United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 6, 2006 Decided July 7, 2006
No. 04-3023
UNITED STATES OF AMERICA,
APPELLEE
v.
ARTUR TCHIBASSA,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 91cr00560-03)
Robert L. Tucker, Assistant Federal Public Defender, argued
the cause for the appellant. A. J. Kramer, Federal Public
Defender, was on brief. Neil H. Jaffee, Assistant Federal Public
Defender, entered an appearance.
Lisa H. Schertler, Assistant United States Attorney, argued
the cause for the appellee. Kenneth L. Wainstein, United States
Attorney, Jennifer E. Levy, Attorney, United States Department
of Justice, and Laura A. Ingersoll and Roy W. McLeese, III,
Assistant United States Attorneys, were on brief.
Before: HENDERSON, ROGERS and BROWN, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge: Artur
Tchibassa, a former member of the Angolan “Front for the
Liberation of the Enclave of Cabinda” (FLEC), appeals his
conviction stemming from his participation in the 1990 hostage-
taking for ransom of Brent Swan, a United States citizen then
working in Cabinda, Angola. Tchibassa appeals his conviction
on the grounds that the government violated his Sixth
Amendment right to a speedy trial by waiting until 2002, some
eleven years after he was indicted, to arrest and prosecute him
and that the court erred under Federal Rule of Evidence 404(b)
in admitting testimony of a similar FLEC hostage-taking in 1994
and excluding testimony of FLEC hostage negotiations that he
participated in in 1992 and 2001. In addition, Tchibassa appeals
his sentence on the ground that the district court treated the
United States Sentencing Guidelines (Guidelines) as mandatory
in violation of United States v. Booker, 543 U.S. 220 (2005).
We reject Tchibassa’s speedy trial claim because the
government exercised reasonable diligence in seeking his arrest
and because Tchibassa, who was aware of the charges against
him since at least 1994, waited until after his arrest to assert his
speedy trial right.1 We reject the evidentiary challenges
because, assuming the district court’s rulings were erroneous,
the error was harmless. Finally, we affirm Tchibassa’s sentence
because we conclude that the sentencing judge did not commit
plain error.
1
In resolving this case, we assume arguendo that Tchibassa was
entitled to a speedy trial under the Sixth Amendment before he was
arrested and brought to this country. We therefore need not decide the
question (not raised by the parties below or on appeal) whether the
Sixth Amendment speedy trial right attaches to a foreign
national—charged with a crime committed outside United States
territory—while he remains outside our borders.
3
I.
In 1990 Brent Swan was working as an aircraft mechanic in
Cabinda, a province of Angola, for Petroleum Helicopters, Inc.
(PHI). PHI was a contractor for Cabinda Gulf Oil Company
Ltd., a subsidiary of Chevron Overseas Petroleum, Inc.
(Chevron), a United States corporation. On October 19, 1990,
while traveling in a truck en route to the Cabinda Airport, Swan
was abducted by three men wearing camouflage uniforms.
Swan’s captors, who identified themselves as FLEC members,
forced Swan on a several-day trek on foot to a FLEC base camp
where he remained until moved to a second camp.
Following extensive negotiations between FLEC and
Chevron, on December 17, 1990, Swan was taken by his captors
to Zaire (now the Democratic Republic of the Congo (DROC)),
where he met a Zairean government official who was
accompanied by a number of FLEC officers, including
Tchibassa. From there he was driven to Moanda, Zaire and
released to PHI foreign supervisor Gary Weber and Chevron
executive Scott Taylor in exchange for a ransom.
Substantial trial evidence implicated Tchibassa as a high-
ranking member of FLEC and a willing participant in Swan’s
abduction, detention and ransoming. Tchibassa was described
by one of Swan’s captors as a “major member” of FLEC, 9/4/03
Tr. 138, and was pictured alongside Swan, FLEC “President”
Tiburcio and “Major” Bento in a photograph taken around
Thanksgiving 1990 at the camp where he was being held.
During the five-week negotiations for Swan’s release, according
to Chevron negotiators, Tchibassa participated as the “chief
spokesman” and “did all the primary speaking as negotiator.”
9/9/03 Tr. 62; 9/5/03 Tr. 184-85. In an order signed by Tiburcio
authorizing Tchibassa to negotiate on behalf of FLEC,
Tchibassa was identified as “Major Artur Tchibassa” and FLEC
“Foreign Affairs Secretary.” 9/5/03 Tr. 127. Finally, after the
negotiators reached an agreement with Chevron requiring
4
Chevron to deliver a ransom in specified goods in exchange for
Swan’s release, Tchibassa was one of two men who signed
receipts for the goods when they were delivered.
On September 25, 1991 Tchibassa was indicted under seal2
on two counts: (1) conspiring to commit hostage-taking in
violation of 18 U.S.C. §§ 371 and 1203 and (2) hostage-taking
in violation of 18 U.S.C. §§ 2 and 1203. A bench warrant issued
for his arrest the same day. On July 11, 2002, he was arrested
in Kinshasa, DROC. His trial began on September 4, 2003 and
the jury convicted him of both counts on September 12, 2003.
On February 27, 2004 the district court sentenced Tchibassa to
concurrent sentences of 60 months on the conspiracy count and
293 months on the hostage taking count, followed by three and
five years of supervised release, respectively. The court also
ordered Tchibassa to pay $303,957.34 in restitution and a $200
special assessment. Tchibassa filed a timely notice of appeal.
II.
We address separately Tchibassa’s challenges to the district
court’s speedy trial right determination, evidentiary rulings and
Guidelines sentence.
A. Speedy Trial Right
The Sixth Amendment to the United States Constitution
expressly guarantees that “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy . . . trial.” Excessive
delay in prosecuting a defendant after he is indicted or arrested
violates this Sixth Amendment right. See Barker v. Wingo, 407
U.S. 514 (1972) (arrest); Doggett v. United States, 505 U.S. 647
(1992) (indictment). Tchibassa contends that the nearly 11 years
that elapsed between his September 25, 1991 indictment and his
arrest on July 11, 2002 constitute an excessive delay and that the
2
The indictment was unsealed on September 4, 2003.
5
district court therefore erred in denying his motion to dismiss on
that basis. We affirm the district court’s denial of the motion.
In deciding a speedy trial claim a court applies a “balancing
test, in which the conduct of both the prosecution and the
defendant are [sic] weighed.” Barker, 407 U.S. at 530. The
United States Supreme Court has identified four factors to be
considered: “[l]ength of delay, the reason for the delay, the
defendant’s assertion of his right, and prejudice to the
defendant.” Id.; see also Doggett, 505 U.S. at 651 (“Our
cases . . . have qualified the literal sweep of the [speedy trial]
provision by specifically recognizing the relevance of four
separate enquiries: whether delay before trial was uncommonly
long, whether the government or the criminal defendant is more
to blame for that delay, whether, in due course, the defendant
asserted his right to a speedy trial, and whether he suffered
prejudice as the delay’s result.” (citing Barker, 407 U.S. at
530)). The first factor entails “a double enquiry”: First,
“[s]imply to trigger a speedy trial analysis, an accused must
allege that the interval between accusation and trial has crossed
the threshold dividing ordinary from ‘presumptively prejudicial’
delay since, by definition, he cannot complain that the
government has denied him a ‘speedy’ trial if it has, in fact,
prosecuted his case with customary promptness.” Doggett, 505
U.S. at 651-52 (quoting Barker, 407 U.S. at 530-31). Next, once
the accused makes this threshold showing, “the court must then
consider, as one factor among several, the extent to which the
delay stretches beyond the bare minimum needed to trigger
judicial examination of the claim.” Id. at 652 (citing Barker,
407 U.S. at 533-34). None of the four factors is “either a
necessary or sufficient condition to the finding of a deprivation
of the right of speedy trial”; “[r]ather, they are related factors
and must be considered together with such other circumstances
as may be relevant.” Barker, 407 U.S. at 533.
6
In order to balance the speedy trial factors, on August 26,
2003, the district court conducted an evidentiary hearing. The
testimony from that hearing, supplemented by the parties’
written submissions, revealed the following facts. Tchibassa
testified that he resided in Kinshasa, Zaire from 1991 to 1998
and in Brazzaville, Congo, located across the Congo River from
Kinshasa, from April 1998 until his arrest in 2002. The
government filed a sealed arrest warrant for Tchibassa on
September 25, 1991 and subsequently requested that Interpol
issue “Red Notices” seeking his arrest (along with the arrest of
other alleged participants in the Swan hostage-taking), which
Interpol did in 1993.3
In 1994 Tchibassa learned that Interpol wished to speak with
him and, accordingly, traveled to Brazzaville, Congo to meet
with Interpol representatives, who questioned him about Swan’s
abduction. According to a transcription of Tchibassa’s
statement to Interpol at the meeting, he expressed surprise at
learning that, in his own words, “American Judicial authorities
issue [sic] an international arrest warrant for me for this case.”
6/21/94 Interpol Interview Tr. 3, Appellant’s App. (App.) 58.
Also in 1994, according to Tchibassa’s testimony, he visited the
U.S. Embassy in Kinshasa, Zaire more than 5 times for
“diplomatic activities,” 8/26/03 Tr. 27, and continued to visit the
Embassy (“[m]ore than five times” annually) until 1998, id. at
38. He also testified he visited the U.S. embassies in Lisbon in
1994 and Paris in 1995.
In 1996 the United States Department of State (State
Department) learned Tchibassa had been in Brazzaville and, at
the instance of the United States Department of Justice, cabled
the U.S. Embassy there to request that the Congolese
3
An Interpol Red Notice alerts foreign governments to the
issuance of a U.S. arrest warrant. See United States v. Bliss, 430 F.3d
640, 643 (2d Cir. 2005).
7
government make “provisional arrests for the purpose of
extradition” of Tchibassa and others charged with Swan’s
kidnaping. App. 78.
Finally, on July 11, 2002 the FBI arrested Tchibassa in the
office of the DROC Intelligence Bureau and he was flown to
Puerto Rico where he was arraigned on July 15, 2002. On April
21, 2003 he filed a motion to dismiss the indictment, asserting
his Sixth Amendment speedy trial right.
At a November 25, 2003 hearing the district court denied
Tchibassa’s motion based on the parties’ submissions and the
hearing testimony. Initially, the court determined that the 11-
year delay between indictment and arrest “obviously . . . was
long” so as to trigger the balancing of the Barker factors.
11/25/03 Tr. 9. With regard to the second factor, the court
found that the delay resulted “not only from the government’s
not arresting him once they had indicted him originally back in
‘91 . . . but from the defendant’s own actions” because “at the
time in the country where he was residing and was a citizen of,”
meaning Zaire/DROC, “they did not have an extradition treaty.”
Id. at 10. Absent a treaty, the court concluded, the government
was under no obligation to take any extraordinary measures to
negotiate for Tchibassa’s extradition. The court found the third
factor also weighed against dismissal because, although
Tchibassa was aware of the charges against him since June
1994, he did not assert his speedy trial right until nine months
after he was arrested in 2002. Finally, as to the fourth factor, the
court characterized Tchibassa’s claim of prejudice as
“speculative” because the court “d[id]n’t see any defense
strategies or positions that would have been different except for
the delay” or “any particular witnesses he didn’t bring that he
could have.” Id. at 11. In sum, the court concluded that the
record “strongly indicates . . . that the defendant did not want a
speedy trial” and that “the government had no either [sic]
obligation or opportunity to make arrest or get Mr. Tchibassa
8
extradited to the United States because of the political situation
and the statutory requirements that existed at that time.” Id. at
12. We review the district court’s factual findings for clear error
and its application of the Barker factors to the facts de novo.
See United States v. Parish, 468 F.2d 1129, 1134 (D.C. Cir.
1972) (factual findings reviewed for clear error) (citing Jackson
v. United States, 353 F.2d 862, 864-65 (D.C. Cir. 1965)); United
States v. Wallace, 848 F.2d 1464, 1469 (9th Cir. 1988) (legal
conclusions reviewed de novo); Burkett v. Fulcomer, 951 F.2d
1431, 1437-38 (3d Cir. 1991) (same); see also United States v.
Frye, 372 F.3d 729, 736 (5th Cir. 2004) (suggesting, without
deciding, review is de novo because “generally, a district court’s
balancing of factors, resulting in a decision, are [sic] akin to, if
not, conclusions of law, or at least rulings on mixed questions of
fact and law, reviewed de novo”). Applying these standards, we
uphold the district court’s ruling because its factual findings are
not clearly erroneous and it correctly applied the law to the facts
it found.
Initially, the parties agree that the district court correctly
concluded that the length of the delay between Tchibassa’s
indictment and arrest—some eleven years—was long enough to
be considered “presumptively prejudicial,” i.e., beyond “the
point at which courts deem the delay unreasonable enough to
trigger the Barker enquiry.” Doggett, 505 U.S. at 652 n.1; cf.
Barker, 407 U.S. at 533 (undertaking inquiry where “length of
delay between arrest and trial–well over five years–was
extraordinary”); Doggett, 505 U.S. at 652 (“[T]he extraordinary
8 ½ year lag between Doggett’s indictment and arrest clearly
suffices to trigger the speedy trial enquiry.”).
We next address Barker’s second factor—“whether the
government or the criminal defendant is more to blame for that
delay,” Doggett, 505 U.S. at 651. Initially, the government was
decidedly slow to seek Tchibassa’s arrest. It does not appear
from the record that it made any attempt to apprehend Tchibassa
9
from the time he was indicted on September 25, 1991 until
Interpol issued the “Red Notices” sometime in 1993. This gap
of more than two years casts some doubt on the government’s
diligence and might, under other circumstances, tip the balance
against it. Here, however, the district court found that Tchibassa
was more to blame than the government for the initial delay
because he maintained his residence in Zaire, beyond the
government’s diplomatic reach, and this finding is not clearly
erroneous.4 Subsequently, when the government learned in 1996
that Tchibassa had been sighted outside Zaire—in Brazzaville,
Congo in 1996—it cabled its Brazzaville Embassy to request
that the Congolese government, with which the United States
had an extradition treaty in force, effect his arrest. The
Congolese government, however, did not do so even after
Tchibassa moved to Brazzaville in 1998, notwithstanding the
Red Notices were in effect until at least 1999.5 While the
government might have undertaken more frequent and extensive
efforts to secure Tchibassa’s arrest, it is not clear that any such
effort would have succeeded so long as Tchibassa voluntarily
remained beyond the United States’ legal or practical reach.6
4
The district court’s reasonable diligence finding is reviewed
“with considerable deference.” Doggett, 505 U.S. at 652.
5
Tchibassa claims that “the government admitted that Tchibassa
had been at the U.S. Embassy in Brazzaville on several occasions from
1992-1994,” Opening Br. 20 (citing 9/3/03 Tr. 2-5), but the cited
transcript pages refer to Tchibassa’s visits to the U.S. Embassy in
Kinshasa, which is in Zaire/DROC, with which the United States had
no extradition treaty.
6
Tchibassa contends the government should have used “available
alternatives” to extradition to effect Tchibassa’s arrest, noting that his
arrest in DROC in 2002 was not through extradition. Opening Br. 22.
The record demonstrates, however, that alternative efforts would have
been futile and ill-advised. See Decl. of Vincente Valle, App. 76 ¶ 3
10
Thus, the district court did not clearly err in finding that the
government had no “opportunity to make arrest [sic] or get Mr.
Tchibassa extradited to the United States.” 11/25/03 Tr. 12. We
therefore agree with the district court that the second factor
weighs against Tchibassa because the fault for the delay in arrest
lay primarily with Tchibassa himself. In this respect, the delay
between Tchibassa’s indictment and arrest differs significantly
from the situation in Doggett, in which the Supreme Court found
the defendant’s speedy trial right had been violated.
In Doggett the defendant fled to Colombia, South America
shortly after he was indicted on federal drug charges. After a
brief incarceration in Panama, he was released to Colombia and
he returned to the United States about 2 ½ years after the
indictment. He settled in the Commonwealth of Virginia where
he lived openly under his own name for six years before the
government discovered him through a credit check and then
made the arrest. The Supreme Court, upholding the district
court’s finding that the government was not diligent, concluded
that the second Barker factor weighed heavily in Doggett’s
(“U.S. relations with the governments of [Zaire/DROC] over the
relevant period would have made cooperation in the arrest of Mr.
Tchibassa difficult”); App. 83, 84 (July 1996 cable from U.S.
Embassy in Kinshasa to State Department advising extradition was
“not practical” and “any attempt to take one or all [of four accused
FLEC members] into U.S. custody will create the risk of retaliation
against other U.S. citizens”). Further, there is persuasive authority
that the government need not take extraordinary measures in order to
satisfy the reasonable diligence standard. See United States v.
Diacolios, 837 F.2d 79, 84 (2d Cir. 1988) (“Because the government’s
failure to obtain defendant’s extradition was the result of reliance upon
United States policy not to seek extradition outside the extradition
treaty with Greece, we conclude that the government has satisfied its
burden of demonstrating due diligence in seeking defendant's return
for trial without unnecessary delay.”).
11
favor because “[f]or six years, the Government’s investigators
made no serious effort to test their progressively more
questionable assumption that Doggett was living abroad, and,
had they done so, they could have found him within minutes.”
505 U.S. at 652-53. Here, the record does not indicate U.S.
authorities had any opportunity to readily apprehend Tchibassa.
The delay in arresting Tchibassa was attributable primarily to
his continued residence in an area over which the United States
had no control and little influence. The second factor therefore
favors the government.
For similar reasons, the third Barker factor—the defendant’s
invocation of the speedy trial right—favors the government as
well. The district court found that, notwithstanding Tchibassa
knew of the charges against him at least since the time of his
1994 meeting with Interpol, he made no effort to assert his
speedy trial right until he filed a motion to dismiss on April 21,
2003, nine months after his arrest. Tchibassa disputes that he
was aware of the charges before his arrest but the district court’s
contrary finding, based on the Interpol transcription, is not
clearly erroneous.”).7 Tchibassa may have not have known that
7
At a pretrial motions hearing, Tchibassa engaged in the following
colloquy with the prosecutor:
Question: Sir, when did you first learn of the criminal
charges against you?
Answer: When I was interviewed by Interpol [in 1994].
Question: So they described the nature of the charges that
the United States had filed against you?
Answer: Of course there was an interview, so they had to
disclose the charges.
8/26/2003 Hearing Tr. 40; see also 6/21/94 Interpol Interview Tr. 3,
JA 58 (Tchibassa stating: “I am surprised to see that the American
12
a formal indictment had issued—or even that one was
necessary—but if he was aware that charges were pending
against him (as the district court reasonably found he was), his
failure to make any effort to secure a timely trial on them (and
his apparent desire to avoid one) manifests a total disregard for
his speedy trial right. Thus, in this respect too, Tchibassa’s
situation differs from Doggett’s, whose claim of ignorance of
the charges against him was “unrebutted and largely
substantiated.” 505 U.S. at 654. The Doggett Court expressly
noted that, if it were true, as the government suggested (contrary
to the record), “that Doggett knew of his indictment years before
he was arrested . . . , Barker’s third factor, concerning
invocation of the right to a speedy trial, would be weighed
heavily against him.”8 Id. at 653. Because the record supports
the district court’s finding that Tchibassa knew of all of the
charges contained in the sealed indictment as early as 1994, the
third factor also weighs against his speedy trial claim.
Finally, the fourth Barker factor—prejudice from delay—
does nothing to advance Tchibassa’s speedy trial claim.
“[U]nreasonable delay between formal accusation and trial
threatens to produce more than one sort of harm, including
‘oppressive pretrial incarceration,’ ‘anxiety and concern of the
accused,’ and ‘the possibility that the [accused’s] defense will
Judicial authorities issue [sic] an international arrest warrant for me for
this case . . . .”).
8
The Doggett Court appeared concerned generally with Doggett’s
awareness vel non that charges were pending against him rather than
with his specific knowledge that a formal indictment had been filed.
See 505 U.S. at 653-54 (citing as “substantiat[ing]” evidence of
Doggett’s “ignorance” “the testimony of Doggett’s wife, who said that
she did not know of the charges until his arrest, and of his mother,
who claimed not to have told him or anyone else that the police had
come looking for him”).
13
be impaired’ by dimming memories and loss of exculpatory
evidence.” Doggett, 505 U.S. at 654 (quoting Barker, 407 U.S.
at 532). The first two listed harms are of no significance here
as Tchibassa was not imprisoned until after his arrest and he
displayed no concern over the years about the pending criminal
charges, in fact denying he was even aware of them.9 Cf. id.
(noting Doggett could probably not claim first two harms “since
he was subjected neither to pretrial detention nor, he has
successfully contended, to awareness of unresolved charges
against him”). This leaves only the third form of prejudice—
possible impairment of the defendant’s case—which the
Supreme Court has described as “ ‘the most serious . . . because
the inability of a defendant adequately to prepare his case skews
the fairness of the entire system.’ ” Id. (quoting Barker, 407
U.S. at 532). Tchibassa alleges only generally that the passage
of time compromised his “ability to locate witnesses in West
Africa who could confirm Tchibassa’s role in FLEC and the
Swan negotiations in 1991,” Opening Br. 26, without identifying
any material witness much less a failed attempt to locate one.10
9
Nor was Tchibassa subject to public suspicion and hostility as the
contents of the sealed indictment were not made public. See Barker,
407 U.S. at 533 (“[E]ven if an accused is not incarcerated prior to trial,
he is still disadvantaged by restraints on his liberty and by living under
a cloud of anxiety, suspicion, and often hostility.”).
10
Tchibassa does point to his inability to recall the identity of the
interpreter Taylor used in a 1994 conversation with Tchibassa in
which, Taylor testified, Tchibassa admitted his role in the 1994
abduction of Dietrich. As we conclude below, however, the testimony
regarding Dietrich’s abduction, while probably wrongly permitted,
was of little consequence to Tchibassa’s defense or conviction.
Tchibassa also cites his inability to identify some of the persons he
met in the United States embassies in 1995 but does not explain—and
we cannot discern—how the visits were material to his defense on the
merits or how lacking the persons’ identities impaired the defense.
14
In the absence of specific, articulable prejudice, Tchibassa relies
largely on the “presumptive” prejudice that results from the
mere passage of time. See Doggett, 505 U.S. at 654-55. As the
Doggett Court noted, however, while “we generally have to
recognize that excessive delay presumptively compromises the
reliability of a trial in ways that neither party can prove or, for
that matter, identify,” “such presumptive prejudice cannot alone
carry a Sixth Amendment claim without regard to the other
Barker criteria.” Doggett, 505 U.S. at 655-56 (citing United
States v. Loud Hawk, 474 U.S. 302, 315 (1986)). Because two
of the other Barker criteria— fault for the delay and timely
assertion of the speedy trial right—weigh heavily against
Tchibassa, his claim of presumptive prejudice does not tip the
scales in his favor. See Doggett, 505 U.S. at 656 (“[I]f the
Government had pursued Doggett with reasonable diligence
from his indictment to his arrest, his speedy trial claim would
fail. Indeed, that conclusion would generally follow as a matter
of course however great the delay, so long as Doggett could not
show specific prejudice to his defense.”); Barker, 407 U.S. at
536 (“[B]arring extraordinary circumstances, we would be
reluctant indeed to rule that a defendant was denied this
constitutional right on a record that strongly indicates, as does
this one, that the defendant did not want a speedy trial.”).
In sum, we conclude that the balance of the four Barker
factors favors the government. Accordingly, the district court’s
denial of Tchibassa’s motion to dismiss for violation of his
speedy trial right is affirmed.
B. Evidentiary Rulings
Second, Tchibassa contends the district court erred in two
evidentiary rulings under Federal Rule of Evidence 404(b).
Rule 404(a) bars admission of “Character Evidence Generally,”
directing that “[e]vidence of a person’s character or a trait of
character is not admissible for the purpose of proving action in
conformity therewith on a particular occasion.” Rule 404(b)
15
similarly prohibits evidence of “other crimes, wrongs, or acts . . .
to prove the character of a person in order to show action in
conformity therewith” but permits such evidence “for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.” The government proffered the testimony of Piotr
Dietrich, a Polish national, regarding Tchibassa’s role in a 1994
FLEC hostage-taking in Cabinda, Angola, in which Dietrich was
himself taken hostage, to show that Tchibassa was a willing
participant in Swan’s hostage-taking as well, and not, as
Tchibassa maintained, simply a well-intentioned negotiator
attempting to secure Swan’s release. For his part, Tchibassa
proffered the testimony of Martins Leitao, the owner of a
Portugese construction company, relating to Tchibassa’s role in
negotiations for the release of Leitao’s employees who were
taken hostage by FLEC in 1992 and 2001, to show that
Tchibassa’s intent was to obtain Swan’s freedom. The district
court admitted Dietrich’s testimony under Fed. R. Evid. 404(b)
“to show [Tchibassa’s] motivation, that is, intent and his actions,
and lack of mistake or accident” to counter Tchibassa’s claim,
as the court characterized it, “that he was not responsible, that he
came in as a person attempting to solve a difficult situation for
his people” and “that he had no prior knowledge, and the
subsequent knowledge was only as a participant in attempting to
resolve it, not in attempting to continue detention of Mr. Swan
in any way.” 9/09/03 Tr. 120.11 On the other hand, the court
excluded Leitao’s testimony, concluding that it “d[id] not meet
the rule of relevancy” and “d[id] not qualify under 404(b).”
9/11/03 Tr. 11. Tchibassa asserts the district court erred in
admitting Dietrich’s testimony and then excluding Leitao’s and
that the exclusion of Leitao’s testimony in particular deprived
11
Additionally, the court found Dietrich’s testimony was not
prohibited under Rule 403 because its probative value was not
outweighed by its prejudicial effect.
16
him of his right under the due process clause of the Fifth
Amendment “to present witnesses in his own defense.”
Chambers v. Mississippi, 410 U.S. 284 , 302 (1973). We reject
Tchibassa’s challenge because, assuming arguendo the district
court erred, the error was harmless.
Dietrich’s testimony was of minimal value to the
government—or harm to the defense—because the record was
already replete with compelling and uncontradicted evidence
that Tchibassa was a willing participant in the Swan hostage-
taking: his characterization by other FLEC members as a “major
member” of FLEC and by FLEC President Tiburcio as “Major
Artur Tchibassa” and FLEC “Foreign Affairs Secretary,” 9/5/03
Tr. 138; 9/5/03 Tr. 127; the photograph of Tchibassa in
“[m]ilitary combat clothing” with hostage Swan in the FLEC
base camp, 9/09/03 Tr. 49; 9/10/03 Tr. 37; the testimony of
Taylor PHI negotiator Weber that Tchibassa was FLEC’s “chief
spokesman,” “did all the primary speaking as negotiator,” was
“at times . . . quite forceful”—on occasions he would “raise his
voice . . . talking over them” and “would bang the table on
occasions—was “obviously passionate about his cause,” “quite
often” told the negotiators “how long he had been a member of
[FLEC] and just how much this all meant to him” and, along
with the other two FLEC negotiators, “took full claim and
credit” for the hostage-taking so that “there was never any
disputing the fact that they abducted and held Brent Swan,”
9/9/03 Tr. 64, 9/5/03 Tr. 184-85; 9/10/03 Tr. 29, 31-32; 9/5/03
Tr. 1845; testimony of both the government and Chevron
negotiators that Tchibassa was intent on obtaining a cash ransom
“specifically for the purchase of arms” in the face of the
negotiators’ contrary insistence and after they “managed to
persuade him that they could not have military equipment,”
9/5/03 Tr. 141, 9/10/03 Tr. 28; Tchibassa’s own characterization
of Swan’s abduction and imprisonment as simply “the
questioning of BRENT SWAN by the troops of our movement”
and an “incident,” insisting it was “neither a terrorist act nor an
17
act of piracy or kidnapping [sic],” JA 58; and, finally,
Tchibassa’s signature on receipts for goods delivered to FLEC
as ransom in January 1991, 9/10/03 Tr. 33-34. On the other
side, there is not a shred of evidence to affirmatively support
Tchibassa’s defense of innocent motive. Nor would Leitao’s
excluded testimony have significantly aided the defense. That
Tchibassa may have striven zealously to negotiate the release of
other hostages—and the accompanying payment of ransom—is
fully consistent with the government’s theory that Tchibassa was
a willing participant in the entire Swan hostage-taking plan from
the abduction through the ransom, seeking release of hostages
in order to obtain ransom for FLEC. Nor does it blunt the
impact of the extensive evidence that he participated throughout
on behalf of FLEC and in furtherance of its goals. Given the
overwhelming evidence in the record that Tchibassa conspired
to commit hostage taking and committed hostage-taking as
charged, we conclude that any error in the district court’s
evidentiary rulings, whether or not of constitutional dimension,
was harmless. See Satterwhite v. Texas, 486 U.S. 249, 256
(1988) (“We generally have held that if the prosecution can
prove beyond a reasonable doubt that a constitutional error did
not contribute to the verdict, the error is harmless and the verdict
may stand.” (citing Chapman v. California, 386 U.S. 18, 24
(1967)); United States v. Johnson, 216 F.3d 1162, 1166 n.4
(D.C. Cir. 2000) (“[N]onconstitutional error is harmless if it did
not have ‘substantial and injurious effect or influence in
determining the jury's verdict’ ” (quoting Kotteakos v. United
States, 328 U.S. 750, 776 (1946)).
C. Sentencing
Finally, Tchibassa challenges his sentence on the ground that
the district court erred under United States v. Booker, 543 U.S.
220 (2005), in treating the Guidelines as mandatory. Because
Tchibassa did not challenge the court’s reliance on the
Guidelines at sentencing, we review the sentence for plain error
18
under Fed. R. Crim. P. 52(b). United States v. Coles, 403 F.3d
764, 767 (D.C. Cir. 2005). Under the plain-error standard,
“ ‘there must be (1) “error,” (2) that is “plain,” and (3) that
“affect[s] substantial rights.” ’ ” Id. (quoting Johnson v. United
States, 520 U.S. 461, 466-67 (1997) (quoting United States v.
Olano, 507 U.S. 725, 732 (1993)) (alteration in Johnson)).
Under Coles, the first two plain error requirements are met if a
judge treats the Guidelines as mandatory because “[f]ollowing
Booker, this [is] error and it is undoubtedly ‘plain.’ ” Id. Thus,
we need decide only whether the sentencing error affected
substantial rights, that is, “whether there would have been a
materially different result, more favorable to the defendant, had
the sentence been imposed in accordance with the post-Booker
sentencing regime.” Id. In Coles, the court was unable to
answer this question because the record was “insufficient for
[the court] to determine with confidence whether the defendant
suffered prejudice from the Booker error.” Id. at 765. The court
recognized, however, that “[t]here undoubtedly will be some
cases in which a reviewing court will be confident that a
defendant has suffered no prejudice,” as, for example, “ ‘if a
judge were to impose a sentence at the statutory maximum and
say that if he could he would have imposed an even longer
sentence.’ ” Id. at 769 (quoting United States v. Paladino, 401
F.3d 471, 483 (7th Cir. 2005)). In such a case, the imposition of
the maximum sentence, combined with the judge’s
characterization of the sentence, makes manifest he would not
have imposed a materially different sentence were he not
constrained by the Guidelines. We find this to be such a case
as well.
The district judge here sentenced Tchibassa at the very top
of the applicable range—293 months—and identified this
maximum permissible sentence as “appropriate” to “serve as a
warning to those who will kidnap Americans abroad” and
“entirely appropriate for the type of actions that occurred here
in depriving Mr. Swan not only of his freedom for two months,
19
but basically of his life.” 2/27/04 Tr. 34, 35 (emphasis added).
The judge’s strong and unambiguous approval of the sentence
imposed, based—as he explained—on its deterrent effect and its
proportionality to the crime committed, makes us confident that
were the judge given the opportunity to resentence Tchibassa,
applying the Guidelines as advisory rather than mandatory, he
would not impose a sentence materially more favorable than the
one he made plain he considered “appropriate.”12 Accordingly,
we conclude Tchibassa was not prejudiced by the judge’s
sentencing error and see no ground for a sentencing remand. Cf.
United States v. Smith, 401 F.3d 497, 499 (D.C. Cir. 2005) (no
prejudice where judge twice—before and after
remand—departed upward and stated: “I believe, in my view,
that you deserve the sentence that will be imposed here.”).
For the foregoing reasons, the appellant’s conviction and
sentence are affirmed.
So ordered.
12
In Coles, the sentencing judge apparently expressed no personal
view of the appropriateness of the 36 month sentence he imposed
(which was“ somewhat above the lower end of the 33-to-41 months
Guidelines range,” Coles, 403 F.3d at 769).