12-412-cr
United States v. Dixon

                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 6th day of February, two thousand thirteen.

PRESENT: PIERRE N. LEVAL,
         REENA RAGGI,
         DEBRA ANN LIVINGSTON,
                    Circuit Judges.

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UNITED STATES OF AMERICA,
                   Appellee,
               v.                                                                       No. 12-412-cr

LUTHER DIXON,
                                       Defendant-Appellant.
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APPEARING FOR APPELLANT:                                   JEFFREY L. CICCONE (Jay S. Ovsiovitch , on
                                                           the brief), Federal Public Defender’s Office,
                                                           Western District of New York, Rochester,
                                                           New York.

APPEARING FOR APPELLEE:                                    STEPHAN J. BACZYNSKI, Assistant United
                                                           States Attorney, for William J. Hochul, Jr., United
                                                           States Attorney for the Western District of New
                                                           York, Buffalo, New York.

          Appeal from a judgment of the United States District Court for the Western District

of New York (David G. Larimer, Judge).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on January 11, 2012, is AFFIRMED.

       Defendant Luther Dixon appeals from a judgment of conviction, following a jury trial,

for possessing crack cocaine and powder cocaine with intent to distribute in violation of 21

U.S.C. § 841(a)(1). Dixon faults the district court’s jury instructions and evidentiary rulings

regarding immunized defense witness Maranda Triplett.               He further complains of

prosecutorial misconduct in the cross-examination of Triplett and in summation. We assume

the parties’ familiarity with the facts and record of prior proceedings, which we reference

only as necessary to explain our decision to affirm.

1.     Jury Instructions

       Dixon argues that the district court erred in instructing the jury to scrutinize Triplett’s

testimony with particular care based on her immunity and past drug use. We review a

challenged jury instruction de novo, see United States v. Males, 459 F.3d 154, 156 (2d Cir.

2006), to determine if it “misled the jury as to the correct legal standard or did not adequately

inform the jury on the law,” United States v. Goldstein, 442 F.3d 777, 781 (2d Cir. 2006).

We will vacate the conviction only if we identify “error [that] was prejudicial; we will not

disturb the judgment if the error was harmless,” i.e. “if it is clear beyond a reasonable doubt

that a rational jury would have found the defendant guilty absent the error.” Id.

       Here, we identify no error in the challenged immunity instruction. The fact that

Triplett testified for the defense rather than the prosecution did not eliminate the credibility

concerns that attend a grant of immunity. See United States v. Gleason, 616 F.2d 2, 15 (2d

Cir. 1979) (“[T]estimony of certain types of witnesses may be suspect and should therefore

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be scrutinized and weighed with care, such as . . . those who have been granted immunity

. . . .”); see also United States v. Lawrence, 934 F.2d 868, 873 (7th Cir. 1991) (“Even if, as

here, the testimony of an immunized witness unexpectedly runs in favor of the defense, a trial

court does not abuse its discretion by advising the jury to view it with caution and great

care.” (internal quotation marks omitted)). Nor did the court err in failing to tell the jury why

Triplett was granted immunity.         Dixon cites no authority—and we are aware of

none—requiring a trial court to provide such information to the jury. Finally, the district

court did not mislead the jury in stating that Triplett “agreed to testify,” J.A. 176, as opposed

to “was subpoenaed to testify.” Triplett testified that she was not “forced” to come to court,

id. at 124, which suggests that she ultimately agreed to testify for Dixon. But even assuming

error in this last respect, we think it clear beyond a reasonable doubt from the totality of the

evidence that the jury would have found Dixon guilty in any event.1

       The district court also correctly instructed the jury regarding Triplett’s drug use. See

United States v. Valdez, 16 F.3d 1324, 1334 (2d Cir. 1994) (stating that district court has

discretion to give charge related to drug use). Contrary to Dixon’s assertions, the record

reflects evidence of Triplett’s admitted drug and alcohol use during the time period relevant

to this case. Indeed, she testified that, on the night she called 911 to report that Dixon had

guns and drugs in his car, she was drinking.

       Accordingly, we reject Dixon’s jury instruction challenge as meritless.


       1
        The government contends that Dixon’s failure to object to the word “agreed” in the
charge limits our review to plain error. Because Dixon’s claim fails even under de novo
review, we need not reach this argument.

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2.     Prosecutorial Misconduct

       Dixon faults the prosecution for accusing Triplett on cross-examination of being a liar.

He further complains that the prosecution repeated the accusation in summation, referenced

Triplett’s assertion of her Fifth Amendment rights, and made “factually untrue” statements.

Appellant Br. 48. To warrant reversal of a conviction, prosecutorial misconduct “must be

so severe and significant as to result in the denial of the[] right to a fair trial.” United States

v. Locascio, 6 F.3d 924, 945 (2d Cir. 1993). “In evaluating such a claim, we consider: (1) the

severity of the alleged misconduct; (2) the curative measures taken; and (3) the likelihood

of conviction absent any misconduct.” Id. at 945–46.

       While the prosecution’s repeated use of the words “lie” and “liar” in cross-examining

Triplett was sometimes argumentative, it was not inflammatory given Triplett’s admission

to numerous lies and material omissions in a case in which her credibility was a significant

issue. See United States v. Coriaty, 300 F.3d 244, 255 (2d Cir. 2002) (“Use of the words

‘liar’ and ‘lie’ to characterize disputed testimony when the witness’s credibility is clearly in

issue is ordinarily not improper unless such use is excessive or is likely to be inflammatory.”

(internal quotation marks omitted)). The same conclusion obtains with respect to the

government’s summation argument that Triplett “lied” to law enforcement about the

circumstances surrounding Dixon’s arrest and was “not telling the truth” on the stand. J.A.

167. That argument was not so inflammatory that it denied defendant a fair trial. See United

States v. Coriaty, 300 F.3d at 255. To the extent that Dixon suggests for the first time on

appeal that the prosecutor thereby sought to substitute his assessment of Triplett’s credibility

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for that of the jury, this belated argument is unpreserved, see United States v. Wagner-Dano,

679 F.3d 83, 89 (2d Cir. 2012) (applying plain-error review to argument raised for first time

on appeal), and, in any event, is unpersuasive, see United States v. Walker, 191 F.3d 326,

337 (2d Cir. 1999) (identifying no reversible error where government’s characterization of

testimony “was fair argument, with an adequate evidentiary basis in the record”).

       Insofar as Dixon faults the prosecution for referencing Triplett’s invocation of the

Fifth Amendment, the record defeats the argument, showing that the government referenced

only the fact that the it had granted Triplett immunity and that she submitted to a polygraph.

This was not improper. See United States v. Natale, 526 F.2d 1160, 1172 (2d Cir. 1975)

(rejecting claim of prosecutorial misconduct based on cross-examination of defense witness

about immunity, stating that “fact that immunity is provided does not always imply that a

Fifth Amendment refusal to testify has first occurred”). In any event, even if the prosecution

had referenced Triplett’s assertion of her Fifth Amendment rights, that would not have

prejudiced Dixon in this case. Dixon offered Triplett’s testimony to prove that the drugs

found in Dixon’s car were hers, not his. If that testimony were truthful, Triplett’s invocation

of the Fifth Amendment would have been entirely consistent with her testimony and the

purpose for which Dixon offered it.

       As for alleged prosecutorial misstatements during summation about Triplett’s refusal

to talk to law enforcement officers and about her purchase of drugs on credit, even assuming

those statements were not proper argument based on the evidence, they did not deprive Dixon

of a fair trial. In light of the many facts cited by the government during summation that

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undermined Triplett’s credibility, including her lack of access to Dixon’s car and her post-

arrest conversations with Dixon about the events surrounding his arrest, the alleged

misstatements would not have altered the outcome of Dixon’s trial. See United States v.

Rodriguez, 968 F.2d 130, 142 (2d Cir. 1992) (“It is a rare case in which improper comments

in a prosecutor’s summation are so prejudicial that a new trial is required.” (internal

quotation marks omitted)).

3.     Evidentiary Rulings

       Dixon argues that the district court erred in excluding as hearsay out-of-court

statements made by Triplett after Dixon was arrested in which Triplett expressed remorse and

claimed to have placed the drugs at issue in Dixon’s car. We review a district court’s

decision to exclude a statement as hearsay for abuse of discretion, see United States v.

Forrester, 60 F.3d 52, 59 (2d Cir. 1995), and we perceive no such abuse here.

       The district court reasonably refused to admit the statements at issue because

Triplett’s purportedly remorseful state of mind after Dixon’s arrest was not, by itself,

relevant. See Fed. R. Evid. 401, 803(3). Insofar as the statements conveyed a factual

assertion, i.e., that Triplett had put the drugs in Dixon’s car, such “a statement of memory or

belief to prove the fact remembered or believed” is not admissible under the federal rules.

Fed. R. Evid. 803(3); see United States v. Harwood, 998 F.2d 91, 98 (2d Cir. 1993)

(observing that “statement must face forward, rather than backward” to be admissible under

Rule 803(3)).



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       The court likewise acted within its discretion in declining to admit Triplett’s

statements as substantive evidence under Rule 801(d)(1)(B) because the motive to fabricate

alleged by the prosecution at trial—Triplett’s feelings of guilt about reporting Dixon to the

police and pressure from Dixon’s family to take the blame—had already arisen at the time

these statements were made. See Tome v. United States, 513 U.S. 150, 167 (1995) (holding

that prior consistent statements are admissible under Rule 801(d)(1)(B) “only when those

statements were made before the charged recent fabrication or improper influence or

motive”); accord United States v. Caracappa, 614 F.3d 30, 39 (2d Cir. 2010).2 Triplett’s

statements also were not admissible for the limited purpose of rehabilitating her credibility,

because her statements had no “‘rebutting force beyond the mere fact that [Triplett] ha[d]

repeated on a prior occasion [] statement[s] consistent with [her] trial testimony.’” United

States v. Al-Moayad, 545 F.3d 139, 167 n.24 (2d Cir. 2008) (quoting United States v. Pierre,

781 F.2d 329, 331 (2d Cir. 1986)).

       Finally, with respect to Triplett’s statement contained in ATF Special Agent

Hoffman’s report, regardless of whether the report itself satisfied a hearsay exception,



       2
         Insofar as Dixon argues that the statements were offered to rebut the alleged motive
to fabricate arising from Triplett’s immunity, the district court did not commit reversible
error in excluding the statements. Even assuming those statements were admissible under
Rule 801(d)(1)(B) because they were made before the prosecution granted Triplett immunity,
we would deem their exclusion harmless in light of the significant motive to fabricate that
existed before Triplett made the statements and the other evidence submitted by the
government undermining her credibility. See United States v. Bautista, 252 F.3d 141, 146
(2d Cir. 2001) (holding district court error in admitting prior inconsistent statement
harmless).

                                              7
Triplett’s statements recorded in the report constituted a second level of hearsay that, for

reasons already discussed, did not fall within an exception permitting their admission. See

United States v. Cruz, 894 F.2d 41, 44 (2d Cir. 1990) (holding statements recorded in report

inadmissible, because “[e]ach hearsay statement within multiple hearsay statements must

have a hearsay exception in order to be admissible”).

       We have considered Dixon’s remaining arguments and conclude that they are without

merit. The judgment of the district court is AFFIRMED.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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