United States v. Quadir Booker ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-2474
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UNITED STATES OF AMERICA
v.
QUADIR BOOKER,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 07-cr-759)
District Judge: Honorable Susan D. Wigenton
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Submitted Under Third Circuit LAR 34.1(a)
March 23, 2010
Before: RENDELL, JORDAN, and GARTH, Circuit Judges.
(Filed : March 29, 2010)
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
Quadir Booker appeals from a May 11, 2009 judgment of the United States
District Court for the District of New Jersey sentencing him to sixty-three months’
imprisonment and three years of supervised release based on his conviction for being a
felon in possession of a gun, in violation of 18 U.S.C. § 922(g). For the following
reasons, we will affirm.
I. Background
A. Factual Background
On the night of June 8, 2007, at least seven detectives1 from the Newark, New
Jersey, Police Department were patrolling the city in unmarked cars. As they drove past a
residence on South 10th Street, they smelled marijuana and observed Booker and others
standing outside. After the detectives exited their cars and identified themselves, Booker
tossed his marijuana cigarette to the ground and began walking up the steps of the
building. Although the detectives ordered Booker to stop, he continued up the steps.
According to one of the detectives, Michael Morgan, Booker then pulled a silver revolver
from his waist band and threw it into the foyer of the building. Detective Morgan shouted
“gun” to alert his fellow detectives.
As Detective Morgan and Detective Elias Garcia went to restrain Booker,
Detective Garcia saw a gun on the floor in the foyer. At that point, another man, Leron
April, came down the stairs, yelling obscenities at the police. After April ignored orders
not to walk into the foyer, he and Detective Garcia ended up in a scuffle that resulted in
the gun being kicked outside. April was arrested for resisting arrest and obstruction of an
1
At one point, the record indicates that there were eight detectives (see App. at 99),
while at another it appears that there were only seven (see App. at 235).
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investigation. Then, one at a time, two of April’s brothers also appeared, each engaging
in the same kind of obscenity-laced tirade against the police, and they too were arrested
and subsequently charged with resisting arrest and obstructing an investigation. Finally,
the April brothers’ mother, Rasheida April, arrived home and asked the detectives why
her sons were being detained. The April brothers’ arrests became important to Booker’s
case because of the answer the police allegedly gave to Ms. April’s question. According
to Ms. April, when she asked an officer why her sons were being detained, the officer told
her that “[t]hey find a gun and they want to know whose gun it is.” (App. at 23.)
On September 20, 2007, a federal grand-jury returned an indictment charging
Booker with a § 922(g)(1) violation.
B. Evidentiary Rulings
On September 9, 2008, the jury trial in Booker’s case began. He called Ms. April
as a defense witness, and she testified that, although she could not remember the exact
officer who spoke with her, one of the officers told her that “[t]hey find a gun and they
want to know whose gun it is.” 2 (Id. at 23.) The defense relied on that testimony in
closing argument. The jury was ultimately unable to reach a verdict, and the proceedings
thus ended in a mistrial.
2
Another defense witness, Malik Timmons, was at the scene the night of the
incident, and testified that the officers asked him whether the gun belonged to him. He
testified only at Booker’s first trial.
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A second trial began on January 27, 2009. In advance of the retrial, the
government filed a motion in limine to preclude Ms. April from testifying about what the
unidentified officer said to her, as she had in the first trial. The government argued that
the statement was hearsay under Federal Rule of Evidence 801(c) and that it did not fall
within an exclusion or exception to the prohibition against hearsay contained in Rule 802.
Booker opposed the motion, arguing that Ms. April’s testimony concerned a question
posed by the officers, rather than an assertion, and this did not constitute a hearsay
“statement” under Rule 801(c). Booker further argued that, even if the officer’s remark
was an assertion, it was admissible as an admission of a party-opponent under Rule
801(d)(2). At argument on the motion, the government responded that Ms. April, if
called, would testify about what some officer allegedly said to her, and that her testimony
thus constituted an assertion or statement rather than a question. Without directly
addressing the Rule 801(d)(2) argument, the Court ruled that Ms. April could testify as to
what she observed on the evening of the incident, but not about “which officer said this
and which officer said that.” 3 (Id. at 134.) The Court also said it would revisit the issue
during trial.
At trial, Ms. April testified as follows: “When I went first, I tried to ask questions,
but they [the police] say I have to wait because they find a gun and they try to figure out
3
The Court first suggested that the statements could come in due to the availability
of the officers for cross-examination at trial but later appeared to abandon that point of
view.
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whose gun it is.” (Id. at 373.) The government then renewed its objection, which the
Court sustained. Ms. April then testified to a comment she had made, rather than what
the police officers told her, namely, “I tell the kids: Whoever gun it is, you ought to tell
the police so we can get this over and done.” (Id. at 375.) The defense then argued that
Ms. April’s original statement about what the police officer told her should be considered
by the jury as impeachment evidence against the officers who testified, specifically under
Rule 613 of the Federal Rules of Evidence as a prior inconsistent statement made by a
witness. The Court sustained the government’s objection and did not hear further
argument on whether the statement was admissible under Rule 613.
C. The Government’s Closing Statement
At the close of trial, the prosecutor gave a summation in which he argued to the
jury that “the defense has tried to get you [the jury] to focus on things other than the
central facts of this case.” (Id. at 51; see also id. at 52 (“[T]he defense was hoping that
you ... wouldn’t focus on Quadir Booker and that gun.”), 54 (“[W]hy has the defense been
so anxious to try to shift your focus away from the central facts of this case?”), 58 (stating
that the defense “want[s] you to be distracted and imaginative.”).) He also attacked the
defense’s theory of the case, which he characterized as asserting that there was a
conspiracy to frame Booker. (Id. at 53-55, 58.)
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Defense counsel then moved for a mistrial, arguing that the prosecutor’s closing
improperly “impugn[ed] the motives of defense counsel.” (Id. at 59.) The motion was
denied.
In his rebuttal summation, the prosecutor addressed defense counsel’s argument
that it was implausible that the detectives, who were primarily concerned with violent
crimes, would have considered marijuana a serious offense in Newark.
Defense counsel said, and you heard the mocking and the cross
examination. These detectives are out here in the worst, most dangerous
areas of the city. They’re there to suppress violent crime, murders,
shootings, and you heard them mocking marijuana. You care about
marijuana? Well, you heard what Detective Simpkins said about that. He
said: We get complaints from people saying there are groups of people
standing in front of my house, smoking marijuana, doing various things. So
when they see a group of men standing in front of a house smoking
marijuana, they go over to make sure those people live there, and they
belong there.
Now, ladies and gentlemen, the testimony may have been that these are the
worst, most dangerous areas of the city, but are these detectives wrong that
even if you live in the most dangerous area of the city, you deserve not to
have that in front of your house? Are they wrong about that? Do you
forfeit your right if you live there to not have that going on in front of your
house?
(Id. at 69-70.)
The jury returned a guilty verdict, and, on May 7, 2009, the Court sentenced
Booker, as earlier noted, to sixty-three months’ imprisonment and three years of
supervised release. Booker timely appealed, requesting that we vacate his conviction and
remand the case for a new trial.
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II. Discussion 4
Booker advances two arguments on appeal. First, he argues that the prosecutor’s
closing remarks rose to the level of prosecutorial misconduct, as they improperly
impugned defense counsel’s integrity and thus prevented a fair trial. Second, he argues
that the District Court erred in prohibiting Ms. April from testifying about what one of the
police officers said to her on the night of June 8, 2007. His argument here is two-fold.
First, he contends that the statement is admissible as substantive evidence under Rule
801(d)(2) as an admission by a party-opponent. Second, he says that the statement is
admissible as impeachment evidence under Rule 613.
We review a District Court’s denial of a motion for mistrial based on prosecutorial
misconduct for abuse of discretion. United States v. Brennan, 326 F.3d 176, 182 (3d Cir.
2003). A District Court’s evidentiary rulings are reviewed for abuse of discretion.
United States v. Kemp, 500 F.3d 257, 295 (3d Cir. 2007).
A. Prosecutorial Misconduct
Booker claims that “[t]he government intentionally sought to undermine the
integrity of the defense” by accusing defense counsel of attempting to “distract” the jury
with conspiracy theories and by mocking witnesses. (Appellant’s Op. Br. at 16.) “To
find that the court abused its discretion in failing to order a mistrial for prosecutorial
4
The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291.
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misconduct, we must first be convinced that the prosecution did in fact misconduct
itself.” United States v. Rivas, 493 F.3d 131, 139 (3d Cir. 2007). In making that
assessment, we are mindful that attacking an opponent’s arguments, poking holes in trial
tactics, and exposing strategic flaws is a major purpose of summation. United States v.
Lore, 430 F.3d 190, 213 (3d Cir. 2005).
Here, the prosecutor’s comments that defense counsel’s theory was an attempt to
“distract ... from the central facts of this case” (App. at 51), do not amount to misconduct.
See Rivas, 493 F.3d at 139 (stating that prosecutor’s summation remark that defense
counsel’s “job is to take your focus off the issue” was proper). Indeed, Booker’s primary
defense was that the detectives pinned the gun possession on him after learning that he
was a convicted felon. The prosecutor’s challenge to the plausibility of Booker’s defense
was within the bounds of the battle one expects at trial. Rather than attack the character
of defense counsel personally, as Booker asserts, the prosecutor’s comments were aimed
at defense counsel’s theory of the case. (See App. at 55 (“But the defense’s theory is
these [detectives] all got together and framed Quadir Booker. But there’s no evidence to
support that.”)) Because such comments fall within the scope of allowable argument,
Booker has failed to demonstrate “that the prosecution did in fact misconduct itself.”
Rivas, 493 F.3d at 139. Accordingly, we find no error in the District Court’s decision not
to grant a new trial.
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Booker also contends that the prosecutor’s rebuttal summation constituted
prosecutorial misconduct. Because he failed to object to those comments at trial, we must
confine our review to an examination for plain error. United States v. Brown, 254 F.3d
454, 462 (3d Cir. 2001). Plain error analysis requires us to consider the comments in the
context of the entire record. United States v. Young, 470 U.S. 1, 16 (1985). We may
reverse only if our review of the record “reveal[s] ‘egregious error or a manifest
miscarriage of justice.’” Brennan, 326 F.3d at 182 (quoting Brown, 254 F.3d at 458).
In his summation, defense counsel reiterated the position that the detectives had
questionable motives for stopping at the scene: “And you’ve heard Detective Simpkins
saying all the bad things they are out there trying to proactively prevent. And on this day,
at this time, they decide marijuana is bad in Newark, New Jersey ... . I want you to use
your common sense.” (App. at 60.) The prosecutor responded by arguing on rebuttal that
the officers indeed had a legitimate reason to be concerned about marijuana because they
often received complaints about marijuana smoking, and those complaints deserved
attention, regardless of the pressing need to address violent crimes.
The prosecutor’s overall response to this line of argument did not constitute
prejudicial error. Defense counsel sought to raise doubts in the juror’s minds about the
detectives’ honesty, and thus invited the prosecutor to argue that the detectives’ motives
were sound. See Werts v. Vaughn, 228 F.3d 178, 200 (3d Cir. 2000) (no error where the
prosecutor’s “comments were invited and ... went no further than required to ‘right the
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scale’”). While the prosecutor perhaps should not have accused defense counsel of
“mocking” witnesses or “mocking marijuana” because that characterization arguably
“was not necessary to answer defense counsel’s [argument,]” Young, 470 U.S. at 17,
those two fleeting references to “mocking” were not sufficient to unfairly prejudice the
jury and therefore do not warrant reversal. See, e.g., Lore, 430 F.3d at 214 (prosecutor’s
comments during rebuttal summation that defense counsel was “disingenuous” and guilty
of “clever lawyering” were not plain error because they were part of a relevant response
to defense counsel’s closing); Gov’t of V.I. v. Joseph, 770 F.2d 343, 351 (3d Cir. 1985)
(prosecutor’s “ill-advised” comments, which spanned “five paragraphs in a fourteen page
summation,” were not pervasive enough to require reversal). Viewed in context, the
remarks were likely understood as merely countering defense counsel’s assertion that the
detectives had no good reason to investigate a marijuana offense. Accordingly, any error
in the prosecutor’s rebuttal summation cannot be said to have resulted in a miscarriage of
justice.
B. Evidentiary Rulings
As previously noted, Ms. April was prepared to testify at trial that a police officer
responded to her questions about her sons by telling her that a gun had been found and
that they, the police, were “try[ing] to figure out whose gun it was.” (App. at 373.) After
the Court sustained the government’s objection that the testimony constituted
inadmissible hearsay, defense counsel argued that it was admissible for impeachment
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purposes under Rule 613. The Court sustained that objection as well. Thus, Ms. April
was only permitted to testify that “I tell the kids: whoever gun it is, you ought to tell the
police so we can get this over and done.” (Id. at 375.) Booker contends that the District
Court erred in finding that the statement was neither an admission of a party-opponent
under Rule 801(d)(2), nor admissible as impeachment evidence under Rule 613.5 We
agree with the District Court that the statement is not admissible under either of those
evidentiary theories.
i. Admissions of a Party-Opponent
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.” F ED. R.
E VID. 801(c). However, the Rules define as non-hearsay an admission by a party-
opponent, which includes “(A) the party’s own statement, in either an individual or a
representative capacity or ... (D) a statement made by the party’s agent or servant
concerning a matter within the scope of the agency or employment, made during the
existence of the relationship.” F ED. R. E VID. 801(d)(2). Booker argues that Ms. April’s
statement falls within the quoted definition of non-hearsay because she was testifying
5
Booker also suggests that the statement posed no hearsay problem, as the
declarant (one of the police officers) was available to testify. This argument has no merit.
Rule 802 provides that “[h]earsay is not admissible except as provided by these rules ... .”
F ED. R. E VID. 802. Booker thus had the burden of articulating how the statement was
either excluded from the definition of hearsay or how it fell into an exception to the
hearsay rule, and he has not provided any persuasive argument to meet that burden.
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about a statement made by a law enforcement officer, who is “an agent working within
the scope of his authority and in a representative capacity.” 6 (Appellant’s Op. Br. at 20.)
Here, the party-opponent is the United States. The party who allegedly made the
statement, a police officer employed by Newark, New Jersey, is not an agent of the
United States for purposes of Rule 801(d)(2). Indeed, several courts, including ours,
“have held that statements by police officers or other law enforcement officials are not
admissible on an admissions theory as substantive evidence against the sovereign in a
criminal prosecution.” Lippay v. Christos, 996 F.2d 1490, 1497 (3d Cir. 1993); see also
United States v. Arroyo, 406 F.3d 881, 888 (7th Cir. 2005) (noting that “government
agents are not party-opponents for purposes of Rule 801(d)(2)”); United States v. Kapp,
781 F.2d 1008, 1014 (3d Cir. 1986) (“There is no authority for the proposition that the
prosecution is a ‘party’ against whom [Rule 801(d)(2)] evidence can be offered.”).
Further, Booker has failed to offer any factual support for the existence of an agency
relationship between the United States and the New Jersey detectives whose statement he
6
The government asserts that Booker waived his 801(d)(2) arguments by not
raising them at trial when the government objected to Ms. April’s testimony, but instead
arguing that the evidence should be admissible as impeachment evidence. Although there
is some support for the government’s position that Booker abandoned his in limine
arguments by choosing to rely exclusively on Rule 613 at trial, see United States v. Silva,
554 F.3d 13, 20 n.8 (1st Cir. 2009) (defendant likely waived the argument that a prior
inconsistent statement should have been admitted for its truth where he offered it at trial
solely for impeachment pursuant to Rule 613(b)); see also United States v. Iglesias, 535
F.3d 150, 158 (3d Cir. 2008) (a party fails to preserve an evidentiary issue for appeal by
not making a timely, specific objection), we need not resolve the issue of waiver because
we hold that Booker’s Rule 801(d)(2) argument has no merit.
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sought to admit. See Lippay, 996 F.2d at 1498 (explaining that an agency relationship
under Rule 801(d)(2) requires the party-opponent to personally supervise the declarant’s
work on a continuing basis). Because a statement allegedly made by a Newark police
officer cannot bind the United States in a criminal prosecution, Ms. April’s testimony
cannot be considered an admission of a party-opponent under Rule 801(d)(2).7
ii. Impeachment Evidence
At trial, defense counsel pressed for Ms. April’s testimony to be admitted under
Rule 613(b), which provides that prior inconsistent statements may be admissible to
impeach a witness.8 United States v. Stevens, 935 F.2d 1380, 1393 n.17 (3d Cir. 1991).
However, the decision about whether to admit or exclude testimony is left to the sound
discretion of the trial judge. United States v. Fallon, 470 F.3d 542, 546 (3d Cir. 2006).
Here, it cannot be said that the District Court abused its discretion in not allowing
Ms. April to testify that an unidentified detective told her that the police were trying to
figure out who owned the gun. First, the statements at issue are not inherently
7
Nor can Ms. April’s testimony come in under Rule 801(d)(1)(A), which provides
that a prior inconsistent statement may be admitted for its truth if it was made orally under
oath at a previous formal proceeding. The statement Ms. April sought to admit against
one of the detectives was made during the incident on the night of June 8, 2007.
Accordingly, it cannot be admitted as a prior inconsistent statement pursuant to Rule
801(d)(1)(A) because it was made neither under oath nor at a formal proceeding. See
Lippay, 996 F.2d at 1497 n.7 (a prior statement made not under oath or at a proceeding or
deposition was properly excluded under Rule 801(d)(1)(A)).
8
There is some question as to whether this argument was preserved on appeal, as it
surfaces with little mention in Booker’s opening brief. Nevertheless, we address it on the
merits.
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inconsistent. See United States v. Hale, 422 U.S. 171, 176 (1975) (before “prior
inconsistent statements may be used to impeach the credibility of a witness ... the court
must be persuaded that the statements are indeed inconsistent”). The officer’s statement
to Ms. April that the police were trying to figure out “whose gun it was” is not necessarily
inconsistent with the testimony at trial that the police never questioned the arrestees about
who the gun belonged to.9 The record reflects that at least seven detectives were on the
scene by the time the incident unfolded; the one who allegedly made the statement to
Ms. April could have been conferring with Detectives Morgan and Garcia, who observed
Booker toss the gun, to determine possession or ownership.
Furthermore, and more significantly, Ms. April failed to identify who made the
allegedly inconsistent statement. Thus, even if an inconsistency did exist, the foundation
was not properly laid to introduce extrinsic evidence for impeachment. Rule 613(b)
requires that a witness against whom the inconsistent statement is offered be “afforded an
opportunity to explain or deny the same.” See United States v. Green, 556 F.3d 151, 158
n.5 (3d Cir. 2009) (explaining that Rule 613(b) “is explicit that in order to ‘prove up’ the
content of the inconsistent statement, [the declarant] must be confronted with it”). Here,
9
Whether an inconsistency exists between the testimony that officers saw Booker
toss the gun and Ms. April’s testimony that an officer said they were still trying to figure
out “whose gun it was” is not the question presented to us. It does not appear that that
argument was made to the District Court. Rather, it seems that Booker contended that the
alleged statement to Ms. April is inconsistent with police testimony that they never asked
the arrestees who owned the gun. (See, e.g., App. at 108-09 (Detective Martinez’s
testimony denying that the officers asked the arrestees about the gun.).)
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Booker did not lay the proper foundation because Ms. April never identified the
declarant. Although defense counsel confronted some of the detectives with the allegedly
inconsistent statement, the record provided to us on appeal indicates that only four of the
seven or eight detectives testified. Without the identity of the declarant, or even a
sufficient effort to lay a foundation with the group of potential declarants, Booker simply
did not meet the foundation requirement of Rule 613(b). Cf. Garcia-Martinez v. City and
County of Denver, 392 F.3d 1187, 1194-95 (10th Cir. 2004) (explaining that a statement
was properly excluded under Rule 613 because the impeached witness did not “actually
ma[k]e the prior statement”); United States v. Barile, 286 F.3d 749, 757-58 (4th Cir.
2002) (finding no proper foundation under Rule 613(b) where defendant could not show
that the witness made the statement or adopted it). Accordingly, the District Court did not
abuse its discretion in excluding Ms. April’s testimony.
Finally, even if the testimony was erroneously excluded, the error was harmless
because it did not affect a substantial right. See United States v. Hardwick, 544 F.3d 565,
574 (3d Cir. 2008) (“An error is harmless if it does not affect substantial rights of the
defendant.”) (internal quotation marks and citation omitted). As discussed above, the
testimony could not have been admitted as substantive evidence. It therefore was of
limited probative value because it would have served only to impeach a witness’s
credibility. Moreover, the jury heard defense counsel ask the detectives whether they
questioned the arrestees about who owned the gun or whether they told Ms. April that
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they were trying to discover who owned the gun. (See App. at 108-09, 259, 364-65.)
Although Ms. April was not permitted to testify as such, defense counsel hinted at this
impeachment to the jury during closing, stating “[Ms. April] was not permitted to tell you
what a police officer said to her, but you heard what she said in response to the men that
were out there: Tell them whose gun it is. Just tell them whose gun it is. You’ve got to
connect the dots ... .” (Id. at 62.) Accordingly, any error in excluding Ms. April’s
testimony was harmless beyond a reasonable doubt.
III. Conclusion
For the foregoing reasons, we will affirm the judgment of conviction and sentence
imposed by the District Court.
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