United States v. Bowe , 221 F.3d 1183 ( 2000 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
_______________________ ELEVENTH CIRCUIT
AUGUST 8, 2000
THOMAS K. KAHN
No. 94-4281 CLERK
_______________________
D. C. Docket No. 85-00701-CR-JLK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDERICK NIGEL BOWE,
Defendant-Appellant.
_______________________
Appeal from the United States District Court
for the Southern District of Florida
_______________________
(August 8, 2000)
Before EDMONDSON, BARKETT and KRAVITCH, Circuit Judges.
KRAVITCH, Circuit Judge:
Frederick Nigel Bowe appeals his conviction for conspiring to import
cocaine into the United States in violation of 21 U.S.C. § 963. Bowe claims the
district court violated his due process rights by discussing a continuance of the trial
date in his absence and by then denying the continuance. Bowe, a Bahamian
citizen, also argues that the United States violated the doctrine of specialty by
introducing evidence most directly relevant to charges beyond the scope of his
extradition. Finally, Bowe claims the court abused its discretion in a wide range of
evidentiary matters. Finding none of these claims convincing, we affirm Bowe’s
conviction.
I. FACTS AND PROCEDURAL BACKGROUND
Frederick Nigel Bowe was born into a prominent Bahamian family that had
substantial investments and real estate holdings in the Exuma islands region of the
archipelago. Bowe is an attorney, and in the early 1980s, he had a successful
practice in the Bahamas both in criminal defense and representing foreign
investors. The United States government believed that Bowe’s work for and with
some of his clients extended well beyond the practice of law, however, and it
indicted Bowe in 1985 for a number of narcotics offenses. After protracted
proceedings, the Bahamian government extradited Bowe in 1992. In a diplomatic
2
note, the government of the Bahamas explained that it granted extradition only for
the conspiracy count, and the district court dismissed all other charges against
Bowe shortly before trial. The trial commenced in November 1993, and after the
jury returned a guilty verdict, the court sentenced Bowe to fifteen years in prison
and imposed a $250,000 fine.
The conspiracy to import cocaine allegedly began at a Cartagena, Colombia,
meeting in 1982. Bowe flew to Cartagena in a leased Lear jet with Jack Devoe, a
pilot who flew drugs into the United States, and two Miami lawyers. In Cartagena,
Bowe introduced Devoe to Pepe Cabrera, a major drug supplier. Law enforcement
had seized two of Cabrera’s drug-smuggling planes in the United States, and
Cabrera was looking for pilots with their own aircraft to transport his cocaine.
After discussing the logistics of the proposed operation, Cabrera, Devoe, and
Bowe allegedly reached an agreement. Devoe would be responsible for picking up
Cabrera’s cocaine in Colombia and flying it in large shipments to the Bahamas.
Devoe would then break down the shipment into smaller quantities and move the
cocaine into Florida in a series of flights. Bowe would protect the operation from
law enforcement in the Bahamas. Under the terms of this agreement, Devoe was to
keep ten percent of the cocaine he transported. Devoe, in turn, would pass ten
percent of the money he earned from his sale of that cocaine on to Bowe.
3
Between June 1982 and March 1983, Devoe and pilots he had recruited
transported approximately six shipments of cocaine from Colombia, through the
Bahamas, and into Florida. During this time, the government contends that Devoe
and his business manager made numerous payments to Bowe in accordance with
their agreement.
In March 1983, the United States Customs Service seized one of Devoe’s
planes (and its cache of cocaine) arriving from the Bahamas at the West Palm
Beach International Airport. According to the government, Bowe assured one of
Devoe’s associates that he would determine whether the rest of Devoe’s cocaine
stored in the Bahamas was safe, and he offered to help Devoe locate another safe
landing strip. Devoe was unable to continue transporting cocaine for Cabrera,
however, and with Bowe’s blessing he turned the operation over to Ron
Markowski, another smuggler. Markowski soon had to end his participation in the
venture because of an impending indictment by a federal grand jury. Bowe
subsequently introduced two other pilots to Cabrera in an effort to keep the
operation going. In 1984, however, Colombian authorities arrested Pepe Cabrera,
putting an end to the smuggling.
Bowe’s chief defense at trial was that he provided legitimate legal services
to Cabrera and a number of the others who turned out to be involved in the drug
4
trade, and that he never intended to assist with any smuggling. Bowe testified
about his criminal defense practice and the work he did on behalf of seemingly
legitimate businesses controlled by Cabrera, Devoe, and others. Other defense
witnesses provided corroborating testimony. To rebut this line of defense, the
government presented several drug smugglers who testified that they paid Bowe to
help them avoid or escape trouble with law enforcement in the Bahamas.
II. DISCUSSION
Bowe raises a number of issues on appeal; for the sake of organization, we
group them in three categories. The first relates to the defendant’s motion to
continue, filed after one of his attorneys began drug rehabilitation. Bowe contends
that the district court erred both in denying the motion to continue and in
discussing the matter outside of his presence. Second, Bowe argues that admission
of evidence related to the charges dismissed before trial violated the doctrine of
specialty, which provides that a defendant may only be tried for the offenses for
which he was extradited. Finally, Bowe claims that the court abused its discretion
in admitting some evidence offered by the prosecution, in excluding expert
testimony regarding the Bahamian practice of paying bonds in cash, and in limiting
his cross-examination of a government witness.
5
A. The Motion to Continue
After the Bahamian government extradited Bowe to the United States, the
district court set a trial date of February 1, 1993. When Bowe’s attorney withdrew
his representation, the court rescheduled the trial for June 1993. Bowe was unable
to retain new counsel until May, and the defense moved for a continuance so that
counsel could adequately prepare. The court rescheduled the case once again, for
November 1, 1993.
Rosemarie Robinson, David Rowe, and David Markus were the counsel
retained by Bowe. Only Robinson filed a Notice of Appearance, but Markus
argued two hearings between May and the middle of August. On August 11, 1993,
Markus was arrested, and he subsequently entered a drug rehabilitation program in
Atlanta. Markus telephoned the prosecutor on September 7 to advise her of his
predicament and ask that she relay a request for a continuance to the court. The
government filed a motion notifying the court of these circumstances, and the court
convened a status conference on September 14 with the prosecutors, Robinson, and
Rowe to consider the matter.
At the conference, defense counsel requested a continuance until Markus
completed rehabilitation, explaining that Markus “had the duty of actual litigation”
and that Bowe wanted the continuance so that Markus could participate in his
6
defense.1 The court asked the defense to file a formal motion requesting the
continuance and took the matter under advisement. Robinson did file a brief
motion to continue with affidavits from Markus, explaining that his rehabilitation
would take approximately five months and that he would “diligently apply”
himself to Bowe’s defense, and from Bowe, explaining that he was aware of
Markus’s arrest and on-going rehabilitation and that he wanted a continuance so
that Markus could remain a part of his legal team.2 The court denied the motion,
concluding that holding the trial in November as planned would “not result in
manifest injustice to Defendant.”3 The court noted “that Defendant has retained
several able lawyers, and . . . [that] Defendant is an experienced barrister, [sic]
himself.”4
Bowe argues that the court’s handling of the requested continuance was
reversible error for three reasons: (1) that he had a due process right to attend the
discussion of Markus’s rehabilitation and the possible continuance; (2) that
denying the motion in effect denied him the opportunity to choose the counsel of
1
Tr. of Proceedings Before the Hon. James Lawrence King at 8 (Sep. 14, 1993), in R.13.
2
See Mot. to Continue & Exs. C & E, in 2d Supp. R. on Appeal, Tab 209.
3
Order Den. Def.’s Mot. to Continue at 2, in R.2, Tab 103.
4
Id.
7
his choice; and (3) that refusing a continuance denied the defense the opportunity
to adequately prepare for trial. None of these contentions have merit.
Criminal defendants have a right, protected by the Due Process Clause, to
attend any proceeding at which the defendant’s “presence has a relation,
reasonably substantial, to the fullness of his opportunity to defend against the
charge.” Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S. Ct. 330, 332 (1934).
The Due Process Clause requires the defendant’s presence only to the extent that
“a fair and just hearing would be thwarted by his absence.” Id. at 108, 54 S. Ct. at
333; see also United States v. Gagnon, 470 U.S. 522, 526-27, 105 S. Ct. 1482,
1484-85 (1985).
Bowe’s presence would not have contributed to the status conference
discussion of Markus’s rehabilitation and the requested postponement. Bowe does
not claim that he had more extensive knowledge concerning Markus’s situation
(such as the expected length of treatment) than those attending the conference, and
his attorneys adequately communicated his desire for a continuance. Other courts
have held that defendants have no right to attend procedural conferences “unrelated
to any issues at trial.” United States v. Oles, 994 F.2d 1519, 1525 (10th Cir. 1993)
(no right to attend conference concerning change of counsel and possible
continuance of trial date); see also Small v. Endicott, 998 F.2d 411, 414-15 (7th
8
Cir. 1993) (no right to attend scheduling hearing where court made no adverse
ruling).
The court’s discussion with counsel of a possible continuance was not a
formal hearing; in fact it occurred before defense counsel even had filed a motion
for continuance. The court did not decide whether to maintain the existing trial
date at the time of the discussion; instead it waited until it had the opportunity to
review defense counsel’s subsequent motion and supporting exhibits. In effect,
Bowe’s argument is that the Due Process Clause requires district courts to hold
hearings, with the defendant present, before ruling on any motion to continue.
Such a requirement does not exist. See, e.g., United States v. Santiago-Fraticelli,
730 F.2d 828, 830 (1st Cir. 1984) (court did not err in denying request for
continuance without a formal hearing). In particular, hearings are unnecessary
when there is no dispute about the facts underlying the request for a continuance.
See Bernstein v. Travia, 495 F.2d 1180, 1182 (2d Cir. 1974). When the court in
this case denied Bowe’s request for a continuance, it had the benefit of an affidavit
from Bowe as well as information from Markus and his doctors. In these
circumstances, no hearing at all, let alone a hearing with the defendant in
attendance, was required to resolve the motion to continue.
9
Bowe also challenges the court’s ultimate denial of the continuance. We
review the disposition of requests for trial continuances for abuse of discretion.5
See United States v. Wright, 63 F.3d 1067, 1071 (11th Cir. 1995). Bowe argues
that a different standard of review applies in this case, relying on Smith-Weik
Machinery Corp. v. Murdock Machine & Engineering Co., 423 F.2d 842, 845 (5th
Cir. 1970),6 in which this court’s predecessor stated: “An exception to this general
rule [that the granting or refusal of a continuance is a matter of judicial discretion]
exists in certain cases when the illness of counsel is the ground for a continuance.”
It is unclear, however, if the court intended to create a different standard of review
in such cases or if it simply meant that a court can exceed its broad discretion by
denying a continuance when counsel takes ill on the eve of trial. The court did not
articulate a new standard of review, and the very next statement in the opinion was
that “principal counsel was ill, local counsel was relatively unprepared, the time for
continuance was short, and the case was complicated. In these circumstances we
feel that the general rule must yield to the exception.” Id. This is classic “abuse of
5
The party denied the continuance must also show specific, substantial prejudice in some
circumstances, such as when the claim is based on an alleged inadequate opportunity to prepare for
trial. See United States v. Bergouignan, 764 F.2d 1503, 1508 (11th Cir. 1985).
6
Decisions by the former Fifth Circuit issued before October 1, 1981, are binding as precedent
in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en
banc).
10
discretion” analysis. Indeed, throughout the Smith-Weik opinion the court
carefully considered all of the pertinent facts and weighed the competing interests
in expedience versus fairness, and it drew on the abuse of discretion standard in so
doing. Id. at 844.
This circuit has never applied a more stringent standard of review in reliance
on Smith-Weik when illness of counsel was the grounds for a requested
continuance,7 but even if such an exception to the abuse of discretion standard
exists, we are not convinced that it would apply in this case. Bowe requested a
postponement of many months, not just a few days as in Smith-Weik, and Bowe’s
request came not on the eve of trial but with weeks left to prepare. In these
circumstances, we see no reason to depart from the abuse of discretion standard of
review.
It is undisputed that one aspect of the right to counsel protected by the Due
Process Clause is the defendant’s right to choose his or her attorney. See Gandy v.
Alabama, 569 F.2d 1318, 1323 (5th Cir. 1978). Courts, however, must balance this
7
The only time the Eleventh Circuit has discussed Smith-Weik, we did so just briefly in a
footnote. See Arabian Am. Oil Co. v. Scarfone, 939 F.2d 1472, 1479 n.17 (11th Cir. 1991). The
appellant in Arabian American appealed the denial of a continuance requested when his counsel
withdrew two days before trial. The Arabian American court affirmed the denial of the continuance,
finding Smith-Weik inapposite. The court noted that Smith-Weik “created an exception to the trial
court’s discretion in denying continuances,” but concluded that it did not support the notion
(suggested by the appellant in Arabian American) that a litigant or attorney must always have ample
notice and time to prepare for trial. See id.
11
right with “the general interest in the prompt and efficient administration of
justice.” Id. Defendants therefore are only guaranteed “a fair or reasonable
opportunity” to select the attorney of their choice. See Gandy, 569 F.2d at 1324;
Birt v. Montgomery, 725 F.2d 587, 593 (11th Cir. 1984) (en banc).
When deciding whether a denial of a continuance impinged on this “fair and
reasonable opportunity,” reviewing courts should consider a number of factors,
including (1) the length of the delay, (2) whether the counsel who becomes
unavailable for trial has associates adequately prepared to try the case, (3) whether
other continuances have been requested and granted, (4) the inconvenience to all
involved in the trial, (5) whether the requested continuance is for a legitimate
reason, and (6) any unique factors. See Gandy, 569 F.2d at 1324. In Gandy, the
court held that, when the defendant’s trial counsel had a conflict with the scheduled
trial date, denying a continuance was an abuse of discretion, in part because the
delay requested was brief and no other attorney was prepared to try the case. See
id. at 1327-28. Furthermore, counsel’s conflict in Gandy came to light on the
morning the trial was to begin. See id. Having weighed the factors outlined in
Gandy, we conclude that the district court did not deny Bowe a reasonable
opportunity to select the counsel of his choice. The postponement requested by
Bowe was lengthy and open-ended, and Markus’s absence left Bowe with two
12
attorneys well versed in his case. In fact, Robinson was the only attorney who had
filed a notice of appearance on Bowe’s behalf by August 1993; Markus had not
done so. Finally, Markus entered rehabilitation more than two months before
Bowe’s scheduled trial date, and the court’s denial of the continuance on October 4
still left the defendant with almost a month to find additional counsel for his
defense team if he so desired.
Bowe also argues that denying his motion to continue left the defense with
an inadequate amount of time to prepare for trial. Bowe cites United States v.
Verderame, 51 F.3d 249, 252 (11th Cir. 1995), in which this court held that
denying motions to continue and rushing a case to trial thirty-four days after the
arraignment amounted to an abuse of discretion and violated the defendant’s due
process rights. We agree that “[i]mplicit in [the] right to counsel is the notion of
adequate time for counsel to prepare the defense,” id., but the facts in this case
stand in sharp contrast to the scenario in Verderame. Bowe was arraigned in
August 1992, more than a year before trial. Robinson and Rowe began
representing Bowe in May 1993, approximately six months before trial.8
8
Bowe argues that his situation was actually more extreme than that in Verderame because
Robinson and Rowe had not previously done trial work and thus were “completely lacking the
expertise or the experience with which to prepare.” Br. for Appellant at 28. Bowe cites no record
evidence regarding his counsel’s work history. Moreover, we do not find counsel’s previous
experience particularly relevant because Bowe had time to add an attorney with litigation experience
to his defense team after the court denied the motion for continuance.
13
Furthermore, the Verderame court noted that the government’s case grew more
complicated as the trial approached. See id. In contrast, although the
prosecution’s case against Bowe was undoubtedly complex and expansive, the
court actually eased the defense’s task by dismissing twelve of the thirteen counts
against Bowe shortly before the trial. Under these circumstances, we conclude that
Bowe’s attorneys had ample opportunity to prepare his defense, and the district
court did not abuse its discretion in denying his motion to continue.
B. Doctrine of Specialty
The doctrine of specialty dictates that “a nation that receives a criminal
defendant pursuant to an extradition treaty may try the defendant only for those
offenses for which the other nation granted extradition.” United States v. Puentes,
50 F.3d 1567, 1572 (11th Cir. 1995). Article seven of the extradition treaty in
effect between the United States and the Bahamas incorporates the doctrine of
specialty.9 On the basis of this doctrine, the district court dismissed twelve of the
thirteen counts against Bowe when the government of the Bahamas objected that
they were beyond the scope of its agreement to extradite him. Notwithstanding
9
Extradition Treaty, Dec. 22, 1931, U.S.-Gr. Brit., art. 7, 47 Stat. 2122, 2124 (1932), adopted
by the Commonwealth of the Bahamas on its independence from the United Kingdom.
14
this action by the court, Bowe claims that in effect he was brought to trial on all of
the counts because of the sweeping nature of the evidence introduced by the
prosecution at trial.
According to Bowe, he is raising a simple matter of contract law, but he
characterizes the issue as novel and alerts us that “[a]n interested international
community awaits [the] Court’s answer.”10 In fact, we have answered the
questions raised in Bowe’s argument before. It is well settled in this circuit that the
doctrine of specialty limits only the charges on which an extradited defendant can
be tried; it does not affect the scope of proof admissible at trial for the charges for
which extradition was granted, see Puentes, 50 F.3d at 1576, and it does not alter
the forum country’s evidentiary rules, see United States v. Archbold-Newball, 554
F.2d 665, 685 (5th Cir. 1977). Addressing the specific issue in this case, we have
in the past allowed the government to introduce evidence of uncharged drug and
money laundering activities to obtain conspiracy convictions against extradited
defendants. See United States v. Lehder-Rivas, 955 F.2d 1510, 1520 (11th Cir.
1992). Because Bowe was charged with and convicted of only the conspiracy to
10
Br. for Appellant at 42. Bowe eschews international law jargon and case law, describing the
issue matter of factly as whether or not the United States honored the terms of its agreement with
the Bahamas regarding Bowe’s extradition.
15
import cocaine, for which the Bahamian government approved his extradition, the
prosecution’s sweeping evidentiary case did not violate the doctrine of specialty.
C. Evidentiary Issues
Beyond the broad evidentiary challenge in his doctrine of specialty claim,
Bowe raises a number of more specific evidentiary issues. We review the court’s
resolution of these evidentiary issues for abuse of discretion, and if such an abuse
occurred, we ask whether the error was harmless. See United States v. Hands, 184
F.3d 1322, 1326, 1329 (11th Cir. 1999).
A few witnesses, notably Pury Aldereguia and Benjamin Crumpler, testified
about Bowe’s efforts to protect their drug smuggling operations before the time
frame covered in the indictment. The court admitted this testimony pursuant to
Federal Rule of Evidence 404(b) as probative of Bowe’s intent in his subsequent
dealings with Pepe Cabrera and Jack Devoe. Bowe notes that in order to admit
evidence of extrinsic acts under Rule 404(b), there must be an adequate basis for
the jury to conclude that the defendant actually committed those acts. See United
States v. Miller, 959 F.2d 1535, 1538 (11th Cir. 1992) (en banc). According to
Bowe, “[t]he other crimes evidence in this case consisted primarily of erroneous
16
and unfounded assumptions voiced by cooperating witnesses.”11 The focus of this
complaint is Aldereguia’s testimony, in which the witness acknowledged that she
did not actually see Bowe bribe government officials during many of the incidents
she described.
Bowe’s challenge to the Rule 404(b) evidence is without merit. The
prosecution can introduce evidence of a defendant’s otherwise admissible acts if
the jury could find by a preponderance of the evidence that the acts did in fact
occur. See Huddleston v. United States, 485 U.S. 681, 689, 108 S. Ct. 1496, 1501
(1988). Aldereguia’s testimony satisfies this standard. Notwithstanding Bowe’s
characterization, Aldereguia was detailed and specific both on direct and cross-
examination; the witness related incidents she had observed and conversations she
had with Bowe while admitting to gaps in her knowledge. In this circuit, the
uncorroborated word of an accomplice such as Aldereguia provides a sufficient
basis for concluding that the defendant committed extrinsic acts admissible under
Rule 404(b). See United States v. Trevino, 565 F.2d 1317, 1319 (5th Cir. 1978).
Bowe also claims that the court failed to strike lay opinion testimony by
Aldereguia. The only specific example Bowe provides is Aldereguia’s testimony
that Bowe “illegally” obtained the release of a fisherman from jail. It is hard to
11
Br. for Appellant at 48.
17
ascribe error to anything related to that statement by the witness, however,
because, taken as a whole, it is almost incomprehensible. Asked when Bowe first
became involved with her drug smuggling, Aldereguia responded: “The first time
was when he got, actually I got a man out for him, he got a man out for me illegally
who was a fisherman.”12 The witness later clarified her statement: the fisherman
was charged with illegally fishing for lobster and he was not involved with drugs;
Aldereguia paid Bowe $5,000 to represent him in court, and Bowe obtained an
acquittal.13
As a more general matter, it was permissible for Aldereguia to elaborate on
and explain the facts she related to the limited extent that she did. Non-expert
witnesses may offer their opinions if they are rationally based on the witnesses’
own perception and if they either help clarify the witnesses’ other testimony or
determine a fact in issue. See Fed. R. Evid. 701. Aldereguia’s testimony
concerned facts of which she had direct knowledge—events she observed and
conversations she had relating to her drug operation.
Bowe’s third challenge to Aldereguia’s testimony is that she made the
“startling claim” that the defendant negotiated on her behalf with government
12
Trial Tr., in R.21, at 6.
13
See Trial Tr., in R.21, at 8, 23-24, 72-74.
18
officials to purchase marijuana seized by the Bahamian defense force.14 Bowe
cites this as one example of a broader problem, namely that throughout its case, the
United States unfairly put the government of the Bahamas on trial. Most of the
evidence relating to corruption in the Bahamas was relevant, even essential,
because the thesis of the prosecution’s case was that Bowe paid Bahamian officials
so that drug smugglers could avoid or escape trouble. Some of the evidence may
have been unnecessary (Jack Devoe, for example, testified about his relationship
with the former Prime Minister of the Bahamas), but it was not directly related to
the defendant and was so fleeting as to be harmless.
In another challenge to evidence introduced by the government, Bowe
argues that the prosecution engaged in misconduct, which violated his due process
rights, by asking Devoe to testify about a meeting he attended with Carlos Ledher
and Bowe concerning a proposed smuggling arrangement even though the
prosecution knew that Ledher had stated he “did not engage in any criminal
activities with the defendant.”15 To make out a claim of prosecutorial misconduct
in this context, however, the defendant must establish both that Devoe’s testimony
was false and that the prosecutors knew so. See United States v. Michael, 17 F.3d
14
Br. for Appellant at 46.
15
Government’s 14th Supp. Resp. to Standing Disc. Order at 1, in R.2, Tab 105.
19
1383, 1385 (11th Cir. 1994). Bowe cannot satisfy either requirement. First,
Devoe’s testimony about the meeting does not necessarily conflict with Ledher’s
statement denying any criminal activities with Bowe.16 Second, even if we were to
assume that Devoe committed perjury and accept the fact that his testimony
conflicts with Lehder’s statement, the conflict would not establish that the
government knew the testimony was false. See id. In the absence of other
indications that the prosecutors believed Devoe’s testimony to be false, we cannot
conclude that they engaged in misconduct by asking him about the meeting with
Ledher and Bowe.
Finally, Bowe contends that Devoe’s testimony about Ledher’s statements at
the meeting constitute inadmissible hearsay. Federal Rule of Evidence
801(d)(2)(E) excludes statements by co-conspirators of the defendant from the
definition of hearsay, but Bowe argues this exclusion applies only to the
conspiracy charged in the indictment. Bowe contends that the prosecution never
delineated who was part of the charged conspiracy and was thus able to make
16
The fact that Bowe was present when Ledher and Devoe discussed a possible smuggling
operation does not mean that Bowe was engaging in criminal activity himself, or at least that Ledher
would construe Bowe’s presence as criminal. As Devoe testified, Bowe introduced him to Ledher
but did not participate much in their conversation. See Trial Tr., in R.17, at 77. Moreover, the
meeting did not bear fruit; Devoe never agreed to transport cocaine for Ledher. See Trial Tr., in
R.15, at 81.
20
impermissibly broad use of the co-conspirator hearsay exception.17 In fact, it is
Bowe who takes too narrow a view of Rule 801(d)(2)(E), because the conspiracy
that forms the basis for admitting a co-conspirator’s out of court statements need
not be the same conspiracy for which the defendant is charged. See United States
v. Arce, 997 F.2d 1123, 1128 (5th Cir. 1993); United States v. Dawson, 576 F.2d
656, 658 (5th Cir. 1978) (statements by a non-testifying participant in an
uncharged conspiracy are admissible against defendant for charged offenses).
Bowe does not deny as part of this argument that he conspired with Lehder and
other witnesses testifying pursuant to Rule 404(b), so their hearsay statements were
admissible.
In regard to the defense’s case, Bowe argues that the court erred in excluding
as irrelevant expert testimony that lawyers in the Bahamas often post bond in cash,
and that at times such payments are made directly to magistrates or law
enforcement officials. Bowe contends that this testimony would have informed the
jury’s interpretation of prosecution witnesses who had testified that Bowe made
payments to police and defense officials to secure the release of detained
smugglers and the return of smuggling boats. In support of his argument, Bowe
17
Bowe does not provide examples beyond Devoe’s testimony, but he intimates that the court
permitted other hearsay testimony on the same suspect grounds..
21
cites cases holding that custom and practice evidence can be essential to a criminal
defense. See United States v. Gaskell, 985 F.2d 1056, 1062-64 (11th Cir. 1993);
United States v. Riley, 550 F.2d 233, 236-37 (5th Cir. 1977).
In this case, however, we agree with the district court that the proffered
expert testimony would have been irrelevant; at worst, excluding the testimony
amounted to harmless error. The fact that lawyers often make legitimate bond
payments in cash does little to explain the witnesses’ specific allegations against
Bowe. Furthermore, rather than explaining that these alleged payments were for
posting bond, Bowe denied making many of them at all when he took the stand.18
Bowe also claims that the court erred in limiting his counsel’s cross-
examination of Pepe Cabrera regarding the witness’ consultations with Bowe about
legal matters during 1982 and 1983. According to Bowe, this information would
have helped demonstrate that his was a legitimate professional relationship with
Cabrera. In fact, the court stated that it would allow cross-examination on the
extent of Bowe’s legal work for Cabrera, prohibiting only an inquiry into the
specific nature of crimes for which Cabrera was a suspect or had been indicted.19
18
See Trial Tr., in R.25, at 135-36, 146, 153-54.
19
See Trial Tr., in R.18, at 46-56.
22
We agree with the district court that such detail was irrelevant, and we find no
error in the limit placed on the cross-examination of Cabrera.
III. CONCLUSION
We find no reversible error in the district court’s handling of Bowe’s
requested continuance, in regard to the doctrine of specialty, or in the various
evidentiary issues raised in the appeal. Therefore, Bowe’s conviction is
AFFIRMED.
23