United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 16, 2010 Decided April 15, 2011
No. 09-3119
UNITED STATES OF AMERICA,
APPELLEE
v.
JOHN SMITH,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cr-00153)
Mariel Goetz argued the cause for appellant. With her on
the briefs were Peter M. Brody, appointed by the court,
Stephen L. Braga, and Michael S. Casey.
Patricia A. Heffernan, Assistant U.S. Attorney, argued
the cause for appellee. With her on the brief were Ronald C.
Machen, Jr., U.S. Attorney, and Roy W. McLeese III,
Elizabeth Trosman, and John K. Han, Assistant U.S.
Attorneys.
Before: SENTELLE, Chief Judge, and GINSBURG and
KAVANAUGH, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: Based on evidence of John
Smith’s drug dealing, federal agents obtained a search warrant
for Smith’s home. There, they found Smith along with heroin
worth about $30,000, two loaded guns, and $27,730 in cash.
The agents arrested Smith, and a jury later convicted him of
four drug and firearm offenses. The District Court sentenced
Smith to 25 years in prison, the mandatory minimum sentence
given his offenses and criminal record.
On appeal, Smith contends that several errors occurred in
the course of the trial and sentencing proceedings. First, at
trial, the Government proved Smith’s prior felony conviction
– which was relevant to the charge of being a felon in
possession of a firearm – through letters from a state court
clerk, rather than through a certified record or in-court
testimony. According to Smith, the clerk’s letters were
testimonial, yet the clerk was not subject to cross-
examination. Smith says that admission of the clerk’s letters
therefore violated the Sixth Amendment’s Confrontation
Clause. Second, an FBI agent testified as a lay witness about
the meaning of slang used by Smith and his co-conspirators in
some recorded conversations. Smith claims that the agent’s
testimony about the slang had to satisfy the requirements for
expert testimony and thus was improperly admitted as lay
testimony. Third, the FBI agent testified at the start of trial
that Smith and a co-conspirator were “working together
putting their money together and going to New York to buy
heroin.” Smith contends that the agent’s overview testimony
was based on inadmissible hearsay and thus improper.
Fourth, at trial, a police officer testified that he had once
pulled over Smith at a traffic stop and found a gun in Smith’s
car, as well as “two large bundles” near the gun. Smith
3
objected to the reference to “bundles,” and the District Court
sustained Smith’s objection and told the jury that “[w]e are
going to just talk about this weapon that was allegedly found
in the car. Nothing else.” Smith says the judge should have
instructed the jury to disregard the reference to the bundles.
Fifth, at sentencing, the judge found that Smith had a prior
drug conviction and relied on that prior conviction to double
Smith’s mandatory minimum sentence for the conspiracy
charge from 10 to 20 years. Smith argues that the judge’s
finding violated Smith’s Sixth Amendment right to have a
jury find that fact.
Based on recent Supreme Court decisions, we agree with
Smith’s Confrontation Clause challenge to admission of the
clerk’s letters. We thus vacate the judgment of conviction on
the felon-in-possession count, which depended on that
evidence. That error does not affect the other three counts of
conviction, however. We also agree with Smith’s claim that
the FBI agent’s interpretation of slang was admissible only as
expert testimony; however, that error was harmless. The
witness would have qualified as an expert and offered the
same testimony. We disagree with Smith’s other three
arguments. The FBI agent’s objected-to testimony at the
beginning of the trial was not based on hearsay and thus was
not improper. The District Court sufficiently instructed the
jury to disregard the police officer’s reference to “bundles” in
Smith’s car. And the judge’s finding about Smith’s prior drug
conviction did not violate the Sixth Amendment.
We therefore affirm in part, vacate in part, and remand.
The vacatur and remand of the felon-in-possession count does
not affect Smith’s term of imprisonment: Smith’s sentence for
the felon-in-possession count runs concurrently with the
mandatory minimum sentence of 25 years for the counts of
conviction that are affirmed.
4
I
Sometime in February 2007, John Smith answered his
phone to hear Lonnell Glover’s familiar voice. They
discussed their heroin supplier in New York – “Twin” – and
Smith’s plan to buy heroin from Twin later in the month.
They did not know that FBI Special Agent John Bevington
was investigating their drug distribution ring and employing
court-approved electronic surveillance to listen to Glover’s
phone conversations. Agent Bevington could hear every
word they said.
Over the next few months, Smith and Glover talked
frequently. Sometimes they discussed how much heroin they
would buy from Twin. Other times, Smith passed on
messages from Twin. On occasion, Smith told Glover where
he expected to sell heroin. When Glover needed directions to
a meeting with Twin, Smith provided them. When a guest in
Smith’s home saw police officers outside and flushed Smith’s
heroin down the toilet, Smith colorfully vented his frustration
to Glover about seeing his profits literally go down the drain.
The two drug dealers apparently worked together well
until June 19, 2007. On that day, the FBI simultaneously
executed 17 search warrants and made about 20 arrests during
a take-down of Smith and Glover’s heroin distribution ring.
Smith was alone in his home at 6:00 a.m. when agents came
in, searched his house, and arrested him. In Smith’s bedroom,
the FBI found 316 grams of heroin valued at more than
$30,000, two loaded guns, and $27,730 in cash.
Smith was later indicted for being a felon in possession
of a firearm; conspiring to possess and distribute heroin;
possessing heroin with intent to distribute it; and possessing a
5
gun during a drug offense. See 18 U.S.C. § 922(g)(1) (felon
in possession); 21 U.S.C. § 846 (conspiracy); 21 U.S.C.
§§ 841(a)(1), (b)(1)(B)(i) (possession with intent to
distribute); 18 U.S.C. § 924(c)(1)(A) (using firearm during
drug crime).
At trial, the Government introduced redacted versions of
two letters to help prove the charge of being a felon in
possession of a firearm. At the request of the Department of
Justice, a clerk in the Supreme Court of New York, Queens
County, had created the documents shortly before trial. Each
letter stated that John Smith had been convicted of a felony.
The District Court admitted the letters into evidence over
Smith’s Confrontation Clause objection.
FBI Agent Bevington testified as a lay witness at the trial.
Agent Bevington said he had listened to thousands of
Glover’s recorded conversations, many of which involved
Smith. Based on his experience investigating drug crimes,
Agent Bevington told the jury the meaning of several terms in
the recorded conversations, such as “key” (kilogram),
“hardball” (100 grams of heroin), and “dope” (heroin). Smith
objected before trial to the agent’s interpretation testimony,
and argued that Bevington could offer such testimony only if
qualified as an expert witness. The District Court ruled
otherwise.
During his testimony, Agent Bevington also stated over
Smith’s objection that “Mr. Smith and Mr. Glover were
working together putting their money together and going to
New York to buy heroin.” Smith contended this was
improper overview testimony; the District Court disagreed.
Later in the trial, the jury heard testimony from Joseph
Bellino, a former police officer with the United States Park
6
Police. He described a traffic stop in 2004 in which he
searched Smith’s car and found a gun and “two large bundles”
near the gun. Smith immediately objected to the reference to
“bundles.” The District Court sustained the objection and told
the jury, “We are going to just talk about this weapon that was
allegedly found in the car. Nothing else.”
The jury found Smith guilty on all four counts. For the
conspiracy charge, the court imposed the mandatory
minimum sentence of 20 years in prison. The mandatory for
that offense would have been 10 years, but a judicial finding
that Smith had previously been convicted of a drug felony
increased it to 20 years. The District Court then imposed two
sentences to be served concurrently with that 20-year
sentence: a 10-year sentence for unlawful possession with
intent to distribute more than 100 grams of heroin, and a 10-
year sentence for being a felon in possession of a firearm.
Finally, the District Court imposed a 5-year mandatory
minimum sentence – which the law required to be served
consecutively – for using, carrying, or possessing a firearm
during and in relation to a drug trafficking offense. See 21
U.S.C. § 846 (conspiracy); 21 U.S.C. §§ 841(a)(1),
(b)(1)(B)(i) (possession with intent to distribute); 18 U.S.C.
§ 922(g)(1) (felon in possession); 18 U.S.C. § 924(c)(1)(A)
(using firearm during drug crime). In all, therefore, Smith
was sentenced to 25 years in prison.
II
A
Smith raises a Confrontation Clause challenge to his
conviction for being a felon in possession of a firearm.
7
To prove the felon-in-possession charge, the Government
was required to prove that Smith had a prior felony
conviction. The Government did so by producing letters from
a court clerk in the Supreme Court of New York, Queens
County. The letters stated that “it appears from an
examination of the records on file in this office” that Smith
had been convicted of a felony. Each letter had a seal and a
signature by a court clerk. The court clerk did not testify at
Smith’s trial, however.
On appeal, Smith renews his trial objection that
admission of the clerk’s letters into evidence – without an
opportunity for Smith to cross-examine the clerk – violated
the Confrontation Clause of the Sixth Amendment. That
Clause guarantees every criminal defendant the right “to be
confronted with the witnesses against him.” The Supreme
Court recently reaffirmed that a “witness’s testimony against
a defendant is . . . inadmissible unless the witness appears at
trial or, if the witness is unavailable, the defendant had a prior
opportunity for cross-examination.” Melendez-Diaz v.
Massachusetts, 129 S. Ct. 2527, 2531 (2009).
Often, the key Confrontation Clause question is whether
the statement or document is “testimonial.” In Melendez-
Diaz, the Court considered a laboratory report that said a
substance seized by police was cocaine. The Court concluded
that the laboratory report constituted a “witness’s testimony”
– that is, the document was “testimonial.” The Court
reasoned that the report was a “solemn declaration or
affirmation made for the purpose of establishing or proving
some fact.” Id. at 2532. In addition, the report was made
“under circumstances which would lead an objective witness
reasonably to believe that the statement would be available
for use at a later trial.” Id.
8
The Melendez-Diaz rule governing reports of this kind
contains a “narrowly circumscribed” exception for “a clerk’s
certificate authenticating an official record.” Id. at 2538-39.
A clerk is “permitted to certify to the correctness of a copy of
a record kept in his office, but [has] no authority to furnish, as
evidence for the trial of a lawsuit, his interpretation of what
the record contains or shows, or to certify to its substance or
effect.” Id. at 2539 (internal quotation marks omitted). As
the Court also put it, a “clerk could by affidavit authenticate
or provide a copy of an otherwise admissible record, but
could not do what the analysts did here: create a record for
the sole purpose of providing evidence against a defendant.”
Id. The Court then elaborated on the distinction between
creating a record for use at trial and creating business and
public records:
Business and public records are generally admissible
absent confrontation not because they qualify under an
exception to the hearsay rules, but because – having been
created for the administration of an entity’s affairs and
not for the purpose of establishing or proving some fact
at trial – they are not testimonial. Whether or not they
qualify as business or official records, the analysts’
statements here – prepared specifically for use at
petitioner’s trial – were testimony against petitioner, and
the analysts were subject to confrontation under the Sixth
Amendment.
Id. at 2539-40 (emphasis added).
In this case, the letters from the New York state court
clerk describing Smith’s prior convictions were created at the
request of the Department of Justice shortly before Smith’s
trial. The clerk’s letters were “made for the purpose of
establishing or proving” a fact at trial. Id. at 2532. For
9
Confrontation Clause purposes, they are not the same as an
authenticated copy of an official record of conviction. These
letters were created under circumstances “functionally
identical to live, in-court testimony, doing precisely what a
witness does on direct examination” by the Government –
namely, responding to a prosecutor’s question with an answer.
Id. (internal quotation marks omitted). In our judgment, the
clerk’s letters thus fall clearly on the “testimonial” side of the
Confrontation Clause line drawn in Melendez-Diaz, not within
the “narrowly circumscribed” exception for official records.
Because the clerk’s letters were testimonial, their
admission into evidence at Smith’s trial – without an
opportunity for Smith to cross-examine the clerk – violated
the Confrontation Clause. 1 The Government presented no
evidence other than the clerk’s letters to show that Smith was
a felon in possession of a firearm. Therefore, we vacate
Smith’s conviction on that count.
The Confrontation Clause error does not affect the other
three counts of Smith’s conviction – the charges for heroin
conspiracy, heroin possession, and possessing a gun during a
drug crime. The evidence of Smith’s prior state-court
convictions was not necessary to, nor introduced for the
purpose of proving, the prosecution’s case against Smith on
those other three counts.
Smith argues that the taint or prejudice from the
erroneously admitted prior New York convictions spilled over
to the other three counts in this case. Given the facts and
1
We note that the trial in this case occurred before the
Supreme Court’s decision in Melendez-Diaz. The District Court’s
ruling on this issue thus was made before and without the benefit of
that dispositive Supreme Court decision.
10
circumstances of this case, we disagree. The clerk’s letters
were redacted and did not indicate the nature of Smith’s prior
offenses. That minimized any prejudice. Moreover, the prior
convictions were not introduced to prove the other three
counts against Smith, and the evidence on those other counts
was overwhelming. That evidence included (but was not
limited to) many recordings of phone calls between Smith and
Glover in which they discussed their drug distribution ring;
Smith’s recorded description of his guest flushing his drugs
down the toilet; and the 316 grams of heroin, two loaded
firearms, and $27,730 in cash seized from Smith’s bedroom
when he was home alone. The Confrontation Clause violation
was thus “harmless beyond a reasonable doubt” as to the other
three counts of conviction. United States v. Wilson, 605 F.3d
985, 1014 (D.C. Cir. 2010); see generally Chapman v.
California, 386 U.S. 18, 23-24 (1967); see also Prophet v.
Duckworth, 580 F.2d 926, 927 (7th Cir. 1978) (under
Chapman, “the error would be harmless if . . . because of the
overwhelming nature of the evidence against him, the jury
could not have reasonably reached a different verdict even if
the prior conviction were not used”); United States v. Greene,
578 F.2d 648, 653-54 (5th Cir. 1978) (“even if the reference
to the prior offenses in closing argument was improper . . . .
the prejudicial effect, if any, of the comments was slight in
relation to the overwhelming evidence of guilt,” and under
Chapman, “any impropriety was harmless beyond a
reasonable doubt”); Bates v. Nelson, 485 F.2d 90, 95-96 (9th
Cir. 1973) (“In view of the overwhelming evidence . . . we
find that any error in the admission of priors or use of them
during the trial was harmless beyond a reasonable doubt
within the meaning of Chapman . . . .”).
To sum up on the Confrontation Clause issue, we find
error and vacate the judgment with regard to the felon-in-
11
possession conviction but not the other three counts of
conviction.
B
At trial, FBI Agent Bevington testified about his
understanding of certain slang that was used by Smith,
Glover, and others in recorded telephone conversations –
words such as dope, key, and hardball. Bevington testified as
a lay witness under Federal Rule of Evidence 701. Smith
claims that the FBI agent’s testimony necessarily constituted
expert testimony and thus should not have been allowed as lay
opinion testimony.
Bevington interpreted the slang terms based on his
experience investigating drug crimes. For example, he stated:
“I don’t know that it’s common knowledge in the general
public, but in drug circles it’s well known that if you’re
referring to dope, you’re talking about heroin and not cocaine
or some other drug.”
Rule 701 of the Federal Rules of Evidence limits a lay
witness’s opinions or inferences to those “(a) rationally based
on the perception of the witness, and (b) helpful to a clear
understanding of the witness’ testimony or the determination
of a fact in issue, and (c) not based on scientific, technical, or
other specialized knowledge within the scope of Rule 702.”
Rule 702 governs testimony from expert witnesses – those
who testify based on scientific, technical, or specialized
knowledge in a field of expertise. The party wishing to use an
expert witness must first establish the witness’s “knowledge,
skill, experience, training, or education.” Fed. R. Evid. 702.
The witness may offer expert testimony only if the trial judge
finds that the witness’s qualifications and methods make his
12
opinions “reliable.” Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993).
Smith argues that Agent Bevington’s interpretation of
drug dealers’ slang was not admissible under Rule 701 as lay
testimony because it was based on “specialized knowledge”
Bevington gained from working on other drug investigations.
Based on our recent precedents, we agree and hold that
Bevington’s interpretations constituted expert testimony
within the scope of Rule 702.
This Court has recently explained: “An individual
testifying about the operations of a drug conspiracy because
of knowledge of that drug conspiracy . . . should be admitted
as a lay witness; an individual testifying about the operations
of a drug conspiracy based on previous experiences with other
drug conspiracies . . . should be admitted as an expert.”
Wilson, 605 F.3d at 1026. 2 We have drawn that line because
knowledge derived from previous professional experience
falls squarely “within the scope of Rule 702” and thus by
definition outside of Rule 701. See Fed. R. Evid. 701(c).
Other courts of appeals have reached the same conclusion.
See United States v. Oriedo, 498 F.3d 593, 602-03 (7th Cir.
2007); United States v. Garcia, 413 F.3d 201, 216-17 (2d Cir.
2005). At oral argument in this case, the Government stated
that “if an agent is testifying based on his experience in other
investigations and his experience as a narcotics investigator,
as opposed to simply his personal perceptions in the case,
after Wilson, that yes, if there were an objection, we would
have to satisfy Rule 702.” Tr. 34. That’s what happened
here. 3
2
Our Wilson decision was issued after the trial in this case.
3
Of course, there is “no bar in this Circuit to dual testimony as
both a fact and expert witness.” United States v. Ramsey, 165 F.3d
13
The question, then, is whether this error requires vacatur
of the three drug-related counts or instead was harmless.
Under the harmless-error standard of Rule 52(a), we disregard
a non-constitutional evidentiary error “unless it had a
‘substantial and injurious effect or influence in determining
the jury’s verdict.’ The government bears the burden of
proving the absence of such an effect.” United States v.
Linares, 367 F.3d 941, 952 (D.C. Cir. 2004) (citation omitted)
(quoting Kotteakos v. United States, 328 U.S. 750, 776
(1946)).
Here, the error is harmless. Bevington would have
qualified as an expert and testified about the slang
conversations under Rule 702. The Government would have
established Bevington’s qualifications as an expert witness
based on his 21 years with the FBI and 17 years investigating
drug crimes, hundreds of drug investigations, and thousands
of hours listening to wiretapped conversations between drug
dealers. Moreover, as we have explained earlier, the evidence
against Smith in this case was overwhelming. Therefore, like
other courts of appeals that have confronted similar scenarios,
we conclude that allowing Bevington to testify as a lay
witness constituted harmless error. See United States v.
Figueroa-Lopez, 125 F.3d 1241, 1247 (9th Cir. 1997) (“Given
this background, we are certain he was qualified to deliver the
opinion testimony disputed in this case, and the failure
formally to go through the usual process – although an error –
was clearly harmless.”); United States v. Maher, 645 F.2d
780, 783-84 (9th Cir. 1981) (“Since the testimony was
980, 984 (D.C. Cir. 1999) (internal quotation marks omitted); see
also United States v. Catlett, 97 F.3d 565, 571 (D.C. Cir. 1996)
(“[E]very federal court to consider the issue of dual testimony as
both a fact and expert witness has concluded that the Federal Rules
of Evidence permit such testimony.”).
14
admissible expert opinion, any alleged error committed by the
trial judge in admitting the evidence under the lay opinion
rule was harmless.”); United States v. DeLoach, No. 99-4441,
2000 WL 274972, at *3 (4th Cir. Mar. 14, 2000) (“we find
that even if the court erred by admitting it as lay testimony,
the error was harmless because Riani could have been
certified as an expert under Rule 702”).
C
At the beginning of trial, over Smith’s objection,
Bevington testified: “Mr. Smith and Mr. Glover were working
together putting their money together and going to New York
to buy heroin.” On appeal, Smith argues that this description
by Bevington of Smith’s relationship with Glover constituted
improper “overview testimony” based on inadmissible
hearsay, and thus violated Federal Rule of Evidence 701.
Federal Rule of Evidence 802 prohibits certain hearsay
and therefore generally bars a government agent from
relaying inadmissible hearsay to the jury. Relatedly, some
courts have held that Rule 701 4 precludes a government agent
from offering the agent’s “opinions or inferences” as a lay
witness based on inadmissible hearsay. Those courts have
generally articulated that principle in cases in which the agent
provided “overview testimony” at the beginning of trial in
order to give the jury a preview of the evidence it will hear.
Typically, the agents have recounted hearsay or offered
4
Rule 701 states: “If the witness is not testifying as an expert,
the witness’ testimony in the form of opinions or inferences is
limited to those opinions or inferences which are (a) rationally
based on the perception of the witness, and (b) helpful to a clear
understanding of the witness’ testimony or the determination of a
fact in issue, and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.”
15
hearsay-based opinions based on information learned during
their conversations with witnesses, informants, and other
agents. See United States v. Flores-de-Jesus, 569 F.3d 8, 24
(1st Cir. 2009); United States v. Garcia, 413 F.3d 201, 213
(2d Cir. 2005); United States v. Griffin, 324 F.3d 330, 348
(5th Cir. 2003). 5
The courts of appeals that have rejected such testimony
have started with the basic proposition that “[h]earsay does
not become admissible merely because it is provided by a
government agent in the form of an overview of the
evidence.” United States v. Garcia-Morales, 382 F.3d 12, 17
5
Cf. Flores-de-Jesus, 569 F.3d at 24 (“Most of [the
challenged testimony] was based on inadmissible hearsay.”);
United States v. Aviles-Colon, 536 F.3d 1, 21 n.13 (1st Cir. 2008)
(“Agent Gil did not limit his testimony to what he saw, but rather
gave his conclusion that this defendant was a member of the
conspiracy.”); United States v. Rodriguez, 525 F.3d 85, 96 (1st Cir.
2008) (“Agent Toro’s remarks were not based on his personal
observations, and no evidence had been presented to support his
conclusion that Appellant was in fact a leader of the drug point or
that he participated in Espada’s violent eviction from the housing
project.”); United States v. Casas, 425 F.3d 23, 51 (1st Cir. 2005)
(“This line of testimony appears to have been based, at least in part,
on information provided” to the testifying agent by another
witness.); United States v. Garcia-Morales, 382 F.3d 12, 16 (1st
Cir. 2004) (witness’s opinion should have been excluded when it
was based on “a conversation, at which he was not present, between
the informant and [a drug smuggler]”); United States v. Casas, 356
F.3d 104, 119 (1st Cir. 2004) (“Agent Stoothoff’s testimony was
likely, at least in part, based on the statements of a witness that the
government chose not to call at trial”); Garcia, 413 F.3d at 213
(“Agent Klemick’s opinion was not limited to a summary of his
own observations”); Griffin, 324 F.3d at 348 (“Martin admitted that
his statement . . . was not based on personal knowledge but on what
someone told him”).
16
(1st Cir. 2004). The courts have viewed agents’ hearsay-
laden or hearsay-based overview testimony at the onset of
trial as a rather blatant prosecutorial attempt to circumvent
hearsay rules. And the courts have leveled some choice
words at this particular prosecutorial tactic. See Flores-de-
Jesus, 569 F.3d at 27 (First Circuit) (“if prosecutors fail to
heed our guidance in the future, they may be referred for
sanctions”); United States v. Aviles-Colon, 536 F.3d 1, 21
n.13 (1st Cir. 2008) (“It is troubling to us that the
government’s use of the overview testimony indicates an
unawareness of our” prior precedent on this issue.); United
States v. Rodriguez, 525 F.3d 85, 95 (1st Cir. 2008) (“This
court on several occasions has strongly cautioned the
Government against the practice . . . .”); United States v.
Casas, 356 F.3d 104, 120 (1st Cir. 2004) (“The fact that we
and the Fifth Circuit have now had to address the
government’s use of such preliminary overview government
agent witnesses is a troubling development.”); Garcia, 413
F.3d at 214 (Second Circuit) (“We share this concern”
previously expressed by the Fifth Circuit “and similarly
condemn the practice . . . .”); Griffin, 324 F.3d at 349 (Fifth
Circuit) (“We unequivocally condemn this practice . . . .”).
We will assume without deciding that the Rule 802/701
principle set forth in those cases applies in this Circuit as well.
In any event, the Government did not violate the principle in
this case. Bevington’s objected-to testimony was not based
on otherwise inadmissible hearsay. Cf. United States v.
Rosado-Perez, 605 F.3d 48, 55-56 (1st Cir. 2010) (agent’s
overview of “members of the conspiracy and their roles”
admissible when not based on inadmissible hearsay).
To reiterate, Agent Bevington stated: “Mr. Smith and Mr.
Glover were working together putting their money together
and going to New York to buy heroin.” Bevington’s opinion
17
about Smith and Glover’s activities was based on statements
of Smith and his co-conspirator Glover that Bevington
himself heard when listening to thousands of intercepted
conversations. Those statements were not inadmissible
hearsay because they were either admissions of a party-
opponent (Smith’s statements) or co-conspirator statements
(Glover’s statements). See Fed. R. Evid. 801(d)(2). That
distinguishes Bevington’s testimony in this case from agent
testimony based on inadmissible hearsay – such as testimony
based on an agent’s conversations with witnesses, informants,
and other agents – that other courts have found to be in
violation of Rules 802 and 701.
Moreover, even if the District Court erred in admitting
Bevington’s one-sentence description of Smith’s relationship
with Glover, it was harmless error. As noted above, the
Government introduced devastating evidence of Smith’s guilt,
including evidence proving exactly what Bevington stated –
namely, that Smith and Glover pooled their money, traveled
to New York, and bought heroin. The jury heard numerous
incriminating conversations between Smith and Glover that
strongly and directly supported that conclusion. Bevington’s
brief statement about Smith and Glover’s relationship thus
had no discernible effect on the jury’s verdict. 6
6
Finding such testimony to be harmless error is consistent
with the conclusions of courts that have condemned overview
testimony as a general matter yet found it to be harmless error in
the particular case. In other words, those courts have not deemed
improper overview testimony to be per se reversible error. See,
e.g., Flores-de-Jesus, 569 F.3d at 30 (“harmless error analysis saves
the government’s convictions”); Casas, 425 F.3d at 52 (“no
prejudice resulted from the court’s improper admission of Agent
Stoothoff’s overview testimony”); Garcia, 413 F.3d at 217 (“this
single evidentiary error had no substantial and injurious effect or
influence on the jury verdict and, thus, was harmless”) (internal
18
D
Officer Joseph Bellino, a former U.S. Park Police officer,
testified about a 2004 traffic stop of Smith. Bellino stated
that, during the stop, he searched Smith’s car and found a gun
and “two large bundles.”
At trial, Smith objected to the officer’s reference to
“bundles,” and the District Court sustained the objection. The
court then told the jury: “We are going to just talk about this
weapon that was allegedly found in the car. Nothing else.”
On appeal, Smith expresses concern that the jury might
have thought the bundles referred to bundles of heroin.
According to Smith, the District Court thus should have
instructed the jury to disregard the “bundles” reference. But
even assuming such an instruction was necessary here, cf.
Casas, 356 F.3d at 114, the District Court essentially gave it:
The District Court sustained the objection and told the jury
that only the weapon in the car was to be discussed. The jury
could not have considered the “bundles” reference if it
followed the judge’s instruction. “We normally presume that
a jury will follow an instruction to disregard inadmissible
evidence inadvertently presented to it, unless there is an
overwhelming probability that the jury will be unable to
follow the court’s instructions and a strong likelihood that the
effect of the evidence would be devastating to the defendant.”
United States v. Foster, 557 F.3d 650, 656 (D.C. Cir. 2009).
By sustaining the objection and telling the jury that only the
gun in the car was to be discussed, the District Court
quotation marks omitted); Garcia-Morales, 382 F.3d at 16 (“this
error was harmless”); Casas, 356 F.3d at 121-22 (error harmless for
two of the appellants); Griffin, 324 F.3d at 350-51 (improper
overview testimony was harmless when “viewed in light of the
record as a whole”).
19
adequately cured whatever problem might have been created
by Officer Bellino’s reference to “bundles.”
E
Finally, Smith argues that the District Court improperly
increased the mandatory minimum sentence for the
conspiracy count from 10 to 20 years based on Smith’s prior
New York felony drug conviction. Smith contends that he
had a Sixth Amendment right to have the jury find the fact of
his prior felony drug conviction.
Smith’s request for a jury finding is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998).
There, the Supreme Court held that the fact of a prior
conviction need not be proved to a jury in order to increase
the defendant’s sentence. Id. at 247.
Smith protests that the reasoning of Almendarez-Torres is
in tension with the reasoning of later sentencing cases from
the Supreme Court. See United States v. Booker, 543 U.S.
220 (2005); Apprendi v. New Jersey, 530 U.S. 466 (2000).
Perhaps so. But those later cases nonetheless explicitly
reaffirmed the rule announced in Almendarez-Torres. See
Booker, 543 U.S. at 244; Apprendi, 530 U.S. at 490. As a
lower court, we of course remain bound by Almendarez-
Torres.
***
We vacate the judgment of the District Court with respect
to Smith’s conviction for unlawful possession of a firearm by
a felon. We affirm the judgment of the District Court with
respect to the other three counts of conviction. Because
Smith’s sentence for the felon-in-possession conviction runs
20
concurrently with counts of conviction that are affirmed, his
25-year term of imprisonment will not change. We remand
for further proceedings consistent with this opinion.
So ordered.