Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-24-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 01-4489




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Recommended Citation
"USA v. Garbutt" (2002). 2002 Decisions. Paper 432.
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                                                  NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ___________

                          No. 01-4489
                          ___________

                   UNITED STATES OF AMERICA

                               v.

                       NATALIE GARBUTT,

                                                                     Appellant
                          ___________

        On Appeal from the United States District Court
            for the Western District of Pennsylvania

   District Court Judge: The Honorable Maurice B. Cohill, Jr.
               (D.C. Criminal No. 01-CR-00032-1)
                          ___________

          Submitted Under Third Circuit L.A.R. 34.1(a)
                         July 18, 2002

     Before: McKEE, FUENTES, and ALDISERT, Circuit Judges

                 (Opinion Filed: July 24, 2002)


                      OPINION OF THE COURT


FUENTES, Circuit Judge:
     Appellant Natalie Garbutt was convicted by a jury of possession with intent to
distribute in excess of 50 grams of cocaine base (crack) in violation of 21 U.S.C.
841(a)(1) and 841(b)(1)(A)(iii). The court sentenced Garbutt to 151 months
imprisonment. On appeal, Garbutt contests several of the District Court’s evidentiary
rulings. We conclude that all of Garbutt’s claims lack merit, and therefore we will affirm
the District Court’s judgment of conviction and sentence.
     Because we write only for the parties, we need not recite the familiar factual
background of this case. Garbutt first argues that a statement made during direct
examination by Narcotics Agent Daniel Opsatnik was inadmissible hearsay. The
prosecution asked Opsatnik "how did the investigation come about with Ms. Garbutt?"
Supp. App. at 25. Defense counsel objected. During a side bar conference, defense
counsel argued that the question called for the agent to relate hearsay statements made by
an informant. The court ruled that the question was permissible and stated that it would
give the jury a limiting instruction.
     Agent Opsatnik then answered the question by stating: "Yes. Detective Burke,
who is a member of the task force, received information from an informant that Percival
Higgins, a/k/a/ Papa Dread, was utilizing a house at 581 Spruce Street to sell crack
cocaine out of." 

The court then interrupted the direct examination to explain
why the testimony was offered, and concluded by instructing the jury that it could
"consider [the agent’s] testimony for why he took the action he did but not for the truth
of what the other person said to him and that there was drug dealing going on." 

     Garbutt argues that Agent Opsatnik’s testimony was hearsay that linked crack
sales to 581 Spruce Avenue. Garbutt claims that under United States v. Sallins, 

(3d Cir. 1993), the statement was inadmissible for its truth as "background
information" to help the jury understand the police’s actions. In Sallins, this Court
reversed a conviction for firearm possession by a convicted felon because the content of
a police radio call was admitted for its truth as background to explain the officers’
actions. We stated that "the government simply could have elicited testimony that the
officers were responding to a radio call or information received." 

Yet in
Sallins, the evidence was admitted for its truth while here it was admitted for a limited
purpose and the court’s limiting instruction attenuated any prejudice. 

    We
presume that the jury will follow a curative instruction unless there is an "overwhelming
possibility" that the jury will be unable to follow it and strong evidence that the effect on
the defendant would be "devastating." United States v. Newby, 

, 1147 (3d
Cir. 1993). We cannot say that such an overwhelming possibility exists in this case.
     Garbutt argues that the agent’s statement was unnecessary because other
Government evidence established a link between Garbutt, crack sales, and the residence
at 581 Spruce Avenue. Yet the statement was introduced not to prove that drug sales
occurred at 581 Spruce Avenue, and the statement did not even refer to Garbutt. Instead,
as the court clearly instructed, the statement only served to inform the jury why Agent
Opsatnik began investigating 581 Spruce Avenue for drug activity, and was not admitted
for the truth of the matter asserted. The District Court did not err in admitting the
evidence for this expressly limited purpose. Even if it did, any error was rendered
harmless by the court’s limiting instructions and the other testimony and evidence
presented. See 

.
     Secondly, Garbutt argues that items relating to marijuana and cocaine seized from
her trash were inadmissible as prejudicial and evidence of "other crimes" under Federal
Rules of Evidence 404(b) and 403 because Garbutt was only charged with possession
with intent to distribute crack, not marijuana or cocaine. Garbutt only objected to the
introduction of one of these exhibits. Supp. App. at 38. However, Garbutt’s counsel
objected solely on the grounds of relevancy. At no time did counsel "specifically invoke
either Rule 404(b) or Rule 403," and the substance of counsel’s objection "was not of
such a character to put the trial judge on notice that an objection based on Rule 404(b) or
Rule 403 was at issue." United States v. Sandini, 

, 126 (3d Cir. 1986). As
to the other exhibits concerning marijuana and cocaine, Garbutt did not object at all.
Therefore, we will not consider these challenges as they were not properly preserved for
appellate review. 

     Garbutt next challenges the admission of Agent Opsatnik’s testimony regarding a
search warrant he obtained for 581 Spruce Avenue. Agent Opsatnik stated at trial that he
"prepared an affidavit of probable cause for a search warrant for 581 Spruce Avenue.
That affidavit and copy of the search warrant was given to District Judge William Fagli
(spelled phonetically) in Greenfield. At that time he signed it authorizing us to do a
search at 581 Spruce Avenue." Supp. App. at 48. On appeal, Garbutt argues that this
statement constitutes impermissible vouching by the Government that the search was
"called for and that the seizures were monitored by the court." Garbutt Br. at 31.
     "Vouching constitutes an assurance by the prosecuting attorney of the credibility
of a Government witness through personal knowledge or by other information outside of
the testimony before the jury." United States v. Walker, 

, 184 (3d Cir.
1998). We cannot fathom how an unremarkable statement by a testifying witness, not
the prosecutor, that a search warrant was judicially authorized amounts to improper
vouching. Because Garbutt’s counsel did not object to this testimony at trial, Garbutt
must prove plain error on appeal. Garbutt has not shown that the court plainly erred in
admitting this testimony.
     Finally, Garbutt contends that the District Court erred in ruling in limine under
Federal Rule of Evidence 609(a) that the Government could use Garbutt’s prior felony
drug conviction to impeach Garbutt if she testified. However, because Garbutt did not
testify at trial, she failed to preserve this issue for review. Luce v. United States, 

, 43 (1984); United States v. Rosario, 

, 162 n.6 (3d Cir. 1997).
     For the foregoing reasons, we will AFFIRM the judgment of the District Court.


____________________________
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.




                                           /s/ Julio M. Fuentes
                                     Circuit Judg