Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Karmue

United States Court of Appeals, First Circuit

October 28, 2016

UNITED STATES OF AMERICA, Appellee,
v.
KORMAHYAH KARMUE, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. William E. Smith, U.S. District Judge]

          Michael C. Bourbeau, with whom Bourbeau & Bonilla, LLP was on brief, for appellant.

          Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Neronha, United States Attorney, was on brief, for appellee.

          Before Torruella, Kayatta, and Barron, Circuit Judges.

          BARRON, Circuit Judge.

         Kormahyah Karmue appeals his convictions on three federal counts: conspiracy to commit arson, wire fraud, and mail fraud. He also challenges his sentence. The convictions and sentence relate to Karmue's alleged participation in a scheme to burn down a tenement house that Karmue owned so that he could collect the insurance proceeds. We affirm.

         On May 27, 2014, following the fire at the tenement house, Karmue was indicted for conspiracy to commit arson, 18 U.S.C. § 844(n); arson, 18 U.S.C. § 844(i) and 18 U.S.C. § 2; wire fraud, 18 U.S.C. § 1343; mail fraud, 18 U.S.C. § 1341; and theft of government funds, 18 U.S.C. § 641. On April 7, 2015, Karmue pled guilty to theft of government funds. He then proceeded to trial on the other counts. After a jury trial, he was convicted on all counts except arson, 18 U.S.C. § 844(i) and 18 U.S.C. § 2. Karmue now challenges his conviction on three different grounds. We consider each in turn.

         I.

         Karmue first seeks the reversal of his convictions on the ground that the District Court erred by conducting a portion of what is known as a Daubert hearing in his absence. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). The hearing was held to determine whether to permit an arson investigator, Sean Reddy, to testify at trial not only as a fact witness as the officer who investigated the fire, but also as an expert for the government regarding the cause of the fire.

         Karmue's attorney at the time, George West, was present for the first day of the Daubert hearing, and so, too, was Karmue. But Karmue did not attend the second day of the Daubert hearing, and West objected that, given Karmue's absence, the holding of the hearing would violate Karmue's Sixth Amendment rights. Nonetheless, the District Court proceeded with the second day of the hearing. On appeal, Karmue reasserts his Sixth Amendment challenge, and also contends that the decision to proceed with the Daubert hearing in his absence violated both his Due Process rights and Federal Rule of Criminal Procedure 43(a)(2).

         Karmue raised the Sixth Amendment challenge below, and so our review is de novo. United States v. Liriano, 761 F.3d 131, 136 (1st Cir. 2014). We have previously stated that the Confrontation Clause "has historically applied to testimony elicited at, and evidence produced for, trial, " and we have noted that the "confrontation right has never been extended beyond the context of a trial." United States v. Mitchell-Hunter, 663 F.3d 45, 51 (1st Cir. 2011). But, we have not completely foreclosed the possibility that the Confrontation Clause might apply to a pretrial hearing of some sort, see id. at 53, and we also have not previously considered the specific issue of whether a pretrial Daubert hearing might qualify as a hearing to which the right guaranteed by the Confrontation Clause could attach.

         In this case, however, Karmue's challenge fails even if we were to assume that the Confrontation Clause does apply, as any error was harmless beyond a reasonable doubt. See United States v. Sepúlveda-Contreras, 466 F.3d 166, 171 (1st Cir. 2006). The record fully supports the Daubert ruling that the District Court made. Karmue neither argues that the District Court's ruling was erroneous nor explains how his presence at the second day of the hearing could conceivably have revealed any error. In addition, at trial, Karmue's counsel objected to Reddy providing expert testimony only as to the portion of Reddy's testimony that concerned his opinion that the fire was deliberately set. Yet there was overwhelming independent evidence that the fire was deliberately set.[1] See United States v. Godfrey, 787 F.3d 72, 77-78 (1st Cir. 2015) (holding that overwhelming evidence of the fact for which the challenged testimony was entered suffices to show that an error was harmless beyond a reasonable doubt).

         Karmue separately contends that he had a Due Process right to be present at the Daubert hearing and that this right was infringed. Specifically, he contends that there was a Due Process violation because his presence at the Daubert hearing would have "ha[d] a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge." Kentucky v. Stincer, 482 U.S. 730, 745 (1987).

         Karmue did not raise this issue below, however, and so our review is only for plain error. Karmue thus must show, among other things, both that any error was clear or obvious and that it affected his substantial rights. United States v. Savarese, 686 F.3d 1, 12 (1st Cir. 2012). He has done neither.

         Even assuming that this pretrial hearing is the type to which the Due Process right to be present described in Stincer applies, the right is infringed only if the defendant's presence would have "contribute[d] to the fairness of the procedure." Stincer, 482 U.S. at 745. It is not clear or obvious, however, what the benefit of Karmue's presence at the hearing would have been. While Karmue does contend in his briefing to us that he would have been able to assist counsel at the Daubert hearing, he does not explain what assistance he could have rendered in a hearing about Reddy's credentials as an expert. Nor does Karmue make any concrete argument about how his absence on that second day of the Daubert hearing impeded his ability to effectively assist his lawyer in preparing for Reddy's cross-examination at trial.

         Moreover, Karmue's Due Process challenge fails on plain error review because -- even assuming a clear or obvious error --Karmue cannot demonstrate that the District Court's decision to proceed with the hearing in Karmue's absence "affected [his] substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings." United Statesv.Fernández-Hernández, 652 F.3d 56, 64 (1st Cir. 2011). As we have already explained, there was overwhelming independent evidence that the fire was deliberately set, and Karmue's "conclusory allegations do not establish ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.