[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 01, 2007
No. 06-14785 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-20191-CR-JLK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TEDDY ALBERTO LIZON-BARIAS,
a.k.a. Teddy Alberto Lizon,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 1, 2007)
Before BIRCH, BLACK and FAY, Circuit Judges.
PER CURIAM:
Teddy Alberto Lizon-Barias appeals his convictions, following a jury trial,
for one count of conspiracy to possess with intent to distribute one kilogram or
more of heroin and one count of attempt to possess with intent to distribute one
kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(I)
and 846. Lizon-Barias argues that the district court improperly interfered with his
opening statement and his direct testimony, resulting in the denial of his
constitutional rights to a fair trial, to testify, and to present a defense.1 Second,
Lizon-Barias argues that a confidential informant (“CI”) was not qualified to
render an expert opinion concerning the meaning of certain code words used in the
drug trafficking business because the CI’s opinions were not based on reliable
methods or independent knowledge, and contends that the district court plainly
erred in admitting such testimony. For the reasons set forth more fully below, we
affirm.
I.
a. Opening Statement
We review for an abuse of discretion a claim that the district court
improperly limited a defendant’s opening statement. See United States v. Burns,
1
Although Lizon-Barias makes a passing argument that the district court’s actions during
the proceedings also violated his right to counsel, he fails to offer any substantive argument on this
issue in his brief. Accordingly, he has abandoned this issue. See Irwin v. Hawk, 40 F.3d 347, 347
n.1 (11th Cir. 1994).
2
298 F.3d 523, 543 (6th Cir. 2002) (stating a district judge’s conduct of a trial,
including opening statements, is reviewed for an abuse of discretion). An opening
statement gives counsel the opportunity to state what evidence will be presented in
order to make it easier for the jurors to understand what is to follow, and is not an
occasion for argument. See United States v. Zielie, 734 F.2d 1447, 1455 (11th Cir.
1984), abrogated on other grounds by United States v. Chestang, 849 F.2d 528,
531 (11th Cir. 1988). “The scope and extent of the defendant’s opening statement
rests largely in the discretion of the trial court.” United States v. Freeman, 514
F.2d 1184, 1192 (10th Cir. 1975) (persuasive authority). The court “can exclude
irrelevant facts and stop argument if it occurs.” Zielie, 734 F.2d at 1455. Because
the purpose of an opening statement is to advise the jury of the facts of the case,
the parties should avoid referring to evidence during opening statements that is
even of questionable admissibility. See United States v. Adams, 74 F.3d 1093,
1097 (11th Cir. 1996).
During the opening statement, the district court interrupted defense counsel
where counsel referred to the possibility of additional charges against Lizon-Barias
and argued that Lizon-Barias engaged in acts completely unrelated to the purchase
of heroin and that there was no evidence to even remotely link Lizon-Barias to an
un-indicted co-conspirator identified as Chato. The court further intervened to rule
3
on the government’s objection to counsel’s reference to evidence of questionable
admissibility, specifically, the substance of conversations between Lizon-Barias
and an unknown man identified as Sandy, which it later determined was
inadmissible hearsay. Although some of the court’s interruptions occurred sua
sponte, many were in response to objections raised by the government.
Despite the court’s interjections, defense counsel was able to explain to the
jury its theory that Lizon-Barias intended to purchase stolen lighting equipment for
his club in the Dominican Republic, not heroin, and was able to assert that the
evidence would show that he had no knowledge of the drugs or of the un-indicted
co-conspirator Chato. Counsel was also able to assert that the evidence would
establish certain facts about the CI that would undermine his credibility. Although
the court’s interruptions arguably affected the pace and continuity of counsel’s
opening statement, the court’s evidentiary rulings and instructions to counsel
regarding the impropriety of argument during the opening statement did not
prevent the jury from understanding Lizon-Barias’s theory of defense and the
evidence to be presented in rebuttal of the government’s case. Accordingly, the
district court’s interruptions were not an abuse of discretion.
b. Direct Testimony
“A district court judge has wide discretion in managing the proceedings, he
4
may comment on the evidence, question witnesses, elicit facts not yet adduced or
clarify those previously presented, and maintain the pace of a trial by interrupting
or cutting off counsel as a matter of discretion.” United States v. Day, 405 F.3d
1293, 1297 (11th Cir. 2005) (quotation omitted). Here, Lizon-Barias’s argument
focuses on the district court’s evidentiary rulings during his direct testimony,
which he contends improperly limited his constitutional right to present a complete
defense.
We review a district court’s rulings on the relevance of evidence for abuse of
discretion. United States v. Todd, 108 F.3d 1329, 1332 (11th Cir. 1997). “[W]hen
employing an abuse-of-discretion standard, we must affirm unless we find that the
district court has made a clear error of judgment, or has applied the wrong legal
standard.” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en
banc).
The Federal Rules of Evidence provide that only relevant evidence is
admissible. Fed.R.Evid. 402. “Relevant evidence” is “evidence having any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.” Fed.R.Evid. 401. While the district court is afforded a wide
range of discretion in ruling upon relevance and the admissibility of evidence, we
5
have held that such discretion cannot be used to exclude evidence that is relevant,
crucial, and necessary to a valid defense. Todd, 108 F.3d at 1332. Therefore,
when proffered evidence is “of substantial probative value, and will not tend to
prejudice or confuse, all doubt should be resolved in favor of admissibility.” Id.
(citations and quotations omitted).
Here, Lizon-Barias’s proffered testimony concerning the substance of his
conversations with Sandy, including Sandy’s statements, made his defense that he
was arranging the purchase of stolen lighting equipment and, thus, lacked the
criminal intent to purchase heroin, more probable than it would have been without
the testimony. See Fed.R.Evid. 401. Therefore, the proffered evidence is relevant.
Despite its relevancy, however, the district court properly excluded such testimony
as impermissible hearsay. “‘Hearsay’ is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Fed.R.Evid. 801(c). As a general matter, hearsay is
inadmissible at trial. Fed.R.Evid. 802. However, the Federal Rules of Evidence
provide that the following is an exception to the hearsay rule:
Then existing mental, emotional, or physical condition. A statement of
the declarant’s then existing state of mind, emotion, sensation, or
physical condition (such as intent, plan, motive, design, mental
feeling, pain, and bodily health), but not including a statement of
memory or belief to prove the fact remembered or believed unless it
relates to the execution, revocation, identification, or terms of
6
declarant’s will.
Fed.R.Evid. 803(3). We have stated that in order to admit a statement under Rule
803(3), “[t]he declarant’s statement of mind must be relevant to some issue in the
case.” United States v. Veltmann, 6 F.3d 1483, 1493 (11th Cir. 1993).
Contrary to Lizon-Barias’s assertion, the “state of mind” exception to the
hearsay rule does not apply in the instant case because Sandy’s state of mind is not
at issue. Rather, Sandy’s statements were being offered for their truth, specifically,
to corroborate Lizon-Barias’s testimony that he intended to purchase stolen
lighting equipment, not heroin, and consequently, to show Lizon-Barias’s state of
mind at the time of the offense. Although Sandy’s statements were a significant
component of Lizon-Barias’s theory of defense, it was not crucial to the
presentation of a valid defense, as demonstrated by the remainder of Lizon-
Barias’s testimony on his own behalf. Lizon-Barias established that he had owned
a nightclub in the Dominican Republic since 1994 and had made substantial
improvements to that club in 1995, 1996, 2003, and 2004, documented by various
photographs. Lizon-Barias further established that he met a man named Sandy at
the club and, in 2005, had discussions with Sandy concerning the purchase of
lights for the interior and the exterior of the building. Lizon-Barias continued to
have discussions with Sandy about his budget for the equipment and had
7
researched the costs of different equipment with the help of his wife. Lizon-Barias
admitted that he eventually learned that the equipment he had arranged to purchase
was stolen. On cross-examination, Lizon-Barias further explained that he used
code words such as “things” and “girls” to refer to the lighting equipment.
Accordingly, the district court did not abuse its discretion in excluding testimony
concerning Sandy’s statements as inadmissible hearsay.
In addition, the district court similarly did not abuse its discretion in
excluding extraneous details and additional photographs concerning Lizon-Barias’s
plans to expand his club. Such evidence would have been cumulative because
Lizon-Barias’s ownership of, and previous improvements to, the club had already
been established. See Fed.R.Evid. 403. Moreover, in light of Lizon-Barias’s
testimony and additional explanation of his conduct on cross-examination, there
was no “picture” remaining to be completed or unusual acts to be put in context by
the additional details. Cf. United States v. Hurn, 368 F.3d 1359, 1366-67 (11th
Cir. 2004) (indicating that the defendant has the right to present additional
evidence where the government’s selective presentation of evidence “cast[s] [the]
defendant in an inaccurate, unfavorable light, or make[s] entirely legitimate,
normal, or accepted acts appear unusual or suspicious”) (discussing Todd, 108
F.3d at 1333-34; and United States v. Sheffield, 992 F.2d 1164, 1170 (11th Cir.
8
1993)).
Further, as to Lizon-Barias’s argument concerning the district court’s active
questioning during his direct testimony, the record indicates that the district court
intervened to question him in order to clarify his testimony, to prevent the
introduction of hearsay, and to focus the testimony on events relevant to the issues
at trial. As previously discussed, the court’s intervention did not prevent Lizon-
Barias from establishing the essential facts in support of his defense. For all these
reasons, the district court’s interruptions did not constitute an abuse of discretion
and, consequently, did not violate Lizon-Barias’s rights to a fair trial, to testify, or
to present a defense.
II.
As an initial matter regarding Lizon-Barias’s challenge to the CI’s testimony
regarding code words used in drug trafficking, at trial, Lizon-Barias raised a
limited objection to the substance of the CI’s expert testimony, but did not question
the CI’s qualifications or expertise. Accordingly, to the extent that he now argues
that the CI was not qualified to offer expert testimony, we review for plain error.
United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003). Under plain error
review, we, in our discretion, may correct an error where (1) an error occurred,
(2) the error was plain, (3) the error affects substantial rights, and (4) “the error
9
seriously affects the fairness, integrity or public reputation of judicial
proceedings.” United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770,
1777-79, 123 L.Ed.2d 508 (1993).
While we have not specifically addressed a situation where a CI has been
qualified to testify as an expert witness, we have held that “[l]aw enforcement
officers may testify as to the meaning of slang or code words.” United States v.
Carrazana, 921 F.2d 1557, 1567 (11th Cir. 1991) (citing United States v. Brown,
872 F.2d 385, 392 (11th Cir. 1989)). Nevertheless, even if the district court erred
in admitting testimony regarding slang and code words, we will review the district
court’s decision for harmless error. Id. (noting that, even excluding the officer’s
testimony regarding taped conversations, there was ample evidence that the
defendant participated in a drug conspiracy); see also Fed.R.Crim.P. 52(a). Federal
Rule of Evidence 702 provides that:
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods reliably to
the facts of the case.
In the instant case, the government failed to establish that the CI’s testimony
was the product of reliable principles and methods as required under Fed.R.Evid.
10
702. However, the district court did not plainly err by allowing the CI to testify as
to the meaning of the slang words and phrases on the tapes. The CI testified that
he had previously engaged in drug trafficking activities as a member of the Cali
Cartel, had participated in over 100 drug cases as a CI, and was familiar with the
code words used during drug activities. Thus, the CI had experience participating
in drug cases in which such words were used. Defense counsel was able to cross-
examine the CI concerning his interpretation of these words, but chose instead to
focus his examination on the CI’s former involvement in drug trafficking and
previous removal from service as a CI. Defense counsel also had the opportunity
to argue that the CI’s opinion should be rejected because he received payments
from the government for his work and admitted that he was a “very good liar.”
Further, Lizon-Barias does not assert on appeal that there was insufficient evidence
to support his convictions.
In light of the foregoing, Lizon-Barias’s convictions are
AFFIRMED.
11