United States v. Halteh

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-5245

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

NICK HALTEH,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CR-05-68)

Argued: January 31, 2007 Decided: March 15, 2007

Before WILKINS, Chief Judge, and WILLIAMS and DUNCAN, Circuit
Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: John Cady Kiyonaga, KIYONAGA & KIYONAGA, Alexandria,
Virginia, for Appellant. Olivia Rose Hussey, Special Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee. ON BRIEF: Chuck Rosenberg,
United States Attorney, Jonathan L. Fahey, Assistant United States
Attorney, Michael Davis, Special Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

This is an appeal from a conviction for conspiracy to obstruct

interstate commerce by robbery, in violation of 18 U.S.C. § 1951,

and using a firearm in furtherance of the conspiracy, in violation

of 18 U.S.C. §§ 2 and 924(c)(1). Appellant Nick Halteh

("Appellant") argues that the district court erred in suppressing

evidence of his prior acquittal in state court of charges relating

to a robbery at issue in the federal proceeding and by denying his

motion for a mistrial when the government elicited evidence from a

witness concerning Appellant's gang affiliation. For the reasons

that follow, we find no error in the district court's rulings on

these issues.

Appellant further contends that his Sixth Amendment right to

confrontation was violated in two respects: (1) by admission of a

911 call in contravention of Crawford v. Washington, 541 U.S. 36,

53-54 (2004) and (2) by admission of the statements of his

nontestifying codefendant, in which references to Appellant were

redacted and replaced with neutral pronouns. Because both the

caller and the operator involved in the admitted 911 call testified

in Appellant's trial, giving him the opportunity to confront them,

we find that Crawford is not implicated. Additionally, the

statements of Appellant's nontestifying codefendant were

appropriately redacted and the jury instructed to consider these

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only against Appellant's codefendant. We therefore affirm

Appellant's conviction.

I.

Appellant and Joshua Fritter were tried jointly for crimes

relating to a conspiracy that resulted in three robberies of drug

dealers within a ten-day span. In the first robbery, Appellant

planned to rob Christopher Campero, a marijuana dealer, and

recruited other men to help him. On the date of the robbery,

Appellant, Milton Jurardo, and another friend entered Campero's

home, where Campero was sleeping. Jurardo bludgeoned Campero to

death with a crow bar, and the three intruders ransacked the home

for marijuana. Campero's mother discovered her son's body upon her

return to the home. Mrs. Campero called 911 to report the murder,

describing the battered body and the blood-spattered state of the

room. Mrs. Campero testified at trial, and the tape of her 911

call was played for the jury. The 911 operator testified as well.

Appellant did not cross-examine either the mother or the operator.

In the second robbery, Appellant and four others entered

marijuana-dealer Chi Hoon Han's home. Appellant beat Han with a BB

gun and stole valuables from his home.

In the third robbery, Appellant, Jurardo, and Pierre Alvarez

planned a marijuana deal with dealer Siro Alexander Hernandez. At

Jurardo's suggestion, the three picked up a real gun from his uncle

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before the meeting. Appellant inspected the gun, which the

conspirators planned to use along with the BB gun Appellant had

used to beat Han. At the meeting, Hernandez got into a car with

the three conspirators, sitting in the back seat next to Jurardo.

When Hernandez stopped complying with instructions from the three,

however, Jurardo fired the gun at him. Alvarez punched and dragged

Hernandez from the car. Jurardo then shot Hernandez execution-

style, which miraculously did not kill him. Appellant, Jurardo,

and Alvarez then torched the car, which had been damaged and

bloodied during the altercation.

Appellant was arrested and charged in Virginia state court

with, inter alia, the aggravated malicious wounding of Hernandez.

The state charges related only to crimes involving Hernandez, the

third victim of Appellant's crime spree that underpins the federal

conspiracy charges. While in jail awaiting his state-court trial,

Appellant wrote a letter to Fritter urging him to offer Hernandez

a bribe to drop the charges against him and to threaten Hernandez's

life. Appellant was ultimately acquitted of the state charges.

Fritter, however, turned the letter over to police, and it was

admitted into evidence in the federal prosecution.

Appellant was later arrested, along with Fritter and Alvarez,

and charged with conspiring to affect interstate commerce by

robbery, in violation of 18 U.S.C. § 1951, and using a firearm in

furtherance of the conspiracy, in violation of 18 U.S.C. §§ 2 and

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924(c)(1). Alvarez entered into a plea agreement with the

government.

Before the trial of Appellant and Fritter, the government

moved in limine to exclude reference to Appellant's acquittal of

the state charges. The district court granted the motion,

directing the parties to refer to the state proceedings as "another

proceedings [sic] related to this case" or "another hearing in

connection with this case," and barring any reference to

Appellant's acquittal. J.A. 357.

Nevertheless, at trial a government witness referred to the

state proceedings as a "previous hearing," not using the exact

phrasing as directed by the court. J.A. 1499. Appellant did not

object to this phrasing at trial. Later, the government sought to

introduce tapes of telephone conversations made by Appellant while

he was in jail awaiting trial on the state charges. In laying the

foundation for introducing the tapes, the government asked a

jailer-witness if Appellant was an inmate at the jail. Appellant

objected after the entire foundation was laid, arguing that he

would be prejudiced if the jury knew he was in jail but never

learned that he was acquitted of those charges. The district court

overruled the objection.

The district court also granted Appellant's motion in limine

to exclude reference to Appellant's gang membership, declaring it

unduly prejudicial. Nevertheless, at trial the government asked

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Jurardo, called by the United States as a witness, a question to

which Jurardo's response revealed that Appellant was a member of a

street gang. Appellant moved for a mistrial. The district court

immediately admonished the government and issued a curative

instruction to the jury, telling jurors "to disregard entirely the

witness'[s] statement." J.A. 1431. The district court denied

Appellant's motion for a mistrial.

Finally, the district court admitted the out-of-court

statements regarding the charged crimes that Fritter had made to a

detective. The district court did, however, require that the

statements be redacted to supplant references to Appellant with

neutral pronouns (i.e., "friend" or "individual"). J.A. 1495,

1497. In its final jury instructions, the district court

instructed the jury not to consider Fritter's statements in the

case against Appellant, but rather only to consider them against

Fritter himself.

The jury returned a verdict convicting Appellant on both

counts and acquitting Fritter. Appellant now appeals, making three

arguments which we consider in turn.

II.

We first consider Appellant's argument that the district court

erred in suppressing evidence of his acquittal on state charges

relating to the robbery and attempted murder of Hernandez. As

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noted above, Appellant was tried and acquitted in Virginia state

court for the aggravated malicious wounding of Hernandez and sought

to introduce this evidence in his federal trial on conspiracy

charges relating not only to the robbery and attempted murder of

Hernandez but also to two other incidents.

We review the district court's evidentiary rulings for abuse

of discretion. United States v. Moore, 27 F.3d 969, 974 (4th Cir.

1994). Although the Fourth Circuit has never specifically

addressed the admissibility of a verdict of acquittal in a prior

state proceeding relating to the same conduct at issue in a federal

proceeding, doing so requires a straightforward application of the

rules governing the admissibility of evidence generally. Such

rules, of course, include an assessment of whether the risk of

confusion of the issues from evidence's introduction substantially

outweighs its probative value. See Fed. R. Evid. 403. Several

other circuits to have confronted this precise evidentiary question

have upheld a lower court's exercise of its discretion to exclude

a verdict of acquittal in a prior state proceeding. See, e.g.,

United States v. Smith, 145 F.3d 458, 462 (1st Cir. 1998); United

States v. Tirrell, 120 F.3d 670, 678 (7th Cir. 1997); United States

v. Riley, 684 F.2d 542, 546 (8th Cir. 1982). We are aware of no

case, and Appellant cites to none, in which a court held such an

exclusion to be an abuse of discretion.

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 Rather, the courts in the opinions cited above have concluded

that the district courts did not abuse their discretion in

excluding evidence of an acquittal, reasoning that the fact of

acquittal on a different charge arising out of the same criminal

conduct is simply not relevant to a later trial on another charged

crime. See, e.g., Tirrell, 120 F.3d at 678; Riley, 684 F.2d at

546. A prior acquittal, especially when the elements of the

charged crimes are different, does not tend to prove innocence.

Additionally, the limited probative value of an acquittal on prior

charges relating to the same conduct at issue in a later trial may

be substantially outweighed by the danger of unfair prejudice or

jury confusion. See Fed. R. Evid. 403; United States v. Kerley,

643 F.2d 299, 300-01 (5th Cir. 1981). We are unpersuaded that the

district court abused its discretion in so concluding here.

Appellant argues further that even if the district court's

initial decision to exclude the evidence of his state-court

acquittal was appropriate, the government "opened the door" to this

evidence at two points during the trial: (1) when a witness

referred to "a previous hearing" rather than the using the exact

language the district court had prescribed for referring to the

relevant state court proceedings and (2) when evidence revealed

that Appellant had been in jail.

Our precedent is clear that otherwise inadmissible evidence

may be permitted for the limited purpose of removing any unfair

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prejudice injected by an opposing party's "open[ing] the door" on

an issue. United States v. Higgs, 353 F.3d 281, 329-30 (4th Cir.

2003). Such rebuttal evidence "must be reasonably tailored to the

evidence it seeks to refute," and its admission or exclusion, like

all evidentiary rulings, is "addressed to the sound discretion of

the trial judge." United States v. Stitt, 250 F.3d 878, 896-97

(4th Cir. 2001).

For example, in Higgs, the defendant offered as mitigating

evidence testimony that he was a model prisoner and that he was

working to establish a positive relationship with his son. 353

F.3d at 329. In rebuttal, the government was permitted to

introduce otherwise inadmissible evidence of the defendant's prison

infractions. Id. The district court instructed the jury that such

rebuttal evidence was only to be considered for the limited purpose

of rebutting the defendant's mitigating evidence. Id. at 330.

We hold here, however, that the district court did not abuse

its discretion in refusing to admit evidence of Appellant's

acquittal after the government introduced the evidence described

above. We fail to see how the government witness's reference to "a

previous hearing" rather than "another hearing in connection with

this case"--a reference to which Appellant did not object at trial-

-bears the potential to prejudice Appellant. Furthermore, we find

no abuse of discretion in the district court's overruling

Appellant's objection to the evidence that he had previously been

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in jail, which objection was lodged only after a foundation for

that evidence had been laid. Appellant's objection to this

evidence was not that it was prejudicial but rather that it was not

accompanied by evidence that he was acquitted. See J.A. 1469-70.

Given the tardiness and limited scope of Appellant's objection, we

find no abuse of discretion in the district court's overruling it.

The district court could have reasonably concluded that such

additional evidence was not "reasonably tailored" to the evidence

it sought to explain, that Appellant was incarcerated at one time

in the past. Stitt, 250 F.3d at 897.

Finding no error in the district court's exclusion of evidence

of Appellant's state-court acquittal on charges relating to the

robbery and attempted murder of Hernandez, we now turn to

Appellant's argument that his motion for a mistrial was improperly

denied.

III.

Appellant next argues that a government witness's mention of

his gang affiliation required that a mistrial be declared and that

the district court erred in denying his motion for a mistrial. The

denial of a motion for mistrial is reviewed for abuse of

discretion. United States v. Dorlouis, 107 F.3d 248, 257 (4th Cir.

1997). The reversal of a district court's denial of a motion for

a mistrial is only warranted when there is a "reasonable

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possibility that the jury's verdict was influenced by . . .

improper[] . . . material." United States v. Seeright, 978 F.2d

842, 849 (4th Cir. 1992) (internal quotations omitted).

Prior to trial, the district court granted Appellant's motion

to suppress reference to a gang to which Appellant and Fritter

allegedly belonged, because none of the charges related to gang

activity. Here, however, the government was not the first party to

introduce the specter of gang involvement. In his opening

statement, Appellant's counsel referred to the victim Campero's

alleged membership in the same gang to which Appellant and Fritter

allegedly belonged. Next, Fritter's counsel cross-examined the

witness Jurardo about gang involvement without objection by

Appellant. It was not until redirect examination of Jurardo that

the government elicited a response that both Appellant and Fritter

were members of a gang. At this point, Appellant moved for a

mistrial. The district court reprimanded the government, denied

the motion, and issued an immediate curative instruction to the

jury:

Ladies and gentlemen, just a moment ago, Mr. Jurardo made
a statement and I want to address it right away. And, I
instruct you as follows . . . . First, there is no
evidence in this case that either Mr. Nick Halteh or Mr.
Joshua Fritter were members of any gang. And there is no
evidence that any of the actions alleged in the
indictment are in any way gang[-]related. You are
instructed to disregard entirely the witness'[s]
statement that Mr. Halteh and Mr. Fritter were members of
any gang. This is not a gang case.

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J.A. 1430-31. At the end of the trial, the district court

reiterated that "the defendants are not on trial for any act or

conduct not specifically charged in the indictment." J.A. 1699.

The government maintains that its questioning of Jurardo in

this regard was appropriate, because the codefendants opened the

door by using evidence about gangs to place the victims and

witnesses in a negative light as compared to the codefendants. We

need not reach that issue, however, because of our conclusion that

any error in the government's eliciting of testimony about

Appellant's gang membership was harmless.

In reaching that conclusion, we rely on the three-factor

framework introduced in United States v. Nyman, 649 F.2d 208, 211-

12 (4th Cir. 1980), examining (1) the closeness of the case; (2)

the centrality of the issue affected by the error; and (3) the

district court's mitigating steps. Id. Here, we find that all

three factors weigh in favor of denying the motion for a mistrial.

First, this case was not close. The evidence against

Appellant, including physical evidence and his letter to Fritter

from jail, was substantial. Second, gang membership was not a

central issue in the case; it was, at most, a tangential matter.

Appellant was not charged with gang activity. Indeed, the fact

that Fritter was acquitted despite mention that he, too, was a gang

member supports our conclusion that the jury was able to consider

the evidence underlying the conspiracy charges independently from

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the taint of the gang-affiliation comment. Finally, the district

court immediately chastised the government for eliciting the

testimony regarding Appellant's and Fritter's gang affiliations and

issued curative jury instructions. We therefore conclude that the

district court did not abuse its discretion in denying Appellant's

motion for a mistrial.

IV.

Finally, Appellant argues that his rights under the

Confrontation Clause of the Sixth Amendment were violated by the

admission of (1) a transcript of Campero's mother's 911 call and

(2) the statements of his nontestifying codefendant Fritter.

Alleged Confrontation Clause violations are legal issues we review

de novo. United States v. Rivera, 412 F.3d 562, 566 (4th Cir.

2005).

A.

The Confrontation Clause bars "admission of testimonial

statements of a witness who did not appear at trial unless he was

unavailable to testify, and the defendant had had a prior

opportunity for cross-examination." Crawford, 541 U.S. at 53-54.

A 911 call, the "primary purpose [of which] was to enable police

assistance to meet an ongoing emergency," is admissible over a

Confrontation Clause challenge, because it is considered

nontestimonial. Davis v. Washington, 126 S. Ct. 2266, 2277 (2006).

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The Supreme Court suggested, however, that portions of 911 calls

may be testimonial, as where an emergency situation is neutralized

and a caller's statements "evolve into testimon[y]." Id. at 2277.

Because both Campero's mother and the 911 operator testified at

Appellant's trial, however, we need not reach the issue of when a

911 call becomes testimonial.

Crawford's holding explicitly applies only to "[t]estimonial

statements of witnesses absent from trial" for which no prior

opportunity to cross-examine was available. See Crawford, 541 U.S.

at 59 (emphasis added). Appellant's argument that Crawford

requires exclusion of the 911 call even though both the caller and

operator appeared at trial is untenable. A Confrontation Clause

violation does not occur when the witness is before the court and

subject to cross-examination about her prior testimonial statement.

That a defendant opts not to cross-examine the witness does not

compel a different conclusion. Even if part of the 911 call at

issue could be considered testimonial under Crawford and Davis, and

we express no opinion on that point, the appearance of both the

caller and the 911 operator as trial witnesses available for cross-

examination negated any Confrontation Clause violation that could

flow from its admission.

B.

We turn now to Appellant's contention that the admitted out-

of-court statements of the nontestifying codefendant Fritter also

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violated Appellant's Confrontation Clause rights. Fritter gave

several statements to a police detective that corroborated evidence

against Appellant and himself. The district court permitted these

statements to be admitted into evidence with Appellant's name

redacted and replaced with neutral pronouns. Fritter's out-of-

court statements were discussed at the following points of the

trial: Fritter's cross-examination of Jurardo; Appellant's cross-

examination of the detective to which the statements were given;

and in both the government's and Fritter's closing arguments. The

statements noted that a "friend" had a stash of marijuana just

after the Campero murder, and that Fritter surmised that "maybe

this individual had something to do with the murder." J.A. 1495.

Fritter's out-of-court statements also revealed that an "individual

told him that he had pistol[-]whipped . . . [an] Asian kid." J.A.

1497-98. The jury did not see copies of Fritter's statements, nor

were they told of any modifications to them. Furthermore, the

district court issued instructions advising that jurors "may not in

any way . . . consider the alleged statements of the defendant, Mr.

Joshua Fritter when evaluating the case against Mr. Nick Halteh and

determining whether the government has proven the charges against

Mr. Halteh." J.A. 1684-85.

The seminal case of Bruton v. United States, 391 U.S. 123

(1968), prohibits admission of a statement of a nontestifying

codefendant "if it could be fairly understood to incriminate the

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accused." United States v. Campbell, 935 F.2d 39, 43 (4th Cir.

1991). However, if a nontestifying codefendant's statement is

redacted to eliminate any reference to the defendant, Richardson v.

Marsh, 481 U.S. 200, 211 (1987), or if "the defendant's name is

replaced by a symbol or neutral pronoun," United States v. Vogt,

910 F.2d 1184, 1191-92 (4th Cir. 1990), such statement is

admissible. If a proffered statement of one nontestifying

codefendant becomes incriminating against another by virtue of an

inference from other evidence at trial, the Confrontation Clause

may not be offended if those statements are redacted and a proper

limiting jury instruction is given. Richardson, 481 U.S. at 208-

09; see also United States v. Locklear, 24 F.3d 641, 646 (4th Cir.

1994).

On the other hand, redactions that obviously identify the

defendant, even without naming him, effect a constitutional

violation that cannot be cured by a jury instruction. See Gray v.

Maryland, 523 U.S. 185, 195-96 (1998). Gray differentiates between

statements that incriminate by inference or only when linked with

later evidence and those that obviously refer to a particular

person or involve inferences a jury could make even without

additional evidence. Id. at 196. Only in the latter instance does

a constitutional violation occur. Id.

For example, in response to the question, "Who was in the

group that beat [the victim]?," the response "Me, deleted, deleted,

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and a few other guys" obviously incriminates two codefendants of

the crime of murdering the victim. See id. After Gray, however,

this court has continued to allow general references to "another

person" or "another individual" in such statements, because "[t]he

Supreme Court has strongly implied that such statements do not

offend the Sixth Amendment." United States v. Akinkoye, 185 F.3d

192, 198 (4th Cir. 1993). The implication to which Akinkoye refers

is the Supreme Court's explicit pondering in Gray about "why could

the witness not, instead, have said: 'Question: Who was in the

group that beat [the victim]? Answer: Me and a few other guys,'"

suggesting that such a neutral response would have been acceptable.

See Gray, 523 U.S. at 196.

In Akinkoye, nontestifying codefendants' confessions were

retyped, with the defendants' respective names replaced with the

neutral phrase "another person" or "another individual," and the

statements were read to the jury. 185 F.3d at 198. So redacted,

neither confession facially implicated the other defendant. Id.

We find no constitutional violation on the facts of

Appellant's case. The redacted statements here are like those in

Akinkoye and unlike the offending statements in Gray. In Gray, the

deleted reference to the defendants appeared in a statement

regarding the ultimate issue in the case; on trial for murder, the

defendants' names were redacted in response to the direct question

of who beat the victim. It was clear to the jury upon hearing the

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nontestifying codefendant's response that the statement had been

altered by the deletion of two names. Gray, 523 U.S. at 196.

Here, as in Akinkoye, there was no way to facially identify the

"friend" or "individual" as Appellant after hearing the redacted

statements without more information; there were four named

conspirators in the indictment. Also, unlike in Gray, it would

have been unclear to the jury that the statements had been altered

at all.

Indeed, only when Fritter's out-of-court statement is linked

with in-court testimony, which Appellant had an opportunity to

challenge through cross-examination, might one infer that the out-

of-court statement refers to Appellant. For example, Jurardo

testified at trial that Appellant emerged from Campero's home after

Campero's murder with a quantity of marijuana. It is this in-court

statement that creates an inference that the "friend" of Fritter's

whom he believed might have "had something to do with [Campero's]

murder" was Appellant. See J.A. 1495. Additionally, the second

robbery victim Han testified at trial that Appellant struck him

with a pistol. Only when linked with this in-court testimony does

Fritter's statement that an "individual told him that he had

pistol[-]whipped . . . [an] Asian kid" implicate Appellant. See

J.A. 1497-98.

Richardson holds that where a nontestifying codefendant's

redacted out-of-court statement identifies the defendant by

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implication when linked with evidence at trial, such statement is

admissible so long as a proper limiting jury instruction is given.

481 U.S. at 208-09. Here, the district court issued jury

instructions admonishing jurors not to consider Fritter's out-of-

court statements in the case against Appellant.

We therefore find no constitutional violation in either the

admission of the 911 call or Appellant's non-testifying co-

defendant's redacted out-of-court statement. Having also concluded

that the district court did not abuse its discretion in suppressing

evidence of Appellant's prior state-court acquittal or in denying

Appellant's motion for a mistrial, Appellant's conviction is

AFFIRMED.

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