                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           NOV 30 2000
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,


 v.                                                      No. 00-2052
 ALEXIS MIRANDA,                                  (D.C. No. CR-98-935-BB)
                                                         (D. N.M.)
          Defendant-Appellant.



                                ORDER AND JUDGMENT       *




Before KELLY, ANDERSON,            and BRISCOE , Circuit Judges .


      Alexis Miranda appeals his four convictions under 21 U.S.C. § 841 on the

ground that the trial court erred by excluding evidence of bias on the part of the

police. We affirm.

                                          I.

      Miranda was one of approximately thirty defendants charged with various

drug offenses as a result of a Drug Enforcement Administration (DEA) task force



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
investigation. His defense to the charges was that he was misidentified on the

videotapes. He was acquitted. According to Miranda, law enforcement officers

present when the acquittal was announced were hostile and looked at him with

hatred. After the acquittal, Juan Valencia, Miranda’s attorney, advised Miranda

to leave town because of the hostility of law enforcement officers toward him.

The events giving rise to the present prosecution occurred sometime after the

acquittal.

      According to testimony at the trial in the present prosecution, Albuquerque

Police Detective Jay Rajaee purchased $20 rocks of cocaine from Miranda on

October 19 and 23, 1998. After the October 19 purchase, DEA Special Agent

Steve Lillerd contacted Rajaee to inform him that he had seen Miranda while he

was conducting surveillance in a separate investigation. Lillerd had been the co-

case agent in the case where Miranda was acquitted. On October 28, Police

Officer Andrew Perez purchased a rock of crack cocaine from Miranda using a

marked $20-bill. Miranda was arrested approximately five minutes later. The

$20-bill was not found, but a bag containing six rocks of crack cocaine was

found. At trial, Miranda sought to introduce testimony from Valencia that law

enforcement officials had reacted with hostility to Miranda’s acquittal and that

Valencia had warned Miranda to leave town. The trial court refused admission of

the testimony, concluding it was not relevant and was prejudicial. A jury


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convicted Miranda of three counts of distributing cocaine base and one count of

possession with intent to distribute, in violation of 21 U.S.C. § 841. Miranda

was sentenced to thirty-three months in prison.

                                           II.

       We review the trial court’s decision to exclude evidence for an abuse of

discretion. See United States v. McVeigh , 153 F.3d 1166, 1199 (10th Cir. 1998),

cert. denied , 526 U.S. 1007 (1999). We will not find an abuse of discretion

unless we develop a definite and firm conviction that the trial court made a clear

error of judgment.   See United States v. Levine , 970 F.2d 681, 688 (10th Cir.

1992).

       “‘Relevant evidence’ means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” Fed. R.

Evid. 401. Evidence of witness bias is generally considered relevant.    See United

States v. Abel , 469 U.S. 45, 52 (1984). However, evidence of a prior acquittal is

generally not considered relevant except as it affects questions of double

jeopardy or collateral estoppel.   See United States v. Jones , 808 F.2d 561, 566

(7th Cir. 1986).

       Miranda argues that Valencia’s testimony would have supported his

defense that the police had framed him because they were biased against him as a


                                           3
result of the prior acquittal. A similar issue was raised in    United States v.

Gambino , 818 F. Supp. 536, 539 (E.D. N.Y. 1993). Gambino sought to introduce

evidence of his prior acquittal to show the government’s bias toward him. The

court concluded such evidence was not relevant, noting that “[i]t takes a quantum

leap of logic and a fractured syllogism to say that evidence of an acquittal tends

to make government bias more probable than it would be without that evidence.”

Id.    Since Valencia would have testified about law enforcement officials in

general rather than about any specific officer, his testimony would have added

little. To get from Valencia’s testimony to the conclusion that Miranda was

framed would require many leaps of logic. Valencia’s testimony is not probative

enough to be considered relevant.      1
                                           Even if the evidence was relevant, any error

by the trial court in excluding it was harmless. “A non-constitutional error, such

as a decision whether to admit or exclude evidence, is considered harmless

‘unless a substantial right of [a] party is affected.”     United States v. Charley , 189

F.3d 1251, 1270 (10th Cir. 1999) (quoting Fed. R. Evid. 103(a)),         cert. denied ,

120 S. Ct. 842 (2000). Miranda argues that the error was not harmless because

the officers’ credibility was critical to the government’s case. There are several


       1
         The trial court found that whatever probative value the testimony might
have was outweighed by its confusing and prejudicial effect. We agree. A
general indictment of law enforcement with no specific allegations regarding any
officer testifying or involved with the current case is likely to confuse the jury
and cause the jury to erroneously distrust the testimony of all police officers.

                                               4
bases to support the conclusion that any error made with respect to admission of

this evidence was harmless.

      First, Miranda himself testified that the law enforcement officials looked at

him with hatred and that he was advised to leave town. Valencia’s testimony,

while potentially more credible than Miranda’s, would have been duplicative.

      Second, Miranda’s testimony would have supported the alleged bias of

officers who were in the courtroom at the time the acquittal was announced.

None of the officers who were involved in the drug purchases at issue in the

present case (and whose testimony was most important for the government) were

in the courtroom when the acquittal was announced. In fact, there is no evidence

that any of the law enforcement officials in the courtroom when the acquittal was

announced were involved in this case in any manner.

      Third, the evidence against Miranda in the present case was very strong.

Two officers testified that they had purchased rocks of cocaine from Miranda on

three separate occasions and the jury heard audiotapes of two of the drug

purchases. A bag containing rocks of cocaine was found near Miranda on the

night that he was arrested and was located where Perez saw Miranda bury it.

None of this evidence is directly refuted by Valencia’s proffered testimony.

      Fourth, only Lillerd’s testimony is arguably placed in question by

Valencia’s testimony. However, counsel conceded at oral argument there is no


                                         5
evidence that Lillerd was in the courtroom when the acquittal was announced so

Valencia’s testimony would not directly place either Lillerd’s motives or

testimony in question. Further, Lillerd’s role in the present case was minor. His

testimony helped establish the chain of evidence with respect to the rocks of

crack cocaine that Miranda sold to Rajaee. Lillerd also laid the foundation for

admission of exhibits. He testified that he saw Miranda on the street the day of

the first drug purchase and he called Rajaee to inform him of Miranda’s

presence.   2
                Even if Valencia’s testimony would have cast doubts in the minds of

the jury about Lillerd’s credibility, it is unlikely those doubts would have

resulted in a different verdict because of the relative unimportance of Lillerd’s

testimony.

      AFFIRMED.

                                                Entered for the Court

                                                Mary Beck Briscoe
                                                Circuit Judge




      2
         Miranda argues that Lillerd’s call to Rajaee proves bias. However,
Rajaee had already made the first drug purchase at the time of the call and there
is no reason to believe that Lillerd’s call was part of a set up.

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