United States v. Alejandro Garcia-Lagunas

ON REHEARING
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4370
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALEJANDRO GARCIA-LAGUNAS, a/k/a Alex Fuentes,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:12−cr−00376−F−1)
Argued: September 17, 2015 Decided: September 1, 2016
Before DUNCAN and DIAZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by published
opinion. Judge Diaz wrote the opinion, in which Judge Duncan
joined. Senior Judge Davis wrote a dissenting opinion.
ARGUED: Paul K. Sun, Jr., ELLIS & WINTERS, LLP, Raleigh, North
Carolina, for Appellant. Kristine L. Fritz, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Kelly Margolis Dagger, ELLIS & WINTERS, LLP, Raleigh,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
2
DIAZ, Circuit Judge:
A jury convicted Alejandro “Alex” Garcia-Lagunas of
conspiracy to distribute or possess with intent to distribute
cocaine, in violation of 21 U.S.C. §§ 841(a), 846. He was
sentenced to 188 months’ imprisonment. Garcia-Lagunas appealed
and we affirmed his conviction, finding that the government
committed nonconstitutional error by using ethnically charged
evidence to rebut Garcia-Lagunas’s assertion that he was too
poor to have dealt in large quantities of drugs, but that such
error was harmless. We also vacated his sentence, holding that
the district court’s miscalculation of Garcia-Lagunas’s
Guidelines range was plain error affecting his substantial
rights, and remanded for resentencing.
Garcia-Lagunas filed a petition for rehearing and rehearing
en banc. We granted Garcia-Lagunas’s petition for panel
rehearing, thus vacating our prior opinion and mooting the
petition for rehearing en banc. We directed briefing on whether
the evidentiary error, if assumed to be of constitutional
magnitude, was nonetheless harmless beyond a reasonable doubt.
We now again affirm Garcia-Lagunas’s conviction, vacate his
sentence, and remand for resentencing.
3
I.
A.
On March 27, 2012, Ronnie Reed was arrested in
Fayetteville, North Carolina, on federal drug trafficking
charges. Reed told the arresting officers that he had a
“Mexican drug supplier” named “Alex” and led them to three
trailers in Robeson County—at 33 Sonoma, 47 Sonoma, and 294
Maple Leaf—where he said he had purchased drugs from “Alex.”
Reed also gave the officers four telephone numbers that he had
previously used to contact “Alex.”
The next day, the police executed search warrants on the
three trailers. They found Garcia-Lagunas’s parents at 33
Sonoma and ten one-kilogram wrappers, several with “white
powdery residue” on them, buried in a lean-to shed behind the
trailer at 47 Sonoma. J.A. 98. At 294 Maple Leaf, officers
found an older male with a small user amount of cocaine. During
earlier surveillance, officers had seen a car leave 294 Maple
Leaf and go to a trailer at 353 Westcott. As the search of the
three trailers had not turned up “Alex,” the officers decided to
try 353 Westcott. When they arrived, Detective Kurt Stein
observed Marco Hernandez exit the trailer from the back, and
Detective Pedro Orellano and Sergeant Gregory Johnson approached
him. Orellano confirmed with Hernandez that Hernandez lived at
the trailer and obtained his consent to search it.
4
The officers found Garcia-Lagunas and Brian Jacobs inside
the trailer. Garcia-Lagunas had white powder under his nose and
appeared impaired. Garcia-Lagunas identified himself to the
officers as Alex. Both Garcia-Lagunas and Jacobs told the
officers that they did not live in the trailer. After Sergeant
Johnson asked him to empty his pockets, Garcia-Lagunas produced
$600 cash and a cell phone, which had his photograph as its
background image. When Detective Stein dialed one of the phone
numbers Reed had given the police for “Alex,” 1 Garcia-Lagunas’s
phone rang.
The officers then searched the trailer. In the kitchen,
they found a handgun and several small baggies. In one bedroom,
the officers found body armor; a large digital scale; a small
digital scale; a black plastic bag containing a vacuum-sealed
bag, which in turn contained about 800 grams of a white powdery
substance; and a small baggie of crack cocaine. The white
powder field-tested positive for cocaine, but later State Bureau
of Investigation (“SBI”) laboratory tests revealed that the
powder contained no controlled substance.
Analysis of Garcia-Lagunas’s phone’s records connected it
to several known drug dealers, including Reed, Jacobs, Thomas
1Brian Jacobs and Thomas Brewington, a drug dealer who
purchased cocaine from Garcia-Lagunas, also gave officers that
same phone number for “Alex.”
5
Brewington, Shaun Beard, and Reginald Clark. The records showed
that from February 9th to 23rd, 2012, there were 185 calls
between Garcia-Lagunas and Beard; 60 between Garcia-Lagunas and
Clark; 56 between Garcia-Lagunas and Jacobs; 56 between Garcia-
Lagunas and Reed; and 160 between Garcia-Lagunas and various
numbers with a 404 area code, which the government identified as
Atlanta, a “drug hub city.” J.A. 139. From February 13th to
21st, 2012, there were 37 calls between Garcia-Lagunas and the
landline at 294 Maple Leaf. From February 22nd to February
23rd, 2012, there were five calls between Garcia-Lagunas and
Brewington.
B.
A grand jury charged Garcia-Lagunas 2 with conspiring to
distribute or possess with the intent to distribute 500 grams of
cocaine, in violation of 21 U.S.C. §§ 841(a), 846, and
unlawfully reentering the United States after having previously
been deported, in violation of 8 U.S.C. § 1326(a). He pleaded
guilty to the unlawful reentry charge and proceeded to trial on
the conspiracy charge.
Before trial, the government gave notice of its intention
to call Detective Shawn Collins as an expert witness, stating
that he would “testify about drug trafficking investigations and
2 Garcia-Lagunas was indicted under the name Alex Fuentes.
6
methods utilized by drug traffickers to operate and protect
their drug business.” J.A. 32. Separately, the district court
agreed to provide Garcia-Lagunas with a Spanish interpreter for
the proceedings.
Collins was the government’s first witness, testifying both
as an expert and as a fact witness with respect to the
investigation and the searches. According to Collins, the white
powder found in the trailer could have field-tested positive for
cocaine and still have been found to contain no controlled
substance in SBI’s laboratory analysis if the cocaine had been
mixed with a sufficient amount of cutting agent such that “when
the lab sampled a small amount of that 800 grams of cocaine
there . . . wasn’t enough cocaine in it to even register with
the SBI or the instruments they were using.” J.A. 111.
Collins also told the jury that Garcia-Lagunas was “an
alien illegally in the United States.” J.A. 150. After the
prosecution asked Collins if he saw that Garcia-Lagunas was
being assisted by an interpreter in court, Collins responded
that his informants had not indicated that they had needed to
use Spanish in their dealings with Garcia-Lagunas. Moreover,
Collins testified that Garcia-Lagunas “appeared to be fluent in
English.” J.A. 151.
Four drug dealers—Reed, Jacobs, Brewington, and Antonio
Locklear—each testified pursuant to plea agreements to having
7
purchased cocaine from Garcia-Lagunas. Reed bought four to nine
ounces of cocaine from Garcia-Lagunas at the 47 Sonoma location
two times a week from October 2011 until Reed’s March 27, 2012
arrest, adding up to at least six kilograms, and separately
bought nine to twenty ounces of cocaine from Garcia-Lagunas at
the Maple Leaf location at least once a week from December 2011
until March 27, 2012, adding up to at least four additional
kilograms. Reed resold the drugs that he bought from Garcia-
Lagunas, and did not use them himself.
Jacobs had been buying drugs from Garcia-Lagunas for about
eight years, prior to which Jacobs had sold to Garcia-Lagunas.
On the day of Garcia-Lagunas’s arrest, Jacobs had given $600 to
Garcia-Lagunas for three-quarters of an ounce of cocaine.
Jacobs also testified that he had on over thirteen other
occasions bought from a quarter of an ounce to three-quarters of
an ounce of cocaine from Garcia-Lagunas.
According to Brewington, he bought cocaine from Garcia-
Lagunas only once, at 294 Maple Leaf, and he bought nine ounces
on that occasion. He discussed the amount of cocaine he could
resell with Garcia-Lagunas, in order to negotiate a better
price. Brewington noted that when he tried to redistribute the
cocaine, “one of [his] people that [he] gave it to was
complaining that it wouldn’t” cook properly. J.A. 363.
8
Locklear began using Garcia-Lagunas as a source for drugs
around June of 2010. From then until March 2011, he bought
cocaine from Garcia-Lagunas about every other day, and he
purchased the drugs to resell them. On direct examination,
Locklear testified that he always bought at least nine ounces,
and never more than eighteen ounces, and estimated that he had
bought 29-30 kilograms total. However, on cross-examination,
Garcia-Lagunas impeached Locklear with a March 2011 statement to
law enforcement, in which he had apparently attributed only
three kilograms of cocaine to Garcia-Lagunas.
Reed, Jacobs, Brewington, and Locklear each testified that
they did not know the others, except that Reed knew of
Brewington, and all testified to having spoken English with
Garcia-Lagunas.
Hernandez, the owner of the trailer at 353 Westcott,
testified, also pursuant to a plea agreement, that Garcia-
Lagunas had been staying in the room in which the body armor and
scales had been found for about four weeks leading up to the
arrest, and that the armor and large scale belonged to Garcia-
Lagunas. 3 Hernandez also testified that while he had never seen
Garcia-Lagunas selling drugs, he had seen visitors, including
3
In their testimony, Detectives Collins and Orellano noted
that the room Hernandez attributed to Garcia-Lagunas looked as
if it had recently been moved into.
9
Jacobs, give Garcia-Lagunas money. He also saw Jacobs give
Garcia-Lagunas the gun that was found in the trailer. 4
Detective Orellano testified about his participation in the
searches and the evidence that he and Detective Stein found in
the 353 Westcott trailer. While cross-examining Orellano, the
defense elicited testimony regarding the squalid state of
Garcia-Lagunas’s living conditions, which supported Garcia-
Lagunas’s defense theory that he was a drug user but not a drug
dealer. On redirect, Orellano told the jury that he had
extensive experience investigating “Hispanic drug traffickers,”
and that “they’re very modest living” because “they send the
majority if not all of the proceeds back to their native
countries.” J.A. 270.
Defense counsel objected. Asked to explain the relevance
of Orellano’s testimony, the government said that it rebutted
the defense’s implied argument “that it would be impossible for
the defendant to have dealt these large amounts of cocaine and
taken in this large amount of money because he’s living in
relatively low level conditions.” J.A. 271. Defense counsel
responded that Orellano had not been qualified as an expert.
4 When Garcia-Lagunas and Hernandez were placed in a cell
together after their arrests, Garcia-Lagunas called Hernandez a
“chiva,” a “term supposedly . . . for the people who collaborate
with the law.” J.A. 305-06.
10
After confirming that Orellano’s testimony was based on his
training and experience, the district court overruled the
objection. 5 Orellano repeated the testimony in slightly
different terms: “It is consistent with Hispanic drug
traffickers not to misuse the drug proceeds and to send or get
rid of the proceeds, send them to their native countries or
their next step over them in the drug trafficking organization.”
J.A. 274. The government referred to this testimony during its
closing argument to explain Garcia-Lagunas’s lack of an
“extravagant lifestyle.” J.A. 520.
Several other officers testified for the government.
Relevant to this appeal, Detective Matthew Taylor testified that
based on his training and experience, the type of baggies he
found in the kitchen at 353 Westcott were “mostly used for the
repackaging and sale of narcotics.” J.A. 411. Detective Stein
testified, based on his training and experience, that the
vacuum-sealed bag containing the 800 grams of white powder was
of the type frequently used by drug traffickers “to seal in the
5 After defense counsel renewed his objection, the court at
a bench conference stated: “I’m not quite sure what the
relevance of all of this is, but I do know, based on my
experience, that most Latins send money home whether they’re
drug dealers or not.” J.A. 273. Garcia-Lagunas contends that
the court’s statement emboldened the government to engage in
ethnic stereotyping. The court’s comment is puzzling at best,
but we do not address it further because there is no evidence
that the jury heard it.
11
odor of the narcotics so that they’re harder to be detected
[and] easier to transport.” J.A. 437-38.
Through cross-examination and closing argument, Garcia-
Lagunas presented two defense theories: first, that even if he
sold drugs to the dealer witnesses, he did so in a simple
“buyer-seller” relationship, and the evidence was insufficient
to show that he was involved in a distribution conspiracy with
those dealers; 6 second, that he was too poor to have dealt in the
large quantities that the government’s witnesses attributed to
him.
The court chose (without objection from the parties) not to
submit a special verdict sheet for the jury to indicate the
amount of cocaine Garcia-Lagunas was responsible for within the
conspiracy, finding it sufficient that the verdict form
specifically referenced the indictment. The jury found Garcia-
Lagunas guilty of conspiring to distribute or possess with
intent to distribute 500 grams or more of cocaine. After the
verdict, the district court sua sponte directed the parties to
brief whether it erred by failing to instruct the jury to find
the amount of cocaine individually attributable to Garcia-
Lagunas, as required by United States v. Collins, 415 F.3d 3046“A mere buyer-seller relationship is insufficient to
support a conspiracy conviction.” United States v. Howard, 773
F.3d 519, 525 (4th Cir. 2014).
12
(4th Cir. 2005). However, it ultimately ruled that no Collins
error had occurred.
The presentence investigation report (the “PSR”) found
Garcia-Lagunas responsible for 39 kilograms of cocaine and 16
grams of crack cocaine, resulting in a base offense level of 34.
The PSR added three two-level enhancements for possession of a
dangerous weapon, threatening or directing the use of violence,
and obstruction of justice, resulting in a total offense level
of 40. The PSR also found Garcia-Lagunas had a criminal history
score of zero, putting him in criminal history category I.
Garcia-Lagunas objected to the drug weight calculation and the
three enhancements.
The district court overruled Garcia-Lagunas’s objections to
the drug weight calculation and the dangerous weapon
enhancement, but sustained the objections to the other two
enhancements, resulting in an offense level of 36. An offense
level of 36 coupled with criminal history category I yielded a
Guidelines range of 188 to 235 months’ imprisonment. The
government stated, however, that it would agree to a “two level
downward variance based upon the Attorney General’s recent
directive that is related to the proposed amendment to the
Guidelines, specifically the drug quantity base offense levels
in the Guideline that may end up being a two level drop for each
drug quantity,” provided that Garcia-Lagunas agreed not to later
13
seek a variance for the same reason. J.A. 678-79. Garcia-
Lagunas so agreed, and the district court stated its intent “to
go down the two levels.” J.A. 679-80.
The resulting offense level of 34 yielded a Guidelines
range of 151 to 188 months’ imprisonment. The district court
then sentenced Garcia-Lagunas to 188 months’ imprisonment while
stating it was “impos[ing] a sentence at the low end of the
range because this constitutes the defendant’s first felony
conviction.” J.A. 680-81, 683. The court also sentenced
Garcia-Lagunas to a consecutive sentence of 24 months’
imprisonment for his unlawful reentry conviction. Only after
announcing the sentence did the court allow Garcia-Lagunas to
allocute.
II.
Garcia-Lagunas argues that the government’s improper use of
an ethnic stereotype to rebut Garcia-Lagunas’s defense theory
that he was too poor to be a major drug dealer was
constitutional error and was not harmless beyond a reasonable
doubt. We will assume, as the government conceded, see Oral
Argument at 20:38–20:51, United States v. Garcia–Lagunas, No.
14–4370 (Sept. 17, 2015), http://coop.ca4.uscourts.gov/OAarchive
/mp3/14-4370-20150917.mp3, that the use of the stereotype was
constitutional error, and proceed directly to the question of
14
whether the government has shown that the error was harmless
beyond a reasonable doubt. See, e.g., United States v. Evans,
216 F.3d 80, 89-90 (D.C. Cir. 2000) (declining to decide whether
error was constitutional where the error was harmless under
either constitutional or nonconstitutional standard).
A.
For all constitutional errors that do not “‘defy analysis
by “harmless error” standards[,]’ . . . ‘reviewing courts must
apply [Federal Rule of Criminal Procedure] Rule 52(a)’s
harmless-error analysis and must disregar[d] errors that are
harmless beyond a reasonable doubt.’” 7 United States v. Lovern,
293 F.3d 695, 700 (4th Cir. 2002) (third alteration in original)
(quoting Arizona v. Fulminante, 499 U.S. 279, 309 (1991) and
Neder v. United States, 527 U.S. 1, 7 (1999)). The essential
question is therefore: “Is it clear beyond a reasonable doubt
that a rational jury would have found the defendant guilty
absent the error?” Neder, 527 U.S. at 18; see also United
States v. Camacho, 955 F.2d 950, 955 (4th Cir. 1992) (“The
decision below should only stand if, viewing the entire record,
it is clear beyond a reasonable doubt that the jury would have
7
Garcia-Lagunas does not argue that this constitutional
error is in the “limited class of fundamental constitutional
errors” that require automatic reversal without a harmlessness
analysis. United States v. Lovern, 293 F.3d 695, 700 (4th Cir.
2002).
15
returned a guilty verdict absent the allegedly harmless
error.”). The burden rests on the government, the beneficiary
of the error, to show harmlessness. See Chapman v. California,
386 U.S. 18, 24 (1967). We have “the power to review the record
de novo in order to determine an error’s harmlessness.”
Fulminante, 499 U.S. at 295.
Importantly, “holding the error harmless does not
‘reflec[t] a denigration of the constitutional rights
involved,’” Neder, 527 U.S. at 19 (alteration in original)
(quoting Rose v. Clark, 478 U.S. 570, 577 (1986)), and we
emphasize that “[i]njection of a defendant’s ethnicity into a
trial as evidence of criminal behavior is self-evidently
improper and prejudicial,” United States v. Cruz, 981 F.2d 659,
664 (2d Cir. 1992); see also United States v. Runyon, 707 F.3d
475, 494 (4th Cir. 2013) (“The Supreme Court has long made clear
that statements that are capable of inflaming jurors’ racial or
ethnic prejudices ‘degrade the administration of justice.’”
(quoting Battle v. United States, 209 U.S. 36, 39 (1908))).
In this case, the government’s reliance on an ethnic
stereotype to explain Garcia-Lagunas’s living conditions was
particularly inapt given its failure to show that Garcia-Lagunas
was sending significant money anywhere. The record shows that
since 1988, Garcia–Lagunas has spent the great majority of his
time in the United States. While he does have two children
16
living in Mexico, he has two other children living in this
country, and at the time of his arrest his parents lived next
door to him. Nor did the government present any evidence that
Garcia-Lagunas was sending proceeds to the “next step over [him]
in the drug trafficking organization.” J.A. 274. Thus, the
government’s only “evidence” that Garcia–Lagunas was remitting
money was the generalization about Hispanic drug traffickers.
That said, the harmless error rule “serve[s] a very useful
purpose insofar as [it] block[s] setting aside convictions”
where the constitutional error had “little, if any, likelihood
of having changed the result of the trial.” Neder, 527 U.S. at
19 (alterations in original) (quoting Chapman, 386 U.S. at 22).
The rule thus “recognizes the principle that the central purpose
of a criminal trial is to decide the factual question of the
defendant’s guilt or innocence, . . . and promotes public
respect for the criminal process by focusing on the underlying
fairness of the trial.” Id. at 18 (alteration in original)
(quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)).
B.
In this case, Garcia-Lagunas was found guilty of coming “to
a mutual understanding to try to accomplish the . . . plan of
distributing or possessing with intent to distribute 500 grams
or more of cocaine,” and “knowingly bec[oming] a member of that
conspiracy.” J.A. 554. We are satisfied beyond a reasonable
17
doubt that—even without the government’s improper use of an
ethnic stereotype—a rational jury still would have arrived at
that verdict.
1.
We begin first with the quantity of the drugs involved in
the conspiracy. At trial, the government presented evidence
that Garcia-Lagunas sold far greater amounts of cocaine than the
500 grams charged in the indictment. The testimony of Reed,
Jacobs, Brewington, and Locklear attributed to Garcia-Lagunas
the sale of nearly 40 kilograms—40,000 grams—of cocaine. Thus,
the jury need only have credited 1.3% of that quantity to
satisfy the government’s burden.
The fact that Reed, Jacobs, Brewington, and Locklear were
known drug dealers each testifying pursuant to a plea agreement
certainly casts some doubt on their credibility. See United
States v. Garcia, 752 F.3d 382, 397 (4th Cir. 2014) (noting that
a witness’s testimony for the government “was put into
question . . . not least because his testimony was in return for
sentencing considerations by the Government in a [state]
prosecution in which he faced a maximum potential sentence of
life in prison and . . . deportation”). But see id. (“Of
course, the jury was unquestionably entitled to credit the
testimony of [that government witness].”). Here, however, the
testimony of three of the dealers was bolstered by phone records
18
showing an extraordinary volume of phone calls (in a compressed
period of time) between them and Garcia-Lagunas. 8 See, e.g.,
J.A. 338 (Jacobs testifying that he and Garcia-Lagunas exchanged
“somewhere around th[e] range” of 56 calls from February 10th to
22nd, 2012); cf. United States v. Johnson, 617 F.3d 286, 298
(4th Cir. 2010) (finding error not harmless where codefendant
drug dealers’ testimony was inconsistent, there was otherwise
“scant evidence,” and defendant “called seven witnesses to
testify about his legitimate source of income”).
In addition, circumstantial physical evidence also pointed
to Garcia-Lagunas’s guilt. See United States v. Holness, 706
F.3d 579, 598-600 (4th Cir. 2013) (finding error harmless beyond
a reasonable doubt even where “the government’s case was
predominantly circumstantial”). Garcia-Lagunas’s room had a
large scale in it that the jury heard was of the type commonly
used by dealers to weigh drugs in large quantities, as well as a
smaller scale typically used to weigh user amounts of drugs,
which had what appeared to be cocaine and crack cocaine residue
on it.
8 The phone records were largely irrelevant to Locklear’s
testimony, as the subpoenaed records covered February 9th to
23rd, 2012, and Locklear testified that he stopped purchasing
from Garcia-Lagunas following his arrest in March 2011.
19
In the same room, officers found a bulletproof vest that
Detective Collins testified was “another tool of the drug
trade.” J.A. 106. Hernandez told the jury that the vest and
the large scale belonged to Garcia-Lagunas. Inside a storage
container in Garcia-Lagunas’s room was 800 grams of a white
powdery substance, packed in a vacuum-sealed bag and again in a
garbage bag. The substance field-tested positive for cocaine,
though the readings were “light.” J.A. 108. Subsequent SBI
test results showed that the powder did not contain a controlled
substance but Collins explained that such a result was possible
even if there were cocaine present, given the techniques used in
the lab, if the cocaine had had a significant amount of cutting
agent added to it. The government’s evidence showed that
Garcia-Lagunas was “known for adding too much additive into
cocaine which would produce a very small amount of cocaine.”
J.A. 111; see also J.A. 363 (Brewington testifying that when he
tried to resell cocaine he purchased from Garcia-Lagunas, a
customer complained that “[i]t wouldn’t cook properly”).
Other tools of the drug trade were found in the trailer’s
main room. Police found a .32 caliber revolver in a purple
Crown Royal bag in a cabinet over the stove, which Jacobs had
given to Garcia-Lagunas that day. There were several phones on
20
the kitchen table when Collins entered the trailer, 9 and Collins
testified that he had seen dealers who dealt in large quantities
with four to six different phones, because “it’s harder for a
law enforcement officer to keep track of several different
phones at a time.” J.A. 85. In addition, Reed testified that
he had used three to four different phone numbers to reach
Garcia-Lagunas. Finally, officers also found one-inch-by-one-
inch plastic baggies on top of the kitchen cabinets and in a box
on top of the refrigerator.
The circumstances of Garcia-Lagunas’s arrest also
demonstrate that he was a drug dealer. Jacobs testified that
when he had previously bought cocaine from Garcia-Lagunas at the
Westcott trailer, he bought between a quarter of an ounce and
three-quarters of an ounce, and that on the day of the arrest,
he was there to purchase three-quarters of an ounce and had
given Garcia-Lagunas $600 for it. Hernandez saw Jacobs give
Garcia-Lagunas “some money . . . and a gun,” J.A. 298, and saw
Garcia-Lagunas count the cash before pocketing it. And when the
officers arrived, Garcia-Lagunas was found with $600 in cash.
9The record does not explain where the phones were when
Sergeant Johnson and Detective Stein first entered the trailer,
except for the phone that Garcia-Lagunas removed from his
pocket.
21
With respect to the conspiracy element of the offense,
“[g]iven the ‘clandestine and covert’ nature of conspiracies,
the government can prove the existence of a conspiracy by
circumstantial evidence alone.” United States v. Howard, 773
F.3d 519, 525 (4th Cir. 2014) (quoting United States v. Burgos,
94 F.3d 849, 857 (4th Cir. 1996) (en banc)). While “[a] mere
buyer-seller relationship is insufficient to support a
conspiracy conviction,” evidence that such a buyer-seller
relationship is continuing and includes repeated transactions
“can support the finding that there was a conspiracy, especially
when coupled with substantial quantities of drugs.” Id. at 525-
26 (quoting United States v. Reid, 523 F.3d 310, 317 (4th Cir.
2008)).
Here, the most direct evidence that Garcia-Lagunas shared a
“mutual understanding” to distribute cocaine was Brewington’s
testimony that he discussed the amount of cocaine he could
“move” with Garcia-Lagunas, so that Garcia-Lagunas “would lower
the price,” J.A. 361-62, which indicates that Garcia-Lagunas
knew Brewington was a reseller and not buying the drugs for his
own use. In addition, Reed and Locklear each testified that
they were buying from Garcia-Lagunas more than twice a week and
that they were reselling the drugs that they bought from Garcia-
Lagunas. See Howard, 773 F.3d at 526 (noting that defendant
selling to “frequent customers who often resold the drugs”
22
supported a conspiracy conviction). More circumstantially, the
high quantities and frequency of transactions attributed to
Garcia-Lagunas support the government’s contention that he knew
his buyers were redistributing the drugs.
2.
On this record, we are satisfied that the constitutional
error was harmless beyond a reasonable doubt. Put another way,
we conclude “that the district court’s judgment, entered on the
jury’s guilty verdict, could not have been substantially swayed”
by the improperly admitted evidence. United States v. Holness,
706 F.3d 579, 600 (4th Cir. 2013).
Garcia-Lagunas’s reliance on our decision in United States
v. Johnson, 617 F.3d 286 (4th Cir. 2010), to argue otherwise
misses the mark. There, we held that a nonconstitutional error
in admitting police testimony regarding the meaning of
wiretapped phone calls was not harmless in a drug conspiracy
case where “[n]o drugs were found, no financial evidence was
presented and there was no surveillance that captured
[defendant] engaging in illicit activity, despite the extensive
investigation mounted by the local DEA,” and where the
erroneously admitted testimony lent “critical credibility
bolstering the government’s reliance on the testimony of three
convicted drug dealers.” Id. at 295-96.
23
We emphasized there, however, that the testifying drug
dealers “often contradicted themselves,” id. at 295, and the
contradictions were highlighted by a DEA agent who originally
testified as a government witness but was called by the defense
“to testify regarding his interview with [one of the witnesses]
and the inconsistencies between the information he collected in
the interview and [that witness’s] testimony at trial,” id. at
291 n.5.
In addition, Johnson presented a much stronger defense than
Garcia-Lagunas did, testifying that he had never been involved
with drugs, had no criminal record, was a former Marine and
State Trooper, and had legitimate sources of income. Id. at
291. He also called several witnesses to testify to those
legitimate sources of income, and several witnesses who
testified about his lifestyle and character, including that he
had never been involved with drugs. Id. at 291-92, 298.
Finally, the erroneously admitted testimony in Johnson was
central to the government’s case: A government witness testified
that the language Johnson and a non-testifying codefendant used
in a phone call was code related to drug dealing. With the
contradictory testimony of the codefendant dealers, this was
essentially the entirety of the government’s case against
Johnson. Id. at 296 (“Had Agent Smith’s testimony been
excluded, the jury would have weighed the testimony of Johnson,
24
a veteran and former law enforcement officer with no criminal
record, against that of a convicted drug dealer and two co-
defendants with long rap sheets.”).
In short, Johnson and this case are poles apart. And
unlike many of the cases that have found that an evidentiary
error was not harmless (Johnson included), what Garcia-Lagunas
did with his earnings from the drug trade was not an element of
the prosecution’s case against him. Cf. Satterwhite v. Texas,
486 U.S. 249, 258-59 (1988) (finding psychiatrist’s improper
testimony not harmless beyond a reasonable doubt where jury had
to find “future dangerousness” beyond a reasonable doubt to
sentence defendant to death, he was the only psychiatrist to
testify at sentencing, and he “stated unequivocally that, in his
expert opinion” the defendant would “‘present a continuing
threat to society by continuing acts of violence’” (quoting the
record)); United States v. Williams, 632 F.3d 129, 134 (4th Cir.
2011) (finding improperly admitted stipulation not harmless
beyond a reasonable doubt because it “essentially established an
element of the crime”).
Moreover, although the government repeated the offensive
stereotype in its closing argument, the improper evidence did
not pervade the trial. Cf. Garcia, 752 F.3d at 398 (finding
improperly admitted testimony about the meaning of defendant’s
phone calls not harmless where the testifying agent testified
25
six of the twelve days of the trial, was recalled to the stand
eighteen times, and “[f]rom the beginning of the trial to the
end of the trial, the calls and the meaning of the words used in
those calls were the centerpiece of the [g]overnment’s case”).
Finally, the challenged testimony did not open the door to the
admission of further damaging evidence that would otherwise not
have come in. Cf. Fulminante, 499 U.S. at 300 (finding improper
admission of duplicative confession not harmless beyond a
reasonable doubt where it “led to the admission of other
evidence prejudicial to” the defendant).
In short, whatever questions Garcia-Lagunas’s living
conditions may have raised, it is beyond clear to us that a
rational jury would have nonetheless convicted him of the drug
conspiracy offense, even had they heard nothing of Orellano’s
improper testimony. Accordingly, we hold that the evidentiary
error was harmless beyond a reasonable doubt. 10
10 Garcia-Lagunas also complains that Detective Orellano
should not have been permitted to testify to the practices of
Hispanic drug traffickers because he was not testifying as an
expert. Having assumed that Orellano’s testimony violated
Garcia-Lagunas’s constitutional rights, but having found it
harmless beyond a reasonable doubt, we do not address this
separate objection.
26
III.
Garcia-Lagunas also contends that (1) the admission of
evidence regarding Garcia-Lagunas’s immigration status and use
of an interpreter was plain error, (2) the district court
improperly allowed Collins to testify as an expert witness in
spite of the government’s failure to comply with expert
disclosure requirements, and (3) the district court allowed
improper opinion testimony from several of the government’s lay
witnesses.
We review these evidentiary challenges for abuse of
discretion. Johnson, 617 F.3d at 292. Where Garcia-Lagunas
objected at trial, we review for harmless error, leaving the
judgment intact where we are able to conclude, “after pondering
all that happened without stripping the erroneous action from
the whole, that the judgment was not substantially swayed by the
error.” Id. (quoting United States v. Brooks, 111 F.3d 365, 371
(4th Cir. 1997)).
Where Garcia-Lagunas failed to timely object, we review for
plain error. United States v. Keita, 742 F.3d 184, 189 (4th
Cir. 2014). To make out a plain error, “the defendant must show
‘there was an error, the error was plain, and the error affected
[the defendant’s] substantial rights.’” Id. (alteration in
original) (quoting United States v. Boykin, 669 F.3d 467, 470
(4th Cir. 2012)).
27
A.
Garcia-Lagunas contends that the district court erred in
admitting evidence regarding his immigration status and use of
an interpreter at trial. Because the defense failed to timely
object at trial, we review for plain error.
Evidence of a crime or wrong is not admissible to prove a
defendant’s bad character in order to show that he acted in
accordance with that character. Fed. R. Evid. 404(b)(1). Such
evidence may be admissible, however, “for another purpose, such
as proving . . . identity.” Id. 404(b)(2). Under Rule 404(b),
we use a four-part test to assess admissibility: “(1) the prior-
act evidence must be relevant to an issue other than character,
such as intent; (2) it must be necessary to prove an element of
the crime charged; (3) it must be reliable; and (4) . . . its
probative value must not be substantially outweighed by its
prejudicial nature.” United States v. Lespier, 725 F.3d 437,
448 (4th Cir. 2013) (alteration in original) (quoting United
States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997)).
1.
The government presented evidence that Garcia-Lagunas was
an alien illegally in the United States. The government argues
that this was relevant to Garcia-Lagunas’s identity. At trial,
the officers explained that “they learned that a Mexican man
going by the name ‘Alex’ was a significant source of cocaine in
28
Cumberland and Robeson Counties.” Appellee’s Br. at 42.
According to the government, Garcia-Lagunas’s immigration status
was thereby relevant as evidence that he was “Alex.” We do not
agree.
Collins testified solely that “[t]he defendant was
previously deported from the United States and is an alien
illegally in the United States right now.” J.A. 150. This
testimony has almost no probative value concerning Garcia-
Lagunas’s Mexican nationality; it establishes only that he is
not a United States citizen. We reject the notion that an
individual’s status as an illegal alien, without more, creates
an inference of Mexican nationality. And, importantly, the
government could easily have shown that Garcia-Lagunas was from
Mexico without highlighting his immigration status. See Fed. R.
Evid. 404(b) advisory committee’s note (“The determination must
be made whether the danger of undue prejudice outweighs the
probative value of the evidence in view of the availability of
other means of proof . . . .”). Because the probative value of
Garcia-Lagunas’s immigration status, especially without
reference to his country of citizenship, was so low, we find
that it was substantially outweighed by its prejudicial nature.
It was not, therefore, permissible 404(b) evidence. See
Lespier, 725 F.3d at 448.
29
Garcia-Lagunas’s evidentiary challenge, however, fails on
plain error review. “To be ‘plain,’ an error must be ‘clear’ or
‘obvious’ . . . .” United States v. Ramirez-Castillo, 748 F.3d
205, 215 (4th Cir. 2014) (quoting United States v. Olano, 507
U.S. 725, 734 (1993)). Even if the error here was plain, we
“may correct the error” only if it also “affect[s] substantial
rights.” Olano, 507 U.S. at 732 (alteration in original)
(emphasis omitted). An error affects substantial rights “in
most cases” if it “affected the outcome of the district court
proceedings.” Ramirez-Castillo, 748 F.3d at 215 (quoting Olano,
507 U.S. at 734).
We need not address whether the improper admission of
Garcia-Lagunas’s immigration status was plain because we find
that it did not affect the outcome of the trial. As we have
discussed, the jury had before it substantial evidence of
Garcia-Lagunas’s participation in a conspiracy to distribute
cocaine, and his immigration status was not referenced again
after Collins’s testimony. Thus, we find no plain error on this
record.
2.
Garcia-Lagunas also challenges the government’s references
to his use of an interpreter at trial, arguing that they were
intended to paint him as a “faker” for relying on an interpreter
when he did not need one. Appellant’s Br. at 36.
30
The government’s witnesses told the jury that they spoke to
Garcia-Lagunas in English when they dealt with him, and some of
those witnesses could only speak English. To prove that Garcia-
Lagunas was the man who dealt with these witnesses, the
government had good reason to clarify to the jury that he could
in fact speak English, in spite of the impression his use of an
interpreter may have created. We therefore find that the
government’s references to Garcia-Lagunas’s interpreter were
relevant to identity, and their probative value was not
substantially outweighed by any threat of prejudice. See
Lespier, 725 F.3d at 448. Accordingly, we find no error.
B.
1.
Garcia-Lagunas next contends that the district court erred
in allowing Detective Collins to testify as an expert witness
where the government failed to comply with the expert disclosure
requirements. Because the defense failed to timely object at
trial, we again review for plain error.
Federal Rule of Criminal Procedure 16(a)(1)(G) requires the
government, on the defendant’s request, to provide the defendant
a written summary of any expert testimony that it intends to
use. That summary “must describe the witness’s opinions, the
bases and reasons for those opinions, and the witness’s
qualifications.” Fed. R. Crim. P. 16(a)(1)(G). “Rule
31
16(a)(1)(G) ‘is intended to minimize surprise that often results
from unexpected expert testimony . . . and to provide the
opponent with a fair opportunity to test the merit of the
expert’s testimony through focused cross-examination.’” United
States v. Smith, 701 F.3d 1002, 1007 (4th Cir. 2012) (quoting
Fed. R. Crim. P. 16(a)(1)(G) advisory committee’s note to 1993
amendment).
Garcia-Lagunas points out that the government’s notice that
Collins would “testify about drug trafficking investigations and
methods utilized by drug traffickers to operate and protect
their drug business,” J.A. 32, failed to state Collins’s
qualifications, opinions, or “the bases and reasons for his
opinions.” Appellant’s Br. at 38.
While Garcia-Lagunas has a viable argument that the
government’s short and summary notice failed to meet the
requirements of Rule 16(a)(1)(G), we need not decide whether the
district court’s admission of the testimony was plain error, as
Garcia-Lagunas cannot establish that any such error affected his
substantial rights.
On that score, while Garcia-Lagunas claims that Collins’s
testimony was “completely unexpected,” id. at 39, he fails to
point to any specific portion of the testimony that took him by
surprise. Collins’s testimony largely served to provide the
jury the contextual background of how drug trafficking
32
organizations function and explain the significance of certain
physical evidence. Given the limited scope of the physical
evidence, Garcia-Lagunas surely anticipated the line of
questioning regarding the negative SBI test results.
Accordingly, Garcia-Lagunas cannot establish that more specific
notice of the scope of Collins’s testimony would have so changed
the defense’s ability to cross-examine him that the trial would
have come out differently. See United States v. Jones, 739 F.3d
364, 370 (7th Cir. 2014) (“We need not consider whether the
error [of admitting expert testimony without notice] could be
considered plain, because [the defendant] cannot demonstrate
that he would not have been convicted absent the error, or that
the introduction of that testimony without complying with the
expert testimony requirements resulted in a miscarriage of
justice.”).
2.
Garcia-Lagunas also contends that Collins’s testimony
explaining how the white powder might have tested positive in
the field but negative in the laboratory for any controlled
substance was improper lay opinion testimony, as Collins was not
an expert in SBI laboratory techniques. Counsel objected at
trial; therefore we review for harmless error.
After defense counsel’s objection, the government elicited
testimony from Collins demonstrating his familiarity with the
33
methods used by the SBI in its laboratory tests. In particular,
he testified that he knew from his training and experience that
they would test only a portion of a controlled substance. This
foundation testimony adequately demonstrated Collins’s
competence to testify on this issue. 11
IV.
Garcia-Lagunas next challenges his sentence. “We review a
criminal sentence for procedural and substantive reasonableness
under a deferential abuse-of-discretion standard.” United
States v. Washington, 743 F.3d 938, 943 (4th Cir. 2014) (citing
Gall v. United States, 552 U.S. 38, 51 (2007)). First, we must
“ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range.” Gall, 552 U.S. at 51. If
the sentence is procedurally sound, we then move on to “consider
the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.” Id. Because Garcia-Lagunas did
not object to any of the alleged sentencing errors, we review
11 Garcia-Lagunas also contends that the district court
erred in admitting lay opinion testimony from Detectives Taylor
and Stein concerning the use of small plastic baggies and
vacuum-sealed bags in drug trafficking. Because Garcia-Lagunas
did not object at trial, we review for plain error. Garcia-
Lagunas cannot meet that high bar. Given the weight of the
evidence against him, we are confident that the complained-of
testimony did not affect the outcome of the proceeding.
34
for plain error. United States v. Lynn, 592 F.3d 572, 576–77
(4th Cir. 2010).
A.
Garcia-Lagunas first challenges the district court’s
determination that it did not commit a Collins error in failing
to instruct the jury to determine the quantity of cocaine
Garcia-Lagunas was responsible for within the conspiracy.
For drug offenses, 21 U.S.C. § 841(b) “sets forth a
graduated penalty scheme based on the quantity of drugs
attributable to the defendant.” United States v. Foster, 507
F.3d 233, 250 (4th Cir. 2007). The statute imposes mandatory
minimum and maximum penalties when a defendant is responsible
for a threshold quantity of drugs. Here, Garcia-Lagunas was
convicted of a conspiracy to distribute 500 grams or more of
cocaine. Under § 841(b)(1)(B), Garcia-Lagunas was subject to a
sentence of no less than five and no more than 40 years’
imprisonment.
However, in United States v. Collins, we held that “an
individual defendant, found guilty of conspiracy to violate
§ 841(a), [should not] be sentenced under § 841(b) by
considering the amount of narcotics distributed by the entire
conspiracy,” 415 F.3d 304, 312 (4th Cir. 2005) (emphasis
omitted), but rather “the jury must determine what amount of
cocaine base was attributable to [each defendant],” id. at 314.
35
The district court, relying on United States v. Williams,
439 F. App’x 254 (4th Cir. 2011) (per curiam), found that it did
not need to submit this question to the jury, as “there [was] no
uncertainty regarding the amount of cocaine the defendant
distributed and no co-conspirators for the jury to consider,”
and therefore “the drug quantity charged in the indictment can
serve as the statutory sentencing threshold under § 841(b).”
J.A. 639.
This was not plain error. Although Williams was
unpublished and therefore not precedential, it suggests that
even if the district court erred, such error was not plain. See
Williams, 439 F. App’x at 257; see also United States v. Hughes,
401 F.3d 540, 547 (4th Cir. 2005) (“An error is plain ‘where the
law at the time of trial was settled and clearly contrary to the
law at the time of appeal.’” (quoting Johnson v. United States,
520 U.S. 461, 468 (1997))). In addition, Garcia-Lagunas cannot
show that any such error affected his substantial rights. He
was sentenced under 21 U.S.C. § 841(b)(1)(B), which has a
mandatory minimum of five years’ imprisonment. Had he instead
been sentenced under the more lenient § 841(b)(1)(C), he would
have been subject to a mandatory minimum of three years’
supervised release and a mandatory maximum of twenty years’
imprisonment.
36
There is no indication that the district court was
inclined, in the absence of a five-year mandatory minimum, to
give Garcia-Lagunas a sentence of less than five years’
imprisonment. Nor was Garcia-Lagunas’s sentence above the
twenty year mandatory maximum that would have applied under the
more lenient subsection. Garcia-Lagunas therefore fails to
establish that there was plain error or that such error affected
his substantial rights.
B.
Finally, Garcia-Lagunas argues that the district court
erred procedurally when it calculated his offense level as 36.
We agree, and also find that the error was plain and
substantially affected Garcia-Lagunas’s rights.
At sentencing, the district court announced that Garcia-
Lagunas’s total offense level was 36 after sustaining two of his
objections to the PSR’s calculation. The government responded
that it would not object to a downward departure of two levels
to reflect upcoming amendments to the Guidelines, and the court
agreed to go down those two levels. Thus, Garcia-Lagunas’s
total offense level should have been 34, which would have
yielded a Guidelines range of 151 to 188 months’ imprisonment.
While the 188 month sentence the court imposed was within this
range, the court specifically stated that it was “impos[ing] a
sentence at the low end of the range.” J.A. 683. Additionally,
37
in its “Statement of Reasons” form, the court scored Garcia-
Lagunas’s total offense level at 36, noting that it sustained
one of Garcia-Lagunas’s objections to the PSR and used the
anticipated Guidelines amendment reduction, but not
acknowledging that it sustained a second objection. Thus, the
court’s error in sentencing Garcia-Lagunas under offense level
36 instead of 34 was plain. See United States v. Ford, 88 F.3d
1350, 1356 (4th Cir. 1996) (finding plain and prejudicial error
where the erroneous addition of points to the defendant’s
criminal history score caused the defendant “to be sentenced at
a more severe guideline range”).
We also find that the error significantly affected Garcia-
Lagunas’s substantial rights. The district court made clear
that it intended to sentence Garcia-Lagunas at the low end of
the range to reflect his lack of criminal history. Thus, had it
consulted the correct range, there is good reason to believe the
court would have sentenced Garcia-Lagunas to 151, rather than
188, months’ imprisonment.
After our original opinion in this case, the Supreme Court
in Molina-Martinez v. United States, 136 S. Ct. 1338, 1347
(2016), held that “in the ordinary case a defendant will satisfy
his burden to show prejudice by pointing to the application of
an incorrect, higher Guidelines range and the sentence he
received thereunder.” In that case, as here, the district court
38
sentenced the defendant under an incorrect Guidelines range, but
gave him the lowest sentence under that incorrect range, which
also fell within the correct Guidelines range. The Court held
that despite the district court’s failure to explain the
sentence, “the [d]istrict [c]ourt’s selection of a sentence at
the bottom of the range, . . . ‘evinced an intention . . . to
give the minimum recommended by the Guidelines.’” Id. at 1347-
48 (alteration in original) (quoting Brief for the United States
at 18, Molina-Martinez, 136 S. Ct. 1338 (No. 13-40324)). Here,
the sentencing court made this intention explicit, and thus
“there is at least a reasonable probability that the [d]istrict
[c]ourt would have imposed a different sentence” had it
sentenced Garcia-Lagunas under the correct Guidelines range.
Id. Because “[t]hat probability is all that is needed to
establish an effect on substantial rights,” Garcia-Lagunas has
established that effect. Id. at 1349.
And though we need not always correct plain error, Keita,
742 F.3d at 189, we do so here. Fairness dictates that Garcia-
Lagunas be sentenced under the correct Guidelines range,
particularly when doing so could potentially lead to a sentence
reduction. See Ford, 88 F.3d at 1356 (“[S]entencing a defendant
at the wrong guideline range seriously affects the fairness,
integrity, and public reputation of the judicial proceedings.”).
“Three years of a man’s life is not a trifling thing.” Id.39
V.
We affirm Garcia-Lagunas’s conviction. The district court,
however, plainly erred in calculating Garcia-Lagunas’s
Guidelines range, and the error affected his substantial rights.
Accordingly, we vacate the sentence and remand for resentencing.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
40
DAVIS, Senior Circuit Judge, dissenting:
On our panel rehearing, my friends in the majority assume
for the sake of argument that the improper and prejudicial
testimony elicited and relied upon by the Government to convict
Appellant Alejandro Garcia-Lagunas amounts to constitutional
error. There is no need for assumptions; this is unequivocally,
and admittedly, a case of constitutional error. Moreover, the
majority concludes that the Government’s error, as compounded by
the district court’s failure to correct it, even if of a
constitutional magnitude, was harmless beyond a reasonable
doubt. I, however, remain compelled to conclude that the
Government did not carry its burden of proving beyond a
reasonable doubt that its clearly unconstitutional use of a
blatant ethnic generalization did not contribute to the jury’s
verdict. Accordingly, I respectfully dissent from the
majority’s decision to refuse, once again, to order a new trial.
I.
During trial, Garcia-Lagunas’s counsel sought to show that
Garcia-Lagunas was, at most, a common drug abuser and not a
sophisticated drug distributor who trafficked large volumes of
cocaine as alleged in the indictment. To make this distinction,
counsel strategically questioned Government witnesses on cross-
examination about Garcia-Lagunas’s meager lifestyle, a lifestyle
devoid of the flamboyant trappings derived from drug proceeds
41
that one might expect to surround a high-volume narcotics
distributor. For example, the cross-examinations of convicted
drug dealer Ronnie Reed and Detectives Shawn Collins and Pedro
Orellano tended to establish that Garcia-Lagunas lived a life of
truly limited means. Reed testified that he never knew Garcia-
Lagunas to have any “fancy things” such as jewelry, firearms, or
vehicles. J.A. 222. Detectives Collins and Orellano testified
that, on the evening of his arrest, Garcia-Lagunas was found
shirtless and shoeless in the “kitchen/living room area” of a
small trailer at 353 Wescott Drive in which he had recently
begun renting a room for less than $350 per month. J.A. 103-04,
315. Detective Collins described the bedroom belonging to
Garcia-Lagunas as in “disarray” and explained to the jury that
it looked as though Garcia-Lagunas had yet to unpack since
moving to the trailer, as his belongings were scattered
throughout the small room in laundry baskets. J.A. 120.
Further law-enforcement testimony showed that detectives
searched the 353 Wescott trailer, as well as three other
trailers in and around Robeson County, North Carolina, where it
was alleged that Garcia-Lagunas had previously sold cocaine, and
not one of the searches uncovered evidence of profits consistent
with an individual allegedly trafficking hundreds of thousands
of dollars’ worth of cocaine. In fact, the only items of value
that the searches uncovered, a .32 caliber revolver and $600 in
42
U.S. currency, were described as having been brought to the 353
Wescott trailer the night of Garcia-Lagunas’s arrest by Brian
Jacobs, allegedly in exchange for three-quarters of an ounce of
powder cocaine. J.A. 298, 320–21, 342. However, no powder
cocaine was actually found at that trailer or any other of the
trailers linked to Garcia-Lagunas.
Testimony revealed that the only substances discovered by
law enforcement to lab-test positive for the presence of cocaine
were two baggies containing user amounts of crack cocaine, for
which Garcia-Lagunas was not charged. J.A. 117, 122, 124, 404.
Counsel for Garcia-Lagunas provided an explanation for the
presence of those drugs by questioning the Government witnesses
about his client’s personal drug use. Three different
Government witnesses testified that they had observed Garcia-
Lagunas use drugs, J.A. 320, 349, 355, 376, and Jacobs testified
that, for a number of years, Garcia-Lagunas had actually
purchased small amounts of cocaine from him for Garcia-Lagunas’s
personal use, J.A. 354. Further, several detectives explained
to the jury that, on the night of his arrest, Garcia-Lagunas had
white powder under his nose, which, together with his dilated
pupils and erratic movements, suggested that he had ingested
cocaine immediately before the arrival of the law-enforcement
officers. J.A. 103–04, 248, 283.
43
To bring home the defense theory of the case, counsel
emphasized during cross-examination that Garcia-Lagunas’s meager
lifestyle did not square with the portrait that the Government
was painting of a sophisticated, large-volume drug trafficker.
Counsel astutely presented the theory by offering the jury the
opportunity to contrast Garcia-Lagunas’s lifestyle with that of
Reed, one of Garcia-Lagunas’s alleged purchasers. Counsel
questioned Detective Collins and Reed on cross-examination about
Reed’s drug-trafficking operation and the proceeds that Reed had
amassed during the four years that he sold drugs prior to his
2012 arrest on federal drug trafficking charges. J.A. 153-55,
225-30. During searches of Reed’s family home and stash house,
officers found more than $100,000 in U.S. currency, multiple
telephones, a 2008 Infiniti, a 2006 Chevy Impala, a 2004 Acura,
a 2004 BMW, a 2002 Lincoln Navigator, and multiple firearms.
J.A. 154-55. The officers also found contraband consistent with
a large-scale drug-trafficking operation, including more than
180 grams of crack cocaine, more than three-and-a-half kilos of
powder cocaine, 240 grams of marijuana, money that the
Fayetteville police department had used to conduct controlled
buys from Reed, a cocaine press, and a money counter. J.A. 225-
29.
The upshot of all of this, contrary to the majority
opinion’s one-sided spin on the evidence, is that there were
44
two, competing narratives before the jury. And it was the
jury’s call, not the job of the members of this appellate panel,
to judge the credibility of all of the evidence, weigh it
accordingly, and reach a fair and impartial verdict in
accordance with law.
Ultimately, counsel for Garcia-Lagunas hoped the testimony
he elicited would prompt the following question from at least
one juror (because of course, he only needed to garner the
interest of one juror to raise a possibility of a more
beneficial outcome than the one he got): how can a man who is
allegedly responsible for selling hundreds of thousands of
dollars’ worth of cocaine 1 not have on hand any discernable
direct or indirect proceeds of any kind on the day of his
arrest, with zero indication from any source that his arrest was
imminent? Any experienced (and even an inexperienced) Assistant
United States Attorney prosecuting cases in this Circuit would
fully expect (and be prepared for) this kind of defense tack on
this record.
1
According to the testimony of the four drug dealers
testifying pursuant to plea agreements, Garcia-Lagunas sold to
them, in the aggregate, at least 39 kilos of cocaine, with each
kilo of cocaine valuing approximately $30,000 to $32,000 during
the relevant time frame. J.A. 205, 208, 239, 340-42, 360-61,
388.
45
My friends in the majority may not think much of defense
theories in general, or of Garcia-Lagunas’s theory in
particular, but that is what it was, fully supported by
admissible evidence, and well within the realm of plausible
disputation by a lawyer committed to her Fifth- and Sixth-
Amendment-based obligations to her client. 2 As in any
prosecution, whether for a crime involving the infliction of
unspeakable violence upon actual victims, or in the prosecution
of the most plain-vanilla so-called “white collar” offense, and
any prosecution in between, the defendant in our system is
entitled to have the jury grapple, if it must, with his defense
theory, unaided by blatantly foul blows delivered by the
prosecution, abetted by the trial judge, in the use of racial or
ethnic entreaties aimed at undermining or dismissing outright
2Recall that the indictment in this case charged a greater-
included offense of conspiring to distribute or possess with the
intent to distribute 500 grams or more of cocaine, in violation
of 21 U.S.C. §§ 841(a), 846. Importantly, therefore, the
defense theory in this case not only militated in favor of an
acquittal, but perhaps even more important from the defense
perspective, it laid the basis for the jury’s consideration of a
lesser included offense involving a lesser amount of narcotics
and thus a lower potential sentence. Cf. United States v.
Hickman, 626 F.3d 756, 763-71 (4th Cir. 2010) (holding that
evidence was insufficient to support the jury’s guilty verdict
on the indicted conspiracy involving greater drug amount but
remanding for resentencing on conspiracy involving lesser drug
amount).
46
the defense theory of the case. But that is precisely what
happened here.
As Garcia-Lagunas’s defense theory became apparent during
trial, the Government seemingly recognized for the first time
the absence of drug trafficking proceeds as a potential weakness
in its case, a case in which it now argues the evidence of guilt
was always overwhelming. The Government opted not to cure the
ostensible weakness through the introduction of admissible
evidence by, for example, moving to admit proof of wire
transfers from Garcia-Lagunas to individuals in Mexico. Either
because such evidence did not exist 3 or because the Government
failed to adequately prepare its case, the Government instead
sought to counter the defense theory by eliciting an outrageous
ethnic stereotype about the propensity of “Hispanic drug
traffickers” to live modestly while sending “the majority if not
all the proceeds back to their native countries.” J.A. 270.
The Government then highlighted this irrelevant and unsupported
racial generalization at the outset of its rebuttal closing
argument, stating:
3 As my colleagues in the majority point out, Garcia-Lagunas
has resided in the United States since he was a teenager, and
the majority of his family, including his parents, spouse, and
two of his children, also live in the United States, making it
improbable that he was sending large amounts of money back to
individuals in Mexico.
47
Ladies and Gentlemen, what did Detective Orellano tell
you about Hispanic drug trafficking organizations
[sic] and about what they do with their money? He
told you that they package that money and they send it
back to their home country as part of the drug
trafficking organization. That’s why we don’t have an
extravagant lifestyle associated with this Defendant,
fancy cars, any of the things like Ronnie Reed has
talked about.
J.A. 520.
The relative ability of this particular stereotype to sway
one or more jurors is evidenced by its extraordinary confirming
effect on the presiding judge. In response to a renewed
objection to Detective Orellano’s testimony, the trial judge
held a bench conference and admitted that he “wasn’t quite sure
the relevance of” the Detective’s testimony regarding Hispanic
drug traffickers, but that, “based on [his] experience, . . .
most Latins [sic] send money home whether they’re drug dealers
or not.” 4 J.A. 273. The Government admittedly hoped the jurors
4 The majority chooses not to address how the trial judge’s
statements could have independently affected the jury’s thinking
because they were voiced during a bench conference and there is
no affirmative evidence that the jury heard the trial judge’s
reinforcing remarks. However, it is not Garcia-Lagunas’s burden
to demonstrate the rippling effects of the Government’s
unconstitutional testimony. Rather, the Government is tasked
with establishing that its constitutional error did not
contribute to the jury’s verdict. Here, the Government has not
attempted to show that the trial judge’s statements did not
affect the jury’s consideration of Garcia-Lagunas’s defense
theory. Moreover, I note that, having both served as a juror on
three occasions in criminal cases tried in Maryland state
courts, and having presided for 14 years over federal jury
trials employing “white noise” to keep jurors in the dark, I
(Continued)
48
would draw a similar inference when rendering a verdict. J.A.
273.
To counter Garcia-Lagunas’s primary defense theory and cure
a perceived hole in its case, the Government offered up a
generalization about Garcia-Lagunas’s ethnicity to the jury.
The Government hoped that, like the presiding judge, the jurors
would believe that Garcia-Lagunas’s modest lifestyle could not
rationally undermine allegations that he distributed hundreds of
thousands of dollars’ worth of cocaine because he assuredly had
been sending his significant proceeds back to his native
country, electing to live like a pauper in the United States.
Tellingly, even the Government concedes that the
elicitation of Detective Orellano’s testimony during re-direct
and the recitation of the testimony at the outset of the
rebuttal closing argument amounted to a constitutional error.
Oral Argument at 20:38-20:51, United States v. Garcia-Lagunas,
No. 14-4370 (Sept. 17, 2015), available at
http://coop.ca4.uscourts.gov/OAarchive/mp3/14-4370-20150917.mps.
know full well that statements made during bench conferences not
infrequently remain within earshot of nearby and attentive
jurors. Accordingly, because there is nothing in the record
here to suggest that the judge’s remarks went unheard in this
instance, it undeniably falls on this Panel, in conducting a
harmless-error review, to fully consider the trial judge’s
statements and their potential, if not likely, impact on the
jury’s verdict.
49
During oral argument, when asked whether the error amounted to
constitutional error, counsel for the Government responded
unequivocally, “Yes.” Id. The Panel then asked, as a result of
the Government’s belief that constitutional error had occurred,
whether it was the Government’s burden “to prove beyond a
reasonable doubt that the error had no substantial effect on the
jury’s verdict.” Id. In response, counsel for the Government
firmly stated, “That’s correct.” Id.Accordingly, because it is clear that “[a]ppeals to racial,
ethnic, or religious prejudice during the course of a trial
violate a defendant’s Fifth Amendment right to a fair trial,”
United States v. Cabrera, 222 F.3d 590, 594 (9th Cir. 2000), I
see no reason to resort to assumptions in addressing Garcia-
Lagunas’s appeal. See, e.g., United States v. Vue, 13 F.3d
1206, 1213 (8th Cir. 1994) (concluding that a constitutional
error occurs when the Government “invite[s] the jury to put [a
defendant’s] racial and cultural background into the balance in
determining their guilt”). The Government’s appeal to an
unabashed ethnic generalization was plainly a constitutional
error, and as a result, it is the Government’s burden to prove
that its error was harmless beyond a reasonable doubt. And, for
the reasons set forth below, I cannot conclude that the
Government carried that burden in this case.
50
II.
As the majority explains, not all constitutional errors
mandate reversal. However, when a non-structural constitutional
error occurs, the reviewing court may only disregard the error
so long as the Government can carry its burden of demonstrating
that the error was “harmless beyond a reasonable doubt.” Neder
v. United States, 527 U.S. 1, 7 (1999) (quoting Chapman v.
California, 386 U.S. 18, 24 (1967)). Here, the majority
concludes that the Government has met its harmless-error burden
because “even without the [G]overnment’s improper use of an
ethnic stereotype[,] a rational jury still would have arrived at
that verdict.” Ante at 17. 5 For several reasons, I believe this
analysis grievously misses the mark.
5As discussed fully infra, in framing the issue as it does,
the majority commits a fundamental error that has been
identified and warned against by distinguished legal scholars
and others for decades:
Properly applied, harmless error analysis should ask
only whether the state can demonstrate that error did
not sufficiently affect the outcome at trial and not,
conversely, whether evidence of guilt outweighed the
impact of any error. See Sullivan v. Louisiana, 508
U.S. 275, 279 (1993) (“The inquiry . . . is . . .
whether the guilty verdict actually rendered in this
trial was surely unattributable to the error. That
must be so, because to hypothesize a guilty verdict
that was never in fact rendered--no matter how
inescapable the findings to support that verdict might
be--would violate the jury-trial guarantee.”); Jason
M. Solomon, Causing Constitutional Harm: How Tort Law
Can Help Determine Harmless Error in Criminal Trials,
(Continued)
51
Rule 52(a) of the Federal Rules of Criminal Procedure
mandates that “[a]ny error, defect, irregularity, or variance
that does not affect substantial rights must be disregarded.”
Fed. R. Crim. Pro. 52(a). Rule 52(a)’s “emphasi[s] [on]
‘substantial rights’” serves two important purposes. Chapman,
386 U.S. at 22. First, it stresses the significance of the
factfinding process, recognizing that, at its heart, “the
central purpose of a criminal trial is to decide the factual
question of the defendant’s guilt or innocence.” Neder, 527
U.S. at 18 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681
(1986)). Second, it “promotes public respect for the criminal
process by focusing on the underlying fairness of the trial
rather than on the virtually inevitable presence of immaterial
error.” Van Arsdall, 475 U.S. at 681. Accordingly, in
practice, Rule 52(a) works to “save the good”—those convictions
99 Nw. U. L. Rev. 1053, 1085-98 (2005) (arguing that
judges should look at evidence of influence on jury
rather than focusing primarily on untainted evidence
of guilt).
Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev.55, 108
n.195 (2008); see also John M. Greabe, The Riddle of Harmless
Error Revisited, 54 Hous. L. Rev. (forthcoming 2016) (manuscript
at 12 n.70) (“The [Supreme] Court has at . . . times . . .
suggested that the presence of overwhelming evidence of guilt
alone renders an error harmless. But these statements—which are
akin to a ‘correct result’ test of the sort rejected in Chapman—
are contradicted by the Court’s more carefully reasoned cases
and should not be taken to express the proper formulation.”
(internal citations omitted)).
52
that, while the product of an imperfect trial, were the subject
of “constitutional errors which in the setting of [the]
particular case [were] so unimportant and insignificant that
they may . . . be deemed harmless”—while excising the bad—those
convictions that might have been impacted by the complained of
error. Chapman, 386 U.S. at 22–24.
The Supreme Court applied Rule 52(a)’s harmless-error
analysis in Neder when a criminal defendant challenged a
district court’s failure to submit the materiality element of
the defendant’s tax-fraud charges to the jury. 527 U.S. at 4.
The Supreme Court began by stating the overarching test for
determining whether a constitutional error is harmless:
“[W]hether it appears ‘beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.’” Id.
at 15 (quoting Chapman, 386 U.S. at 24). To answer that
question, the Court first considered the ways in which the
Government could carry its burden of establishing the
materiality element. Id. at 16. It explained that, “[i]n
general, a false statement is material if it has a natural
tendency to influence, or [is] capable of influencing the
decision of the decisionmaking body to which it was addressed”
but noted that “several courts have determined that any failure
to report income is material.” Id. (alterations in original)
(citations and internal quotation marks omitted). The Court
53
then described how, at trial, the Government had “introduced
evidence that Neder failed to report over $5 million in income
from the loans he obtained,” and that “[t]he failure to report
such substantial income incontrovertibly” established the
materiality element of his charges. Id.
After emphasizing that Neder did not even attempt to
contest materiality, either before the jury or on appeal, the
Supreme Court concluded that, “[i]n this situation, where a
reviewing court concludes beyond a reasonable doubt that the
omitted element was uncontested and supported by overwhelming
evidence, such that the jury verdict would have been the same
absent error, the erroneous instruction is properly found to be
harmless.” Id. at 16–17. And specifically applying the test
set forth in Chapman, the Court further noted that, “We think it
beyond cavil here that the error ‘did not contribute to the
verdict obtained.’” Id. at 17 (quoting Chapman, 386 U.S. at
24).
It is true that reading portions of Neder in isolation and
out of context from the remainder of the Supreme Court’s
extensive harmless-error jurisprudence, as the majority does in
this case, could lead one to conclude that all a reviewing court
must do to satisfy itself of an error’s harmlessness is ask
whether it is beyond a reasonable doubt that a jury would have
54
found the defendant guilty if the error had never occurred.
Such an approach, however, is misplaced and ill-advised.
First, it fails to give proper credence to the narrow
nature of the holding in Neder. In summarizing why its
harmless-error inquiry reached “an appropriate balance between
society’s interest in punishing the guilty [and] the method by
which decisions of guilt are to be made,” the Court took care to
explain that,
[i]n a case such as this one, where a defendant did
not, and apparently could not, bring forth facts
contesting the omitted element, answering the question
whether the jury verdict would have been the same
absent the error does not fundamentally undermine the
purpose of the jury trial guarantee.
Id. at 18–19. Unlike Neder, the present appeal clearly does not
fit within the narrow subset of cases where the fact that a
rational jury could have found the defendant guilty absent the
erroneous omission necessarily dictates that the error did not
contribute to the verdict.
Second, merely assuring oneself that a rational jury would
have nonetheless convicted the criminal defendant absent the
error fails to heed important guidance from the Supreme Court.
The Supreme Court has explained that, in the case of affirmative
error, a reviewing court should not simply confine itself to the
abstract and ask “whether, in a trial that occurred without the
error, a guilty verdict would surely have been rendered.”
55
Sullivan v. Louisiana, 508 U.S. 275, 279 (1993). Rather, a Rule
52(a) harmless-error analysis requires us to consider “what
effect [the error] had upon the guilty verdict in the case at
hand” and assure ourselves that “the guilty verdict actually
rendered in [the] trial was surely unattributable to the error.”
Id. This is so because, when we frame the harmless-error
analysis in the abstract and remain content to imagine a world
where the Government exclusively relied upon admissible
evidence, we not only fail to consider the error’s actual effect
on the jury, but we also “improperly conflate[] sufficiency-of-
the-evidence review with the appropriate Chapman standard.”
United States v. Holness, 706 F.3d 579, 598 (4th Cir. 2013)
(quoting Virgin Islands v. Martinez, 620 F.3d 321, 338 (3d Cir.
2010)). Here, when I consider the specifics of the Government’s
prosecution of Garcia-Lagunas and the unique nature of the
unconstitutional testimony and the prosecution’s arguments based
thereon, I am unable to conclude beyond a reasonable doubt that
the complained of error did not contribute to the jury’s
verdict. 6
6 In this regard, it bears mention that not all
constitutional infringements visited upon defendants in criminal
cases stand on equal footing. That is to say, as one scholar
argues, “judicial proceedings marred by unconstitutional
discrimination on the basis of race, religion, ethnicity,
national origin, or gender and intentional misconduct by
government officials such as . . . prosecutors” deserve a
(Continued)
56
From opening statements through closing arguments, Garcia-
Lagunas’s trial lasted a mere thirteen hours spread over the
course of three days. Within those thirteen hours, when
confronted with a gaping hole in its confident characterization
of Garcia-Lagunas as a sophisticated drug trafficker responsible
for the distribution of more than 39 kilos of cocaine valued at
more than $1 million, the Government knowingly and purposefully
elicited inadmissible and prejudicial testimony from a law-
enforcement officer. While the Government did not qualify
Detective Orellano as an expert, it repeatedly requested that he
testify pursuant to his “training and experience” investigating
Hispanic drug trafficking organizations. J.A. 272–74.
Accordingly, when Detective Orellano explained to the jury that
it did not need to be concerned that the investigation into
Garcia-Lagunas recovered no proceeds and instead revealed a man
of abject poverty because such evidence was actually “consistent
with the method of operation of Hispanic drug traffickers,” he
did so with an authority that any juror would have had
heightened level of scrutiny in the analysis of harmless error.
Greabe, supra note 5, at 5.
57
difficulty discounting. 7 The Government no doubt hoped that
Detective Orellano’s years of experience investigating “Hispanic
drug traffickers” would carry weight with the jury, and the
import of his testimony to the Government’s case is evidenced by
the Government’s decision to begin its rebuttal closing remarks
by asking, “What did Detective Orellano tell you about Hispanic
drug trafficking organizations and about what they do with their
money?” J.A. 520.
The weighty impact of this unconstitutional testimony and
argument is illuminated further when one considers that the
Government’s case against Garcia-Lagunas relied almost
exclusively upon criminal defendants testifying pursuant to plea
agreements and circumstantial evidence. As Garcia-Lagunas
pointed out to the jury, the Government was unable to present
any direct evidence that Garcia-Lagunas participated in a drug
trafficking conspiracy through law-enforcement testimony. When
cross-examining Detective Collins, Garcia-Lagunas confirmed
that, despite a lengthy investigation into a “Mexican drug
7Importantly, further exacerbating the impact of this
improper testimony, the trial judge asked Orellano, in open
court before the jury, to state the basis of his opinion. The
magic words “training and experience” were quickly forthcoming,
and the trial judge promptly overruled counsel’s renewed
objection. J.A. 272–73. One can easily understand the
remarkable impact on a juror who observes such a display of
judicial approval of a law-enforcement witness.
58
trafficker named Alex,” the Government did not have direct
evidence of any hand-to-hand transactions or controlled buys
involving Garcia-Lagunas. J.A. 152–53. This lack of direct
evidence is especially probative when one considers that law-
enforcement officers had Reed, Garcia-Lagunas’s alleged
purchaser, under “intense surveillance” while Reed was allegedly
visiting Garcia-Lagunas at least three times a week to purchase
cocaine. J.A. 152–53, 204–06. Despite these frequent and
consistent rendezvous, law enforcement never saw Reed with
Garcia-Lagunas and did not become aware of the locations of the
meetings until after Reed was arrested on his own federal drug
trafficking charges. Id.
Of greatest significance to this appeal’s harmless-error
analysis, however, is not the highly prejudicial method by which
the unconstitutional evidence was presented to the jury, the
Government’s repeated and strategic reliance upon the evidence,
or the strength vel non of the Government’s case against Garcia-
Lagunas. The most critical factor here is the uniquely
troublesome nature of the unconstitutional testimony. Not only
do “[a]ppeals to racial, ethnic, or religious prejudice during
the course of a trial violate a defendant’s Fifth Amendment
right to a fair trial,” but on a broader note, they also place
the public’s trust in “[t]he fairness and integrity of [our]
criminal” justice system at risk. Cabrera, 222 F.3d at 594,
59
597; see also Pena–Rodriguez v. People, 350 P.3d 287, 294 (Colo.
2015) (Marquez, J., dissenting), cert. granted sub nom. Pena–
Rodriguez v. Colorado, No. 15-606, 2016 WL 1278620 (U.S. Apr. 4,
2016) (“Racial discrimination in our jury trial system not only
violates our Constitution and the laws enacted under it but is
at war with our basic concepts of a democratic society and a
representative government,” and “the harm caused by such
discrimination is not limited to the defendant—there is injury
to the jury system, to the law as an institution, to the
community at large, and to the democratic ideal reflected in the
processes of our courts.” (internal citations and quotations
marks omitted)). And it is in recognition of this fact that
several of our sister circuits have unequivocally condemned the
use of impermissible ethnic or racial generalizations and
reversed the convictions of criminal defendants, even where the
reviewing panel believed that the non-erroneous evidence was
sufficient to convict. See, e.g., Cabrera, 222 F.3d at 596–97
(reversing defendants’ convictions after noting that,
“[a]lthough we find that the evidence was sufficient to convict
Cabrera and Mulgado, Detective Brook’s repeated references to
their Cuban origin and his generalizations about the Cuban
community prejudiced Cabrera in the eyes of the jury”); Vue, 13
F.3d at 1213 (reversing defendants’ convictions despite finding
that the evidence was sufficient to sustain the convictions
60
because the panel believed that “the injection of ethnicity into
the trial clearly invited the jury to put the [defendants’]
racial and cultural background into the balance of determining
their guilt,” thereby undermining the bedrock principle of our
legal system--“[f]ormal equality before the law”). I agree that
it is “much too late in the day to treat lightly the risk that
racial bias may influence a jury’s verdict in a criminal case.”
United States v. Doe, 903 F.2d 16, 21 (D.C. Cir. 1990).
Here, because the Government repeatedly encouraged the jury
to consider Garcia-Lagunas’s ethnicity and draw inferences
contrary to Garcia-Lagunas’s interest in reliance upon an ethnic
generalization, I am unable to conclude that the constitutional
error did not contribute to the jury’s verdict. Specifically,
the effect of the error was to eviscerate the sole plausible
defense theory of the case, one with ample evidentiary support
in the record. Indeed, I am baffled how any reviewing court
could consider an error of this magnitude harmless beyond a
reasonable doubt, either to a criminal defendant’s conviction or
our criminal justice system on the whole. By presenting to the
jury its unconstitutionally constructed racial taxonomy of the
universe of North Carolina drug traffickers—African-American
drug dealers like Reed, who live the high life and spend
lavishly and ostentatiously, with lots of cash and drugs lying
about, in contrast to “Hispanic drug traffickers,” whose
61
members, even long-time residents in this country, like Garcia-
Lagunas, habitually choose to live in abject poverty—the
Government blatantly bolstered its case in contravention of well
known and well settled constitutional norms.
Moreover, as the majority opinion correctly and
comprehensively explains, the jury knew, for lack of a timely
objection or motion in limine by defense counsel, although it
should not have been told, that Garcia-Lagunas was present in
this country illegally. The majority refuses to treat that error
as one remediable under our plain error doctrine. But plain
error as to that singular issue to one side, the jury’s
knowledge of that irrelevant and highly prejudicial fact renders
the prosecution’s resort to racial and ethnic animus more, not
less, condemnable, and should factor into the harmless-error
analysis. It blinks reality not to do so.
III.
It is ironic that, in a break from our sister circuits, and
at a moment in our country’s history when uncommon attention is
being paid to issues of racial and ethnic stereotyping and
consequent mistreatment, actual or threatened, this Court
chooses to privilege the Government to employ, without
consequence, irrelevant, prejudicial, and factually unwarranted
evidence of blatant racial stereotyping to obtain a criminal
conviction. In this moment, not even the ethnic heritage of
62
distinguished federal judges is beyond trashing in the public
sphere, and by a prominent candidate for the most powerful
office on the planet, no less. All this at a time when this
Court has otherwise stood firmly against manifestations of
insidious racial and ethnic animus in voting, N.C. State
Conference of NAACP v. McCrory, --- F.3d ---, 2016 WL 4053033(4th Cir. July 29, 2016), employment, Boyer–Liberto v.
Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015) (en banc), and
many other domains of civic, economic, and political life.
After this published opinion, future panels of this Court
will be required to struggle with the issue of just how much
evidence of guilt is enough evidence of guilt to permit the
Court to give the Government a pass when it bolsters its pursuit
of a conviction through resort to gratuitous racial and ethnic
evidence intended to spur one or more jurors to convict. This
case sets a very low bar, considering that the level of
certainty that the constitutional violation had no effect upon
any juror is agreed to be “beyond a reasonable doubt,” a
standard that, interestingly, this Court has long refused to
allow trial judges to define for ordinary jurors. See United
States v. Walton, 207 F.3d 694, 699 (4th Cir. 2000) (en banc)
(“We find no reason to alter our current practice of not
requiring a jury instruction defining reasonable doubt in
criminal cases.”). Perhaps, as we approach the 50th anniversary
63
of the seminal teachings of Chapman v. California, the time has
come for this Court to undertake an examination of just what
“beyond a reasonable doubt” means, after all.
I would vacate the conviction on the conspiracy count of
the indictment and order a new trial.
64