Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-25-2005

USA v. Figaro
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3967




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                                                            NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEAL
                            FOR THE THIRD CIRCUIT

                                   No: 03-3967


                          UNITED STATES OF AMERICA


                                          v.

                                  KURT FIGARO,
                                    a/k/a "Tony",
                             a/k/a Donnell Constantine,
                             a/k/a Anthony Constantine,
                                     a/k/a "Boy",
                                    a/k/a "Dread",

                                        Kurt Figaro,
                                             Appellant


                  On appeal from the United States District Court
                      for the Middle District of Pennsylvania
                             (Case No. 01-CR-366-03)
                        District Judge: Hon. Malcolm Muir


                   Submitted Pursuant to Third Circuit LAR 34.1
                               September 30, 2004

             Before: RENDELL, FUENTES and SMITH, Circuit Judges

                              (Filed: March 25, 2005 )
                                _________________

                            OPINION OF THE COURT
                               _________________

SMITH, Circuit Judge.
       Appellant, Kurt Figaro, challenges his conviction and sentencing for conspiracy to

distribute in excess of 50 grams of cocaine base and in excess of 100 grams of heroin,

possession with intent to distribute in excess of 50 grams of cocaine base and aiding and

abetting, and conspiracy to commit money laundering. Figaro contends that he was

denied a fair trial because the District Court erred in admitting certain testimony under the

Federal Rules of Evidence and that he received ineffective assistance of counsel.1 For the

reasons that follow, we will affirm the District Court’s judgment of conviction but

remand for resentencing.

                                              I.

       Because we write only for the parties, we set forth merely a brief recitation of the

facts. On November 17, 2001, Pennsylvania State Police effected a traffic stop of a Toyota

Corolla which ultimately led to the discovery of crack cocaine in the stopped vehicle. Trial

testimony revealed that through subsequent investigation, the State Police learned that the



  1
     Although Figaro argues that review of his ineffective assistance claims is appropriate
at this stage, we see no reason to depart from our longstanding practice of “defer[ring] the
issue of ineffectiveness of trial counsel to a collateral attack.” United States v. Thornton,

, 271 (3d Cir. 2003). While we “may address the claim of ineffective
assistance of counsel on direct appeal when the record is sufficient to allow determination
of the issue,” 

that Figaro identifies were neither so egregious nor so obvious
from the record that the need for an evidentiary hearing is obviated. We therefore do not
consider Figaro’s claims that his trial counsel rendered ineffective assistance of counsel
in failing to object to or request a motion to strike Ralston Smith’s testimony or in failing
to object to or request a motion to strike Linda Cottrell’s testimony that she knew Figaro
had possessed firearms at this stage. Our affirmance of Figaro’s convictions is without
prejudice to his right to raise this claim on collateral attack brought pursuant to 28 U.S.C.
§ 2255. See 

                                              2
occupants of the vehicle were bound for Altoona, Pennsylvania, and that the drugs were

being transported at the behest of Figaro. According to the testimony at trial, this was one

of many trips of its kind associated with Figaro’s management of a significant operation

involving transportation of drugs from New York and Connecticut for distribution in

Altoona, and guns and ammunition from Altoona to Connecticut. The Grand Jury charged

Figaro with conspiracy to distribute in excess of 50 grams of cocaine base and in excess of

100 grams of heroin, possession with intent to distribute in excess of 50 grams of cocaine

base and aiding and abetting, and conspiracy to commit money laundering, in violation of 21

U.S.C. §§ 846 and 841(a)(1) and 18 U.S.C. § 1956(h), respectively. Figaro pled not guilty

to each of the charges. Following a trial, on September 4, 2002, a jury found Figaro guilty

on all counts.2

       Figaro argues that the District Court erred in overruling two hearsay objections made

by his trial counsel. He further asserts that the cumulative effect of other evidentiary errors,

to which his attorney did not object, denied him a fair trial.

                                              II.

       This Court undertakes plenary review of the District Court’s “interpretation of the

Federal Rules of Evidence but review[s] a ruling based on a permissible interpretation of

a rule for abuse of discretion.” United States v. Reilly, 

, 1410 (3d Cir. 1994).

Figaro argues that the District Court erred in overruling his hearsay objection to testimony

  2
    The District Court utilized special verdict interrogatories with respect to the drug
quantities.

                                               3
from Trooper Hutson regarding witness Linda Cottrell’s identification of Figaro. The

Government initially asked Trooper Hutson what he had learned from Cottrell regarding

the drugs that were recovered in the trunk of the stopped vehicle. Figaro’s counsel

objected on hearsay grounds and the District Court sustained the objection. The

Government revised its question, asking Hutson, “Based on what you learned from Linda

Cottrell, what did you do after that?” Figaro’s counsel repeated his objection and the

Government explained that “the statement was not offered for the truth of the matter but

for the effect on the listener or the hearer.” The District Court overruled the objection.

       Federal Rule of Evidence 801(c) defines hearsay as “a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” (emphasis added). It is clear from both the

Government’s question and Trooper Hutson’s response that the testimony did not

constitute hearsay because it was not offered to prove the truth of the matter asserted.

Instead, the Government introduced the testimony to explain how the Trooper identified

Figaro from the evidence collected from the stopped vehicle. The District Court therefore

properly overruled Figaro’s objection to that testimony.

       Figaro also argues that the District Court improperly overruled his objection to

testimony from Trooper Hutson regarding wire transfers made by Cottrell. The

Government asked Trooper Hutson, “Now, in addition to identifying telephone

information, did you recover evidence from any other locations in the Altoona area based



                                              4
on what Cottrell told you?” Trooper Hutson began to answer, stating, “Yes, she later

contacted us on the 18 th of December and spoke of the various money order transactions

that were –.” Figaro’s attorney objected, “Again, objection, Your Honor, concerning the

statements of Linda Cottrell.” The Government proffered that Trooper Hutson was going

to testify that he recovered Western Union records as a result of what Cottrell had told

him and explained that the testimony was not hearsay because it was not being offered

“for the truth of the matter but for the effect on the hearer.” The District Court overruled

the objection. We find no error inasmuch as the testimony did not qualify as hearsay.

       Figaro contends that the cumulative effect of numerous evidentiary errors resulting

from the admission of Trooper Hutson’s testimony—to which his trial attorney did not

object—denied him a fair trial. This Court reviews arguments as to evidentiary errors

where no objection was made for plain error. United States v. Olano, 

, 732

(1993). If an error is identified, it must be one that is “plain” and that “affects substantial

rights,” in order for relief to be appropriate. 

Courts of Appeals

have discretion to correct a forfeited error, if the error “seriously affects the fairness,

integrity or public reputation of judicial proceedings.” 

citations

omitted). Upon consideration of the assignments of error alleged by Figaro, we conclude

that none constituted plain error such that relief is warranted.

       Specifically, in regard to Figaro’s argument that Trooper Hutson’s testimony

constituted improper “overview testimony,” we note first that Trooper Hutson’s testimony



                                               5
was not of the sort described by the two Courts of Appeals to have addressed the

propriety of “overview testimony.” See United States v. Casas, 

, 117-24 (1st

Cir. 2004) (DEA Agent testimony describing scope of drug smuggling “organization” and

providing conclusory testimony as to the identity of the members of the “organization”

was unacceptable overview testimony); United States v. Griffin, 

(5th Cir.

2003) (FBI Agent testimony using chart and providing overview of case against

defendants improperly allowed). In the two cases cited by Figaro, the testimony at issue

provided a comprehensive view of the case against the defendants at the start of testimony

and included conclusory statements as to the identities of the participants of the

conspiracies. Trooper Hutson’s testimony does bear some similarity to that discussed in

Casas and Griffin in that it came from a law enforcement official at the start of the trial.

It is, however, distinguishable because, rather than telling the story of the conspiracy

according to the Government, it told the story of Trooper Hutson’s investigation in the

case. Trooper Hutson did not attempt to explain the operations of the alleged conspiracy,

nor did he identify the members of the conspiracy. Although Trooper Hutson did use the

word “coconspirators,” he did not associate the label with anyone in particular as did the

witness in Casas.

       Trooper Hutson’s testimony did not constitute reversible “background testimony”

as Figaro argues either. This Court has recognized that, although “officers generally

should be allowed to explain the context in which they act,” such background testimony is



                                              6
subject to the limitation that hearsay testimony admitted for that reason must have a valid

purpose. United States v. Sallins, 

, 346 (3d Cir. 1993); see also United

States v. Lopez, 

, 176 (3d Cir. 2003). Trooper Hutson provided a certain

amount of testimony regarding the traffic stop that arguably exceeded what was necessary

to explain how he became involved in the investigation. The admission of that testimony

does not constitute plain error, however, because Figaro was not alleged to have been

involved in the events leading to the vehicle stop. Thus, it is highly unlikely that

testimony regarding the details of the stop influenced the jury’s verdict as to Figaro.

Further, to the extent that Trooper Hutson’s testimony preempted subsequent witnesses’

testimony on the details of the stop or as to Figaro’s connection to the stop, the resulting

hearsay was harmless because the witnesses corroborated Trooper Hutson’s testimony.

       We reach the same conclusion as to the portions of Trooper Hutson’s testimony to

which Figaro takes exception under this overview testimony theory for reasons other than

hearsay. Trooper Hutson’s testimony regarding the photo of Figaro from a prior arrest

did not constitute bad character evidence under Fed. R. Evid. 404(b) because the

transcript reveals that the information was introduced for a valid purpose, i.e., explaining

how the investigators were able to get a proper identification of Kurt Figaro, including

biographical information such as his Social Security number and his date of birth.

       Trooper Hutson’s testimony that he obtained telephone numbers for Figaro and

Cottrell from a piece of paper contained in an envelope containing the personal effects of



                                              7
one of the occupants of the stopped vehicle was not hearsay because the piece of paper

was not offered for the truth of the matter asserted, but rather to explain how Trooper

Hutson came to identify Figaro in connection with the stop. Nor was Hutson’s testimony

that the investigators had “learned” that Figaro had been using a Pontiac Grand Am

hearsay, as it was introduced to explain why they searched an abandoned Grand Am,

which led the investigators to determine, on the basis of the documentation found inside

the vehicle, that Figaro had used the car.

       Finally, the Government’s closing argument did not support Figaro’s theory that

Trooper Hutson’s testimony constituted improper overview testimony. The Government

only mentioned Trooper Hutson in passing, mid-way through the closing argument. The

mention of Trooper Hutson once by name and the Government’s suggestion to the jury

that it should “work backwards the way the investigators did,” did not support Figaro’s

overview theory. In fact, the absence of more references to Trooper Hutson’s testimony

is telling because it is clear from the closing argument that the Government was not

relying on Trooper Hutson’s testimony to provide structure to his case. Rather, as the

Government acknowledged in its closing, the jury needed to “connect the dots” during

their deliberations as to Figaro’s guilt.

       Accordingly, we will affirm the District Court’s judgment of conviction. Figaro

challenges his sentence, however, under United States v. Booker, 543 U.S. __, 

(2005). Having determined that the sentencing issues appellant raises are best



                                             8
determined by the District Court in the first instance, we will vacate the sentence and

remand for resentencing in accordance with Booker.