United States v. Joseph

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit

4-28-2006

USA v. Joseph
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1413

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 05-1413

UNITED STATES OF AMERICA

v.

RONNIE JOSEPH

Appellant

Appeal from the United States District Court
for the District of Delaware
(D.C. Criminal Action No. 03-cr-00106-1)
District Judge: Honorable Kent Jordan

Submitted Under Third Circuit LAR 34.1(a)
March 7, 2006

Before: RENDELL and AMBRO, Circuit Judges,
SHAPIRO,* District Judge

(Opinion filed: April 28, 2006)

OPINION

AMBRO, Circuit Judge

*
Honorable Norma L. Shapiro, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
 Ronnie Joseph appeals from the order and judgment of the United States District

Court for the District of Delaware. Joseph was convicted of possession of a firearm in

furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c), making a false

statement to purchase a firearm in violation of 18 U.S.C. § 922(a)(6), and possession with

the intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1). She was

sentenced to 61 months imprisonment, followed by 36 months of supervised release, and

a $300 special assessment. Joseph alleges the District Court made three errors and, as a

result, her conviction should be reversed. For the reasons set out below, we affirm the

Court’s judgment.1

I.

As we write exclusively for the parties, we set out only those facts necessary to

our analysis.2 Agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives

(“ATF”) went to Joseph’s home to investigate her purchase of two firearms from a gun

store in Delaware. During the course of the agents’ investigative visit, (a) the agents

discovered marijuana, glass vials and plastic baggies, (b) Joseph admitted she sold

marijuana, (c) she stated she used to sell “dope” (which the questioning officer

understood to mean heroin), and (d) the agents saw razor blades and scratches on a table

1
We have jurisdiction over this matter pursuant to 28 U.S.C. § 1291, as it is an
appeal from a final decision of the District Court.
2
We note that Joseph has not contended that there was anything unlawful about the
agents’ presence in her home, their questioning, or their discovery of the marijuana.

2
on which there was marijuana residue.

Prior to trial, Joseph moved in limine to exclude her “dope” statement and any

testimony regarding the razor blades in connection with the sale of drugs other than

marijuana. The Government argued that Joseph’s statement and the razor blades were

admissible for the purpose of proving her intent to distribute the marijuana. The District

Court observed that, under Federal Rule of Evidence 404(b), prior bad acts can be used to

prove intent3 and stated that “the prejudicial impact of her admission in this regard does

not substantially outweigh its probative value . . . . It’s appropriate to have the admission

come in.” The Court did not explicitly discuss the motion in limine as to the razor blades,

but stated that “[t]he motion is overruled” and testimony regarding the razor blades was

subsequently introduced at trial.

During the trial, the prosecution made numerous references to “dope,” “heroin,”

“PCP” [phencyclidine], “rock,” “cocaine,” “hydro” [a hydroponic weed with a higher

Delta-9-Tetrahydrocannabinol (THC) level] and “crack.” Some of those references were

3
Pursuant to Federal Rule of Evidence 404(b)
[e]vidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident, provided that upon request by the accused, the
prosecution in a criminal case shall provide reasonable notice in advance of
trial, or during trial if the court excuses pretrial notice on good cause
shown, of the general nature of any such evidence it intends to introduce at
trial.

3
connected to Joseph’s admission that she had sold “dope” in the past (to repeat, a term

the questioning officer understood to mean heroin). Other references stemmed from the

conclusions of the prosecution’s witnesses regarding the blades, vials, and baggies found

in Joseph’s residence.4 Defense counsel objected when one witness testified that the

packaging materials found at Joseph’s home are “more to sell your crack cocaine and

your cocaine as far as rock cocaine is crack.” In response to the objection, the Court

stated, “I permitted testimony about packaging materials, dope, et cetera with respect to

admissions she had made and to go to intent, state of mind,” and granted the objection “to

the extent [the witness] is going to start talking about what else would go in those

4
In her opening statement, the prosecutor told the jury that one witness would
testify that “there is something more going on here than simply marijuana,” and that the
materials found at Joseph’s home “are commonly used for packaging a certain[] type of
marijuana – marijuana of a little higher quality, something called ‘hydro,’ and marijuana
that is sometimes laced with something other than marijuana.” During her direct
examination of witnesses, the prosecutor elicited testimony that the razor blades,
scratches and marijuana residue on the table were “indicative of a person packaging
marijuana and other drugs;” “razor blades aren’t used too often for marijuana;” “razor
blades are used for your powders, your cocaine, your heroin;” the “baggies” found at
Joseph’s home are “more to sell your crack cocaine and your cocaine as far as rock
cocaine is crack;” vials like the ones found at Joseph’s home are often used for “‘hydro,’
which is a hydroponic weed . . . [with a ] higher THC level,” or for marijuana “actually
laced with PCP;” and that a pipe found at Joseph’s house could be used for “smoking
marijuana or smoking rock or anything.” In her closing statement, the prosecutor said
razor marks “could be consistent with distributing marijuana, packaging marijuana, but
it’s also used or more often used in connection with other drug dealing activities,” and
the vials found “are consistent with packaging certain types of marijuana, including
‘Hydro,’ a higher grade marijuana.”

4
baggies.” The Court offered to give a curative instruction, but defense counsel declined.5

The Court addressed the issue of testimony regarding drugs other than marijuana a

second time in a sidebar discussion following an unrelated objection by defense counsel.

The Court stated, sua sponte, “we had another instance where [the witness] started

talking about another drug.” It asked the prosecutor “to lead so that [the witness] stays in

bounds.” Defense counsel then voiced her objection to the non-marijuana testimony and

the Court stated to the prosecutor, “Here is the point. Let’s stay on marijuana, all right?

That is what this case is about. I want you to talk about the dope because there is

evidence with respect to her behavior in that which I already ruled goes to intent to

distribute, but I don’t want us going off in other directions.”

In closing argument, defense counsel contended, inter alia, that the possibility that

Jamar Tate, Joseph’s boyfriend, was the one who was selling the marijuana was enough

to create reasonable doubt of Joseph’s guilt. In rebuttal summation, the Government

prosecutor rhetorically asked the jury, “Who is Jamar Tate? Where is he? If he is not

here, was he subpoenaed? Was there any effort to get him here? Where is he right now?

And what exactly is his relationship? Does anybody know about this person? Do any of

us know? . . . [I]f Jamar Tate was here we could ask him, but he is not here [,] so we just

don’t know.” The prosecution also argued that Tate was a “very convenient [scapegoat]

5
The proposed curative instruction was: “The officer mentioned that it might be
for crack cocaine. This case isn’t about crack cocaine and you shouldn’t let that enter
into your deliberations at all.” Defense counsel claims she declined the instruction for
fear of drawing additional attention to the references to crack.

5
since he is not here.”

Defense counsel objected to the prosecution’s argument as unfairly shifting the

burden to the defendant to present a witness and asked that the jury be specifically

instructed that the prosecution’s statements were improper and unfairly shifted the burden

of proof. The Court overruled the objection to the extent that defense counsel was asking

for a specific rebuke of the Government, but granted it to the extent that the objection

focused on possible misleading of the jury. Because the Court found that the

prosecution’s closing came “real close to leaving the jury with the impression that the

defense should have exercised subpoena power, brought in evidence,” it added a curative

instruction to the burden of proof instructions provided to the jury. Specially, the Court

instructed the jury as follows:

[A] defendant has no obligation to present any evidence at all, or to prove
to you in any way . . . that she is innocent. It is up to the Government to
prove that she is guilty and this burden stays on the Government from start
to finish. It is up to the Government to prove this guilt and this burden
stays on the Government from start to finish. Any implication to the
contrary is inaccurate and should be disregarded.

The substance of this instruction was repeated at the request of defense counsel at the

conclusion of the jury instructions.6

6
The Court repeated the instruction to the jury as follows: “[T]he defendant has no
obligation to present any evidence at all, or to prove to you in any way [that] she is
innocent. It is up to the Government to prove that she is guilty and this burden stays on
the Government from start to finish. The defendant has no obligation to present evidence
or put on witnesses . . . . Any implication to the contrary is inaccurate and should be
disregarded.”

6
 Defense counsel also requested a jury instruction that would advise the jury to

consider whether Joseph’s statements during the investigative visit were made knowingly

and voluntarily and to consider, inter alia, her mental condition and whether the

statements were made without fear or coercion. The Government argued, as the Court

had already held a suppression hearing and determined that the statements should be

admitted, that the requested instruction would invite the jury to overturn the Court’s

suppression ruling. The Court agreed, and did not give the instruction. It did instruct the

jury, inter alia, instead that

[y]ou should use your common sense in weighing the evidence. Consider it
in light of your everyday experiences with people and events and give it
whatever weight you believe it deserves. If your experience tells you that
certain evidence reasonably leads to a conclusion, you are free to reach that
conclusion. . . . It is your job to decide how much weight to give to the
direct and circumstantial evidence. The law makes no distinction between
the weight that you should give to either one . . . . You should consider all
the evidence, both direct and circumstantial, and give it whatever weight
you believe it deserves. In determining the weight to give to the testimony
of a witness, you should ask yourself whether there was evidence tending to
prove that the witness testified falsely concerning some important fact . . .
[;] the fact that a witness may be employed by a law enforcement agency
does not mean that his or her testimony is necessarily deserving of more of
less consideration or greater or lesser weight . . . . It is your decision . . . to
give to that testimony whatever weight, if any, you find it deserves.

Joseph was subsequently convicted and sentenced, and she timely appealed.

II.

Joseph raises three questions for our consideration: (A) whether the District Court

erred in denying her motion in limine to exclude evidence of the razor blades and

7
scratches and her statement that she used to sell “dope;” (B) whether the District Court

abused its discretion in partially denying her objection and request for a particular

curative instruction regarding the prosecutor’s closing argument; and (C) whether the

District Court abused its discretion in denying her request for a jury instruction regarding

the voluntariness of her statements to law enforcement officers. We consider each of

these issues in turn.

A. The motion in limine

Joseph argues that the District Court abused its discretion in denying her motion in

limine to exclude evidence of her possession of drug paraphernalia and her statement that

she used to sell “dope.” The Government contends that the evidence was properly

admitted under Federal Rule of Evidence 404(b). We have a four-part test for admission

of Rule 404(b) evidence: “(1) the evidence must have a proper purpose; (2) it must be

relevant; (3) its probative value must outweigh its potential for unfair prejudice; and (4)

the court must charge the jury to consider the evidence only for the limited purposes for

which it is admitted.” United States v. Cruz, 326 F.3d 392, 395 (3d Cir. 2003) (citing

Huddleston v. United States, 485 U.S. 681, 691-92 (1988)).

We need not consider whether the first three prongs of the four-part test for

admission of Rule 404(b) evidence are satisfied, as it is uncontested that the fourth prong

of the test was not met: the Court did not “charge the jury to consider the evidence only

8
for the limited purposes for which it is admitted.”7 Id. We assume without deciding that

the failure to issue such an instruction, and thus the decision to admit the evidence,

constituted clear or obvious error. Under the harmless error doctrine, however, a non-

constitutional error will not warrant reversal unless “we cannot conclude that there is a

reasonable possibility that the [error] prejudiced [the defendant’s] trial in any meaningful

way.” United States v. Toliver, 330 F.3d 607, 617 (3d Cir. 2003). If, however, the error

was constitutional, we must reverse the conviction unless the error was harmless “beyond

a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24 (1967).

Even assuming that the error here was constitutional, in light of the overwhelming

evidence supporting Joseph’s conviction, we conclude the error was harmless beyond a

reasonable doubt. The ATF agents found marijuana in Joseph’s home and she admitted it

was hers; she conceded, in response to questioning, that she sold marijuana; and she

professed guilt to making a false statement to purchase a firearm. See United States v.

Lore, 430 F.3d 190, 209 (3d Cir. 2005) (“error was harmless beyond a reasonable doubt

inasmuch as there was overwhelming evidence of [the defendant’s] participation in the

conspiracy”); Affinito v. Hendricks, 366 F.3d 252, 262 (3d Cir. 2004) (“Overwhelming

evidence that a defendant acted with intent may also render an erroneous jury instruction

harmless.”); United States v. Balter, 91 F.3d 427, 440 (3d Cir. 1996) (errors “are

7
The Court did offer an immediate curative instruction as to one of the non-
marijuana drug references, but the Government concedes that the limiting instruction
envisioned by United States v. Cruz, 326 F.3d 392, 395 (3d Cir. 2003), was not provided.

9
harmless beyond a reasonable doubt where the evidence against the defendant is

overwhelming”) (internal quotation marks and citation omitted).

We conclude that the denial of Joseph’s motion in limine does not constitute

reversible error. That said, we are troubled by the repeated references to “crack,” “rock,”

“cocaine,” “PCP,” and “hydro” made or elicited by the prosecution. “[T]he tremendous

power a prosecutor may wield is accompanied by a special responsibility to exercise that

power fairly.” Hodge v. Hurley, 426 F.3d 368, 376 (6th Cir. 2005); see also Berger v.

United States, 295 U.S. 78, 88 (1935) (“It is as much [the prosecutor’s] duty to refrain

from improper methods calculated to produce a wrongful conviction as it is to use every

legitimate means to bring about a just one.”); United States v. Moore, 375 F.3d 259, 263

(3d Cir. 2004) (prosecutor has “duty to comply with . . . rules of fundamental fairness”).

In the context of this case, the Government’s inclusion of multiple references to drugs

other than marijuana, neither in evidence nor related to the charges, does not represent its

best efforts to comply with this “special responsibility.” Hodge, 426 F.3d at 376.

B. The prosecutor’s closing argument

A District Court’s “failure to sustain an objection to a prosecutor’s closing

argument is typically reviewed for abuse of discretion.” United States v. Moore, 375

F.3d 259, 263 (3d Cir. 2004). Our Court has “outlined three factors to consider in

determining whether improper comments are prejudicial: the scope of the comments

within the context of the entire trial, the effect of any curative instructions given, and the

10
strength of the evidence against the defendant.” United States v. Gambone, 314 F.3d

163, 179 (3d Cir. 2003). In “deciding whether a new trial is warranted because of

improper remarks made by the prosecutor during closing arguments” we generally apply

a harmless error analysis. Id. at 177. As stated above, if the error was constitutional, we

must reverse the conviction unless the error was harmless “beyond a reasonable doubt.”

Chapman, 386 U.S. at 24.

Assuming once again that the error here was constitutional, considering the scope

of the comments, the curative instruction, and the strength of the evidence against Joseph,

we conclude it was harmless beyond a reasonable doubt.8 First, the scope of the

comments was minimal: the prosecutor made no reference to Tate in her approximately

33-page closing argument and discussed him in less than two pages of her seven-page

rebuttal closing. Further, the particular comments to which defense counsel objected

(“Where is [Tate]? If he is not here, was he subpoenaed? Was there any effort to get him

here? Where is he right now?”) made up only three lines of the prosecution’s total

closing argument. See United States v. Zehrbach, 47 F.3d 1252, 1267 (3d Cir. 1995)

(holding error was harmless when, inter alia, that “comments at issue were but two

sentences in a closing argument that filled forty pages of transcript”).

8
We assume, without deciding, that the invited error doctrine does not apply here
because we discern no fault with defense counsel’s conduct. See United States v.
Molina-Guevara, 96 F.3d 698, 705 (3d Cir. 1996) (invited error doctrine did not apply
when defense counsel’s “defense, and his summation in particular, can accurately be
described as vigorous advocacy entirely appropriate for [the] case”).

11
 Second, the curative instructions provided by the Court were sufficient to cure any

misdirection of the jury. We presume that “juries follow the instructions given by district

courts.” United States v. Hakim, 344 F.3d 324, 330 (3d Cir. 2003). Although a delay in

the provision of a curative instruction can “overcome this presumption,” the delay here

was minimal. Id. The instruction was not offered immediately after the prosecutor’s

comments, but was provided as a part of the jury instructions approximately thirty

minutes after the prosecutor concluded her rebuttal closing and at least ten of those

minutes were taken up by a recess. The delay was therefore insufficient to rebut the

presumption that the jury followed the Court’s instruction that the “defendant has no

obligation to present any evidence [and] . . . . [a]ny implication to the contrary is

inaccurate and should be disregarded.” See, e.g., Hakim, 344 F.3d at 330 (thirty minute

delay, much of which was taken up by a recess, was “insufficient to overcome the

presumption that the jury adhered to the dictates of the curative instruction”). Moreover,

the curative instruction was clear and was repeated at the request of defense counsel.

Finally, for the reasons stated above, the evidence against Joseph was overwhelming.

In this context, the prosecutor’s error was harmless beyond a reasonable doubt.

The District Court therefore did not abuse its discretion in resolving defense counsel’s

objection by issuing the curative instruction in the record.9

9
In determining that the error was harmless in the light of the trial as a whole, we
do not wish to condone the language in the prosecutor’s rebuttal closing when, in the
words of the District Court, “some of what the Government said got right close to the
line, if not over it.” Although a jury may need to be instructed that a defendant does not

12
C. The jury instruction

Joseph argues that the District Court abused its discretion in denying her request

for a jury instruction regarding the voluntariness of her statement to law enforcement

officers. She claims that her case “revolved around . . . the voluntariness and reliability”

of her statements and thus an instruction directing the jury’s consideration of those

statements was essential. She relies primarily on the requirement for jury instructions

found at 18 U.S.C. § 3501(a).10 The Government responds that Joseph did not rely on or

mention § 3501(a) in her argument in support of the confession instruction she proffered

at trial, and thus our review is limited to determining whether plain error was committed.

Both parties, however, failed to note that 18 U.S.C. § 3501 was held

unconstitutional in Dickerson v. United States, 530 U.S. 428, 442-43 (2000). Joseph’s

reliance on the statute is accordingly in vain. Furthermore, we are also unpersuaded by

Joseph’s more general argument (and the one she made before the District Court) that the

requested instruction was necessary, as we conclude that the difference between the

requested instruction and the instruction actually provided was not so great that we could

bear the burden of producing witnesses, the prosecution should require no such reminder.
See, e.g., United States v. Balter, 91 F.3d 427, 441 (3d Cir. 1996) (prosecution “may not
improperly suggest that the defendant has the burden to produce evidence”).
10
18 U.S.C. § 3501(a) provided that
[i]f the trial judge determines that the confession was voluntarily made it
shall be admitted in evidence and the trial judge shall permit the jury to
hear relevant evidence on the issue of voluntariness and shall instruct the
jury to give such weight to the confession as the jury feels it deserves under
all the circumstances.

13
say it affected the outcome of the District Court proceedings. Therefore, even if the

failure to issue the instruction was an error, it was harmless beyond a reasonable doubt.

For the foregoing reasons, we affirm the conviction and judgment of the District

Court.

14