                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-13-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-1973




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                                                                           NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT


                                         No. 02-1973


                             UNITED STATES OF AMERICA

                                                  v.

                                     TIMOTHY SMITH,
                                        a/k/a Musa

                                                               Appellant


                         Appeal from the United States District Court
                                 for the District of New Jersey
                          (D.C. Criminal Action No. 00-cr-00205-1)
                           District Judge: Honorable Joel A. Pisano


                          Submitted Under Third Circuit LAR 34.1(a)
                                      March 11, 2003


                 Before: RENDELL, AMBRO and MAGILL*, Circuit Judges

                                (Opinion filed:        May 13, 2003)



                                           OPINION



       *Honorable Frank J. Magill, Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
AMBRO, Circuit Judge

           Timothy Smith was convicted of conspiring to distribute and to possess with intent to

distribute more than 5 kilograms of cocaine and more than 50 grams of crack cocaine, a violation

of 21 U.S.C. § 846. Smith challenges his conviction on two grounds: first, that the Government

erroneously referred to all four of the Government fact witnesses as co-conspirators; and second,

that the District Court erroneously admitted testimony describing a threat made by Smith to a

witness as that witness testified at his trial. We reject both challenges and affirm.

1.         Facts and Background

           On January 13, 2000, New Jersey police officers and agents of the United States Drug

Enforcement Administration arrested Smith, Jose Arias and Ramon Sanchez after a seven-month

investigation into interstate crack cocaine trafficking activities. The Government alleged that

Sanchez and Arias sold cocaine powder in New York and that Smith, a resident of Bridgeton,

New Jersey, purchased cocaine powder on a regular basis from Sanchez and Arias and sold it in

the form of cocaine and crack cocaine in New Jersey. Arias and Sanchez pleaded guilty to

conspiracy. Sanchez testified against Smith and received a downward departure as a result of his

cooperation.

           Four fact witnesses1 testified for the Government at Smith’s trial: Sanchez, who testified

that Smith had purchased cocaine powder from him; Donald Moss, who testified that he had

acted as a courier for Smith by distributing drugs to and collecting payments from street sellers;

and Monroe Wesley and Linda McGriff, who testified that they had purchased crack or cocaine

from Smith. Sanchez’s testimony included a description of how, on at least one occasion, Smith

     1
         Several expert witnesses also testified about drug dealing practices.

                                                    2
had sent another person to New York to pick up the cocaine powder and deliver the payment, and

that on another occasion a woman had accompanied Smith to New York so that she could sample

his purchase to ensure that it was of appropriate quality. McGriff testified that she would go to

Wesley’s house to pick up her purchase of cocaine powder, and that at least once Wesley had

collected her payment.

       Wesley also testified that, prior to his arrest, Smith had put a gun to his head and

threatened to kill him should he ever talk to law enforcement officials about Smith’s drug-related

activities. During a side-bar conference in the middle of Wesley’s direct testimony, a Deputy

United States Marshal observed Smith raise his hand to shield his mouth and whisper something

to Wesley. Wesley testified that Smith had mouthed to him, “You’re dead.” The District Court

allowed Wesley to testify about the threatening remark Smith had allegedly made, concluding

that the evidence was relevant under Fed. R. Evid. 404(b) because it tended to show

consciousness of guilt. The District Court instructed the jury on the limited purpose for which

the evidence was deemed relevant, and the purposes for which the evidence was not to be used.

        During closing arguments, the Government argued to the jury that the testimony, if

believed, of any one of the four government witnesses referred to by the Government as Smith’s

co-conspirators was sufficient to convict Smith of conspiracy.2 The jury subsequently found

Smith guilty of conspiracy.



   2
    The Government’s argument was as follows: “The government called four former co-
conspirators of Tim Smith. Let me call them cooperating witnesses. If you believe only
one of them, Tim Smith is guilty of conspiracy. That’s all it takes, the testimony of any
one of them if believed will satisfy the legal instructions the Court gave you with respect
to the requirements of conspiracy.”

                                                 3
2.       Discussion

         A.     Charge to the Jury

         Smith argues that the Government invited the jury to convict him on legally insufficient

evidence by instructing the jury that Smith could be convicted on the testimony of any of the

Government’s four fact witnesses, referred to by the Government as Smith’s four co-

conspirators. Smith argues that because neither Sanchez nor McGriff could legally be considered

Smith’s co-conspirators, if the jury were to have believed only Sanchez’s or McGriff’s testimony,

that evidence would be legally insufficient to convict him of conspiracy. Because it is impossible

to tell from the jury’s verdict what testimony they did believe, Smith argues that his verdict must

be overturned. He concedes that because he raised no objection to the Government’s statement,

our review is for plain error affecting a substantial right. United States v. Brown, 254 F.3d 454,

462 (3d Cir. 2001); Fed. R. Crim. P. 52(b).

         We do not agree with Smith’s ultimate conclusion. If the Government characterized

witnesses as co-conspirators and those witnesses legally could not have been considered co-

conspirators, then that characterization was error.3 But the admission of that statement is not


     3
    We decline the Government’s invitation to conclude that the statement that “[t]he
government called four former co-conspirators of Tim Smith” was not error because the
prosecutor immediately corrected himself by referring to the four as “cooperating
witnesses.” The prosecutor did not admit that characterizing these witnesses as co-
conspirators was an error or a slip of the tongue. Rather, he said “[l]et me call them
cooperating witnesses,” thereby implying that the witnesses could be correctly described
either as co-conspirators or as cooperating witnesses. This is not a situation where the
prosecutor’s garbled syntax made a statement ambiguous and subject to interpretation
either as a correct or as an incorrect statement of the law. See Brown, 254 F.3d at 465
(dismissing challenge to a “mere prosecutorial slip of the tongue” where prosecutor’s
closing argument included vague statement in half-sentence form that was “immediately
corrected with a proper reference”). Instead we have a clear sentence using the term “co-

                                                 4
plain error unless the error could have affected the jury’s verdict. Fed. R. Crim. P. 52(b); see

also United States v. Walker, 153 F.3d 180, 188 (3d Cir. 1998) (“In order to be plain error, an

error must not only be obvious, it must also have affected the outcome of the District Court

proceeding.”) (citing United States v. Bethancourt, 65 F.3d 1074, 1079 (3d Cir. 1995)); see also

United States v. Turcks, 41 F.3d 893, 898 (3d Cir. 1994) (“Because the burden of establishing

prejudice is one that [the defendant] bears, we will reverse only if [the defendant] can show that

the erroneous charge actually affected the jury’s verdict in his case.”).

       We are unconvinced by Smith’s argument that this alleged misstatement affected the

jury’s verdict. That argument is based on the faulty premise that the jury could only rely on the

testimony of a co-conspirator to find evidence of the agreement necessary to convict Smith of

conspiracy. To have evidence sufficient to convict Smith of conspiracy, the evidence before the

jury needed to include the following elements: “(1) a unity of purpose between the alleged

conspirators; (2) an intent to achieve a common goal; and (3) an agreement to work together to

achieve that goal.” United States v. Pressler, 256 F.3d 144, 149 (3d Cir. 2001) (citing United

States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999)). The Government needed to provide evidence

that the defendant conspired with “someone–anyone.” Pressler, 256 F.3d at 148. But that

evidence could come either from the testimony of the individual with whom the person conspired

or from the testimony of another person. The possible prejudicial effect of the Government’s

statement to the jury (that they would have sufficient evidence to convict Smith if they were to



conspirators,” followed by another clear sentence using the term “cooperating witness.”
In the absence of a clear correction or garbled syntax, we cannot conclude that the
characterization of the witnesses as co-conspirators was a mere misstatement and
therefore not error.

                                                  5
believe the testimony of any one of his four co-conspirators) does not depend on whether all four

witnesses were actually co-conspirators, but rather on whether the testimony of all four witnesses

included evidence that Smith conspired with another person.

       Because the testimony of all four witnesses included evidence from which the jury could

conclude that Smith conspired with another person to distribute cocaine, we determine that the

Government’s allegedly erroneous reference to all four of the Government fact witnesses as co-

conspirators did not affect the jury’s verdict. Smith concedes that the testimony of Wesley or

Moss, if believed, would be sufficient to convict him of conspiracy because both were his co-

conspirators.4 As the Government notes, the testimony of Sanchez included evidence that Smith

sent another person to New York to purchase and transport the cocaine powder from New York

to Bridgeton, and that Smith came to New York with another person who tested the quality of the

cocaine that Smith was purchasing. Further, the testimony of McGriff included evidence that,

when purchasing cocaine from Smith, she would go to Wesley’s house to obtain the cocaine, and

that on at least one occasion it was Wesley, not Smith, who gave her the cocaine and collected

her payment. Because the testimony of each witness contained evidence sufficient to convict

Smith of conspiracy, the Government’s possibly erroneous statement did not affect the outcome

of the District Court proceedings, and as a result could not be plain error.

       B.      Admission of Death Threat Evidence

       Smith argues that Wesley should not have been permitted to testify about Smith’s

allegedly threatening comment. Under Fed. R. Evid. 404(b), evidence of a defendant’s other bad



   4
    Because the question whether the other two Government witnesses could legally be
considered Smith’s co-conspirators is ultimately immaterial, we do not address it.

                                                  6
acts is not admissible “to prove a defendant’s propensity for crime or to suggest to the jury

unfavorable inferences reflecting on his character.” United States v. Scarfo, 850 F.2d 1015, 1018

(3d Cir. 1988). It is admissible, however, for other purposes, such as “proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

Fed. R. Evid. 404(b).

       Smith contends that the District Court failed properly to analyze whether the evidence

was admissible.5 Admissibility under Rule 404(b) requires: “(1) a proper evidentiary purpose;

(2) relevance under [Fed. R. Evid.] 402; (3) a weighing of the probative value of the evidence

against its prejudicial effect under [Fed. R. Evid.] 403; and (4) a limiting instruction concerning

the purpose for which the evidence may be used.” United States v. Mastrangelo, 172 F.3d 288,

294-95 (3d Cir. 1999) (citing Huddleston v. United States, 485 U.S. 681, 692 (1988)). We hold

that while the District Court did not fully weigh the probative value of the evidence against its

prejudicial effect, our own review demonstrates that the probative value likely outweighed its

prejudicial effect. And to the extent that it did not, any error in admitting the evidence was

harmless.

       To begin, we note that the District Court’s analysis complied with prongs one, two and

four of the Mastrangelo test. Smith does not challenge the District Court’s analysis under the



   5
    We reject the Government’s argument that because Smith failed to raise an
appropriate objection we must review the District Court’s conclusion only for plain error.
Smith’s counsel did object to the introduction of the evidence, and did not limit the
objection, stating that “based on what the Court has read of Guerrero, and I have not[,] let
me be clear for the record[,] read the case, but the appropriate sections that the court has
cited, I would submit, Judge, that it is inappropriate to have that information before the
jury.”

                                                 7
first two prongs of that test. It is well-established in this Court that threat evidence is relevant to

show consciousness of guilt, a permitted purpose under Rule 404(b). United States v. Guerrero,

803 F.2d 783, 786 (3d Cir. 1986). Further, the District Court satisfied the fourth prong of the

Mastrangelo test by properly giving a limiting instruction. The District Court “recogniz[ed] the

need for an appropriate cautionary limiting instruction to instruct the jury that they are not to

utilize this evidence for an improper purpose, but rather for the limited purpose of demonstrating

consciousness of guilt of the defendant.”

        Smith argues that the District Court failed to analyze correctly, under the third prong of

the Mastrangelo test, whether the probative value of the evidence outweighed its prejudicial

effect. The admission of Rule 404(b) evidence is a matter left to the discretion of the District

Court, provided the Court “explains how the probative value of the evidence outweighs its

prejudicial effect.” Id. If the District Court does not explain, “and the record does not clearly

support the finding of probative value, the court of appeals will do the balancing itself.” Id.

        In Guerrero, 803 F.2d at 786, our Court noted the factors that should be considered when

weighing the probative value of threat evidence under Fed. R. Evid. 403. A court should

consider “the importance and centrality to the ultimate issue in the case of the fact sought to be

prove[n] by the threat evidence, and the availability of other evidence to establish the fact sought

to be proven by use of the threat evidence.” Id. at 786. To assess the prejudicial effect of

evidence, a court should consider “the tendency of the particular conduct alleged to suggest

decision on an improper basis, commonly, though not necessarily, an emotional one; the nature

or style of the specific witness’s narrative; the likelihood that the testimony is true; and the

sufficiency of the other evidence presented to make a reasonable connection between the


                                                   8
defendant and the offense charged[; and] . . . the extent to which any possible inflaming of the

jury can be cured by limiting instructions either at the time the testimony is tendered or when the

case is submitted to the jury.” Id.

       The District Court’s analysis, while citing to the Guerrero case, does not explicitly

discuss the factors set forth above. The Court concluded that the evidence was probative under

Rule 404(b) to show consciousness of guilt, but that “the government doesn’t need this

evidence.” In discussing the evidence’s prejudicial effect, the Court stated that because “the

communication was made spontaneously by the defendant himself[,] I do not think that he can

now be heard to complain that the prejudice he suffers as a result of his own communication

outweighs the probative value of the evidence.” The District Court’s conclusion--that because

Smith’s communication was spontaneous he has somehow waived the right to object to the

evidence as prejudicial--is confusing, as it is not clear how the spontaneity of the statement is

relevant to the analysis either of probativeness or prejudice.6

       Because the District Court did not fully explain “how the probative value of the [death

threat] evidence outweighs its prejudicial effect,” we will do the balancing ourselves.

Mastrangelo, 172 F.3d 288, 294-95. The balance favors the Government.



   6
    The reference to the spontaneity of the defendant’s statement is perhaps related to an
earlier comment of the District Court, which noted that the threat in question was “not
introduced by the government but rather called to the attention of the court spontaneously
by the witness.” The District Court thus may have been trying to convey that, because the
evidence was not introduced by the Government, it was not necessary to analyze it under
Fed. R. Evid. 403. This distinction is unhelpful, and in any case not descriptive. While
the threat was first brought to the attention of the Court by the witness, the Government
actively pursued the introduction of this evidence.


                                                  9
       First, the evidence was highly probative. Guerrero, 803 F.2d at 786 (noting that death

threats made to a testifying witness are “highly probative of consciousness of guilt.”). There

was, however, other evidence that showed Smith’s consciousness of his own guilt. Wesley had

previously testified, without objection, that Smith had on another occasion threatened Wesley

with death.    While the fact that evidence of a previous death threat had already been presented

to the jury does, to some extent, reduce the probative value of this evidence, so too does it reduce

any possible prejudicial effect. If evidence of death threats might suggest to the jury an

improper basis for its decision, Smith opened the door by not objecting to testimony of his earlier

death threat to Wesley.

       Moreover, none of the other Guerrero factors are implicated by this evidence. The fact

that a marshal observed Smith whisper something to Wesley increases the likelihood that the

evidence was true. And there was sufficient evidence presented to make a reasonable connection

between Smith and a conspiracy to sell narcotics. Finally, any remaining prejudicial effect was

mitigated by the fact that the District Court gave the jury a limiting instruction. We conclude that

the probative value of this evidence outweighed its possible prejudicial effect.

       We further note that, to the extent that the prejudicial effect of this evidence did outweigh

its probative value, and the evidence was therefore erroneously admitted, that error was harmless.

United States v. Cross, 308 F.3d 308, 326 (3d Cir. 2002) (noting that “the improper admission of

evidence does not require reversing a conviction if it is highly probable that the error did not

contribute to the judgment”). In this case, it is highly probable that the error, if any, in admitting

the death threat evidence did not contribute to the judgment because the jury had already heard

evidence that Smith had threatened Wesley with death.


                                                 10
                                 *   *   *    *   *

We affirm the verdict of the jury.




                                         11
TO THE CLERK:

     Please file the foregoing Opinion.



                                          By the Court,



                                            /s/ Thomas L. Ambro
                                                Circuit Judge




                                            12
