United States v. Torres ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4150
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JONATHAN ANTHONY LEE TORRES,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:06-cr-00255)
Submitted: May 15, 2008 Decided: June 16, 2008
Before WILKINSON and MOTZ, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
John C. Hunter, THE JOHN C. HUNTER LAW FIRM, PLLC, Asheville, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina; Don D. Gast, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jonathan Anthony Lee Torres appeals his conviction and
100-month sentence for possession of ammunition by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1) (2000). Finding no
reversible error, we affirm.
I. Prosecutorial Misconduct
Torres first alleges on appeal that the United States
Attorney committed prosecutorial misconduct by (1) improperly and
prejudicially commenting on the credibility of his sole exculpatory
witness, Gail Barnette, and implying extrajudicial information
proved her testimony was false, and (2) intimidating Barnette prior
to trial, thereby effectively denying Torres his right to a fair
trial. To establish prosecutorial misconduct, a defendant must
show that the prosecutor’s conduct or remarks were improper, and
that the conduct or remarks prejudicially affected his substantial
rights so as to deprive him of a fair trial. United States v.
Golding, 168 F.3d 700, 702 (4th Cir. 1999).
The Assistant United States Attorney did not state that
Barnette had lied either during cross-examination or closing
arguments. Rather, in response to Barnette’s indication that the
prosecutor had threatened her and scared her into changing her
story, he cross—examined her regarding their conversation the
morning of trial, eliciting Barnette’s acknowledgment that he had
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told her he did not believe her new, inconsistent statement, and
that if she lied on the stand and he could prove it, she could be
prosecuted for perjury. During closing arguments, the prosecutor
stated several times that Barnette’s testimony was “inherently
incredible” and “unbelievable,” and followed those statements with
a recitation of the evidence supporting his contentions. He again
recounted his conversation with Barnette the morning of trial,
stating:
I told her, and she confirmed this with you, that I
simply told her I didn’t believe what she was telling
me, and I summed up the evidence for her that you heard
yesterday, and I told her that if she lied –- I didn’t
tell her that if she said what she told me she would be
indicted for perjury. I told her “If you lie under oath
about anything and we can prove it, you’ll be indicted
for perjury.” This was no surprise to her. And, in
fact, she admitted that.
During the Assistant United States Attorney’s closing
statements, the court instructed the jury: “Members of the jury,
you’ll take your own recollection as to what the evidence was in
the case and not that urged upon you by either counsel.” The
prosecutor also informed the jury: “anything I say about this
conversation is based not on what I remember, but based on what she
said on the stand. If you remember it differently, please, you
know, go with your recollections.” The district court reenforced
this point, instructing the jury that: “You are the sole judges of
credibility of the witnesses in this trial and the weight that
their testimony deserves. You may believe all, a part, or none of
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what a witness said.” In addition, the court instructed the jury:
“If a lawyer asked a question which contains an assertion of fact,
you may not consider the assertion as evidence of that fact. The
lawyers’ statements are not evidence.”
We find the prosecutor’s statements properly “stress[ed]
to the jury the inconsistencies and improbabilities in [Barnette’s]
testimony.” United States v. Moore, 710 F.2d 157, 159 (4th Cir.
1983). Further, his statements did not substantially prejudice
Torres, especially given the district court’s instruction to the
jury that it was solely up to them to determine witness
credibility. See id. at 159-60. We also find the Assistant United
States Attorney did not imply to the jury that he was relying on
extrajudical evidence to inform Barnette during their meeting that
he knew she was lying.
Next, we find that the Assistant United States Attorney’s
warning to Barnette against committing perjury did not amount to
substantial witness interference. See Bank of Nova Scotia v.
United States, 487 U.S. 250, 262 (1988) (holding warning to
attorney implying client would be subject to prosecution for
perjury if the witness testified was not improper and did not give
rise to a finding of prejudice); United States v. Washington, 398
F.3d 306, 310 (4th Cir. 2005) (upholding district court’s finding
that “the prosecutor’s statement that [the witness] possibly faced
prosecution for perjury or obstruction of justice by repudiating
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his earlier statements was, in these circumstances, the act of a
prudent prosecutor.”).
II. Exclusion of Witness Testimony
Torres next contends the district court erred by
excluding as irrelevant the testimony of his parents. This court
reviews a district court’s evidentiary ruling on the exclusion of
evidence for an abuse of discretion. United States v. Fulks, 454
F.3d 410, 434 (4th Cir. 2006), cert. denied, 127 S. Ct. 3002(2007). Although a defendant has a constitutional right to present
evidence in his favor, see United States v. Moussaoui, 382 F.3d
453, 471 (4th Cir. 2004), “a defendant’s right to present a defense
is not absolute: criminal defendants do not have a right to present
evidence that the district court, in its discretion, deems
irrelevant or immaterial.” United States v. Prince-Oyibo, 320 F.3d
494, 501 (4th Cir. 2003) (citing Taylor v. Illinois, 484 U.S. 400,
410 (1988)).
We find Torres fails to demonstrate that the district
court abused its discretion in excluding testimony about Torres’
parents’ alleged past encounters concerning a traffic ticket and a
motor vehicle accident with one of the arresting officers. See
United States v. Leeson, 453 F.3d 631, 636 (4th Cir. 2006)
(“Federal Rule of Evidence 401 defines relevant evidence as
‘evidence having any tendency to make the existence of any fact
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that is of consequence . . . more probable or less probable than it
would be without the evidence.’”) (quoting Fed. R. Evid. 401),
cert. denied, 127 S. Ct. 1874 (2007).
III. Upward Departure on Sentencing
Torres argues the district court failed to provide
adequate notice of its intent to depart from the guidelines.
Federal Rule of Criminal Procedure 32(h) requires the sentencing
court give the parties reasonable notice when it is considering a
departure on a ground not identified as a possible basis for
departure either in the presentence report or in a party’s
prehearing submission. We find Torres had adequate notice the
court would consider an upward departure at sentencing. The
Government requested an upward departure prior to sentencing in its
objections to the presentence report, to which Torres responded.
While the probation officer did not adopt the Government’s view, it
noted that the position of the Government would be “provided to the
court for consideration at sentencing.” The Government restated
its intent to seek an upward departure in its sentencing
memorandum. Torres thus had sufficient notice the court would
consider the Government’s request for an upward departure at
sentencing.
Next, Torres argues the district court erroneously based
its decision to depart upwardly on evidence of prior arrests that
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did not result in convictions. A departure pursuant to U.S.
Sentencing Guidelines Manual (“USSG”) § 4A1.3 (2006) is encouraged,
provided that the criminal history category does not account
adequately for the defendant’s past criminal conduct or the
likelihood that he will commit other crimes. See United States v.
Dixon, 318 F.3d 585, 588 (4th Cir. 2003). However, a “prior arrest
record itself shall not be considered for purposes of an upward
departure.” USSG § 4A1.3(a)(3) (2006).
The district court improperly considered Torres’ prior
arrests. We find the error harmless, however, because the district
court relied primarily on Torres’ extensive criminal history,
including probation violations, revocations, and history of
assaulting law enforcement officers, in deciding to depart, and
thus the record supports the upward departure without consideration
of Torres’ prior arrests. See United States v. Left Hand Bull, 477
F.3d 518, 520-21 (8th Cir. 2006) (holding district court’s reliance
on prior arrests harmless where court relied primarily on
defendant’s “extensive criminal history and supervised release
violations. The record supports the upward departure, without
consideration of his arrest record or warrants”), cert. denied, 127
S. Ct. 3072 (2007); United States v. Hawk Wing, 433 F.3d 622, 629
(8th Cir. 2006) (“[W]e conclude that the district court had
adequate grounds to depart upward despite its error in considering
the prior arrests for which the PSR did not set forth the factual
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details.”); United States v. Matheny, 450 F.3d 633, 642-43 (6th
Cir. 2006) (finding that although the district court committed
error in considering a prior arrest, the error did not require
reversal because the error did not affect defendant’s substantial
rights since the record otherwise supported the upward departure).
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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