Case: 12-13294   Date Filed: 09/27/2013   Page: 1 of 11


                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 12-13294
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:10-cr-20855-RNS-1



UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

CARL RICHARD SAMSON,
JACKENSON CONSTANT,

                                                      Defendants-Appellants.

                       ________________________

               Appeals from the United States District Court
                   for the Southern District of Florida
                      ________________________

                            (September 27, 2013)

Before MARCUS, MARTIN, and FAY, Circuit Judges.

PER CURIAM:
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      Jackenson Constant and Carl Richard Samson jointly appeal their

convictions for conspiring to interfere with commerce by robbery, in violation of

18 U.S.C. § 1951(a); attempting to interfere with commerce by robbery, in

violation of 18 U.S.C. §§ 1951(a) and 2; and possessing firearms in furtherance of

a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2. On

appeal, Constant and Samson jointly argue: 1) the district court violated their Sixth

Amendment Confrontation rights by permitting two detectives to testify, and the

government to argue in its closing, that two severed co-defendants gave recorded

post-arrest statements that implicated them in the charged offenses; and 2) the

district court improperly admitted opinion testimony from two police officers that

Constant’s initial post-arrest statement was not credible and that both he and

Samson were guilty as charged. Additionally, Samson argues the district court

erred by admitting Constant’s post-arrest statement because it directly implicated

him and violated his Confrontation rights. We affirm.

                                          I.

      This case arises out of an armed-robbery that took place at a Wendy’s

Restaurant (“Wendy’s”) in Miami, Florida. Throughout the three-day trial, the

government presented evidence against Constant and Samson, including

Constant’s initial post-arrest statement denying involvement and subsequent

confession in his second post-arrest statement, video surveillance footage from the


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Wendy’s and a nearby business, Samson’s DNA on articles recovered from the car

used in the robbery, two police officers’ identifications of Constant, and two police

officers’ identifications of Samson.

      At their joint trial, robbery detective Elio Garcia testified that he conducted

Constant’s initial post-arrest interview, twice challenging his version of the story,

and the second time telling Constant that he did not believe him.

      Another detective, Jose Eduarte, testified that because he did not believe that

Constant’s initial story was credible, he decided to ask him additional questions in

a second interview. He further stated he participated in the “interviews of subjects

[Emile] Myrthil and [Aldair] Mentor,” without identifying them as severed co-

defendants, and that while Constant did not agree to be recorded, “other

individuals that night” consented to being taped.

      Constant’s first statement revealed, in relevant part, that “three subjects with

guns” emerged from a gold-colored vehicle used in the robbery, and that he and

these subjects ran away from the scene once the officer arrived. Constant’s second

statement referenced the “other individuals” he robbed the Wendy’s with, and

otherwise focused on his own involvement in the robbery.

      During the government’s closing statement, it stated the detectives also

obtained post-arrest statements from co-defendants Myrthil and Mentor.




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Following defense objections and motions based on Bruton,1 including a motion

for a mistrial, the district court instructed the jury to disregard the isolated

comment.

                                                      II.

         This court generally reviews the district court’s rulings on admission of

evidence for an abuse of discretion. United States v. Jimenez, 

, 1249

(11th Cir. 2000). However, “[e]videntiary errors that are not specifically objected

to at trial are reviewed for plain error.” United States v. Williford, 

,

1502 (11th Cir. 1985). Moreover, if defendants fail to object to alleged

Confrontation Clause violations at trial, we also review them for plain error.

United States v. Brazel, 

, 1141 (11th Cir. 1997).

         This court reviews preserved Bruton claims for an abuse of discretion and

evaluates any Bruton error for harmlessness beyond a reasonable doubt, but where

the defendant has failed to preserve his Bruton claim, this court reviews only for

plain error. United States v. Turner, 

, 1275 (11th Cir. 2007).

         To establish plain error, defendants must demonstrate that: (1) there was

error in the lower court’s action; (2) such error was plain, clear, and obvious; and

(3) the error affected substantial rights. United States v. Foree, 

, 1578

(11th Cir. 1995). The “erroneous admission of evidence does not warrant reversal


1
    Bruton v. United States, 

, 

, 

 (1968).
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if the error had no substantial influence on the outcome and sufficient evidence

uninfected by error supports the verdict.” See United States v. Harriston, 

, 789 (11th Cir. 2003) (internal quotation marks omitted) (noting that error is

harmless “where there is overwhelming evidence of guilt.”). Even if these three

elements are present, this court will not reverse unless the error seriously affected

the fairness, integrity, or public reputation of the proceedings. Id.

                                          A.

      The Confrontation Clause provides that, “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against him.”

U.S. Const. amend. VI. It applies not only to in-court testimony but also to out-of

court statements introduced at trial. Crawford v. Washington, 

, 50-51,

, 1364, 

 (2004). Prior testimonial statements may

be admitted only if the declarant is unavailable and the defendant had an

opportunity to cross-examine the declarant. Id. at 68, 124 S. Ct. at 1374.

However, the Confrontation Clause “prohibits only statements that constitute

impermissible hearsay,” and does not bar “the use of testimonial statements for

purposes other than establishing the truth of the matter asserted.” United States v.

Jiminez, 

, 1286-87 (11th Cir. 2009) (quoting Crawford, 541 U.S. at

59 n.9, 124 S. Ct. at 1369).

      This court has:


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      long recognized that “[s]tatements by out of court witnesses to law
      enforcement officials may be admitted as non-hearsay if they are
      relevant to explain the course of the officials” subsequent
      investigative actions, and the probative value of the evidence’s non-
      hearsay purpose is not substantially outweighed by the danger of
      unfair prejudice caused by the impermissible hearsay use of the
      statement.

Jiminez, 564 F.3d at 1287 (holding that a detective’s testimony that a co-defendant

made a post-arrest statement implicating the defendant did not violate Crawford

because it was admitted for the non-hearsay purpose of explaining to the jury why

the detective re-interviewed the defendant and why he might have changed his

story).

      Finally, the purpose of closing argument is to help the jury evaluate the

evidence. United States v. Rodriguez, 

, 1559 (11th Cir. 1985).

During closing argument, the prosecutor is forbidden from making improper

suggestions, insinuations, and assertions calculated to mislead the jury. Id. at

1560. Prosecutorial misconduct during closing argument requires a new trial only

where the remarks were improper and prejudiced the defendants’ substantial rights.

United States v. Paul, 

, 912 (11th Cir. 1999). In order to assess the

prejudicial impact of the comments, we evaluate them in the context of the trial as

a whole and assess their probable impact on the jury. United States v. Hernandez,

, 1439 (11th Cir. 1998). Moreover, the jury is presumed to follow




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the district court’s instructions. United States v. Shenberg, 

, 1472

(11th Cir. 1996).

      Because neither Constant nor Samson objected to the admission of any

testimony related to Myrthil’s and Mentor’s post-arrest statements, we review any

alleged violations only for plain error. Brazel, 102 F.3d at 1141. Importantly,

Constant and Samson do not identify the particular testimony they challenge on

appeal, or the law enforcement witness who gave this testimony. In any event, the

contents of Myrthil’s and Mentor’s post-arrest statements were never admitted into

evidence, Garcia never mentioned Myrthil or Mentor by name, and Eduarte only

mentioned that he participated in their interviews, and that “other individuals that

night” consented to giving recorded statements. Moreover, even assuming the

district court erred in this respect and that the error was plain, it did not affect

Constant and Samson’s substantial rights, nor did it seriously affect the fairness,

integrity, or reputation of the judicial proceeding because of the overwhelming

evidence of guilt presented against them.

      With regard to the government’s closing argument referring to Myrthil’s and

Mentor’s statements, while the government argued facts not in evidence—that the

police got statements from the co-defendants as opposed to simply interviewing

them—the district court did not abuse its discretion in issuing a limiting

instruction, as opposed to granting a mistrial. Jimenez, 224 F.3d at 1249. Given


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the weight of the evidence presented against Constant and Samson, assessed in the

context of the trial as a whole, any prejudice from the government’s remark was

remedied by the court’s prompt instruction to disregard the isolated comment.

                                          B.

      A witness may testify to a matter “if evidence is introduced sufficient to

support a finding that the witness has personal knowledge of the matter.” Fed. R.

Evid. 602. Moreover, “[e]vidence to prove personal knowledge may consist of the

witness’s own testimony.” Id. More specifically, if a witness is not testifying as

an expert, testimony in the form of an opinion is limited to one that is: (1)

rationally based on the witness’s perception; (2) helpful to clearly understanding

the witness’s testimony or to determining a fact in issue; and (3) not based on

scientific, technical, or other specialized knowledge. Fed. R. Evid. 701. The

limitation on lay opinion testimony is the “familiar requirement of first-hand

knowledge or observation,” and “is phrased in terms of requiring that the lay

witness’s testimony be helpful in resolving issues.” United States v. Jayyousi, 

, 1102 (11th Cir. 2011).

      Relevant evidence may be “excluded if its probative value is substantially

outweighed by the danger of unfair prejudice.” Fed. R. Evid. 403. However,

“Rule 403 is an extraordinary remedy which should be used only sparingly.”

Jayyousi, 657 F.3d at 1108 (internal quotation marks omitted).


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      Constant and Samson did not object to the detectives’ testimony before the

district court. Accordingly, on appeal, we conclude that the court did not plainly

err in allowing detectives Garcia and Eduarte to testify as to Constant’s credibility

as revealed through his initial post-arrest statement. With respect to Garcia, his

testimony that he twice challenged Constant’s version of the story, the second time

telling Constant that he did not believe him, was rationally based on his perception

and helpful to clearly understanding why Constant was ultimately interviewed a

second time by Eduarte. Fed. R. Evid. 701. In terms of Eduarte’s testimony,

which was limited to him stating that he did not believe that Constant’s initial story

was credible, its admission was not improper because it was offered for the

purpose of explaining why Eduarte decided to ask Constant additional questions in

a second interview. In relation to Samson, because the testimony focused solely on

Constant, it is unclear how either Garcia’s or Eduarte’s testimony alluded to his

role in the robbery or implicated his guilt in any way. Therefore, the district court

did not err in admitting the testimony regarding Constant’s initial post-arrest

statement.

      Finally, even if the district court plainly erred in admitting this testimony

into evidence, as noted above, any such errors were harmless given the other

overwhelming evidence of guilt presented by the government.




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                                           C.

      With respect to Samson’s claim that the district court erred by admitting

Constant’s post-arrest statements into evidence, in Bruton, the Supreme Court held

that the Confrontation Clause was violated by the admission of a co-defendant’s

confession that inculpated the defendant at their joint trial, despite a curative

instruction given to a jury. Bruton, 391 U.S. at 126, 88 S. Ct. at 1622-23.

However, only those statements by a non-testifying co-defendant that directly

inculpate or “powerfully incriminate” the defendant give rise to a constitutional

violation. United States v. Arias, 

, 1142 (11th Cir. 1993).

      “A statement is powerfully incriminating if it ‘expressly implicates’ the

defendant.” United States v. Mendoza-Cecelia, 

, 1481 (11th Cir.

1992). No Bruton problem exists, however, when the statement is “not

incriminating on its face, and became so only when linked with evidence later

introduced at trial.” Richardson v. Marsh, 

, 208, 

,

1707, 

 (1987). Even the admission of inculpatory statements

constitutes harmless error if other admissible evidence of guilt is so overwhelming

that the admission of the non-testifying co-defendant’s statement is insignificant by

comparison. United States v. Veltmann, 

, 1500 (11th Cir. 1993).

      Here, the district court did not err, plainly or otherwise, because neither of

Constant’s post-arrest statements directly inculpated or “powerfully incriminated”


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Samson. Arias, 984 F.2d at 1142. No direct reference was made to Samson, and a

jury would not logically conclude that Constant’s general references to “three

subjects” or “individuals” necessarily represented that Samson was one of them.

Mendoza-Cecelia, 963 F.2d at 1481.

      While Constant’s references to three other robbers might have helped

incriminate Samson when linked with the other evidence presented at trial, this is

insufficient to sustain a Bruton violation, as the statements were not incriminating

on their faces. Marsh, 481 U.S. at 208, 107 S. Ct. at 1707. Moreover, even if

Constant’s statement successfully inculpated Samson, the other aforementioned

admissible evidence of Samson’s guilt rendered Constant’s statement insignificant

by comparison. Veltmann, 6 F.3d at 1500.

      AFFIRMED.




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