Case: 09-40116 Document: 00511109161 Page: 1 Date Filed: 05/12/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 12, 2010
No. 09-40116
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN FITZGERALD RICE, JR.; SARAH LYNN CORMIER,
Defendants-Appellants.
Appeals from the United States District Court
for the Eastern District of Texas
Before GARWOOD, SMITH, and CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
John Rice and Sarah Cormier appeal their convictions of carjacking and
related offenses. They raise various claims of error and prosecutorial miscon-
duct. We affirm.
I.
One day in December 2007, Cormier and Rice joined Aldrain Booker, Kei-
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No. 09-40116
sha Guidry, Joshua Hayward, and William Staunton in search of people to rob.
The group first went to a local bingo hall, where Rice and Hayward discussed
robbing a woman who had just won the big prize. They all piled into Guidry’s
car, and Rice told Stanton, who was driving, to follow the woman home. When
they arrived there, Rice retrieved his gun through the armrest and exited the ve-
hicle. But by the time he reached the house, the garage door was almost closed,
so he returned to the car, and the group drove away.
Later that night, Cormier and Rice came up with a plan to order pizza to
an abandoned house and then steal the delivery man’s pizza, money, and car.
Cormier called the pizza restaurant but learned that they did not deliver after
9 p.m.
The group then decided to drive to a grocery store to get something to eat.
When they reached the parking lot, Rice spotted an older couple, whom the
group followed home. On the way, they discussed wrapping the couple in duct
tape and taking their money and car. At the couple’s house, Rice and Hayward
exited the vehicle and ran toward their targets. As Rice and Hayward ap-
proached, the elderly man pulled out his phone and threatened to call the police.
Rice and Hayward then retreated to Guidry’s car.
Next, the group drove to a convenience store at a gas station where one of
Booker’s friends, Danial Reynolds, was working. After four members of the
group entered the store, Cormier asked Reynolds whether they could rob him
and later split the profits. Reynolds seemed to think she was joking and disre-
garded the proposal.
Finally, only a few minutes later, Amanda Weeks approached the gas sta-
tion in her car, and Rice ordered Stanton to park across the street so they could
observe Weeks. After Weeks used her debit card to pay for gas, Rice told Stan-
ton to follow her home so they could steal her money and car. While the car fol-
lowed Weeks, Rice once again retrieved his gun from behind the armrest.
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When Weeks arrived at her residence and opened her car door, she saw a
man, later identified as Rice, walk up and point a gun at her head. He told her
to get into the passenger seat, then shoved her into it. Rice drove Weeks to a
nearby ATM and ordered her to switch seats and withdraw as much money as
possible. He also told her not to do anything stupid and that he had “done this
before.” Weeks withdrew $200 and gave it to Rice.
Rice drove to a nearby credit union and told Weeks that he was keeping
her car to wipe off fingerprints. He ordered her out of the car, told her to lie on
the ground until he left, and drove away.
Throughout the incident, Stanton, Cormier, Booker, Hayward, and Guidry
followed Rice and Weeks in Guidry’s car. After Rice dropped off Weeks, the rest
of the group stopped in front of him at an underpass. Rice gave Cormier $20,
and Booker got in Weeks’s car with Rice. They proceeded to take her car to an
abandoned house, where the group stole various items from the car and wiped
off fingerprints. When they returned to Guidry’s trailer, Rice took the gun in-
side, and Booker hid it under the sofa cushions.
After reviewing videotape from the gas station, police officers went to
Guidry’s trailer. When they entered, one officer observed Rice and Hayward
pushing down into the couch cushions. He ordered them to stand up, and the
other officers soon discovered the gun used to rob Weeks the night before.
Booker, Guidry, and Stanton gave written statements to the police re-
garding their involvement in the incident. They all indicated that Rice held the
gun to Weeks’s head and took her car and money. Cormier stated that she re-
membered visiting the gas station with the others but got tired of waiting and
slept through the entire incident.
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II.
A.
Rice, Cormier, Hayward, Booker, Stanton, and Guidry were charged with
conspiracy to commit carjacking in violation of 18 U.S.C. § 371, carjacking and
aiding and abetting a carjacking in violation of 18 U.S.C. §§ 2 and 2119(1), and
brandishing and aiding and abetting the brandishing of a firearm in relation to
a carjacking in violation of 18 U.S.C. §§ 2 and 924(c)(1). Rice was also charged
with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
Before the trial of Rice and Cormier, the government gave notice of its in-
tent to introduce evidence of Rice’s extrinsic crimes, wrongs, or bad acts under
Federal Rule of Evidence 404(b). Those other acts included (1) a robbery he com-
mitted in August 2002; (2) a robbery he committed in October 2002 at a Domin-
o’s Pizza restaurant, for which he was sentenced to fifteen years’ imprisonment;
and (3) a robbery he committed in July 2007, at a seafood restaurant, for which
a trial was pending in state court.
After briefing, the district court ruled that it would admit evidence of those
acts for the purpose of proving intent. It also found that the government’s evi-
dence of the several uncharged attempted robberies during the night of the
charged offenses was admissible as intrinsic evidence.
Also before trial, Rice moved to sever the charge of being a felon in posses-
sion of a firearm. He requested that the court conduct a separate trial on that
count or bifurcate his trial. The district court denied that motion.
Several days later, Rice’s counsel withdrew at Rice’s request, and the dis-
trict court allowed Rice to proceed pro se with appointed counsel as standby. At
a pretrial hearing, Weeks heard Rice speak and informed the prosecutor that she
could identity his voice as belonging to the person who carjacked her.
The prosecution then informed Rice and the court of its intent to introduce
Weeks’s voice identification. Rice unsuccessfully moved to suppress that evi-
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dence. The court then allowed Rice to cross-examine Weeks regarding her recol-
lection of the carjacking. After cross-examination, the district court reconsidered
Rice’s motion to suppress and denied it once again.
Shortly before trial, the prosecutor offered Cormier a plea agreement that
was contingent on Rice’s making a joint plea. Although Cormier had rejected a
plea offer, she indicated her wish to accept the new terms, but Rice was not will-
ing to plead guilty. Consequently, Cormier was not able to take the govern-
ment’s offer.
At trial, the government offered the testimony of Detective Alton Baise.
The prosecutor asked Baise whether he believed Cormier’s statement that she
slept through the incident. He indicated that he did not believe her, and Cor-
mier made no objection. The government then offered testimony from Weeks,
Reynolds, and the four other co-conspirators.
During closing arguments, the prosecutor reminded the jury of Weeks’s
testimony that her assailant said he had “done this before.” The prosecutor then
suggested that, because Rice was the only member of the group who had previ-
ously been convicted of robbery, the assailant’s statement helped to prove that
Rice was the one holding the gun to Weeks’s head. There was no objection.
The jury convicted Rice and Cormier on all counts. The court denied Rice’s
motion for a new trial.
B.
On appeal, Rice argues that (1) the government committed prosecutorial
misconduct by suggesting that the jury could consider his previous robbery con-
victions to prove identity; (2) the district court improperly admitted extrinsic
evidence of those robberies to prove intent; (3) the court improperly admitted evi-
dence of other offenses leading up to the carjacking as intrinsic to the charged
crimes; (4) the court erroneously denied Rice’s motion to sever the felon-in-pos-
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session charge; (5) the government violated Brady v. Maryland by failing to pro-
vide Rice with evidence of a witness’s previous convictions; (6) the court erred in
admitting voice identification evidence from Weeks; and (7) the court erred in
denying a motion for a mistrial on the basis of Weeks’s purportedly perjured tes-
timony. Cormier contends that (1) the district court erred in allowing Baise to
give his opinion of her truthfulness; and (2) the government committed prosecu-
torial misconduct by offering her a plea deal contingent on Rice’s joint plea.
III.
We review a district court’s response to allegations of prosecutorial miscon-
duct for abuse of discretion, for which a defendant must show that (1) the prose-
cutor made an improper remark and (2) the remark affected his substantial
rights. See United States v. Gracia, 522 F.3d 597, 600 n.2 (5th Cir. 2008). We
also apply an abuse-of-discretion standard to evidentiary rulings, United States
v. Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005), to the denial of a motion for sever-
ance, United States v. Holloway, 1 F.3d 307, 310 (5th Cir. 1993), and to the deni-
al of a motion for new trial on the basis of perjury, Johnson v. Offshore Explora-
tion, Inc., 845 F.2d 1347, 1357-59 (5th Cir. 1988). Whether identification evi-
dence comports with due process is a mixed question of law and fact that we re-
view de novo. United States v. Honer, 225 F.3d 549, 552 (5th Cir. 2000).
Where an error is not contemporaneously objected to at trial, however, we
review only for plain error. United States v. Gallardo-Trapero, 185 F.3d 307, 321
(5th Cir. 1999). To meet that more stringent standard, a defendant must demon-
strate that (1) there was error, defined as a deviation from a legal rule; (2) it was
plain, defined as obvious; and (3) it affected his substantial rights, defined as
prejudicially affecting the outcome of the trial. Id. at 322. Reversible plain error
is that which seriously affects the fairness, integrity, or public reputation of judi-
cial proceedings. Id.
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IV.
Rice raises seven issues on appeal, Cormier two. We first address the
claims made by Rice and then those made by Cormier, following the order in
which the arguments are presented.
A.
1.
Rice claims the government committed prosecutorial misconduct by sug-
gesting that the jury consider his previous robbery convictions for the purpose
of identification. There is no reversible error.
In accordance with Federal Rule of Evidence 404(b), the government gave
Rice notice of its intent to introduce extrinsic evidence of his previous convic-
tions. At a rule 404(b) hearing, the government argued that Rice’s robbery con-
victions were admissible to prove that he acted with the legally-required level
of intent and that he was the person who held the gun to Weeks’s head. Over
Rice’s objection, the district court ruled the convictions admissible “for the limit-
ed purposes of determining the intent exception under 404(b).” The court decid-
ed, however, that the convictions were not admissible to prove the identity of the
carjacker, because they were not sufficiently similar to the charged crimes to
qualify for the identity exception under rule 404(b).
During closing arguments, the prosecutor began commenting on how the
jury could identify Rice as the carjacker, then stated,
And another thing I want you to remember, ladies and gentle-
man, is a very important statement that was made during this car-
jacking wasSSby the person who did hold this gun to Ms. Weeks’
head was “I’ve done this before.”
You heard testimony from four other co-defendants. Nobody else
has been convicted of a robbery. No other evidence of any other per-
son has ever held a gun to anybody’s head, but this man sitting
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right here.
Ladies and gentlemen of the jury, I submit to you that that indi-
cates and supports Ms. Weeks’ testimony that John Fitzgerald Rice,
Jr. is the person who held her at gunpoint.
During its rebuttal closing argument, the government returned to the same
point:
Ladies and gentlemen, there wereSSyou heard that the defendant
was convicted of some crimes. You can use those crimes, as [the oth-
er prosecutor] discussed with you, to decide the robber was the only
one who had done this before, committed robberies before. The de-
fendant was the only one there is any evidence of committing any
other robbery.
Rice argues that those statements exceeded the limited purpose for which evi-
dence of his previous robberies was admitted and amounts to prosecutorial mis-
conduct that affects his substantial rights.
Rice’s pre-trial objection was not sufficient to preserve the claim of prose-
cutorial misconduct. To preserve an argument for appeal, an objection must be
contemporaneous to the alleged error. United States v. Mares, 402 F.3d 511, 515
(5th Cir. 2005). Rice made no objection to the prosecutor’s comments during ei-
ther the closing argument or rebuttal. Therefore, we review only for plain error.
Rice has demonstrated that the prosecutor’s comments regarding the use
of extrinsic evidence to prove identity were error. In the first statement quoted
above, the prosecutor argued that Rice was the only one who had been convicted
of robbery, so the assailant’s statement that he had “done this before” shows that
Rice “is the person who held [Weeks] at gunpoint.” During the government’s re-
buttal, the prosecutor told the jury that it could use Rice’s previous convictions
to decide whether the robber in the present case was the only one in the group
who had committed robberies before. Given that the court had specifically ex-
cluded identity as a proper purpose for introducing extrinsic evidence of the pre-
vious robberies, the prosecutor’s suggestion that those robberies help to prove
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that Rice was the carjacker constituted trial error.
Even assuming arguendo that that error was plain, however, Rice cannot
show that the remarks affected his substantial rights. Although the comments
were erroneous, they were minimal and harmless in the context of the entire
trial. The statements occupy only a few lines in a record that spans several
thousand pages. More importantly, the prosecution presented overwhelming
evidence that Rice was the one who carjacked Weeks, including consistent state-
ments and testimony from his accomplices, testimony from the lead police inves-
tigator, and voice identification by the victim. There is nothing near a reason-
able possibility that, without the prosecutor’s improper statements, Rice would
have been acquitted of any charge. Therefore, the claim of prosecutorial miscon-
duct does not survive plain error review.
2.
Rice argues that the district court abused its discretion in admitting ex-
trinsic evidence of his previous robberies for the purpose of proving intent.
There is no reversible error.
Rule 404(b) governs the admissibility of evidence of prior crimes or bad
acts:
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan, knowl-
edge, identity, or absence of mistake or accident, provided that upon
request by the accused, the prosecution in a criminal case shall pro-
vide reasonable notice in advance of trial, or during trial if the court
excuses pretrial notice on good cause shown, of the general nature
of any such evidence it intends to introduce at trial.
F ED. R. E VID. 404(b). In United States v. Beechum, 582 F.2d 898, 911 (5th Cir.
1978) (en banc), this court laid out the two-step test for admission of extrinsic
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evidence of prior offenses or other misconduct under rule 404(b). “First, it must
be determined that the extrinsic offense evidence is relevant to an issue other
than the defendant’s character. Second, the evidence must possess probative
value that is not substantially outweighed by its undue prejudice and must meet
the other requirements of rule 403.” Id.
Rice claims that his previous robberies were not sufficiently similar to the
charged crimes to be relevant and were too remote in time to be probative of his
guilt. Even if we were to agree that the district court abused its discretion in
admitting the extrinsic evidence, Rice cannot show that his substantial rights
were prejudiced. As noted above, the prosecution presented overwhelming evi-
dence of his guilt on all charges. Because he suffered no prejudice from the ad-
mission of extrinsic evidence, any error under rule 404(b) was harmless and does
not require reversal.1
3.
Rice contends the district court erred in admitting evidence of the several
unindicted offenses he and his co-conspirators committed on the night of the car-
jacking. Specifically, the government introduced evidence that the group (1) at-
tempted to rob a woman who had just won a prize playing bingo; (2) tried to rob
a pizza delivery man; (3) attempted to rob an elderly couple Rice spotted at a
grocery store; and (4) sought to rob a convenience store. The court found that ev-
idence of those offenses helped to explain how the conspiracy came together,
placed the charged crimes in context, and completed the story behind the crim-
inal activity. The court therefore allowed the prosecution to present that evi-
dence, holding that those offenses were “intrinsic” to the charged crimes.
1
See United States v. Gutierrez-Farias, 294 F.3d 657, 663-64 (5th Cir. 2002) (stating
that abuse of discretion in admitting evidence does not require reversal where there is no rea-
sonable possibility that the improperly admitted evidence contributed to the conviction).
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To determine whether “other acts” evidence was erroneously admitted, we
must first decide whether the evidence was intrinsic or extrinsic. “‘Other act’
evidence is ‘intrinsic’ when the evidence of the other act and the evidence of the
crime charged are ‘inextricably intertwined’ or both acts are part of a ‘single
criminal episode’ or the other acts were ‘necessary preliminaries’ to the crime
charged.” United States v. Williams, 900 F.2d 823, 825 (5th Cir. 1990). Intrinsic
evidence is admissible to “complete the story of the crime by proving the immedi-
ate context of events in time and place,” United States v. Coleman, 78 F.3d 154,
156 (5th Cir. 1996), and to “evaluate all of the circumstances under which the de-
fendant acted,” United States v. Randall, 887 F.2d 1262, 1268 (5th Cir. 1989).
Intrinsic evidence does not implicate rule 404(b), and “consideration of its admis-
sibility pursuant to [that rule] is unnecessary.” United States v. Garcia, 27 F.3d
1009, 1014 (5th Cir. 1994).
Our discussion in Coleman, 78 F.3d at 156, is particularly instructive as
to whether the district court properly categorized the other offenses leading up
to the carjacking as “intrinsic.” In that case, the government offered evidence
that the defendants had attempted to carjack two luxury cars earlier in the day
before eventually carjacking a Mercedes. Id. The court found that evidence to
be “intrinsic,” because it “helped place the entire events of the evening in con-
text.” Id.
Coleman’s reasoning applies equally to this case. Rice’s four unsuccessful
robbery attempts and the carjacking of Weeks occurred within a few hours of
each other and involved the same group of co-conspirators. Presentation of those
previous attempts helped the government to paint the picture of a group com-
mitted to robbing someone that night and to explain how and why they decided
to victimize Weeks. Evidence of the other acts was intrinsic, because it allowed
the government to tell the whole story of a unified criminal episode. The court
did not abuse its discretion.
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4.
Rice posits that the district court abused its discretion in denying his mo-
tion to sever the charge of unlawful possession of a firearm by a convicted felon.
The district court correctly found, however, that joinder of his charges was ap-
propriate under Federal Rule of Criminal Procedure 8(a) and that severance was
not required under Federal Rule of Criminal Procedure 14(a).
Rule 8(a) provides that a defendant may be charged in a single indictment
for two or more offenses if they (1) are of the same or similar character; (2) are
based on the same act or transaction; or (3) are connected with or constitute
parts of a common scheme or plan. F ED. R. C RIM. P. 8(a). Once it is determined
that joinder is proper, the district court must decide whether it causes sufficient
prejudice to require severance under rule 14(a). Severance is required only in
cases of “compelling prejudice.” United States v. McIntosh, 655 F.2d 80, 84 (5th
Cir. Unit A Sept. 1981).
All of the charged offenses, including being a felon in possession of a fire-
arm, were based on the same criminal episode, so joinder was proper under rule
8(a). In addition, Rice fails to show specific and compelling prejudice that would
warrant reversal. Given the overwhelming evidence of his guilt, it is unlikely
that the felon-in-possession charge had any effect on the jury’s evaluation of the
other charges. Moreover, the judge gave a detailed limiting instruction to mini-
mize the chance of improper consideration of his previous convictions. Such in-
structions are generally “sufficient to prevent the threat of prejudice resulting
from unsevered trials.” United States v. Massey, 827 F.2d 995, 1005 (5th Cir.
1987). Therefore, the court did not abuse its discretion in denying a severance.
5.
Rice argues that the government violated Brady v. Maryland, 373 U.S. 83
(1963), by failing to disclose Booker’s prior juvenile adjudications and adult con-
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victions. Ordinarily, we review Brady questions de novo. United States v. Run-
yan, 290 F.3d 223, 245 (5th Cir. 2002). Brady claims, however, “present fact-
based judgments that cannot be adequately first made on appellate review. That
is why Brady challenges must be brought to the district court’s attention, win-
nowed by the trial judge, and made part of the record through a motion for new
trial.” United States v. Gonzales, 436 F.3d 560, 580 (5th Cir. 2006). Rice did not
call upon the district court to decide whether the government had violated Bra-
dy, nor did he move to reopen the verdict. Because he never properly raised any
Brady issues in the district court, we decline to review those issues on appeal.
6.
Rice avers that Weeks’s voice identification testimony violated due pro-
cess.2 For a particular identification to violate due process, it must be “so imper-
missibly suggestive as to give rise to a very substantial likelihood of irreparable
misidentification.” Roper v. Beto, 454 F.2d 499, 502 (5th Cir. 1972) (quoting
Simmons v. United States, 390 U.S. 377, 384 (1968)).
Several factors support the district court’s finding that Weeks’s identifica-
tion was reliable. First, she demonstrated a high level of certainty regarding her
identification. Both before and during trial, she expressed no doubt that Rice’s
voice was identical to the carjacker’s. Second, the evidence showed Weeks was
paying close attention to the perpetrator’s voice during the crime. She testified
that she responded immediately to his verbal commands and was able to de-
scribe in detail his distinctive way of speaking. Finally, although eight months
elapsed between the incident and the identification, the district court correctly
2
Rice did not raise an objection based on Federal Rule of Evidence 901(b)(5) in the dis-
trict court, and his brief on appeal does not sufficiently raise the issue so as to warrant our re-
view for plain error. See FED . R. APP . P. 28(a)(9)(A) (requiring that appellant’s brief contain
his “contentions and the reasons for them, with citations to the authorities and parts of the
record on which the appellant relies”). Accordingly, we address only Rice’s due process claim.
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found that, given Weeks’s specific and vivid recollections, the passage of time did
not give rise to a substantial likelihood of misidentification. Therefore, Weeks’s
testimony did not violate due process.3
7.
Rice alleges that the district court erred in denying his motion for a new
trial on the basis of Weeks’s purportedly perjured testimony. During cross-ex-
amination, Rice questioned Weeks about a photo lineup she viewed at the police
station after the incident. Rice asked Weeks whether she recognized the perpe-
trator in the picture at the station, and she responded, “Yes, but I don’t believe
it was documented.” The next morning, Rice unsuccessfully requested a mistrial
on the ground that Weeks had committed perjury, depriving him of a fair trial.
Rice has a plausible argument that Weeks, whether intentionally or not,
made false statements on the witness stand. She stated that, at the time of the
lineup, she was able to identify the perpetrator in the picture. Sergeant Kevin
White, however, testified that Weeks was unable to make a positive identifica-
tion of Rice at that time. Although Weeks insisted that she had made the identi-
fication, the remainder of her testimony indicates that she was never able to get
a good look at the perpetrator’s face.
Citing United States v. Agurs, 427 U.S. 97 (1976), Rice claims that his con-
viction is based on perjury and must be reversed. The Agurs Court, however,
distinguished between cases in which prosecutors acted in good faith and those
in which “a conviction [was] obtained by the knowing use of perjured testimony.”
Id. at 103. The Court held that only the latter situation constitutes prosecutorial
misconduct and that the resulting conviction must be set aside if there is a rea-
sonable likelihood that the false testimony could have affected the judgment of
3
See, e.g., Neil v. Biggers, 409 U.S. 188, 199-200 (1972) (analyzing totality of the cir-
cumstances to evaluate due process concerns raised by identification testimony).
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the jury. Id. at 103-04.
Just as in Agurs, there is no evidence that the prosecution knowingly pre-
sented perjured testimony. Weeks’s allegedly perjured statements were not elici-
ted by the government but instead came in response to Rice’s cross-examination.
Further, those statements conflicted with the case the prosecution was attempt-
ing to build, and their only likely effect was to undermine Weeks’s credibility.
In any event, given the other overwhelming evidence of guilt, it is highly unlike-
ly that Weeks’s misstatements had any effect on the verdict. The district court
did not abuse its discretion in denying a new trial.
B.
1.
Cormier’s first claim is that the district court erred in allowing Baise to
give his opinion of her truthfulness. At the end of the government’s direct exam-
ination of Baise, the prosecutor asked whether he had advised Cormier to get an
attorney because he did not believe her statement that she slept through the in-
cident. Baise answered in the affirmative. Cormier made no objection at trial
and now argues that the court should have excluded that answer.
As an initial matter, the record indicates that Baise’s response was not an
attempt to offer his opinion of Cormier’s truthfulness. Instead, it seems he was
merely explaining why he had advised her to get an attorney. Cormier did not
maintain at trial that she slept through the carjacking and therefore the prose-
cutor had no need to undermine her previous account of the event. Understood
in proper context, the challenged comment was not opinion testimony, and its
admission does not mandate a mistrial.
Even assuming (along with both parties), however, that Baise was offering
his opinion as to Cormier’s truthfulness, the failure to exclude that opinion was
not plain error. There is no reasonable possibility that Baise’s fleeting response
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had any effect on the verdict.
2.
Cormier claims that the government engaged in prosecutorial misconduct
by offering her a plea deal contingent on Rice’s joint plea. Cormier expressed a
willingness to accept the deal, but Rice refused to plead guilty. The prosecutor
declined to offer Cormier the same terms for an individual plea, and the case
went to trial. Although she made no objection in the district court, she now
claims that the government’s offer of a joint plea bargain violated due process.
It is well established that there is no constitutional right to plea bargain.
Weatherford v. Bursey, 429 U.S. 545, 561 (1977). It follows that defendants do
not have a right to plea bargain individually. Cormier offers no reason why the
government should be prohibited from conditioning a plea offer on a joint plea,
and she had no right to accept only her portion of the government’s offer. More-
over, contrary to her suggestions, the government did not “coerce” her into stand-
ing trialSSshe had already rejected a plea offer and remained perfectly free to
plead guilty to the crimes as charged. Because the government’s offer of a joint
plea was not prosecutorial misconduct, Cormier’s second claim also fails on the
first prong of plain error review.
Rice and Cormier demonstrate no reversible error. The judgments of con-
viction are therefore AFFIRMED.
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