United States v. Smith

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 16, 2010 Decided April 15, 2011

No. 09-3119

UNITED STATES OF AMERICA,

APPELLEE

v.

JOHN SMITH,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:07-cr-00153)

Mariel Goetz argued the cause for appellant. With her on

the briefs were Peter M. Brody, appointed by the court,

Stephen L. Braga, and Michael S. Casey.

Patricia A. Heffernan, Assistant U.S. Attorney, argued

the cause for appellee. With her on the brief were Ronald C.

Machen, Jr., U.S. Attorney, and Roy W. McLeese III,

Elizabeth Trosman, and John K. Han, Assistant U.S.

Attorneys.

Before: SENTELLE, Chief Judge, and GINSBURG and

KAVANAUGH, Circuit Judges.

2

Opinion for the Court filed by Circuit Judge

KAVANAUGH.

KAVANAUGH, Circuit Judge: Based on evidence of John

Smith’s drug dealing, federal agents obtained a search warrant

for Smith’s home. There, they found Smith along with heroin

worth about $30,000, two loaded guns, and $27,730 in cash.

The agents arrested Smith, and a jury later convicted him of

four drug and firearm offenses. The District Court sentenced

Smith to 25 years in prison, the mandatory minimum sentence

given his offenses and criminal record.

On appeal, Smith contends that several errors occurred in

the course of the trial and sentencing proceedings. First, at

trial, the Government proved Smith’s prior felony conviction

– which was relevant to the charge of being a felon in

possession of a firearm – through letters from a state court

clerk, rather than through a certified record or in-court

testimony. According to Smith, the clerk’s letters were

testimonial, yet the clerk was not subject to cross-

examination. Smith says that admission of the clerk’s letters

therefore violated the Sixth Amendment’s Confrontation

Clause. Second, an FBI agent testified as a lay witness about

the meaning of slang used by Smith and his co-conspirators in

some recorded conversations. Smith claims that the agent’s

testimony about the slang had to satisfy the requirements for

expert testimony and thus was improperly admitted as lay

testimony. Third, the FBI agent testified at the start of trial

that Smith and a co-conspirator were “working together

putting their money together and going to New York to buy

heroin.” Smith contends that the agent’s overview testimony

was based on inadmissible hearsay and thus improper.

Fourth, at trial, a police officer testified that he had once

pulled over Smith at a traffic stop and found a gun in Smith’s

car, as well as “two large bundles” near the gun. Smith

3

objected to the reference to “bundles,” and the District Court

sustained Smith’s objection and told the jury that “[w]e are

going to just talk about this weapon that was allegedly found

in the car. Nothing else.” Smith says the judge should have

instructed the jury to disregard the reference to the bundles.

Fifth, at sentencing, the judge found that Smith had a prior

drug conviction and relied on that prior conviction to double

Smith’s mandatory minimum sentence for the conspiracy

charge from 10 to 20 years. Smith argues that the judge’s

finding violated Smith’s Sixth Amendment right to have a

jury find that fact.

Based on recent Supreme Court decisions, we agree with

Smith’s Confrontation Clause challenge to admission of the

clerk’s letters. We thus vacate the judgment of conviction on

the felon-in-possession count, which depended on that

evidence. That error does not affect the other three counts of

conviction, however. We also agree with Smith’s claim that

the FBI agent’s interpretation of slang was admissible only as

expert testimony; however, that error was harmless. The

witness would have qualified as an expert and offered the

same testimony. We disagree with Smith’s other three

arguments. The FBI agent’s objected-to testimony at the

beginning of the trial was not based on hearsay and thus was

not improper. The District Court sufficiently instructed the

jury to disregard the police officer’s reference to “bundles” in

Smith’s car. And the judge’s finding about Smith’s prior drug

conviction did not violate the Sixth Amendment.

We therefore affirm in part, vacate in part, and remand.

The vacatur and remand of the felon-in-possession count does

not affect Smith’s term of imprisonment: Smith’s sentence for

the felon-in-possession count runs concurrently with the

mandatory minimum sentence of 25 years for the counts of

conviction that are affirmed.

4

I

Sometime in February 2007, John Smith answered his

phone to hear Lonnell Glover’s familiar voice. They

discussed their heroin supplier in New York – “Twin” – and

Smith’s plan to buy heroin from Twin later in the month.

They did not know that FBI Special Agent John Bevington

was investigating their drug distribution ring and employing

court-approved electronic surveillance to listen to Glover’s

phone conversations. Agent Bevington could hear every

word they said.

Over the next few months, Smith and Glover talked

frequently. Sometimes they discussed how much heroin they

would buy from Twin. Other times, Smith passed on

messages from Twin. On occasion, Smith told Glover where

he expected to sell heroin. When Glover needed directions to

a meeting with Twin, Smith provided them. When a guest in

Smith’s home saw police officers outside and flushed Smith’s

heroin down the toilet, Smith colorfully vented his frustration

to Glover about seeing his profits literally go down the drain.

The two drug dealers apparently worked together well

until June 19, 2007. On that day, the FBI simultaneously

executed 17 search warrants and made about 20 arrests during

a take-down of Smith and Glover’s heroin distribution ring.

Smith was alone in his home at 6:00 a.m. when agents came

in, searched his house, and arrested him. In Smith’s bedroom,

the FBI found 316 grams of heroin valued at more than

$30,000, two loaded guns, and $27,730 in cash.

Smith was later indicted for being a felon in possession

of a firearm; conspiring to possess and distribute heroin;

possessing heroin with intent to distribute it; and possessing a

5

gun during a drug offense. See 18 U.S.C. § 922(g)(1) (felon

in possession); 21 U.S.C. § 846 (conspiracy); 21 U.S.C.

§§ 841(a)(1), (b)(1)(B)(i) (possession with intent to

distribute); 18 U.S.C. § 924(c)(1)(A) (using firearm during

drug crime).

At trial, the Government introduced redacted versions of

two letters to help prove the charge of being a felon in

possession of a firearm. At the request of the Department of

Justice, a clerk in the Supreme Court of New York, Queens

County, had created the documents shortly before trial. Each

letter stated that John Smith had been convicted of a felony.

The District Court admitted the letters into evidence over

Smith’s Confrontation Clause objection.

FBI Agent Bevington testified as a lay witness at the trial.

Agent Bevington said he had listened to thousands of

Glover’s recorded conversations, many of which involved

Smith. Based on his experience investigating drug crimes,

Agent Bevington told the jury the meaning of several terms in

the recorded conversations, such as “key” (kilogram),

“hardball” (100 grams of heroin), and “dope” (heroin). Smith

objected before trial to the agent’s interpretation testimony,

and argued that Bevington could offer such testimony only if

qualified as an expert witness. The District Court ruled

otherwise.

During his testimony, Agent Bevington also stated over

Smith’s objection that “Mr. Smith and Mr. Glover were

working together putting their money together and going to

New York to buy heroin.” Smith contended this was

improper overview testimony; the District Court disagreed.

Later in the trial, the jury heard testimony from Joseph

Bellino, a former police officer with the United States Park

6

Police. He described a traffic stop in 2004 in which he

searched Smith’s car and found a gun and “two large bundles”

near the gun. Smith immediately objected to the reference to

“bundles.” The District Court sustained the objection and told

the jury, “We are going to just talk about this weapon that was

allegedly found in the car. Nothing else.”

The jury found Smith guilty on all four counts. For the

conspiracy charge, the court imposed the mandatory

minimum sentence of 20 years in prison. The mandatory for

that offense would have been 10 years, but a judicial finding

that Smith had previously been convicted of a drug felony

increased it to 20 years. The District Court then imposed two

sentences to be served concurrently with that 20-year

sentence: a 10-year sentence for unlawful possession with

intent to distribute more than 100 grams of heroin, and a 10-

year sentence for being a felon in possession of a firearm.

Finally, the District Court imposed a 5-year mandatory

minimum sentence – which the law required to be served

consecutively – for using, carrying, or possessing a firearm

during and in relation to a drug trafficking offense. See 21

U.S.C. § 846 (conspiracy); 21 U.S.C. §§ 841(a)(1),

(b)(1)(B)(i) (possession with intent to distribute); 18 U.S.C.

§ 922(g)(1) (felon in possession); 18 U.S.C. § 924(c)(1)(A)

(using firearm during drug crime). In all, therefore, Smith

was sentenced to 25 years in prison.

II

A

Smith raises a Confrontation Clause challenge to his

conviction for being a felon in possession of a firearm.

7

To prove the felon-in-possession charge, the Government

was required to prove that Smith had a prior felony

conviction. The Government did so by producing letters from

a court clerk in the Supreme Court of New York, Queens

County. The letters stated that “it appears from an

examination of the records on file in this office” that Smith

had been convicted of a felony. Each letter had a seal and a

signature by a court clerk. The court clerk did not testify at

Smith’s trial, however.

On appeal, Smith renews his trial objection that

admission of the clerk’s letters into evidence – without an

opportunity for Smith to cross-examine the clerk – violated

the Confrontation Clause of the Sixth Amendment. That

Clause guarantees every criminal defendant the right “to be

confronted with the witnesses against him.” The Supreme

Court recently reaffirmed that a “witness’s testimony against

a defendant is . . . inadmissible unless the witness appears at

trial or, if the witness is unavailable, the defendant had a prior

opportunity for cross-examination.” Melendez-Diaz v.

Massachusetts, 129 S. Ct. 2527, 2531 (2009).

Often, the key Confrontation Clause question is whether

the statement or document is “testimonial.” In Melendez-

Diaz, the Court considered a laboratory report that said a

substance seized by police was cocaine. The Court concluded

that the laboratory report constituted a “witness’s testimony”

– that is, the document was “testimonial.” The Court

reasoned that the report was a “solemn declaration or

affirmation made for the purpose of establishing or proving

some fact.” Id. at 2532. In addition, the report was made

“under circumstances which would lead an objective witness

reasonably to believe that the statement would be available

for use at a later trial.” Id.

8

The Melendez-Diaz rule governing reports of this kind

contains a “narrowly circumscribed” exception for “a clerk’s

certificate authenticating an official record.” Id. at 2538-39.

A clerk is “permitted to certify to the correctness of a copy of

a record kept in his office, but [has] no authority to furnish, as

evidence for the trial of a lawsuit, his interpretation of what

the record contains or shows, or to certify to its substance or

effect.” Id. at 2539 (internal quotation marks omitted). As

the Court also put it, a “clerk could by affidavit authenticate

or provide a copy of an otherwise admissible record, but

could not do what the analysts did here: create a record for

the sole purpose of providing evidence against a defendant.”

Id. The Court then elaborated on the distinction between

creating a record for use at trial and creating business and

public records:

Business and public records are generally admissible

absent confrontation not because they qualify under an

exception to the hearsay rules, but because – having been

created for the administration of an entity’s affairs and

not for the purpose of establishing or proving some fact

at trial – they are not testimonial. Whether or not they

qualify as business or official records, the analysts’

statements here – prepared specifically for use at

petitioner’s trial – were testimony against petitioner, and

the analysts were subject to confrontation under the Sixth

Amendment.

Id. at 2539-40 (emphasis added).

In this case, the letters from the New York state court

clerk describing Smith’s prior convictions were created at the

request of the Department of Justice shortly before Smith’s

trial. The clerk’s letters were “made for the purpose of

establishing or proving” a fact at trial. Id. at 2532. For

9

Confrontation Clause purposes, they are not the same as an

authenticated copy of an official record of conviction. These

letters were created under circumstances “functionally

identical to live, in-court testimony, doing precisely what a

witness does on direct examination” by the Government –

namely, responding to a prosecutor’s question with an answer.

Id. (internal quotation marks omitted). In our judgment, the

clerk’s letters thus fall clearly on the “testimonial” side of the

Confrontation Clause line drawn in Melendez-Diaz, not within

the “narrowly circumscribed” exception for official records.

Because the clerk’s letters were testimonial, their

admission into evidence at Smith’s trial – without an

opportunity for Smith to cross-examine the clerk – violated

the Confrontation Clause. 1 The Government presented no

evidence other than the clerk’s letters to show that Smith was

a felon in possession of a firearm. Therefore, we vacate

Smith’s conviction on that count.

The Confrontation Clause error does not affect the other

three counts of Smith’s conviction – the charges for heroin

conspiracy, heroin possession, and possessing a gun during a

drug crime. The evidence of Smith’s prior state-court

convictions was not necessary to, nor introduced for the

purpose of proving, the prosecution’s case against Smith on

those other three counts.

Smith argues that the taint or prejudice from the

erroneously admitted prior New York convictions spilled over

to the other three counts in this case. Given the facts and

1

We note that the trial in this case occurred before the

Supreme Court’s decision in Melendez-Diaz. The District Court’s

ruling on this issue thus was made before and without the benefit of

that dispositive Supreme Court decision.

10

circumstances of this case, we disagree. The clerk’s letters

were redacted and did not indicate the nature of Smith’s prior

offenses. That minimized any prejudice. Moreover, the prior

convictions were not introduced to prove the other three

counts against Smith, and the evidence on those other counts

was overwhelming. That evidence included (but was not

limited to) many recordings of phone calls between Smith and

Glover in which they discussed their drug distribution ring;

Smith’s recorded description of his guest flushing his drugs

down the toilet; and the 316 grams of heroin, two loaded

firearms, and $27,730 in cash seized from Smith’s bedroom

when he was home alone. The Confrontation Clause violation

was thus “harmless beyond a reasonable doubt” as to the other

three counts of conviction. United States v. Wilson, 605 F.3d

985, 1014 (D.C. Cir. 2010); see generally Chapman v.

California, 386 U.S. 18, 23-24 (1967); see also Prophet v.

Duckworth, 580 F.2d 926, 927 (7th Cir. 1978) (under

Chapman, “the error would be harmless if . . . because of the

overwhelming nature of the evidence against him, the jury

could not have reasonably reached a different verdict even if

the prior conviction were not used”); United States v. Greene,

578 F.2d 648, 653-54 (5th Cir. 1978) (“even if the reference

to the prior offenses in closing argument was improper . . . .

the prejudicial effect, if any, of the comments was slight in

relation to the overwhelming evidence of guilt,” and under

Chapman, “any impropriety was harmless beyond a

reasonable doubt”); Bates v. Nelson, 485 F.2d 90, 95-96 (9th

Cir. 1973) (“In view of the overwhelming evidence . . . we

find that any error in the admission of priors or use of them

during the trial was harmless beyond a reasonable doubt

within the meaning of Chapman . . . .”).

To sum up on the Confrontation Clause issue, we find

error and vacate the judgment with regard to the felon-in-

11

possession conviction but not the other three counts of

conviction.

B

At trial, FBI Agent Bevington testified about his

understanding of certain slang that was used by Smith,

Glover, and others in recorded telephone conversations –

words such as dope, key, and hardball. Bevington testified as

a lay witness under Federal Rule of Evidence 701. Smith

claims that the FBI agent’s testimony necessarily constituted

expert testimony and thus should not have been allowed as lay

opinion testimony.

Bevington interpreted the slang terms based on his

experience investigating drug crimes. For example, he stated:

“I don’t know that it’s common knowledge in the general

public, but in drug circles it’s well known that if you’re

referring to dope, you’re talking about heroin and not cocaine

or some other drug.”

Rule 701 of the Federal Rules of Evidence limits a lay

witness’s opinions or inferences to those “(a) rationally based

on the perception of the witness, and (b) helpful to a clear

understanding of the witness’ testimony or the determination

of a fact in issue, and (c) not based on scientific, technical, or

other specialized knowledge within the scope of Rule 702.”

Rule 702 governs testimony from expert witnesses – those

who testify based on scientific, technical, or specialized

knowledge in a field of expertise. The party wishing to use an

expert witness must first establish the witness’s “knowledge,

skill, experience, training, or education.” Fed. R. Evid. 702.

The witness may offer expert testimony only if the trial judge

finds that the witness’s qualifications and methods make his

12

opinions “reliable.” Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993).

Smith argues that Agent Bevington’s interpretation of

drug dealers’ slang was not admissible under Rule 701 as lay

testimony because it was based on “specialized knowledge”

Bevington gained from working on other drug investigations.

Based on our recent precedents, we agree and hold that

Bevington’s interpretations constituted expert testimony

within the scope of Rule 702.

This Court has recently explained: “An individual

testifying about the operations of a drug conspiracy because

of knowledge of that drug conspiracy . . . should be admitted

as a lay witness; an individual testifying about the operations

of a drug conspiracy based on previous experiences with other

drug conspiracies . . . should be admitted as an expert.”

Wilson, 605 F.3d at 1026. 2 We have drawn that line because

knowledge derived from previous professional experience

falls squarely “within the scope of Rule 702” and thus by

definition outside of Rule 701. See Fed. R. Evid. 701(c).

Other courts of appeals have reached the same conclusion.

See United States v. Oriedo, 498 F.3d 593, 602-03 (7th Cir.

2007); United States v. Garcia, 413 F.3d 201, 216-17 (2d Cir.

2005). At oral argument in this case, the Government stated

that “if an agent is testifying based on his experience in other

investigations and his experience as a narcotics investigator,

as opposed to simply his personal perceptions in the case,

after Wilson, that yes, if there were an objection, we would

have to satisfy Rule 702.” Tr. 34. That’s what happened

here. 3

2

Our Wilson decision was issued after the trial in this case.

3

Of course, there is “no bar in this Circuit to dual testimony as

both a fact and expert witness.” United States v. Ramsey, 165 F.3d

13

The question, then, is whether this error requires vacatur

of the three drug-related counts or instead was harmless.

Under the harmless-error standard of Rule 52(a), we disregard

a non-constitutional evidentiary error “unless it had a

‘substantial and injurious effect or influence in determining

the jury’s verdict.’ The government bears the burden of

proving the absence of such an effect.” United States v.

Linares, 367 F.3d 941, 952 (D.C. Cir. 2004) (citation omitted)

(quoting Kotteakos v. United States, 328 U.S. 750, 776

(1946)).

Here, the error is harmless. Bevington would have

qualified as an expert and testified about the slang

conversations under Rule 702. The Government would have

established Bevington’s qualifications as an expert witness

based on his 21 years with the FBI and 17 years investigating

drug crimes, hundreds of drug investigations, and thousands

of hours listening to wiretapped conversations between drug

dealers. Moreover, as we have explained earlier, the evidence

against Smith in this case was overwhelming. Therefore, like

other courts of appeals that have confronted similar scenarios,

we conclude that allowing Bevington to testify as a lay

witness constituted harmless error. See United States v.

Figueroa-Lopez, 125 F.3d 1241, 1247 (9th Cir. 1997) (“Given

this background, we are certain he was qualified to deliver the

opinion testimony disputed in this case, and the failure

formally to go through the usual process – although an error –

was clearly harmless.”); United States v. Maher, 645 F.2d

780, 783-84 (9th Cir. 1981) (“Since the testimony was

980, 984 (D.C. Cir. 1999) (internal quotation marks omitted); see

also United States v. Catlett, 97 F.3d 565, 571 (D.C. Cir. 1996)

(“[E]very federal court to consider the issue of dual testimony as

both a fact and expert witness has concluded that the Federal Rules

of Evidence permit such testimony.”).

14

admissible expert opinion, any alleged error committed by the

trial judge in admitting the evidence under the lay opinion

rule was harmless.”); United States v. DeLoach, No. 99-4441,

2000 WL 274972, at *3 (4th Cir. Mar. 14, 2000) (“we find

that even if the court erred by admitting it as lay testimony,

the error was harmless because Riani could have been

certified as an expert under Rule 702”).

C

At the beginning of trial, over Smith’s objection,

Bevington testified: “Mr. Smith and Mr. Glover were working

together putting their money together and going to New York

to buy heroin.” On appeal, Smith argues that this description

by Bevington of Smith’s relationship with Glover constituted

improper “overview testimony” based on inadmissible

hearsay, and thus violated Federal Rule of Evidence 701.

Federal Rule of Evidence 802 prohibits certain hearsay

and therefore generally bars a government agent from

relaying inadmissible hearsay to the jury. Relatedly, some

courts have held that Rule 701 4 precludes a government agent

from offering the agent’s “opinions or inferences” as a lay

witness based on inadmissible hearsay. Those courts have

generally articulated that principle in cases in which the agent

provided “overview testimony” at the beginning of trial in

order to give the jury a preview of the evidence it will hear.

Typically, the agents have recounted hearsay or offered

4

Rule 701 states: “If the witness is not testifying as an expert,

the witness’ testimony in the form of opinions or inferences is

limited to those opinions or inferences which are (a) rationally

based on the perception of the witness, and (b) helpful to a clear

understanding of the witness’ testimony or the determination of a

fact in issue, and (c) not based on scientific, technical, or other

specialized knowledge within the scope of Rule 702.”

15

hearsay-based opinions based on information learned during

their conversations with witnesses, informants, and other

agents. See United States v. Flores-de-Jesus, 569 F.3d 8, 24

(1st Cir. 2009); United States v. Garcia, 413 F.3d 201, 213

(2d Cir. 2005); United States v. Griffin, 324 F.3d 330, 348

(5th Cir. 2003). 5

The courts of appeals that have rejected such testimony

have started with the basic proposition that “[h]earsay does

not become admissible merely because it is provided by a

government agent in the form of an overview of the

evidence.” United States v. Garcia-Morales, 382 F.3d 12, 17

5

Cf. Flores-de-Jesus, 569 F.3d at 24 (“Most of [the

challenged testimony] was based on inadmissible hearsay.”);

United States v. Aviles-Colon, 536 F.3d 1, 21 n.13 (1st Cir. 2008)

(“Agent Gil did not limit his testimony to what he saw, but rather

gave his conclusion that this defendant was a member of the

conspiracy.”); United States v. Rodriguez, 525 F.3d 85, 96 (1st Cir.

2008) (“Agent Toro’s remarks were not based on his personal

observations, and no evidence had been presented to support his

conclusion that Appellant was in fact a leader of the drug point or

that he participated in Espada’s violent eviction from the housing

project.”); United States v. Casas, 425 F.3d 23, 51 (1st Cir. 2005)

(“This line of testimony appears to have been based, at least in part,

on information provided” to the testifying agent by another

witness.); United States v. Garcia-Morales, 382 F.3d 12, 16 (1st

Cir. 2004) (witness’s opinion should have been excluded when it

was based on “a conversation, at which he was not present, between

the informant and [a drug smuggler]”); United States v. Casas, 356

F.3d 104, 119 (1st Cir. 2004) (“Agent Stoothoff’s testimony was

likely, at least in part, based on the statements of a witness that the

government chose not to call at trial”); Garcia, 413 F.3d at 213

(“Agent Klemick’s opinion was not limited to a summary of his

own observations”); Griffin, 324 F.3d at 348 (“Martin admitted that

his statement . . . was not based on personal knowledge but on what

someone told him”).

16

(1st Cir. 2004). The courts have viewed agents’ hearsay-

laden or hearsay-based overview testimony at the onset of

trial as a rather blatant prosecutorial attempt to circumvent

hearsay rules. And the courts have leveled some choice

words at this particular prosecutorial tactic. See Flores-de-

Jesus, 569 F.3d at 27 (First Circuit) (“if prosecutors fail to

heed our guidance in the future, they may be referred for

sanctions”); United States v. Aviles-Colon, 536 F.3d 1, 21

n.13 (1st Cir. 2008) (“It is troubling to us that the

government’s use of the overview testimony indicates an

unawareness of our” prior precedent on this issue.); United

States v. Rodriguez, 525 F.3d 85, 95 (1st Cir. 2008) (“This

court on several occasions has strongly cautioned the

Government against the practice . . . .”); United States v.

Casas, 356 F.3d 104, 120 (1st Cir. 2004) (“The fact that we

and the Fifth Circuit have now had to address the

government’s use of such preliminary overview government

agent witnesses is a troubling development.”); Garcia, 413

F.3d at 214 (Second Circuit) (“We share this concern”

previously expressed by the Fifth Circuit “and similarly

condemn the practice . . . .”); Griffin, 324 F.3d at 349 (Fifth

Circuit) (“We unequivocally condemn this practice . . . .”).

We will assume without deciding that the Rule 802/701

principle set forth in those cases applies in this Circuit as well.

In any event, the Government did not violate the principle in

this case. Bevington’s objected-to testimony was not based

on otherwise inadmissible hearsay. Cf. United States v.

Rosado-Perez, 605 F.3d 48, 55-56 (1st Cir. 2010) (agent’s

overview of “members of the conspiracy and their roles”

admissible when not based on inadmissible hearsay).

To reiterate, Agent Bevington stated: “Mr. Smith and Mr.

Glover were working together putting their money together

and going to New York to buy heroin.” Bevington’s opinion

17

about Smith and Glover’s activities was based on statements

of Smith and his co-conspirator Glover that Bevington

himself heard when listening to thousands of intercepted

conversations. Those statements were not inadmissible

hearsay because they were either admissions of a party-

opponent (Smith’s statements) or co-conspirator statements

(Glover’s statements). See Fed. R. Evid. 801(d)(2). That

distinguishes Bevington’s testimony in this case from agent

testimony based on inadmissible hearsay – such as testimony

based on an agent’s conversations with witnesses, informants,

and other agents – that other courts have found to be in

violation of Rules 802 and 701.

Moreover, even if the District Court erred in admitting

Bevington’s one-sentence description of Smith’s relationship

with Glover, it was harmless error. As noted above, the

Government introduced devastating evidence of Smith’s guilt,

including evidence proving exactly what Bevington stated –

namely, that Smith and Glover pooled their money, traveled

to New York, and bought heroin. The jury heard numerous

incriminating conversations between Smith and Glover that

strongly and directly supported that conclusion. Bevington’s

brief statement about Smith and Glover’s relationship thus

had no discernible effect on the jury’s verdict. 6

6

Finding such testimony to be harmless error is consistent

with the conclusions of courts that have condemned overview

testimony as a general matter yet found it to be harmless error in

the particular case. In other words, those courts have not deemed

improper overview testimony to be per se reversible error. See,

e.g., Flores-de-Jesus, 569 F.3d at 30 (“harmless error analysis saves

the government’s convictions”); Casas, 425 F.3d at 52 (“no

prejudice resulted from the court’s improper admission of Agent

Stoothoff’s overview testimony”); Garcia, 413 F.3d at 217 (“this

single evidentiary error had no substantial and injurious effect or

influence on the jury verdict and, thus, was harmless”) (internal

18

D

Officer Joseph Bellino, a former U.S. Park Police officer,

testified about a 2004 traffic stop of Smith. Bellino stated

that, during the stop, he searched Smith’s car and found a gun

and “two large bundles.”

At trial, Smith objected to the officer’s reference to

“bundles,” and the District Court sustained the objection. The

court then told the jury: “We are going to just talk about this

weapon that was allegedly found in the car. Nothing else.”

On appeal, Smith expresses concern that the jury might

have thought the bundles referred to bundles of heroin.

According to Smith, the District Court thus should have

instructed the jury to disregard the “bundles” reference. But

even assuming such an instruction was necessary here, cf.

Casas, 356 F.3d at 114, the District Court essentially gave it:

The District Court sustained the objection and told the jury

that only the weapon in the car was to be discussed. The jury

could not have considered the “bundles” reference if it

followed the judge’s instruction. “We normally presume that

a jury will follow an instruction to disregard inadmissible

evidence inadvertently presented to it, unless there is an

overwhelming probability that the jury will be unable to

follow the court’s instructions and a strong likelihood that the

effect of the evidence would be devastating to the defendant.”

United States v. Foster, 557 F.3d 650, 656 (D.C. Cir. 2009).

By sustaining the objection and telling the jury that only the

gun in the car was to be discussed, the District Court

quotation marks omitted); Garcia-Morales, 382 F.3d at 16 (“this

error was harmless”); Casas, 356 F.3d at 121-22 (error harmless for

two of the appellants); Griffin, 324 F.3d at 350-51 (improper

overview testimony was harmless when “viewed in light of the

record as a whole”).

19

adequately cured whatever problem might have been created

by Officer Bellino’s reference to “bundles.”

E

Finally, Smith argues that the District Court improperly

increased the mandatory minimum sentence for the

conspiracy count from 10 to 20 years based on Smith’s prior

New York felony drug conviction. Smith contends that he

had a Sixth Amendment right to have the jury find the fact of

his prior felony drug conviction.

Smith’s request for a jury finding is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998).

There, the Supreme Court held that the fact of a prior

conviction need not be proved to a jury in order to increase

the defendant’s sentence. Id. at 247.

Smith protests that the reasoning of Almendarez-Torres is

in tension with the reasoning of later sentencing cases from

the Supreme Court. See United States v. Booker, 543 U.S.

220 (2005); Apprendi v. New Jersey, 530 U.S. 466 (2000).

Perhaps so. But those later cases nonetheless explicitly

reaffirmed the rule announced in Almendarez-Torres. See

Booker, 543 U.S. at 244; Apprendi, 530 U.S. at 490. As a

lower court, we of course remain bound by Almendarez-

Torres.

***

We vacate the judgment of the District Court with respect

to Smith’s conviction for unlawful possession of a firearm by

a felon. We affirm the judgment of the District Court with

respect to the other three counts of conviction. Because

Smith’s sentence for the felon-in-possession conviction runs

20

concurrently with counts of conviction that are affirmed, his

25-year term of imprisonment will not change. We remand

for further proceedings consistent with this opinion.

So ordered.