HOWARD, Chief Judge.
Defendant-Appellant David Alcantara was convicted, after a jury trial, of conspiracy to commit bank fraud and conspiracy to pass counterfeit currency. Alcantara now challenges these convictions, raising various evidentiary issues and one purported instance of prosecutorial misconduct.
To provide context, we describe the relevant facts supported by the evidence at trial. In December 2009, Alcantara and others set out to steal money from a Citizens Bank account belonging to a car-wash business. One of the co-conspirators was a teller at the bank. Another arrived at the bank posing as an agent of the car-wash company. The second co-conspirator approached the compromised teller and presented a false passport. The funds were successfully transferred from the car wash's account to a fraudulent account in the name of Hernandes Realty. Shortly thereafter, two other confederates liquidated much of the funds through a series of cashiers' checks.
Just weeks later, on January 19, 2010, Alcantara met with a person — who, unbeknownst to Alcantara, was an undercover government agent — about the possibility of obtaining fake drivers' licenses. During the meeting, Alcantara indicated that he needed the licenses in "four or five days," which did not leave the agent enough time to prepare them. Alcantara told the agent that the two might be able to work together "for the next round."
The very next day, Alcantara perpetrated a second bank fraud, this time from Bank of America. To execute the scheme, Alcantara provided two co-conspirators with false temporary licenses and instructed them to open accounts. The accomplices later transferred funds into these accounts. Unfortunately for Alcantara, however, neither co-conspirator was successfully able to withdraw the money. One was arrested, and the other fled after hearing what he thought was an alarm.
On January 24, Alcantara had another conversation with the undercover agent. During this call, Alcantara asked the agent whether he knew anyone who worked at a bank. The two spoke for a third time on January 27, again discussing the possibility of the agent preparing fake licenses.
In February 2010, Alcantara became involved in a scheme to pass counterfeit money. Essentially, the plan was to use counterfeit bills to purchase inexpensive items in various retail stores, receiving change in authentic currency. Alternatively, the conspirators also purchased more expensive items, returning them shortly thereafter for real currency. On February 23, Alcantara drove to a mall in Farmington, Connecticut with his brother Urias and other co-conspirators. Alcantara distributed counterfeit $100 bills to the group, which the others then attempted to pass. Ultimately, Urias Alcantara was caught and arrested in possession of seventeen counterfeit $100 bills. Before his brother's apprehension, Alcantara unsuccessfully attempted to alert the group that the police were approaching.
On March 4, the Secret Service visited a T-Mobile store where the conspirators had passed some of the counterfeit bills. The next day, one member of the group texted Alcantara to inform him of this development. He further indicated that the agents planned to return to the store to speak with the manager as well as review records and camera footage. Alcantara was arrested eleven days later, on March 15, 2010, at JFK International Airport.
Alcantara raises a number of issues on appeal, namely, (1) various unpreserved evidentiary challenges; (2) two arguably preserved evidentiary challenges; and (3) an unpreserved prosecutorial misconduct claim.
Alcantara identifies five purported evidentiary errors that he concedes he failed to raise below. Our review accordingly is for plain error.
Alcantara first takes aim at various references to "luxury vehicles" in the trial transcript, as well as a photograph of his Bentley that was entered into evidence. According to Alcantara, the "cumulative effect" of this evidence was to bias the jury against him due to his "lavish lifestyle."
Contrary to Alcantara's contention, the cited testimony constituted probative evidence. Multiple witnesses testified that they knew Alcantara by his Bentley. Such testimony was admissible to establish the witnesses' knowledge of the defendant. Alcantara's response that "[i]dentity was not an issue in this case" is beside the point.
Alcantara's alternative argument that, even assuming the challenged evidence was relevant, it was inadmissible under Federal Rule of Evidence 403, fares no better. Alcantara points to twenty-one references to luxury vehicles, in addition to the photograph of his Bentley, in a trial transcript that spans hundreds of pages. Moreover, several of these references took place during defense counsel's cross-examinations and closing argument. Finally, the mentions of luxury vehicles were generally matter-of-fact statements that Alcantara was known for driving a Bentley or that he drove a Lexus on certain occasions. There was nothing particularly inflammatory about them, such that the probative value of the testimony would be "substantially outweighed by a danger of ... unfair prejudice."
Alcantara's second claim of evidentiary error runs along similar lines. He argues that a handful of references to his wearing a New York Yankees baseball cap prejudiced the jury (which he assumes to have been composed of Boston Red Sox fans) against him. As an initial matter, all but two of the cited references occurred during defense counsel's cross-examination. In any event, this testimony, like the references to luxury vehicles discussed above, was relevant to the witnesses' knowledge of Alcantara and his appearance. Any possibility of unfair prejudice was ameliorated when the district court explicitly instructed the Rhode Island jury not to hold Alcantara's wearing of a Yankees hat against him.
Alcantara next takes issue with the admission of certain evidence relating to illegal activity by his brother Urias. This argument proceeds from the erroneous assumption that the government failed to connect Alcantara to his brother's misconduct.
The evidence in question consisted of (1) two photographs of Urias with counterfeit money and (2) testimony regarding Urias's arrest for passing counterfeit bills at the Farmington mall. With respect to the latter issue, the government introduced evidence that Alcantara, far from being merely present when his brother was arrested, was a central player in the criminal scheme. Alcantara drove to the mall with co-conspirators, distributed the counterfeit $100 bills to them, and attempted to warn the others when the police were approaching. Accordingly, testimony about the Farmington incident was not, as Alcantara contends, prior bad acts evidence subject to Federal Rule of Evidence 404(b). Rather, it constituted evidence "intrinsic" to the criminal conspiracy for which Alcantara was tried and convicted.
A similar analysis applies to the photographs, which depict Urias next to a table covered in currency. The government introduced evidence that the bills in the photos were counterfeit.
Alcantara's fourth claim of error relates to a Secret Service agent's testimony that the bills depicted in the photographs discussed above were indeed counterfeit. Essentially, Alcantara argues that this testimony constituted improper lay opinion. We have held that a lay witness may provide an opinion based upon expertise that he or she "personally acquires through experience, often on the job."
Here, the agent testified that he had previously investigated numerous cases involving counterfeit bills. In the case at hand, the agent determined that the bills depicted in the photographs were counterfeit by considering a variety of factors, including: (1) one bill was draped over a stick of deodorant, which counterfeiters often use to avoid detection;
To the extent that Alcantara also generally assails the reliability of the agent's testimony, these concerns go to the "weight of the evidence, not its admissibility."
In a final claim of unpreserved evidentiary error, Alcantara argues that the court improperly admitted "flight" evidence, namely, the fact that he was arrested at JFK Airport. Such evidence is admissible so long as there is "sufficient extrinsic evidence of guilt to support an inference that [the] defendant's flight was not merely an episode of normal travel but, rather, the product of a guilty conscience related to the crime alleged."
Alcantara raises two additional evidentiary issues on appeal, which he claims to have preserved below. Assuming that Alcantara did preserve these arguments,
First, Alcantara argues that testimony regarding his conversations with the undercover agent was irrelevant and thus inadmissible. This contention need not detain us long. Alcantara's first meeting with the agent, during which he expressed a
Alcantara's other "preserved" argument is similarly unavailing. Alcantara contends that the photograph of him standing over a table covered in currency was "irrelevant and unduly prejudicial." This argument proceeds from the flawed assumption that the government failed to introduce any "reliable evidence that the money in the picture was in fact counterfeit." As discussed above, a Secret Service agent did opine that, based on his experience, the bills in the picture appeared to be counterfeit. While Alcantara quibbles with the reliability of the agent's opinion, this goes only to the weight of the evidence, not to its admissibility.
The final arrow in Alcantara's quiver is an unpreserved claim of prosecutorial misconduct. In analyzing a prosecutor's purportedly improper statement, "we typically ask whether [that] statement so poisoned the well that a new trial is merited."
Alcantara takes issue with a few isolated sentences from the government's rebuttal argument: "Now, the Defendant says, well, where are the insiders? ... That's for another day. That's for another jury. This jury is tasked with deciding what this member of the conspiracy did, what this Defendant did." As an initial matter, it is hardly clear that the prosecutor's statement was improper. Of course, it is true that the jury at Alcantara's trial was tasked with assessing only his guilt, not that of any other co-conspirator. However, Alcantara contends that the prosecutor's statement "provided false affirmation to the jury that other individuals were in fact charged for the crimes."
Proceeding from the dubious assumption that the prosecutor acted improperly, we still fail to perceive plain error. Any misconduct that occurred was far from severe. The statements at issue occupy a mere handful of lines in the trial transcript.
We also reject Alcantara's claim that the cumulative effect of the purported errors discussed above requires a new trial.
For the foregoing reasons, we