                              LEONARD GREEN, Clerk
                                 UNITED STATES COURT OF APPEALS
                                      FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff–Appellee,              )
                                       )                      ON APPEAL FROM THE UNITED
v.                                     )                      STATES DISTRICT COURT FOR THE
                                       )                      WESTERN DISTRICT OF MICHIGAN
JOSEPH MAZE,                           )
                                       )
      Defendant–Appellant.             )                      OPINION
                                       )
______________________________________ )


         Before: CLAY and GILMAN, Circuit Judges; and ZATKOFF, District Judge.*

         RONALD LEE GILMAN, Circuit Judge. A jury found Joseph Maze guilty of possessing

five grams or more of cocaine base (crack) with the intent to distribute the drug. Maze appeals his

conviction, arguing that the district court abused its discretion when it declined to admit (1) the first

portion of an audiovisual recording of Maze’s detention in a patrol car, and (2) an audio recording

of a call that one of the arresting officers made to police dispatch concerning Maze’s attempt to flee

from the officers. In addition, Maze contends that he did not receive a fair trial because one of the

government’s expert witnesses testified to matters that allegedly invaded the province of the jury.

For the reasons set forth below, we AFFIRM the judgment of the district court.




         *
          The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern District of Michigan, sitting
by designation.
No. 09-1051
United States v. Maze

                                        I. BACKGROUND

A.     Factual background

       Two “community policing officers” with the Grand Rapids (Michigan) Police Department,

Thomas Gootjes and James Wojczynski, were in their marked patrol car patrolling a high-crime area

on June 21, 2007. They drove to the Wealthy Street Market, a local grocery store. The store had

filed a “no-trespass letter” with the city attorney, meaning that the owner of the store had authorized

the police to detain, question, and arrest people who were loitering on the store’s property.

       Officers Gootjes and Wojczynski observed Maze standing near an occupied, parked Cadillac

in the parking lot of the Wealthy Street Market. These officers were familiar with Maze from prior

contacts. Maze began walking away from the Cadillac when he saw the patrol car. The officers

drove toward him. When Officer Gootjes asked Maze if he had purchased anything from the store,

Maze responded that he had not. Officer Gootjes then stepped out of his patrol car to question Maze

further, but Maze took off running, ignoring the officer’s command to stop. As Maze was running,

he held the waistband of his pants with his right hand. Officer Gootjes was concerned by this action

because he thought that Maze might have a gun.

       Although Officer Gootjes did not keep Maze within view at every moment of the chase

(which spanned approximately two blocks), the officer remained about 15 to 20 feet behind Maze

at all times. At one point during the pursuit, Officer Gootjes observed a clear plastic bag fall to the

ground at Maze’s feet. The officer made a mental note of where the bag landed and continued to

pursue Maze.



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United States v. Maze

        When Officer Gootjes took off running after Maze, Officer Wojczynski remained in the

patrol car. He called dispatch over the radio to inform other officers in the area that he and Officer

Gootjes were involved in a foot pursuit and needed assistance. Although this call was recorded, the

audio is barely intelligible.

        Officer Wojczynski drove after Maze in an attempt to intercept him. Within a block or two,

Officer Wojczynski saw Maze run across the street. Officer Wojczynski then exited his patrol car

and pursued Maze, quickly catching up with Maze and forcing him to the ground. Within a few

seconds, Officer Gootjes arrived and assisted in handcuffing Maze, who was struggling against both

officers. Maze yelled “Let me go,” and “I’m going to beat your ass Gootjes.”

        Once Maze was handcuffed, Officer Wojczynski began to retrace Maze’s steps, backtracking

the route that Maze had run. About 25 to 50 feet from the spot where Maze was taken down, Officer

Wojczynski discovered a clear plastic bag. Officer Gootjes confirmed that this bag was found in the

location where he had observed such a bag drop to the ground at Maze’s feet. The bag contained

five individually wrapped, marble-sized pieces of crack cocaine, weighing a total of 7.53 grams.

        Several bystanders and other officers arrived at the scene after Maze was secured. Between

the time that Maze ran through the area and the time that the clear plastic bag was recovered by

Officer Wojczynski, however, no one had come near the location of the bag. The officers searched

Maze’s person. They did not find a weapon, but they did find a cell phone and a wad of $460 in

cash. Specifically, there were five $20 bills, thirty-four $10 bills, and four $5 bills. In addition, the

K-9 unit was called in to search the area for other drugs or a weapon, but nothing else was found.



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No. 09-1051
United States v. Maze

        Officer Jeremy Huffman was one of the police officers who arrived at the scene after Maze

was arrested. Maze was placed in the backseat of Officer Huffman’s patrol car. The car’s

audiovisual recording system was inadvertently turned off for approximately six minutes shortly after

Officer Huffman arrived at the scene. It was later turned back on and was recording when Officer

Gootjes gave Maze a Miranda warning and when Officer Huffman transported Maze to jail.

B.      Trial testimony

        Maze was charged with one count of possessing five grams or more of cocaine base with the

intent to distribute the drug, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). His trial

took place in the fall of 2007. Only those portions of the evidence that are relevant to the issues on

appeal are discussed below.

        Prior to trial, a dispute arose between Maze and his counsel about what portions of the

recording from Officer Huffman’s patrol car should be introduced into evidence. Neither the

government nor Maze’s trial counsel wanted the first part of the recording before the jury. This part

reveals that Maze refused to make a statement to the officers about his actions that day once he was

given a Miranda warning. It also shows that Maze was uncooperative and hostile to the officers,

kicking at the car’s side window and telling Officer Huffman, “Shut up, bitch.” In addition, during

this exchange, Maze demonstrated his familiarity with Officer Wojczynski by calling him Chip, the

officer’s nickname in the neighborhood.

        Maze’s counsel told the judge during a pretrial discussion that she thought this portion of the

tape was prejudicial and did not want it played for the jury, but that Maze was “insistent that . . . that

portion of the tape come in.” The government also strongly opposed the admission of the first part

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No. 09-1051
United States v. Maze

of the tape, suggesting that the introduction of evidence showing that Maze had invoked his right to

remain silent could constitute plain error. Maze’s counsel then asked the judge for a ruling

concerning the admissibility of the disputed portion of the tape in order to resolve the conflict

between counsel and Maze.

       The district court ruled that the portion of the recording at issue had little, if any, probative

value with regard to the main issue of whether the drugs discovered on the ground by Officer

Wojczynski were in fact possessed by Maze. In contrast, the danger of unfair prejudice from this

evidence was “intensely high” and “would tempt a jury to decide the case on factors that are

extraneous to the actual factors in the case.” The court therefore excluded the evidence, concluding

that “even if there were minimal probative value, . . . the value is substantially outweighed by the

potential for unfair prejudice.” Maze’s counsel was permitted, however, to question the arresting

officers “regarding the six-minute gap in the tape and what may or may not have occurred during that

point in time[.]”

       In the portions of the recording introduced at trial, Maze told Officer Huffman that “I got

somethin’ for you,” and asked the officer to come back to the neighborhood at night by himself.

Officer Huffman perceived this to be a threat. Maze also indicated that “they didn’t find what I was

runnin’ for” and that “there’s somethin’ better out there that I ran for.” He reiterated that they had

not yet found what he dropped, “[b]ut if they find it, hey that’s what I, that’s what I’ll get charged

with. That’s what I’m pleading guilty to.”

       Officers Gootjes, Wojczynski, and Huffman all testified at Maze’s trial. They discussed

Maze’s uncooperative behavior on that day and confirmed that they knew Maze from prior contacts.

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No. 09-1051
United States v. Maze

In addition, the officers provided testimony showing that Maze was familiar with the officers, knew

their names, and knew that Chip was the neighborhood nickname for Officer Wojczynski.

        The admissibility of the recording of Officer Wojczynski’s call to police dispatch was another

issue discussed with the district judge at trial. Prior to the start of the trial, Maze’s counsel alerted

the court to the fact that the recording was not of very good quality. The government agreed,

explaining that it doubted that the tape was admissible because the tape was largely unintelligible.

But the government had no objection to its introduction.

        Later at trial, during a sidebar, Maze’s counsel informed the court that the defense was

considering playing the dispatch tape for the jury, but needed to have Officer Wojczynski

authenticate it. While the attorneys were speaking to the judge, Maze interjected: “That tape is

fake.” Maze’s counsel explained that “Maze is maintaining that this is like a fake dispatch tape.”

Apparently Maze wanted the jury to hear the tape so that he could argue that the tape was not

authentic. In response, the government verified the tape’s authenticity, but again expressed concern

about “whether it’s going to be sufficiently audible for the jury to get anything out of it.” The court

then asked defense counsel whether there was going to be any evidentiary proffer to support Maze’s

contention that the tape was fake. Maze’s counsel responded that “I have nothing definitive that I

can bring forth to the Court showing and proving that.”

        Officer Wojczynski (along with Maze, counsel for both parties, and the judge) listened to

both the digital copy and the original tape cassette recording outside of the presence of the jury. The

officer testified that there was nothing he heard that would lead him to believe that the recording was

not authentic. Following this testimony, the court excluded the recording from evidence for three

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No. 09-1051
United States v. Maze

reasons: (1) the bulk of the tape was unintelligible, rendering “the recording as a whole . . .

untrustworthy”; (2) the few sentences that were intelligible were “already a matter of record” and

therefore would be cumulative; and (3) there was no evidentiary basis for Maze’s argument that the

tape was not authentic, and there was no probative value to admitting the tape simply to demonstrate

its alleged lack of authenticity. Nevertheless, the court told Maze’s counsel that “you can certainly

cross-examine on the points that have already been [made] a matter [of] record and admission.”

       The last evidentiary matter relevant to the instant appeal is the expert testimony of

government witness Sheila Goodell, who works for the Kalamazoo Department of Public Safety and

is assigned to the U.S. Drug Enforcement Administration as a task officer. The district court

accepted Officer Goodell as an expert in narcotics trafficking with no objection from the defense.

Officer Goodell explained the typical habits of a drug dealer as distinguished from those of a drug

user. When asked about what conclusion she would reach concerning a person apprehended with

the exact same evidence that was discovered in Maze’s case, Officer Goodell testified that she would

conclude that such person was a drug dealer. No objection was made to Officer Goodell’s testimony.

       The defense presented no evidence at trial. Neither side objected to the jury instructions.

During deliberations, the jury asked to review the audiovisual recording from Officer Huffman’s

patrol car, which was again played for them. The jury then returned a verdict of guilty on the sole

count of the indictment. After Maze was sentenced to 240 months of imprisonment, he timely

appealed.




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No. 09-1051
United States v. Maze

                                           II. ANALYSIS

       On appeal, Maze argues that the district court abused its discretion when it (1) declined to

admit the first portion of the audiovisual recording from Officer Huffman’s patrol car, and

(2) excluded the dispatch tape from evidence. Maze also contends that the court committed plain

error, in violation of Maze’s right to a fair trial, when it permitted Officer Goodell to testify as an

expert witness concerning matters that allegedly invaded the province of the jury. The government

responds that the court did not abuse its discretion or commit any plain error and, in any event, that

any errors made by the court were harmless.

A.     Excluded evidence

       We review a district court’s admission or exclusion of evidence—to which a proper objection

was made at trial—utilizing the abuse-of-discretion standard. United States v. Newsom, 452 F.3d

593, 601 (6th Cir. 2006). Under this standard, “we will leave rulings about admissibility undisturbed

unless we are left with the definite and firm conviction that the district court committed a clear error

in judgment.” United States v. Dixon, 413 F.3d 540, 544 (6th Cir. 2005) (brackets, ellipses, and

citation omitted). “Broad discretion is given to district courts in determinations of admissibility

based on considerations of relevance and prejudice, and those decisions will not be lightly

overturned.” United States v. Chambers, 441 F.3d 438, 455 (6th Cir. 2006) (citation omitted). “A

new trial is not required unless the error affects substantial rights.” Id.

       In the present case, the district court excluded the contested evidence under Rule 403 of the

Federal Rules of Evidence. This Rule provides that “[a]lthough relevant, evidence may be excluded

if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the

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No. 09-1051
United States v. Maze

issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” Fed. R. Evid. 403. “Unfair prejudice does not mean the

damage to a defendant’s case that results from the legitimate probative force of the evidence; rather

it refers to evidence which tends to suggest [a] decision on an improper basis.” United States v.

Bonds, 12 F.3d 540, 567 (6th Cir. 1993) (citation and internal quotation marks omitted).

        In reviewing a district court’s decision to exclude evidence under Rule 403, we “view[] the

excluded evidence in the light most favorable to the proponent.” Kovacevich v. Kent State Univ.,

224 F.3d 806, 831-32 (6th Cir. 2000). Balancing under Rule 403 is “highly discretionary” and,

therefore, “the district court’s decision is afforded great deference.” United States v. Bell, 516 F.3d

432, 445 (6th Cir. 2008). Thus, “a decision will not be disturbed if substantial injustice did not

result.” Kovacevich, 224 F.3d at 832.

        Maze contends that the district court abused its discretion when it excluded the first portion

of the recording from Officer Huffman’s patrol car, in which Maze invokes his right to remain silent

and demonstrates hostility toward the officers at the scene. He argues that this evidence would have

cast reasonable doubt on the government’s evidence that the clear plastic bag found on the ground

by Officer Wojczynski belonged to Maze. And he asserts that the jury had no choice but to infer a

guilty conscience from the evidence that Maze ran from the police. If the tape recording had been

introduced, however, Maze argues that the jury would have seen that Maze had a preexisting

antagonistic and untrusting attitude toward the police generally and his arresting officers specifically.

According to Maze, “[t]his evidence would have bolstered other evidence that [Maze] had made

veiled or explicit threatening statements to the police during the incident.”

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No. 09-1051
United States v. Maze

       We are frankly puzzled as to why Maze believes that this excluded evidence would have

aided his defense. But even viewing the excluded evidence in the light most favorable to Maze and

assuming that it would have demonstrated, as Maze asserts on appeal, that he was generally

antagonistic toward the police, there is no reasonable likelihood that the jury would have reached the

conclusion that his behavior was explained by a distrust of these officers rather than by his guilt. The

need for this particular evidence was also minimal given that the police officers who were recorded

on the disputed portion of the tape testified at trial and could have been cross-examined about

Maze’s relationship with the police and his general antagonism. On the other hand, the danger was

high that the jury would draw an unfairly prejudicial inference about Maze’s guilt based on his

generally unpleasant nature and his invocation of the right to remain silent. The district court

therefore did not abuse its discretion in refusing to admit this evidence.

       Maze further contends that the tape revealed that other people were at the scene, which

allegedly contradicts the police officers’ testimony that no one else was present. In particular, he

refers to the recorded statement of someone named “Bargas,” who says: “Oh, Lord have mercy. The

dope—” Maze argues that “the presence of another person in the area who specifically talks about

‘dope’ gives the jury an additional reason to question whether the government had linked the baggie

retrieved by the second officer to [Maze] beyond a reasonable doubt.”

       Maze’s arguments, however, misstate the record. Officers Gootjes and Wojczynski never

said that they were the only ones present at the scene after Maze was arrested. In fact, they testified

that other observers and officers arrived once Maze was in custody. The evidence on the excluded



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No. 09-1051
United States v. Maze

portion of the recording, which establishes that others were present at the scene once Maze was

secured in Officer Huffman’s patrol car, is not in any way inconsistent with this testimony.

        Regarding the statement by “Bargas,” the transcript of the recording identifies Bargas by

name (as opposed to an earlier statement by “Unknown”), which suggests that Bargas is a member

of law enforcement. This was confirmed by Officer Wojczynski’s trial testimony. When he was

asked if anyone took photographs of the scene, Officer Wojczynski responded: “I believe Sergeant

Bargas was called, but I don’t know what types of photographs he may have taken or if he—what

reason he was on scene.” Maze’s argument on this point is therefore without merit.

        He next argues that the district court erred in excluding from evidence the recording of

Officer Wojczynski’s call to police dispatch. Maze contends that authenticity was not an issue

because the government vouched for the tape and, “[although] there were some audibility issues,

there is nothing factual in the record that indicates that the tape was so inaudible that it could not be

understood by the jury.” Again, however, Maze misstates the record. The district judge played the

digital copy of the recording as well as the original tape cassette for the record, outside of the jury’s

presence. After hearing these played, the court concluded, pursuant to United States v. Scarborough,

43 F.3d 1021 (6th Cir. 1994), that “on the whole, it’s unintelligible to me.” See id. at 1024

(explaining that the admission of an audio recording constitutes an abuse of discretion “where the

unintelligible portions of a tape recording are so substantial that the recording as a whole is rendered

untrustworthy” (citation and internal quotation marks omitted)). The court also remarked that the

information contained in those few portions of the recording that were intelligible were already

matters of record. Neither party has provided us with a copy of this recording.

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No. 09-1051
United States v. Maze

       Maze does not identify what specific statements in this recording should have been admitted.

Nor does he challenge the district court’s finding that the introduction of these statements would

have been cumulative of evidence already in the record. Rather, Maze argues that “the tape

completed the story of the chase for the jury.” We find this argument unavailing, and conclude that

the district court did not abuse its discretion when it excluded the dispatch-call recording from

evidence.

B.     Expert testimony

       Maze’s final argument, raised for the first time on appeal, challenges certain expert testimony

admitted at his trial. Because no timely objection was made to the introduction of this evidence, we

review its admission under the plain-error standard. See United States v. Stephens, 549 F.3d 459,

464 (6th Cir. 2008); see also Fed. R. Crim. P. 52(b) (“A plain error that affects substantial rights may

be considered even though it was not brought to the court’s attention.”). To obtain relief under this

standard, a defendant must demonstrate “an ‘error’ that is ‘plain’ and that ‘affect[s] substantial

rights.’” United States v. Olano, 507 U.S. 725, 732 (1993) (brackets in original) (quoting Fed. R.

Crim. P. 52(b)).

       Maze contends that Officer Goodell invaded the province of the jury when she “testified

about six separate facts [that] were unique to [Maze’s] case.” He listed these facts as follows:

       A.      7.53 grams of crack cocaine would be indicative of drug distribution. This
               happened to be the exact amount of drugs found by the police;

       B.      It would be common for a crack dealer to have $5 and $10 bills in his
               possession. The wad of money seized from [Maze] contained mostly $5 and
               $10 bills;


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No. 09-1051
United States v. Maze

       C.       $460 would be a common amount of money for a drug trafficker to have in
                his possession. This happened to be the exact amount of money found on
                [Maze] when he was searched;

       D.       A user would not be carrying five different baggies of crack cocaine. This
                also happened to be the exact number of baggies which were found by the
                police;

       E.       It is common for drug dealers to run from the police. [Maze] ran and was
                chased by the police after one officer spoke to him in the parking lot; and

       F.       It is common for drug dealers to get rid of firearms while running. [Maze]
                had made a statement about having something better that the police did not
                find. There was testimony that there was concern about whether [Maze]
                might have a firearm because of the placement of his hands while running.
                There was also testimony that because the chase took place in a
                neighborhood, [Maze] was not in the sight of the pursuing officers at all
                times. Thus, the expert decided for the jury the question of whether [Maze]
                had discarded a firearm during flight. Given the relative paucity of evidence
                on this subject, the jury could have easily reached a different conclusion in
                the absence of the expert’s testimony.

       Maze contends that “each of the six issues were fact issues for the jury to decide.” Although

recognizing that “qualified law enforcement officers can testify about characteristics of the drug

trade,” Maze argues “that a line should be drawn to prevent that expert testimony from invading the

province of the jury.” He asserts that “the issue is a question of degree and specificity.” Maze

“submits that [the caselaw] makes it clear that this Court could some day be presented with a set of

facts where the expert witness went too far. . . . [Maze] respectfully submits that this case presented

those facts.”

       Rule 704 of the Federal Rules of Evidence governs the permissible scope of an expert’s

testimony. This rule provides:



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No. 09-1051
United States v. Maze

        (a)     Except as provided in subdivision (b), testimony in the form of an opinion or
                inference otherwise admissible is not objectionable because it embraces an
                ultimate issue to be decided by the trier of fact.

        (b)     No expert witness testifying with respect to the mental state or condition of
                a defendant in a criminal case may state an opinion or inference as to whether
                the defendant did or did not have the mental state or condition constituting
                an element of the crime charged or of a defense thereto. Such ultimate issues
                are matters for the trier of fact alone.

Fed. R. Evid. 704.

        Significantly, Maze does not argue that Officer Goodell testified that Maze had “the mental

state or condition constituting an element of the crime charged or of a defense thereto.” See id. at

704(b). He instead asserts that Officer Goodell’s testimony was “equivalent to identity testimony,”

thus unfairly bolstering the government’s contention that the baggie found on the ground was in fact

possessed by Maze and constitutes evidence of drug dealing. This argument, however, is foreclosed

by the express language of Rule 704(a), cited above. Moreover, ample caselaw recognizes the

propriety of expert testimony concerning “conduct that would be consistent with an intent to

distribute” drugs. See, e.g., United States v. Combs, 369 F.3d 925, 940 (6th Cir. 2004). So long as

an expert “d[oes] not actually testify regarding the intent of the defendant to distribute drugs,” a trial

court “d[oes] not err in permitting this testimony.” Id. (emphasis added).

        Maze does not cite Rule 704(b) as the basis for his argument. Nor does he cite any case

holding that an expert witness’s description of conduct as being generally consistent with drug

distribution crossed the line into impermissible testimony. Accordingly, Maze has not shown that

Officer Goodell’s testimony so obviously exceeded the bounds of permissible expert testimony that

its admission constituted plain error.

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United States v. Maze

                                     III. CONCLUSION

       For all of the reasons set forth above, we AFFIRM the judgment of the district court.




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