United States v. Elliot Rivera , 780 F.3d 1084 ( 2015 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13125
________________________
D.C. Docket No. 1:12-cr-20339-RWG-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELLIOT RIVERA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 12, 2015)
Before TJOFLAT, JULIE CARNES, and GILMAN, * Circuit Judges.
JULIE CARNES, Circuit Judge:
*
Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit, sitting
by designation.
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Defendant Elliot Rivera (“Defendant”) appeals his convictions for murder
for hire and conspiracy to commit murder for hire, in violation of 18 U.S.C.
§ 1958. During a week-long jury trial, evidence was presented showing that
Defendant attempted to hire a hit man to murder a person on whom Defendant held
a large life insurance policy. Seeking a reversal of his conviction, Defendant
argues that the district court erred in admitting tape-recorded conversations
between himself and the wife of the coconspirator in this plot. Defendant also
contends that the district court erred in allowing the wife to testify about her
understanding of the meaning of certain parts of the taped conversations between
herself and Defendant. Finally, Defendant argues that prosecutorial misconduct
occurred (1) when the prosecutor asked Defendant on cross-examination whether
other witnesses had lied and (2) when the prosecutor, in his closing argument,
suggested to the jury that Defendant had lied during his testimony.
We find no reversible error and affirm.
I. Background
Defendant operated a satellite dish business called All Things Digital.
However he may have amassed his wealth, 1 Defendant was prosperous enough to
be able to loan a large sum of money to Felipe Caldera, who later became the
1
The evidence at trial indicated that Defendant was a regular purchaser of stolen
equipment. In addition, he told his coconspirator that he feared an upcoming court proceeding
because he would be unable to explain how he acquired the $4 million he had loaned the
intended victim in this case.
2
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intended victim of the murder-for-hire scheme at issue in this case. Between 2004
and 2010, Defendant loaned Caldera approximately $3.5 million as an
“investment” in Caldera’s business, and, during that same time period, Caldera
paid Defendant approximately $14 million in interest.
Caldera required these loans from Defendant and other “investors” to
operate his company, Fab Air Corporation, which sold surplus aircraft parts. In the
midst of the 2007 economic recession, Fab Air hit rough times when the market for
aircraft parts took a downturn. To stay afloat, Caldera began borrowing from new
lenders to meet the demands of existing lenders. Ultimately, he was paying over
half a million dollars in interest each month.
To repay Defendant, whom Caldera still owed $3.5 million, Caldera offered
him aircraft parts that he claimed were worth over $14 million. In reality, these
parts were only worth about $80,000, a fact that Defendant only learned later.
Despite this significant misrepresentation, Caldera was able to persuade Defendant
to loan him another $350,000 to buy new aircraft parts that the two men could then
sell at a profit. But instead of buying parts, Caldera used the money to repay other
disgruntled lenders. He later confessed to Defendant that he had spent the money
elsewhere.
Thereafter, Defendant advised Caldera that he had heard “somebody was
going to put a bullet in [Caldera’s] head.” Defendant explained that, while he
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would like to loan Caldera an additional $1.5 million to start a new business,
Defendant was worried that his investment—which with the new loan would top
$5 million—could be at great risk, given this threat on Caldera’s life. Accordingly,
Defendant suggested that Caldera take out a life insurance policy for $5 million
with Defendant as the beneficiary. Either not recognizing that he was putting a
price tag on his own life or just too desperate for money to worry about that,
Caldera bought a life insurance policy. 2 At Defendant’s suggestion, Caldera
initially named his wife as the beneficiary and agreed that he would later assign the
ownership of the policy to Defendant. Defendant provided Caldera with the
money to pay the premiums on the policy and, in February 2011, Caldera assigned
the ownership of the policy to Defendant, who made his company, All Things
Digital, the new beneficiary.
A little over a year later, in March 2012, Defendant made contact with
Ricardo Rodriguez, whom Defendant had known for over ten years and from
whom Defendant sometimes bought stolen cable equipment. Defendant remarked
that someone had stolen $4 million from him, that he was looking for someone
who would kill that individual, and that, in return, Defendant would pay $100,000.
Rodriguez said he did not know anyone who would do what Defendant requested.
2
In fact, Defendant never loaned Caldera the additional $1.5 million.
4
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About a week later, Rodriguez was again selling stolen equipment to
Defendant when Defendant encouraged Rodriguez to find a hit man for a $100,000
fee. Although Rodriguez did not agree to Defendant’s proposal, Defendant gave
him a new telephone number to reach him in the event that Rodriguez found
someone to do the job.
Soon after this, Rodriguez was delivering stolen equipment to Defendant
when Defendant yet again repeated his need for a hit man. Giving Rodriguez a
subpoena issued by the bankruptcy court to the intended victim, Felipe Caldera,
Defendant explained that if Caldera testified about the $4 million loan, Defendant
might be asked to explain how he had been able to acquire $4 million to loan
Caldera. Plus, according to Defendant, Caldera was a swindler who had used
phony aircraft parts as a ploy to steal money from people. Finally, if all that
wasn’t bad enough, Caldera also beat his wife and children. Finally persuaded,
Rodriguez agreed to find a hit man.
Rodriguez contacted a friend named “Jorge,” who had previously sold
Rodriguez stolen equipment and had served time in prison. Rodriguez asked for
Jorge’s help in finding someone to commit a murder and offered him $50,000 for
the job. Jorge agreed.
Unfortunately for Rodriguez, Jorge was an FBI informant. Jorge put
Rodriguez in touch with “Arturo,” the “hit man” he purportedly had found. Not
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surprisingly, Arturo was also an FBI informant. In a recorded conversation,
Rodriguez told Arturo that he wanted him to kill a person who had stolen $4
million from Rodriguez’s family. Arturo agreed to do the job for $50,000.
Rodriguez then gave Arturo the piece of paper on which he had copied information
given to him by Defendant, including Caldera’s full name, a general address, and
the make, model, and license plate number of Caldera’s car. Rodriguez said that
the plan was to summon Caldera to All Things Digital, after which Arturo would
follow Caldera as he left the business, and kill him elsewhere. At Arturo’s request,
Rodriguez gave him the gun he had obtained for the job and agreed to deliver a
$25,000 advance within the week.
Rodriguez reported back to Defendant that the hit man he had hired wanted
$25,000 in advance. Defendant took, in cash, $19,000 from a box in his car and
$6,000 from his pocket, and gave it to Rodriguez. Defendant told Rodriguez he
would pay him the remaining $25,000 after “everything was ready,” which
Rodriguez understood to mean after Caldera was dead.
Later on, Rodriguez gave the $25,000 installment payment to Arturo, at
which point the FBI arrested him. Rodriguez called his wife, Lucienne, told her he
had been arrested, and asked her to call Defendant, explaining that Defendant was
“the only one that was going to be able to help.” Lucienne contacted Defendant,
who pressed her as to why her husband had been arrested—a question she told him
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she was unable to answer—but Defendant nonetheless gave her $5,000 to hire a
lawyer and $1,000 to recover Rodriguez’s impounded truck.
Within a few days, both Rodriguez and his wife Lucienne agreed to
cooperate with the government. Thereafter, Lucienne wore a wire and recorded
her conversations with Defendant. These conversations are the subject of two of
Defendant’s assertions of error and will be discussed in more detail below. In
summary, while Defendant’s comments were sometimes clipped, he eventually
agreed to give Lucienne the $100,000 she demanded in exchange for her husband’s
silence and for her delivery of a tape recording she claimed to possess of the
conversation in which Defendant had given Rodriguez $25,000 to murder Caldera.
Defendant later gave Lucienne a $20,000 advance on the promised $100,000 hush
money, after which she gave him the purported tape made by her husband. The
FBI immediately moved in and arrested Defendant, finding papers in his truck that
showed Caldera’s name, former address, and license plate number, as well as
Lucienne’s license plate number.
II. Standards of Review
We ordinarily review a district court’s evidentiary rulings for abuse of
discretion. United States v. Dortch, 696 F.3d 1104, 1110 (11th Cir. 2012). Where
a defendant raises an evidentiary error for the first time on appeal, we review only
for plain error. United States v. Wetherald, 636 F.3d 1315, 1320 (11th Cir. 2011).
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Generally, we review de novo claims of prosecutorial misconduct. United States v.
House, 684 F.3d 1173, 1197 (11th Cir. 2012). “But where a defendant fails to
make a contemporaneous objection to the alleged misconduct in the district court,
we review such claims for plain error.” Id. To establish plain error, a defendant
must show that “(1) there is an error; (2) that is plain or obvious; (3) affecting the
defendant’s substantial rights in that it was prejudicial and not harmless; and (4)
that seriously affects the fairness, integrity or public reputation of the judicial
proceedings.” United States v. Hoffman-Vaile, 568 F.3d 1335, 1340 (11th Cir.
2009).
III. Discussion
A. Hearsay
Audio recordings of four conversations between Defendant and Lucienne
were admitted at trial. Defendant concedes that any remarks he made in those
conversations were admissible, but he argues on appeal that the portions of the
recordings reflecting Lucienne’s part of the conversation should have been
excluded as inadmissible hearsay. He did not make this objection at trial. We
conclude that the remarks of neither speaker constituted hearsay and accordingly
find no error in their admission.
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1. Content of Recorded Conversations
At issue are the recordings of four conversations between Lucienne and
Defendant that were admitted by the district court. 3 During a May 6, 2012,
telephone conversation, Lucienne told Defendant that her husband, Ricardo
Rodriguez, had been arrested and had asked her to call Defendant because he
would be able to help. Several times, Lucienne expressed her concern that she
would not be able to pay Rodriguez’s attorney, and she repeatedly told Defendant
how distressed she was at her husband’s incarceration. Lucienne requested to meet
with Defendant in person because she did not want to discuss the reason for
Rodriguez’s arrest over the telephone.
At an in-person meeting later that same day, Lucienne told Defendant that
Rodriguez was facing ten years’ imprisonment, but she repeatedly assured him that
Rodriguez was going to be “a man” about the situation and keep quiet. Although
Lucienne never told Defendant why Rodriguez had been arrested, Defendant
appeared to know, without asking, because he wondered aloud how Rodriguez
could be facing ten years’ imprisonment if there was no victim. Defendant later
admitted to Lucienne that he had previously talked to Rodriguez about “following
someone,” but Defendant said that the person he had asked Rodriguez to follow
3
While the recordings were in Spanish, the jury was provided with transcripts of the
conversations in both English and Spanish. The parties stipulated that the transcripts and
translations were true and correct reflections of the recorded conversations.
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had likely not done anything to Rodriguez and that the person did not even know
Rodriguez. Defendant also assured Lucienne that the person whom Rodriguez was
supposed to follow was “fine” and “nothing” had happened to him.
On May 15, 2012, Lucienne and Defendant met in person for a second time.
Lucienne revealed that Rodriguez had now told her the whole truth about “Felipe”
(Caldera), but, not to worry, Rodriguez had taken the blame and he would be
receiving a ten-year sentence. Elaborating on this reassurance, she recounted
Rodriguez’s promise to stay quiet, but also stated that Rodriguez would require
something in return from Defendant. Specifically, Lucienne said, “[H]e’ll keep
silent; he won’t mention anyone, neither you nor anyone, but that the only thing he
asks from you . . . You had offered him [$100,000].” In case Defendant had not
caught the drift of her remarks, she repeated, “He said you offered him $100,000,
and that if you give me the $100,000 he’ll keep silent and it will all end here.”
After Defendant initially denied giving Rodriguez anything, Lucienne responded,
“[Y]ou gave him [$25,000] and he recorded it . . . . I found the recording and I
have it in a safe place.” This revelation appeared to jog Defendant’s memory, and
he then recalled that, in fact, he had loaned Rodriguez some money and assured
Lucienne that he, Defendant, was a “man of [his] word.” Defendant further stated
that Rodriguez had “offered to do it” and that he had told Rodriguez not to do it
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himself. Later, Defendant told Lucienne that he could not give her all of the
money at once, but he would give her $10,000 a month.
A week later, on May 22, 2012, Lucienne met with Defendant for the
purpose of exchanging the tape recording she claimed to possess in return for cash
from Defendant. She gave him the purported recording of Rodriguez’s
conversation with Defendant. As noted above, Defendant then gave her $20,000,
and he was promptly arrested.
2. Analysis
Defendant makes a rather unconventional argument. He contends that
whenever admission of a tape-recorded conversation is sought, only the statements
of the party against whom the conversation is being admitted (here Defendant) can
be admitted. The statements of the other participant in the conversation (here
Lucienne) are not admissible, according to Defendant, because they are out-of-
court statements that should be excluded as hearsay. If Defendant’s position were
correct, it would mean that, except for the criminal defendant against whom the
statements are being admitted, the voice of any other participant to the taped
conversation would have to be removed. Further, any accompanying transcript of
the conversation would have to redact any statements not made by the defendant.
In other words, the jury would hear only a soliloquy by the defendant, with no
knowledge of the substance of any comments by others to whom the defendant was
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responding. Unable to discern the context of a defendant’s remarks, a jury would
almost never be able to make much sense of a defendant’s statements. In effect,
Defendant’s argument would cast doubt on a longstanding practice, occurring over
decades and in innumerable trials, of permitting the jury to hear a taped
conversation between a defendant and another person.
But Defendant is not right. The hearsay rule may sometimes require the
exclusion of particular statements that are part of a recounted conversation,
whether taped or merely recalled by the witness. But it does not operate to
exclude, wholesale, remarks made by another participant to the conversation,
merely because those remarks occurred outside the courtroom. Moreover,
Defendant did not even object at trial that, as a general matter, Lucienne’s
statements were hearsay, nor did he object to any particular statements as being
hearsay. Because Defendant asserted no objections at trial on an issue that he now
raises on appeal, we review this issue for plain error. See Wetherald, 636 F.3d at
1320.
Hearsay is a statement, other than one made by a declarant while testifying
at trial, offered in evidence to prove the truth of the matter asserted. Fed. R. Evid.
801(c). Generally, an out-of-court statement admitted to show its effect on the
hearer is not hearsay. United States v. Cruz, 805 F.2d 1464, 1478 (11th Cir. 1986).
“Such verbal acts are not in the first instance assertive statements and not offered
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to prove the truth of the matter asserted.” Id. Likewise, out-of-court declarations
that are “more in the nature of an order or a request” and that, “to a large degree,
[are] not even capable of being true or false” are also not hearsay. Id.
Defendant concedes that his own statements in the recordings were
admissible under Federal Rule of Evidence 801(d)(2)(A) as statements of a party-
opponent. See United States v. Brown, 441 F.3d 1330, 1358 (11th Cir. 2006);
United States v. Munoz, 16 F.3d 1116, 1120 (11th Cir. 1994) (“[A] statement is not
hearsay if it is the statement of the party against whom it is offered”). As to
Lucienne’s statements, Defendant does not identify any specific statements as
being hearsay, but simply contends that none of her statements should have been
admitted because they were all made outside of the courtroom.
Nonetheless, we have reviewed the tape recording transcripts and conclude
that almost all of Lucienne’s statements fall into one of two categories, neither of
which are hearsay: (1) non-assertive statements that are incapable of being true or
false or (2) statements that are indisputably false. In both cases, her out-of-court
declarations were offered only to show their effect on the listener: Defendant
Rivera. This is not surprising because Lucienne’s entire purpose in making the
tape was to prompt Defendant to talk. Her own statements, by themselves, were
important only to the extent they provided a context to assess Defendant’s
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response. Her statements therefore were not offered for the truth of the matters
asserted.
The majority of Lucienne’s statements are not hearsay because they are not
“assertive” in nature. That is, many of her statements are, “to a large degree, not
even capable of being true or false.” See Cruz, 805 F.2d at 1478. For example,
Lucienne peppered Defendant with questions throughout the four recorded
conversations, asking him things such as, “And who’s Felipe?”; “Why don’t you
tell me what’s going on?”; “Why do I have to put my purse away? What’s the
problem?”; “[W]hat would [my husband] gain with all of this, buddy?”; and “[My
husband went down] for being an asshole, for being stupid?” The transcripts are
also replete with short utterances by Lucienne that are part of any normal
conversation, such as “Yeah”; “All right”; “You know what I mean?”; and “Oh,
my God.” These questions and statements—and many others like these—are
simply incapable of being true or false and thus are not hearsay. But the jury
needed to hear them to give context to Defendant’s responses, which otherwise
would have been no more than a disjointed and incoherent monologue. Id.
The remainder of Lucienne’s statements were not hearsay because they were
indisputably false and therefore could not possibly have been offered to prove the
truth of the matter asserted. See United States v. Bowles, 751 F.3d 35, 39–40 (1st
Cir. 2014) (concluding that signature endorsements on the backs of checks were
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not inadmissible hearsay because the large majority of endorsements purported to
represent the signatures of deceased individuals and thus were indisputably false).
Lucienne made numerous statements to Defendant that Rodriguez was being “a
man,” taking the blame, and remaining silent. But, of course, that was not true.
Whether or not he was being a man, Rodriguez was certainly not remaining silent
because he was already cooperating with the government. In fact, Rodriguez had
testified on this point at trial, prior to the admission of these conversations.
Additionally, Lucienne stated to Defendant that Rodriguez had recorded the
conversation with Defendant when Defendant paid him $25,000 as part of the
murder-for-hire scheme. This statement too was obviously false. Lucienne had
made up the existence of a recording in order to get Defendant’s reaction, and
hopefully an incriminating admission. Likewise, Lucienne’s statement to
Defendant, “I don’t work for the police,” was patently false. She was voluntarily
wearing a wire placed on her person by the FBI. All these statements were offered
as evidence “solely for the fact that [they were] made and the effect [they] might
have upon [their] hearer.” See Cruz, 805 F.2d at 1478.
Finally, we recognize that one of Lucienne’s statements arguably may have
constituted hearsay though, again, we note that Defendant did not object to it at
trial. She told Defendant, “[My husband] said you offered him 100,000 dollars,
and that if you give me the 100,000 dollars, he’ll keep silent and it will all end here
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. . . . On April 20 you gave him 25,000 dollars and he recorded it . . . .” It was the
government’s theory that part of this statement was true: that is, Defendant had
offered Rodriguez $100,000 and he had given him a $25,000 down-payment. But
even if the government hoped that the jury would ultimately conclude that
Defendant had offered a $100,000 bounty on Caldera’s head, with a $25,000
down-payment, it did not need Lucienne’s taped statement to Defendant to prove
that point. Her husband and Defendant’s coconspirator, Ricardo Rodriguez, had
earlier testified that Defendant had offered and paid him money to have Caldera
killed, and Rodriguez was subject to cross-examination by Defendant on that
assertion. Clearly, Rodriguez’s testimony did not constitute hearsay. Rather,
Lucienne’s taped statements on this point were offered merely to show the effect
those statements had on Defendant and to provide context for his later response
and agreement to pay Lucienne $100,000. See id.; United States v. Price, 792 F.2d
994, 997 (11th Cir. 1986) (recorded statements offered to “make understandable to
the jury the statements made by [the defendant]” were not inadmissible hearsay).
Still, if Defendant had any concerns that any of Lucienne’s statements were
improperly being offered for the truth of the matter asserted, he should have
objected and gotten an appropriate limiting instruction. He failed to do so.
In short, where the admission of the substance of a communication between
the defendant and another person is sought, the fact that the statements made by the
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other person were out of court does not, as a blanket matter, preclude admission.
Certainly, specific statements in the conversation may be vulnerable to a hearsay
objection. But first the defendant has to identify these statements and object to
their admission. That did not happen here, and our own review reveals no
improper hearsay within the taped conversation that could have prejudiced
Defendant.
Finally, because Lucienne’s statements and testimony were not hearsay,
there is no need for them to fit within an exception to the rule against hearsay. See
United States v. Mateos, 623 F.3d 1350, 1364 (11th Cir. 2010) (“If the statement is
not hearsay in the first place, there is no need for it to fit within an exception to the
rule against hearsay.”). Accordingly, Defendant’s argument that Lucienne’s taped
statements were not admissible as statements of a coconspirator made in
furtherance of the conspiracy, under Rule 801(d)(2)(E), is beside the point.
In short, we find no hearsay and we find no error—plain or otherwise—in
the admission of the taped conversations between Lucienne Rodriguez and
Defendant.
B. Opinion Testimony
Defendant also contends that the district court improperly admitted into
evidence Lucienne’s opinion testimony as to the meaning of Defendant’s recorded
statements. Rule 701 of the Federal Rules of Evidence permits opinion testimony
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by lay witnesses. To qualify, a witness’s opinion is limited to opinions that are
“(a) rationally based on the witness’s perception; (b) helpful to clearly
understanding the witness’s testimony or to determining a fact in issue; and (c) not
based on scientific, technical, or other specialized knowledge within the scope of
Rule 702.” Fed. R. Evid. 701. Lay opinion testimony must be based on “first-
hand knowledge or observation” and “helpful in resolving issues.” United States v.
Jayyousi, 657 F.3d 1085, 1102 (11th Cir. 2011). Where a witness’s testimony is
based upon her “perceptions of the conversations[,] . . . the accuracy of those
perceptions [is] a question for the jury.” United States v. Davis, 787 F.2d 1501,
1505 (11th Cir. 1986). Additionally, a witness may clarify conversations that are
“abbreviated, composed with unfinished sentences and punctuated with ambiguous
references to events that [were] clear only to the [defendant] and [the witness].”
United States v. Awan, 966 F.2d 1415, 1430 (11th Cir. 1992) (internal quotation
marks omitted).
In their briefs, the parties point to six instances where the district court
overruled Defendant’s recurring objection that Lucienne was offering opinion
testimony. First, during their taped May 6, 2012, in-person meeting, in explaining
how Rodriguez was caught, Lucienne started to tell Defendant that “it look[ed] like
[Rodriguez] went to see somebody and he paid him the money and all that . . . .”
Defendant completed Lucienne’s statement with, “[t]o do what has to be done.”
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Lucienne testified that she understood this to mean that Defendant was “already
aware of what was going on.”
Second, in attempting to distance himself from whatever Rodriguez might
have done or been accused of doing, Defendant told Lucienne, “I talked to him
about . . . how should I put it? Following someone, but in the investigation, not
for, for something, you understand what I’m saying? Look, that’s true, I tell him,
‘Look . . . this person . . . .’” Asked to explain, Lucienne testified that
“[Defendant], what he was explaining to me was that [Rodriguez] was to follow
that individual.”
While testifying about that same conversation, Lucienne was asked what she
thought was being discussed when Defendant had stated, “Hey, I’ll tell you
something. That’s impossible because first of all, the person that talked to him
went and told him, ‘Look I’m going to give you this for you to investigate, that’s
all[].’” Lucienne testified that she understood this to mean that Defendant had
asked Rodriguez only to investigate someone. Defendant later told Lucienne “. . .
paying someone else to do something bad to another person, but, uh, it was a
mistake I made.” Lucienne testified that, to her, this meant that “it was something
that he was paying for that it was a mistake that he made.”
During their May 15, 2014, in-person conversation, after Lucienne
confronted Defendant about having offered Rodriguez $100,000 to hire a hit man
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and about having already paid Rodriguez $25,000 for the job, Defendant stated,
“Tell him I’m a man of my word and I’m going to come through. But he has to
understand that nobody’s going to talk about what he thinks you’ve told me and
what answer can I give you? [sic] You follow me? Nobody’s going to tell you.”
Lucienne testified that she understood this statement to mean that nobody was
going to tell her the truth. At the end of their conversation, Defendant stated to
Lucienne, “All right. It’s going to be 100-100.” Lucienne testified that she
understood this to mean that she would be paid $100,000, and Rodriguez would
keep silent.
The district court did not abuse its discretion by admitting the above
testimony that clarified Lucienne’s understanding of the substance of her
conversation with Defendant. First, Lucienne’s testimony was rationally based on
her perception, first-hand knowledge, and observation. See Jayyousi, 657 F.3d at
1102. She was a participant in the conversations, and the statements by Defendant
at issue were made directly to her. See Awan, 966 F.2d at 1430 (undercover
agent’s opinion testimony was based on his personal perception because he “was
actually present and participating in the conversation and observing what was
happening at the time”).
Second, her testimony was helpful to the jury in understanding the facts at
issue. Lucienne was clarifying a back-and-forth dialogue that contained
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abbreviated and unfinished sentences, with occasional unclear responses and
ambiguous references to events. See id.; Jayyousi, 657 F.3d at 1103 (“We have
held that a lay witness may provide interpretations of code words when the
meaning of these words [is] not perfectly clear without [the witness’s]
explanations.”) (internal quotations omitted). For example, she was asked what
vague statements meant to her, such as “to do what has to be done,” “in the
investigation . . . for something,” and being given “this” to investigate.
In short, we conclude that the district court did not abuse its discretion by
permitting Lucienne to clarify the conversations between herself and Defendant in
the above-described instances.
C. Prosecutorial Misconduct Through The Cross-Examination of the
Defendant
Defendant contends that the prosecutor engaged in misconduct when,
several times during cross-examination, he asked Defendant whether other
witnesses who had testified contrary to Defendant on particular matters were lying.
Defendant objected to most, but not all, of these kinds of questions. The district
court overruled some of Defendant’s objections, but sustained others. 4
4
For example, the prosecutor asked Defendant the following questions during cross-
examination:
Q. Now, we heard from Mr. Bolufé, the individual who you’ve known for a while, who
introduced you to Felipe Caldera. He told you don’t invest with Felipe after a while, didn’t he?
A. That’s ironic when he’s the one who told me to invest with him.
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1. Standard Governing “Were-They-Lying” Questions
A prosecutor’s comments amount to misconduct when the comments are
both improper and prejudicial to the defendant’s substantial rights. United States
v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006). The defendant’s substantial rights
are prejudicially affected when a reasonable probability arises that, but for the
comments, the outcome of the trial would have been different. Id. “When the
record contains sufficient independent evidence of guilt, any error is harmless.” Id.
Q. At the beginning.
A. And throughout.
Q. So, he was lying?
A. I can’t speak for him.
Q. Well, you heard what he said on the stand.
A. I heard what he said.
Q. Was what he said true or not true?
A. You know, what he’s saying. I really can’t speak for him. But that’s not what he told
me, no.
Q. Okay. So, what you’re saying is what he testified to on the stand was a lie.
A. Correct.
While Defendant did not object to the above exchange, he objected when the prosecutor
later asked, “So, Mark Hemmerle was lying?” The district court overruled Defendant’s
objection.
Later during cross-examination, the prosecutor asked Defendant, “So everybody you do
business with, at the time you do business, they’re not liars, but once they testify in court,
they . . . .” Defendant objected to this question as being argumentative, but the district court
overruled the objection, and Defendant testified, “No, I didn’t say that.”
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As to the propriety of questions by a prosecutor that prod a defendant to
accuse another witness of lying, we have held that such questions are not proper.
United States v. Schmitz, 634 F.3d 1247, 1268 (11th Cir. 2011). We forbid such
questions for several reasons. First, there are technical sorts of rationales for
disallowing them. As we noted in Schmitz, the Federal Rules of Evidence do not
permit such questions. Id. While Rule 608(a) permits a witness to testify as to
another witness’s general character for truthfulness or untruthfulness, the rule does
not allow the witness to opine about another witness’s truthfulness on a particular
occasion, such as while on the witness stand. Id. Second, the duty to make
credibility determinations about a trial witness falls squarely in the province of the
jury, and it is not appropriate for another witness, even the defendant, to tread on
the jury’s turf. Id. at 1269. Third, asking a defendant to brand as a liar another
witness whose testimony is at odds with the defendant’s ignores the fact that two
witnesses can testify inconsistently without either of them necessarily having
purposely lied. Innocent, alternative explanations for discrepancies in testimony
can include “lapses in memory, differences in perception, or a genuine
misunderstanding.” Id.
Beyond just the technical reasons for disfavoring these types of questions is
the fact that questioning along these lines can distract the jury from its central task
of trying to figure out which version of events is accurate, not what label to place
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on the witness whose narrative appears less accurate. Id. Further, the “were-they-
lying” line of questions can rapidly become argumentative to the extent that the
questions force the defendant to hurl accusations at contrary witnesses. Id.
Of course, the fact that a prosecutor should not ask a testifying defendant
whether another witness was lying does not mean that the prosecutor will be
prohibited from pinning down a defendant’s testimony by focusing the latter on
conflicts between his account of a certain event and another witness’s testimony on
that point. Indeed, in Schmitz, we cited with approval the Third Circuit’s
observation that “it is often necessary on cross-examination to focus a witness on
the differences and similarities between his testimony and that of another witness.
This is permissible provided he is not asked to testify as to the veracity of the other
witness.” Schmitz, 634 F.3d at 1269–70 (quoting United States v. Harris, 471 F.3d
507, 512 (3d Cir. 2006)).
In short, this is an area in which form could perhaps be said to trump
substance, and, given this reality, a prudent prosecutor must work to frame his
questions properly. No doubt, there are a number of ways in which a skilled cross-
examiner can properly highlight conflicts between the defendant’s testimony and
that of other witnesses. What he cannot do, though, is ask the testifying defendant
whether a particular witness was lying. And here, several times, the prosecutor did
frame his question in the prohibited manner.
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So, Defendant has succeeded in meeting the first prong of the test for
prosecutorial misconduct: showing that some of the prosecutor’s comments (or
here, his questions) were improper. But there is a second prong that Defendant
must also satisfy, which is demonstrating that the improper questions were
prejudicial to the defendant’s substantial rights. As noted supra, a defendant’s
substantial rights are prejudicially affected when a reasonable probability arises
that, but for the questions, the outcome of the trial would have been different. If
the record reveals sufficient independent evidence of the defendant’s guilt, the
prosecutor’s asking of the verboten question at issue will be deemed harmless. We
therefore proceed to a review of the evidence here to determine whether any error
resulting from the prosecutor’s questions can be fairly said to be harmless. Our
review confirms that, given the substantial evidence pointing to Defendant’s guilt,
one can reasonably conclude that Defendant would have been convicted, regardless
of the prosecutor’s “were-they-lying” questions.
2. Substantial Evidence of Defendant’s Guilt
Ricardo Rodriguez, Defendant’s coconspirator and the intermediary who
was to have hired the hit man, testified that: (1) Defendant offered him $100,000
to find someone to kill Caldera; (2) Defendant provided him with Caldera’s contact
information; and (3) once Rodriguez found a hit man, Defendant gave him $25,000
as a down payment for the hit man. Certainly there was irrefutable evidence that
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Rodriguez did all the above acts, and thus all that was left to implicate Defendant
was to confirm Rodriguez’s testimony that Defendant was behind the plot. That
corroboration occurred through Defendant’s own statements and acts, when he was
being covertly taped by Lucienne Rodriguez. For example, even though Lucienne
did not tell Defendant why Rodriguez was arrested, Defendant already seemed to
know the reason and the identity of the intended victim. He stated that the victim
was okay, that the victim owed “everyone” money, and that many people were
“after the victim.” He acknowledged that he had asked Rodriguez to follow
someone, but initially denied that he had wanted Rodriguez to do any more than
that. When Lucienne told Defendant that she had a copy of a tape-recorded
conversation between Defendant and Rodriguez, during which conversation
Defendant had given Rodriguez $25,000 for the hit, Defendant’s response was not
to say that there could be no such taped conversation because such an exchange
never occurred. Instead, he immediately agreed to pay Lucienne $100,000 in
exchange for Rodriguez’s silence and the purported recording of the incriminating
conversation. Indeed, Defendant subsequently gave Lucienne $20,000 for that
very recording.
In addition, there was ample evidence of Defendant’s motive to kill Caldera.
Caldera had effectively stolen from Defendant when he had grossly overstated the
value of airplane parts that he gave Defendant as repayment for a large loan.
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Further, when Defendant had loaned Caldera an additional $350,000 to take
measures to repay the almost $4 million that he owed Defendant, Caldera had
instead spent the money elsewhere. Of course, Defendant’s strongest motive to
kill Caldera was the fact that Defendant’s company was the owner and beneficiary
of a $5 million life insurance policy on Caldera’s life.
In response to this very damning evidence, Defendant testified, but offered
only confusing and inconsistent explanations. In trying to explain his conversation
with Lucienne, Defendant claimed that he believed he and Lucienne were
discussing stolen equipment he had purchased from Rodriguez, not a murder-for-
hire scheme. Yet this explanation was contradicted by his earlier testimony that he
had never known nor had reason to believe that the equipment he purchased from
Rodriguez was stolen, not to mention the fact that, at some point in his ongoing
dialogue with Lucienne, Defendant clearly had to be on notice of the reasons for
Rodriguez’s arrest.
As to the murder-for-hire scheme, he testified that, in his conversations with
Lucienne, he had pretended to be involved only in order to learn more about what
was going on and that he had agreed to pay Lucienne $100,000 only in order to
buy time to figure out what really happened. Yet, he subsequently acknowledged
that he was going to give Lucienne $100,000 to help her pay for Rodriguez’s
attorney. And whatever reasons he might have asserted for a promise to pay
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$100,000 in the future, there is the fact, confirmed by the tape-recorded
conversation between him and Lucienne, that he actually did pay her $25,000 for
what he and she agreed would be Rodriguez’s silence and a copy of the purported
tape recording of the conversation between Rodriguez and Defendant. Finally,
Defendant denied that he even cared that Caldera owed him almost $4 million.
Defendant’s lack of concern, he said, was because that money represented only
interest, not principal.
This unimpressive account of events by Defendant did, by itself, potentially
constitute substantive evidence of Defendant’s guilt. This is so because a jury is
free to disbelieve a defendant’s testimony and consider it as substantive evidence
of the latter’s guilt. See United States v. McDowell, 250 F.3d 1354, 1367 (11th
Cir. 2001). Given the inconsistencies and implausibility of much of Defendant’s
testimony, one can reasonably infer that the jury so interpreted his testimony.
In short, there was abundant evidence presented at trial to support a
conclusion that, beyond any reasonable doubt, Defendant was guilty. Further,
while the prosecutor should not have asked Defendant whether the latter was
accusing various witnesses of lying, in truth, the existence of substantial
inconsistencies between the testimony of those witnesses and of Defendant was an
appropriate matter for the jury to consider in evaluating the credibility of each
witness and, ultimately, in deciding exactly what had happened. Finally, the
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district court made clear in its instructions that it was up to the jury to “decide
whether [it] believe[d] what each witness had to say and how important that
testimony was. In making that decision [it] may believe or disbelieve any witness
in whole or in part.”
Accordingly, any error created by the prosecutor asking the “were-they-
lying” questions was harmless and not a persuasive ground for reversal. See
United States v. Thomas, 453 F.3d 838, 846 (7th Cir. 2006) (concluding that
questions did not influence the jury’s verdict because of the weight of the evidence
and the standard jury instruction advising the jury of its role to decide the
credibility of all witnesses and to judge the testimony of the defendant in the same
way as any other witness); United States v. Williams, 343 F.3d 423, 437–38 (5th
Cir. 2003) (concluding that questioning did not affect the defendant’s substantial
rights because the prejudicial effect was small, the jury was properly instructed on
its role as a fact-finder, and the evidence of guilt was overwhelming); United
States v. Sullivan, 85 F.3d 743, 750 (1st Cir. 1996) (finding that questions were
harmless error because evidence of guilt was very strong and the error was on a
minor point); United States v. Boyd, 54 F.3d 868, 872 (D.C. Cir. 1995) (finding no
prejudice from the prosecutor’s questions, in part, because of an instruction that
advised the jury that the statements and arguments of counsel are not evidence and
because of the minimal importance of the challenged question).
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Yet, while this type of error will often be harmless, 5 we do not mean by this
observation to offer encouragement to prosecutors to continue the practice at issue
here. Asking a question in this prohibited form creates a needless appellate issue,
and prosecutors cannot be assured that the error will always be harmless. Given
how easy it would be to properly frame a question that focuses on inconsistencies
between the testifying defendant and another witness, a prosecutor commits an
unforced error when he phrases the question incorrectly. And because a skilled
cross-examiner could cover the same ground without slipping into error, we
suspect that a prosecutor who so missteps may well be unaware of the prohibition
against this line of questioning. For that reason, we urge United States Attorney’s
offices in our circuit to do a better job of training their attorneys on this point.
Here, however, the error was clearly harmless and not a ground for reversal.
5
Defendant has cited no case in which a conviction has been reversed due to a “were-
they-lying” question being asked. Without being able to definitively state that no federal court
has ever reversed a conviction on this ground, we do note that our own non-exhaustive survey of
this area vindicates Defendant’s inability to find such cases.
For sure, our sister circuits agree that these types of questions are inappropriate. See
Schmitz, 634 F.3d at 1268 (compiling case law from other circuits). Yet despite their disapproval
of such questions, circuit courts have consistently found this error harmless. Id. Although not
made explicit in the caselaw, this result may largely be due to the fact that the flaw in the
question lies mainly in its form, not its substance, as the existence of an inconsistency between
the testimony of two witnesses is a matter that juries are affirmatively instructed to consider in
assessing credibility.
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D. Alleged Prosecutorial Misconduct in Closing Argument
In a related challenge, Defendant also contends that some of the prosecutor’s
comments during closing argument were improper attacks on his credibility. We
disagree. The prosecutor argued:
[Co-counsel] and I went home last night and tried to make a chart of
every single lie and inconsistency in the defendant’s testimony over
two days. You know what? We would be here for another two
weeks. It was nonstop. At one point his attorney had to tell him to
answer the question. He could not give a straight answer on anything.
And recall, every time we took a break he talked to his attorneys, the
story changed . . . .
Yes, you saw the frustration on my face. I could not get a straight
answer to one question.
Not only that, the story changed so many times I couldn’t remember
the whole story, just like the argument that was just made. It is full of
contradictions.
The prosecutor also contrasted Defendant with Rodriguez, after pointing out that
Rodriguez was totally honest throughout the course of his ten meetings with law
enforcement:
Now, we saw the defendant testify for two days. I don’t think I asked
him 1,000 questions, but, frankly, after all that I don’t remember. I
don’t think he said one thing that was true in front of all of you. Not
one thing. No matter what they asked Ricardo Rodriguez, his story
stayed the exact same. No matter how hard they pressed, his story
never changed. Not once. We cannot say the same thing for the
defendant.
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Defendant did not object to the prosecutor’s statements during closing argument,
so we review for plain error. See House, 684 F.3d at 1197.
A prosecutor is expected to refrain from offering his personal views on a
defendant’s guilt or on the evidence. Parker v. Allen, 565 F.3d 1258, 1273 (11th
Cir. 2009). Yet, a prosecutor is free to suggest during oral argument what the jury
should conclude from the evidence before it. United States v. Johns, 734 F.2d 657,
663 (11th Cir. 1984). “[A]n attorney’s statements that indicate his opinion or
knowledge of the case as theretofore presented before the court and jury are
permissible if the attorney makes it clear that the conclusions he is urging are
conclusions to be drawn from the evidence.” Id. We evaluate the prosecutor’s
comments in the context of the full trial and any curative instructions “to determine
whether the comments so unfairly affected the trial.” Parker, 565 F.3d at 1273.
We conclude there was no error here. When viewed in context, the
prosecutor was urging the jury to draw certain conclusions from the evidence. He
was not interjecting his personal views of the evidence or Defendant’s guilt. In
both statements recited above, the prosecutor offered a conclusion that he
suggested the jury could properly draw: that Defendant’s denials of involvement
in the conspiracy were not credible, while Rodriguez’s testimony was entirely
credible. The prosecutor made the first challenged comment after providing two
specific examples of inconsistencies in Defendant’s testimony. After making the
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comment about attempting to create a chart of Defendant’s lies and
inconsistencies, the prosecutor then went on to describe other specific
inconsistencies between Defendant’s actions and testimony. Likewise, in the
second comment, the prosecutor focused on the fact that Rodriguez’s story and
testimony had remained consistent, while Defendant’s story had repeatedly
changed.
Defendant relies on Schmitz in arguing that the prosecutor’s comments
during closing arguments were improper. During closing arguments in Schmitz,
the prosecutor “hammer[ed] home the idea of a ‘liar list,’ which was a metaphor
improperly developed during Schmitz’s cross-examination.” Schmitz, 634 F.3d at
1270. While cross-examining Schmitz, the prosecutor had asked “were-they-
lying” questions by calling out the names of twelve witnesses who had testified,
and then asking Schmitz if each one should be added to the “list” of people that
Schmitz claimed were lying. Id. at 1267. Then, in closing arguments, the
prosecutor made at least two references to the “liar list” that he had created on
cross-examination. Id. We concluded that the comments about the “liar list”
during closing arguments were improper precisely because they were a “clear
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continuation of the improper questions posed previously during Schmitz’s cross-
examination.”6 Id. at 1270.
Defendant’s reliance on Schmitz to argue similar misconduct here is
misplaced because the facts are distinguishable. Here, the prosecutor’s comments
were not a “clear continuation” of improper cross-examination questions. During
cross-examination, the prosecutor asked Defendant multiple times whether other
witnesses were lying. But in closing arguments, the prosecutor’s challenged
comments were not focused on whether Defendant had accused other witnesses of
lying. Instead, the comments focused on Defendant’s own credibility and the
inconsistencies in his own testimony, as contrasted with the consistency of a
government witness’s testimony.
In short, Defendant argues that, although he never objected to the
prosecutor’s comments in closing argument, the district court should have taken it
on itself to interrupt opposing counsel’s argument and strike the comments at issue.
According to Defendant, the district court’s failure to so act was plain error. We
disagree and find no error here.
For the foregoing reasons, Defendant’s convictions are AFFIRMED.
6
We, however, declined to reverse Schmitz’s conviction because of the improper cross-
examination or the emphasis on that questioning during closing argument: Schmitz had not
objected to either at trial and, applying a plain error standard, we found no reversible error.
Schmitz, 634 F.3d at 1271.
34