Filed: Patrick Fisher
Filed: Patrick Fisher
MAR 7 2003
PATRICK FISHER
Clerk
No. 02-3075
(D.C. No. 01-CR-40050-RDR)
(D. Kansas)
Defendant - Appellant.
ORDER AND JUDGMENT
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
had stated that he intended to pin the crime on Mr. Ward to obtain a reduced
sentence. Before Mr. Grant testified, however, Deputy Higdon was asked by the
prosecution whether it would have been easy for Mr. Grant and Mr. Ward to
fabricate this story while they were imprisoned together. Deputy Higdon opined
that it would have been easy for them to do so.
Mr. Ward raised both of his appellate arguments in a motion for new trial.
The district court concluded that Deputy Higdons testimony did violate the
principle that the credibility of witnesses is not generally an appropriate subject
for opinion testimony. Feb. 14, 2002 Order at 5 (citing
129 F.3d 1402, 1406 (10th Cir. 1997)). Nevertheless, the district court decided
that the error was harmless because other evidence of Mr. Wards guilt was
overwhelming. Order at 6. Further, the district court determined that the
evidence regarding Mr. Wards prior involvement with drugs was either
(1) integrally related to the conspiracy such that it was not other acts evidence,
or (2) relevant to show motive and intent and therefore admissible under 404(b).
Id. at 9.
Deputy Higdons Testimony
There is some dispute over whether Mr. Ward adequately preserved his
objection to Deputy Higdons testimony. If the objection was not preserved, then
it would be incumbent on Mr. Ward to show that there was a plain or obvious
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error that affected substantial rights and seriously affected the fairness, integrity,
or public reputation of judicial proceedings.
1173, 1182 (10th Cir. 2001),
the objection was preserved, we would review the district courts decision for
abuse of discretion.
See United States v. Howell , 285 F.3d 1263, 1267 (10th Cir.
2002). In either case, the government can nonetheless prevail by showing that the
error was harmless in that it did not affect a substantial right of a party.
United
States v. Charley , 189 F.3d 1251, 1270 (10th Cir. 1999). Because we conclude
that any error was harmless, we need not decide the preservation issue.
We do not have difficulty concluding that the district court erred in
allowing Deputy Higdon to testify regarding the credibility of other witnesses.
See United States v. Toledo
testimony usurps a critical function of the jury, is not helpful to the jury, and may
be more prejudicial than probative). The district court acknowledged this in its
own ruling on the motion for a new trial. After carefully reviewing the record
and Mr. Wards arguments on appeal, however, we agree with the district court
that the admission of Deputy Higdons improper testimony did not affect
Mr. Wards substantial rights.
An error affecting a substantial right of a party is an error which either had
a substantial influence on the outcome of the trial or inspires grave doubt as to
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1469 (10th Cir. 1995). The evidence at issue was (1) the testimony of Tyrone
Owens to the effect that Mr. Ward had been his exclusive supplier of crack
cocaine for a number of years, (2) testimony regarding other drug trips Mr. Ward
made with Joseph Mulay and his relatives, and (3) evidence that Mr. Ward had
previously been present during a raid on another crack house. We find no abuse
of discretion in the district courts conclusion that Mr. Owens testimony as well
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as the evidence of the prior drug raid was relevant to show intent and motive, and
that the evidence of other drug trips was integral to the charged criminal activity.
Id. , 72 F.3d at 1469 (similar other acts evidence admissible to show
longstanding involvement in drug trafficking, which was integral to the charged
conspiratorial activity and also showed intent and plan).
Accordingly, the judgment of the United States District Court for the
District of Kansas is AFFIRMED.
Entered for the Court
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This does not even come close to meeting our requirement that the error must be
harmless beyond a reasonable doubt.
This case is similar to United States v. Sanchez-Lima where the Ninth
Circuit held that the error was not harmless where the jurys verdict necessarily
depended on the credibility of the bolstered witness. 161 F.3d 545, 548 (9th Cir.
1998) (prosecution for assault on a federal officer resulting from a border patrol
incident). In Sanchez, the trial court improperly allowed the admission of
testimony of one federal agent, based on his training and experience, which
bolstered the credibility of another federal agent. Similar to our case, the
defendants theory of the case required the jury to reject the agents account and
believe the opposite.
I cannot hold that the admission of Deputy Higdons testimony was
harmless beyond a reasonable doubt. I would reverse and remand with directions
to grant a new trial.
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