United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 13, 2004 Decided March 8, 2005
No. 03-3024
UNITED STATES OF AMERICA,
APPELLEE
v.
GEORGE THOMAS COUMARIS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 01cr00438-01)
Leslie Ann Gerardo, appointed by the court, argued the
cause and filed the brief for appellant.
Valinda Jones, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Kenneth L. Wainstein,
U.S. Attorney, and John R. Fisher, Thomas J. Tourish, Jr.,
Barbara E. Kittay, and Stuart G. Nash, Assistant U.S. Attorneys.
Before: EDWARDS, HENDERSON, and GA RLAND, Circuit
Judges.
Opinion for the court filed by Circuit Judge GARLAND.
2
GARLAND, Circuit Judge: A jury convicted defendant
George Coumaris of conspiring to help another person evade
arrest by using fraudulent identification documents and Social
Security numbers. Coumaris challenges his conviction,
disputing several evidentiary rulings by the district court, and
also challenges his sentence. We affirm Coumaris’ conviction.
Upon the government’s motion, we remand the case for
resentencing in light of United States v. Booker, 125 S. Ct. 738
(2005).
I
In November 2002, a federal jury in the District of
Columbia convicted Coumaris, an attorney with the Internal
Revenue Service (IRS), of conspiring to commit crimes against
the United States, in violation of 18 U.S.C. § 371. The objects
of the conspiracy were to help Coumaris’ lover, Chris Jenkins,
evade arrest for violating probation and parole obligations in the
Commonwealth of Virginia, and to obtain and use fraudulent
identification documents and Social Security numbers in
furtherance of that end.
The government’s trial evidence showed that Jenkins and
Coumaris began their relationship in March 1998. At the time,
Coumaris was aware that Jenkins was on probation and parole
supervision in Virginia stemming from the latter’s 1989
convictions for burglary, grand larceny, and robbery, and that
the terms of Jenkins’ probation required him to abstain from
using alcohol. Nevertheless, Jenkins continued drinking, and in
December 1998 he failed a urinalysis test and was directed by
his probation officer to enter a 90-day inpatient treatment
program. After the 90 days, Jenkins was transferred to a
residential outpatient program that allowed him to work during
the day. Instead of working, Jenkins spent his days with
3
Coumaris, who falsely represented that he was Jenkins’
employer -- the fictitious “T and T Construction” company.
When Jenkins returned to the outpatient facility drunk one
day, he was ordered to enter an 18-month inpatient program.
Instead of enrolling in the program, Jenkins began hiding from
Virginia authorities at Coumaris’ home in the District of
Columbia. As a result, the Virginia Parole Board and the
Fairfax County Circuit Court issued warrants for Jenkins’ arrest.
Coumaris helped Jenkins evade the authorities by providing
him with false identification. Coumaris first obtained an
identification card for Jenkins in the name of Brian Flowers, one
of Coumaris’ former lovers. After Jenkins was arrested under
Flowers’ name for driving without a license, Coumaris gave
Jenkins identification belonging to another former lover, Louis
Geiman, who had died a few years earlier. In addition to
numerous membership cards, Coumaris helped Jenkins procure
West Virginia and District of Columbia voter registration cards,
a “Federal Identification System” card, and a West Virginia non-
driver’s identification card, all in Geiman’s name. To obtain
these cards, Coumaris and Jenkins used Flowers’ and Geiman’s
Social Security numbers.
In November 1999, Jenkins ended his relationship with
Coumaris and moved out of the latter’s home. After Jenkins left
him, Coumaris falsely reported to both Fairfax County, Virginia
and Washington, D.C. police that Jenkins had robbed him at
gunpoint, leading to another warrant for Jenkins’ arrest. Over
the next several months, Coumaris called the Fairfax County
police several times with information regarding Jenkins’
whereabouts, sometimes remaining anonymous and sometimes
identifying himself as an IRS agent.
4
Jenkins was finally arrested in March 2000 and spent almost
three months in pretrial detention on the false robbery charge.
Based on information that Jenkins provided after his arrest,
federal and state authorities began investigating Coumaris. In
May 2000, officers executed a search warrant at Coumaris’
home, where they discovered marijuana, drug paraphernalia, and
child pornography. Coumaris was subsequently interviewed by
a Metropolitan Police Department (MPD) officer and an FBI
agent about both the Jenkins conspiracy and the incriminating
evidence discovered in his home. In an effort to hinder their
investigation, Coumaris told the FBI’s Washington Field Office
that the MPD officer and FBI agent were trafficking drugs in his
neighborhood.
On December 7, 2001, a federal grand jury indicted
Coumaris on a single count of conspiracy, and on numerous
counts of fraud in connection with identification documents and
Social Security numbers. The case proceeded to trial in October
2002. At trial, Coumaris informed the court that he planned to
present several character witnesses, who would testify to his
honesty and truthfulness. The government filed an in limine
motion seeking permission to cross-examine those witnesses
about whether they had heard of several past acts by Coumaris
that were assertedly inconsistent with those character traits. In
response to the motion, the court first ruled that the government
would be allowed to cross-examine regarding Coumaris’ prior
arrests for grand larceny and shoplifting, and a District of
Columbia Court of Appeals opinion that found Coumaris to
have made false representations to a city regulatory board.
Upon hearing the trial court’s ruling, Coumaris’ counsel stated:
“I will listen to the other rulings, but I would suspect based upon
at least your initial ruling” that “I would just withhold any
character witnesses.” 10/29/02 p.m. Tr. at 15. The court then
ruled that it would also allow the government to cross-examine
the character witnesses about Coumaris’ importation of
5
marijuana from the Netherlands under a false name, and about
his non-consensual recording of telephone conversations made
by guests from his home. Coumaris never called the character
witnesses to testify.
During the trial, Coumaris also attempted to introduce as
exhibits a scrapbook and a police report. The scrapbook
contained memorabilia concerning Geiman, the former lover
whose identification Coumaris had given to Jenkins. The police
report concerned the anonymous telephone calls that Coumaris
had made about Jenkins. The court barred the introduction of
both exhibits.
The jury convicted Coumaris of conspiracy but deadlocked
on the remaining counts. The court declared a mistrial on the
deadlocked counts and, pursuant to the United States Sentencing
Guidelines, sentenced Coumaris to 48 months’ imprisonment on
the conspiracy count. Coumaris appealed, challenging the
court’s ruling on the in limine motion, its decisions barring
introduction of the scrapbook and police report, and its
calculation of the sentence.
After the parties filed their appellate briefs, the Supreme
Court decided Blakely v. Washington, 124 S. Ct. 2531, 2538
(2004), which held that Washington State’s determinate
sentencing regime violated the Sixth Amendment. Coumaris
then filed a letter with this court, pursuant to Federal Rule of
Appellate Procedure 28(j), contending that Blakely also cast
doubt on the constitutionality of the United States Sentencing
Guidelines. The day Coumaris’ letter was filed, the Supreme
Court granted certiorari in United States v. Booker, No. 04-104,
and United States v. Fanfan, No. 04-105, each of which
presented the question of whether an application of the
Guidelines violated the Sixth Amendment. We ordered the
parties to file supplemental briefs after Booker and Fanfan were
6
decided, and deferred resolution of this case until that time. On
January 12, 2005, in United States v. Booker, the Supreme Court
held that the imposition of enhanced sentences under the
Guidelines violated the Sixth Amendment, and that the statutory
provision that made the Guidelines mandatory had to be severed
and excised. 125 S. Ct. 738, 756 (2005). Thereafter, the
government moved to vacate Coumaris’ sentence and remand
for resentencing.
In Part II, we address Coumaris’ challenges to his
conviction. In Part III, we discuss the disposition of his
sentence in light of Booker.
II
A district court’s decision regarding the admissibility of
evidence or the scope of cross-examination constitutes error
only if it is an abuse of discretion. See United States v.
Whitmore, 359 F.3d 609, 616 (D.C. Cir. 2004); United States v.
White, 887 F.2d 267, 274 (D.C. Cir. 1989). If the defendant
timely objected to such an error at trial, appellate review is still
limited by the “harmless error” standard: an error may be
corrected only if it affects the defendant’s “substantial rights.”
FED . R. CRIM . P. 52(a). “[I]n most cases,” this “means that the
error must have been prejudicial: It must have affected the
outcome of the district court proceedings.” United States v.
Olano, 507 U.S. 725, 734 (1993). If the defendant did not
timely object at trial, review is limited by the “plain error”
standard: “[T]here must be (1) error, (2) that is plain, and (3)
that affect[s] substantial rights. If all three conditions are met,
an appellate court may then exercise its discretion to notice a
forfeited error, but only if (4) the error seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.”
Johnson v. United States, 520 U.S. 461, 466-67 (1997) (internal
7
citations and quotation marks omitted); see FED . R. CRIM . P.
52(b).1
With this understanding of the limitations on our authority,
we proceed to examine the evidentiary rulings that Coumaris
maintains require reversal of his conviction.
A
Coumaris first contends that the district court erred in
granting the government’s in limine motion to cross-examine his
proposed character witnesses as to whether they had heard (1)
that he had imported marijuana from the Netherlands using a
false name, and (2) that he had illegally recorded telephone
conversations without the consent of the participants. Coumaris
concedes that, when a defendant offers witnesses to testify
regarding his character, on cross-examination “inquiry is
allowable into relevant specific instances of conduct,” FED . R.
EVID. 405(a), “including prior convictions or arrests of the
accused,” United States v. Lewis, 482 F.2d 632, 638 (D.C. Cir.
1973). Coumaris Br. at 19. But Coumaris also correctly notes
that such inquiry is limited to instances that are relevant to the
traits of character about which the witnesses have testified. See
FED . R. EVID. 404(a)(1); Lewis, 482 F.2d at 638 (holding that a
character witness may be asked “whether he has heard reports
of particular events . . . which are inconsistent with the
reputation to which he has testified”). Coumaris’ counsel
notified the district court that he intended to call the character
1
The question of whether the defendant’s substantial rights were
affected “normally requires the same kind of inquiry” under the
harmless and plain error standards, “with one important difference.”
Olano, 507 U.S. at 734. Under the plain error standard, it “is the
defendant rather than the Government who bears the burden of
persuasion with respect to prejudice.” Id.
8
witnesses to testify to Coumaris’ honesty and truthfulness.
10/29/02 p.m. Tr. at 8. Coumaris contends that the two
instances of conduct in question go not to his honesty and
truthfulness, but to his general law-abidingness, which was not
to be the subject of the witnesses’ testimony.
Whatever its merits, Coumaris clearly waived his objection
to the district court’s in limine ruling by failing to call the
character witnesses to testify. In Luce v. United States, the
Supreme Court held that a defendant who elects not to testify
waives his right to challenge an in limine ruling that would have
allowed the government to use a prior conviction to impeach
him. 469 U.S. 38, 43 (1984). The Court concluded that, when
the defendant does not take the stand, any harm flowing from
the decision to allow the government to use the prior conviction
is “wholly speculative.” Id. at 41. As the Court explained:
The ruling is subject to change when the case unfolds,
particularly if the actual testimony differs from what
was contained in the defendant’s proffer. . . . When the
defendant does not testify, the reviewing court also has
no way of knowing whether the Government would
have sought to impeach with the prior conviction. . . .
[Additionally,] a reviewing court cannot assume that
the adverse ruling motivated a defendant’s decision not
to testify. . . . Even if these difficulties could be
surmounted, the reviewing court will still face the
question of harmless error. . . . Requiring that a
defendant testify in order to preserve [such] claims will
enable the reviewing court to determine the impact any
erroneous impeachment may have had in light of the
record as a whole . . . .
Id. at 41-42. We see no reason -- and Coumaris has not
suggested any -- why these considerations are not equally
9
applicable when it is a character witness, rather than the
defendant himself, who might have testified but for the in limine
ruling.
Moreover, in this case the conclusion that the defendant
waived his objection is even clearer than it was in Luce. Here,
the district court initially granted the government’s request to
cross-examine Coumaris’ character witnesses about three other
matters: Coumaris’ prior arrests for grand larceny and
shoplifting, as well as a District of Columbia Court of Appeals
opinion finding that Coumaris had made false representations to
the District’s Alcohol Beverage Control Board. Coumaris did
not object then -- and does not object now -- to the court’s ruling
that cross-examination on those topics was permissible. See
Coumaris Br. at 20 n.6. Rather, in response to that ruling,
Coumaris’ trial counsel said: “I would suspect based upon at
least your initial ruling on [the prior arrests], that I would just
withhold any character witnesses.” 10/29/02 p.m. Tr. at 15.
Counsel added that he would “talk it over with Mr. Coumaris,”
but “probably the character witnesses have already been
scratched based upon” the court’s initial ruling. Id.
Coumaris thus represented to the district court that he likely
would not call his character witnesses irrespective of the court’s
subsequent decision on the pseudonymous marijuana purchases
and the non-consensually recorded conversations. In this
context, any prejudice to Coumaris as a result of the court’s
decision to allow cross-examination on those topics is “wholly
speculative,” since we “cannot assume that the adverse ruling
motivated [the] decision not to” call the witnesses. Luce, 469
U.S. at 41-42. Accordingly, the conclusion that Coumaris
waived his objection follows a fortiori from Luce.
B
10
Coumaris also challenges the district court’s refusal to
admit two proposed exhibits.
The first rejected exhibit was a scrapbook containing
memorabilia of Coumaris’ deceased lover, Louis Geiman. The
scrapbook included identification documents belonging to
Geiman, as well as pictures and a funeral program. At trial, the
government proved that Coumaris had given Jenkins
identification documents in Geiman’s name, and that he had
helped Jenkins acquire other such documents. Coumaris sought
to introduce the scrapbook in order to demonstrate that he had
saved Geiman’s documents for “sentimental, not illicit,
reasons,” and that “Jenkins could have independently obtained
the information necessary to assume Geiman’s identity.”
Coumaris Br. at 22-23.
Coumaris correctly argues that the district court erred in
finding the scrapbook inadmissible because it contained hearsay.
As the defendant notes, he offered the scrapbook for the
nonhearsay purposes of showing why he had Geiman’s
identification documents and how Jenkins might have obtained
them, and not to prove the truth of the matters asserted by those
documents (e.g., Geiman’s identity). See FED . R. EVID. 801(c).
Nonetheless, we conclude that the error was harmless, because
it did not have a “substantial and injurious effect or influence in
determining the jury's verdict.” Kotteakos v. United States, 328
U.S. 750, 776 (1946); see United States v. Powell, 334 F.3d 42,
46 (D.C. Cir. 2003) (noting that the Kotteakos harmless error
standard is applicable to misapplications of the Federal Rules of
Evidence). Although the district court held that “the whole book
is not going to come in,” it permitted Coumaris’ witness to
describe the contents of the scrapbook to the jury and to testify
that the scrapbook was kept in a place that was accessible to
Jenkins. 10/29/02 p.m. Tr. at 89-91; see id. at 84-85. Indeed,
Jenkins himself testified that he had looked at the scrapbook and
11
had had access to it. 10/25/02 a.m. Tr. at 60; 10/28/02 a.m. Tr.
at 27-29. Any additional benefit that Coumaris would have
received from admission of the scrapbook itself was minimal
and speculative. See United States v. Warren, 42 F.3d 647, 656
(D.C. Cir. 1994) (finding a hearsay error harmless because the
excluded evidence “was cumulative of other evidence heard by
the jury”).
Coumaris’ second evidentiary challenge is to the district
court’s refusal to admit a police report “that detail[ed] what
police officers did in relation to an anonymous call . . . with
respect to arresting Christopher Jenkins.” 10/29/02 a.m. Tr. at
28-29. Coumaris offered the report to show that he had not
harbored Jenkins, but rather had assisted the Fairfax County
police in apprehending him. At trial, Coumaris offered -- and
the court rejected -- the report under the hearsay exception for
business records set forth in Federal Rule of Evidence 803(6).
On appeal, Coumaris argues that the report should have been
admitted either under Rule 803(6) or under Federal Rule of
Evidence 803(8)(C), which provides a hearsay exception
“against the Government in criminal cases” for reports setting
forth “factual findings resulting from an investigation made
pursuant to authority granted by law, unless the sources of
information or other circumstances indicate lack of
trustworthiness.” FED . R. EVID. 803(8)(C).
As we have noted above, a district court’s evidentiary ruling
is error only if it constitutes an abuse of discretion. See United
States v. Whitmore, 359 F.3d 609, 616 (D.C. Cir. 2004). But
even if we were to conclude that the district court abused its
discretion by excluding the police report (an issue we do not
decide), the exclusion of the report, like the exclusion of the
12
scrapbook, was harmless.2 Although the district court refused
to admit the document, it allowed testimony on the same point
that Coumaris had offered the report to prove: The police officer
called by Coumaris to introduce the report was permitted to
testify that Coumaris’ anonymous tips regarding Jenkins’
whereabouts were “accurate.” 10/29/02 a.m. Tr. at 26-27.
There is no reason to believe that admission of the report itself
would have made any difference in the outcome of the trial.
In sum, we conclude that none of Coumaris’ attacks on the
district court’s evidentiary rulings are sufficient to justify
reversal of his conviction.
III
Finally, Coumaris challenges several of the district court’s
Sentencing Guidelines determinations. Those challenges
include claims that the court improperly applied enhancements
to his base offense level for abuse of a position of trust, for
obstruction of justice, and for more-than-minimal planning. See
U.S.S.G. §§ 3B1.3, 3C1.1, 2F1.1(b)(2)(A). We do not reach
these challenges because we grant the government’s motion to
remand the case for resentencing in light of United States v.
Booker, 125 S. Ct. 738 (2005).
2
Because Coumaris did not raise the Rule 803(8)(C) argument in
the district court, we review the court’s failure to admit the report on
that theory only for plain error. See Warren, 42 F.3d at 657
(reviewing a Rule 803(8)(C) argument for plain error because the
defendant’s argument at trial had been limited to Rule 803(6)). As
discussed at note 1, supra, under the plain error standard it “is the
defendant rather than the Government who bears the burden of
persuasion with respect to prejudice.” Olano, 507 U.S. at 734. Thus,
the conclusion that there was no plain error in the exclusion of the
report follows a fortiori from the conclusion (set out in the text above)
that any error was harmless.
13
In Blakely v. Washington, the Supreme Court held that
Washington State’s determinate sentencing regime violated the
rule of Apprendi v. New Jersey: “Other than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable doubt.” Blakely, 124
S.Ct. 2531, 2536 (2004) (quoting Apprendi, 530 U.S. 466, 490
(2000)); see id. at 2538. In Booker, the Court applied Blakely to
the United States Sentencing Guidelines, holding that the
imposition of enhanced sentences under the Guidelines violates
the Sixth Amendment. 125 S. Ct. at 756. The Supreme Court
cured this constitutional defect by severing the provisions of the
Sentencing Reform Act that made the Guidelines mandatory,
thereby rendering them “effectively advisory.” Id. at 757.
Under this new sentencing regime, a sentencing court is required
“to consider Guidelines ranges” applicable to the defendant, but
is permitted “to tailor the sentence in light of other statutory
concerns as well.” Id.
The United States has moved to vacate Coumaris’ sentence
and to remand for resentencing. The government concedes that
the mandatory enhancements of Coumaris’ sentence were
unconstitutional under Booker. It further agrees with Coumaris
that, by noting in his objections to the Presentence Investigation
Report that Apprendi had rendered the Guidelines problematic,
Coumaris “made a sufficient objection in the district court to
preserve a Sixth Amendment challenge to his sentence.” Gov’t
Mot. to Vacate and Remand for Resentencing at 2-3. This
means that the Booker challenge here is governed by the
harmless error standard appropriate for constitutional error,
which the Government states it cannot satisfy. That is, the
government concedes that it cannot demonstrate “beyond a
reasonable doubt that the error complained of did not contribute
to the [sentence] obtained.” Id. at 3 (quoting Chapman v.
California, 386 U.S. 18, 24 (1967)); see Powell, 334 F.3d at 45
14
(noting that the Chapman harmless error standard applies to
constitutional errors).
Although Coumaris agrees that his sentence should be
vacated and remanded, he urges us to resolve his specific
challenges to the district court’s application of the Guidelines
before remanding. Coumaris Resp. to Gov’t Mot. to Vacate and
Remand for Resentencing at 2. We decline to do so. Because
the district court might impose a different sentence on remand,
and because the parties might choose not to appeal that sentence,
consideration of objections to the court’s original guidelines
calculations would be premature at best and unnecessary at
worst.
IV
For the foregoing reasons, we affirm George Coumaris’
conviction. We also grant the government’s motion to vacate
his sentence and to remand the case for resentencing in
conformity with United States v. Booker.
So ordered.