192 F.3d 280 (2nd Cir.

1999)

UNITED STATES OF AMERICA, Appellee,

v.
ROXANNE LUMPKIN, Defendant,
MARIO WILLIAMS, Defendant-Appellant.
Docket No. 98-1640
June Term 1998

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT
Argued: June 4, 1999
Decided: August 19, 1999

Defendant Mario Williams appeals from a judgment of the United States

District Court for the Western District of New York (Arcara, J.)
convicting him, following a jury trial, of possessing crack cocaine with
intent to distribute in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2.
The judgment is affirmed.[Copyrighted Material Omitted]
KIMBERLY A. SCHECHTER, Federal Public Defender's Office,
Western District of New York, Buffalo, NY, for Defendant-Appellant.
GREGORY L. BROWN, Assistant United States Attorney, Buffalo, N.Y.
(Denise E. O'Donnell, United States Attorney for the Western District of
New York, Buffalo, NY, on the brief), for Appellee.
Before: WALKER and OAKES, Circuit Judges, and GOLDBERG,*
Judge.
GOLDBERG, Judge:

Mario Williams was convicted in the United States District Court for the
Western District of New York (Arcara, J.) on May 18, 1998, following a jury
trial, of possessing crack cocaine with intent to distribute in violation of 21
U.S.C. 841(a)(1) and 18 U.S.C. 2. The district court sentenced Williams to
a term of 41 months imprisonment, to be followed by 36 months of supervised
release. Williams appeals the judgment of conviction and makes seven claims

of error, all of which pertain to the defense's theory of misidentification and all
of which we reject. We write principally to address two of these claims: (1)
whether the district court erred when it held that Williams's co-defendant,
Roxanne Lumpkin, could properly invoke her Fifth Amendment privilege not
to testify; and (2) whether the district court erred in refusing to allow Williams's
expert witness to testify on the relationship between witness confidence in
identification and the accuracy of that identification. For the reasons stated
herein, we affirm the judgment of the district court.
I.
2

As part of an assignment for the Career Criminal Task Force ("CCTF"),

Detective James Galie, Jr. of the Niagra Falls Police Department and
Investigator Christine Sherer-Young of the New York State Police were
investigating drug trafficking in the Townsend Street area of Buffalo, New
York in the early afternoon of September 25, 1996. Driving in an unmarked car,
the officers were soon approached by a female, later identified as Lumpkin, and
asked if they wanted to purchase drugs. Galie responded that he was interested
in purchasing an "eight ball" of cocaine base, also known as crack cocaine.
Lumpkin proceeded alone to a residence at 67 Townsend Street but returned
shortly thereafter, stating she was unable to make a purchase.

Lumpkin then entered the officers' car and directed Galie to a nearby location.
Upon arriving at the appointed destination, Lumpkin exited the vehicle and
crossed the street, where she met with a young male for a period of
approximately thirty seconds. Both Galie and Sherer-Young testified that they
had an unobstructed view of Lumpkin and her male counterpart from a distance
of approximately ten to twenty feet. At this point, both officers observed the
male hand a package to Lumpkin, who then returned to the vehicle. Galie paid
a sum of cash to Lumpkin in return for contents from the package, later
identified as crack cocaine.

In a written report made after this first transaction, Galie described the male in
the transaction as "wearing blue camouflage pants, a hooded sweatshirt and [in
his] early 20s." As part of their undercover operation, Galie and Sherer-Young
also concealed video and audio recording equipment in a gym bag that sat on
the rear dash of their car. The video camera recorded images to the left and leftfront side of the driver. Although overexposed, an enhanced recording of the
first transaction shows Galie looking in the direction of the two individuals at
the time the transaction took place. In addition, Galie and Sherer-Young wore
wires and broadcast updates that were monitored from a remote location by
Detective James McMahon, the lead officer of the CCTF investigation.

Nearly two hours later, Galie and Lumpkin returned to the vicinity of the
earlier transaction. Both officers observed the same unidentified male who
negotiated with Lumpkin in the area. On this occasion, however, another male,
approximately 5'8" tall with dredlock style hair, approached Galie to ask if they
were interested in purchasing drugs. Again, Galie informed the individual that
he desired an "eight ball," at which point the individual walked over to the male
seen earlier with Lumpkin. Galie and Sherer-Young testified that this
transaction also was completed in approximately thirty seconds and that they
had an unobstructed view from a distance of approximately twenty feet. During
this transaction, Galie observed the male who had earlier given drugs to
Lumpkin again give drugs to the second intermediary. The intermediary then
returned with the requested drugs, and Galie obtained them in exchange for
cash. After the second transaction, Galie and Sherer-Young proceeded to CCTF
headquarters for debriefing. There, Detective McMahon displayed a single
photograph of Williams to the two undercover officers. Both officers identified
Williams, the individual pictured in the photograph, as the male involved in the
two drug transactions that day.

On January 7, 1997, Williams was charged in a three-count indictment. The

first count alleged a conspiracy to distribute drugs with co-defendant Lumpkin.
The remaining counts alleged possession with intent to distribute in connection
with the two drug transactions on September 25, 1996. Prior to trial, Williams
filed a motion to suppress the anticipated in-court identifications by Galie and
Sherer-Young. Magistrate Judge Carol Heckman issued a report and
recommendation, concluding that while the photo identification made by the
officers during the debriefing session was impermissibly suggestive and, hence,
could not be introduced as evidence, Galie and Sherer-Young nevertheless had
an independently reliable basis upon which to make in-court identifications.
The district court adopted Judge Heckman's report and recommendation
following de novo review.

Then, both prior to and during trial, Williams filed a series of motions in limine.
Specifically, Williams first requested permission to offer testimony from
Michael R. Lieppe, Ph.D., an expert in the field of eyewitness identification.
The district court certified Dr. Lieppe as an expert and permitted his testimony
on certain subjects, yet declined to allow testimony on the relationship between
witness confidence in identification and the accuracy of that identification.
Williams also sought to prevent Officer James Reese of the Buffalo Police
Department from testifying that he often saw Williams in the area where the
drug sales occurred. The district court denied this motion. Finally, during trial,
the government dropped the conspiracy count against Williams after his codefendant, Lumpkin, entered a guilty plea. Williams still planned to call

Lumpkin as a witness, however, anticipating that she could provide exculpatory

testimony. Yet, when it became apparent that Lumpkin would be allowed to
invoke her Fifth Amendment right against self-incrimination, Williams filed
another motion. This time, Williams sought to offer testimony from an
investigator for the public defender's office, William Gethoefer, who planned to
testify concerning allegedly exculpatory hearsay statements made to him by
Lumpkin. The district court also denied this motion. After a four-day trial, the
jury returned a guilty verdict on the two remaining counts of the indictment.
Williams filed a timely notice of appeal, and the instant appeal followed.
II.
8

A. Fifth Amendment Privilege of Co-Defendant

Williams first argues the district court erred when it allowed Lumpkin to
invoke her Fifth Amendment right not to testify. According to Williams,
Lumpkin's anticipated testimony, including the fact that she knew Williams but
never purchased drugs from him, was exculpatory and did not conflict with her
plea colloquy. At the time Lumpkin was called as a witness, she had pled guilty
but had not been sentenced.

10

In deciding if the privilege was properly invoked, the district court conducted a
hearing outside the presence of the jury. As part of this hearing, Williams's
counsel put the following series of questions to Lumpkin:

11

1) did she recall seeing the videotape concerning the September 25, 1996
incident;

12

2) did she plead guilty to a conspiracy to distribute drugs on that day;

13

3) did she remember from whom she purchased drugs on that day;

14

4) did she recall selling drugs to Williams;

15

5) did she ever see Williams wearing blue camouflage pants;

16

6) was she under the influence of drugs on the day of the incident; and

17

7) did she recall conversing with an African-American male prior to delivering

drugs to two white individuals in a car.

18

To each question, Lumpkin invoked the Fifth Amendment. The district court
then ruled that because Lumpkin's testimony exposed her to federal prosecution
for perjury, as well as state prosecution for similar acts, she had a valid Fifth
Amendment privilege. Williams claims the district court's decision deprives
him of his own Fifth Amendment due process rights and of his Sixth
Amendment right to present witnesses in his favor.

19

As an initial matter, the Supreme Court recently made clear that the assertion of
the privilege against self-incrimination survives a guilty plea. See Mitchell v.
United States, 119 S.Ct. 1307, 1313 (1999) (holding a defendant could assert
her Fifth Amendment right not to testify at sentencing); see also United States
v. Bahadar, 954 F.2d 821, 825 (2d Cir. 1992) (finding a witness who had pled
guilty but had not yet been sentenced could assert his Fifth Amendment
privilege not to testify). Thus here, the fact that Lumpkin had entered a guilty
plea did not negate her ability to invoke the Fifth Amendment privilege. The
open question, however, is whether Lumpkin had a valid claim of privilege.

20

The Fifth Amendment provides in part that "[n]o person ... shall be compelled
in any criminal case to be a witness against himself." U.S. Const. amend. V.
The Supreme Court has also made clear that "[t]o sustain the privilege, it need
only be evident from the implications of the question, in the setting in which it
is asked, that a responsive answer to the question or an explanation of why it
cannot be answered might be dangerous because injurious disclosure could
result." Hoffman v. United States, 341 U.S. 479, 486-87 (1951). And, the
privilege extends not only to those disclosures that in and of themselves would
support a conviction, but also to those that might "furnish a link in the chain of
evidence needed to prosecute the claimant for a federal crime." Id. at 486. At
the same time, Fifth Amendment privilege claims should be closely scrutinized
because allowing a witness not to testify compromises the Sixth Amendment
right of an accused "to have compulsory process for obtaining witnesses in his
favor." Washington v. Texas, 388 U.S. 14, 17 (1967).

21

We find Lumpkin was subject to a real threat of prosecution for perjury. First,
Williams's counsel asked Lumpkin whether she recalled from whom she
purchased drugs on September 25, 1996, in anticipation that Lumpkin would
testify she never purchased drugs from Williams and further that she had no
agreement with him to sell drugs. This anticipated testimony runs counter to
Lumpkin's earlier plea colloquy, however, wherein she stated that she
purchased and sold drugs on September 25, 1996. While Lumpkin stated that
she was not entirely sure from whom she purchased the drugs, she did
acknowledge the government's proffer that she received the drugs from
Williams. Lumpkin's anticipated testimony also undermines her admission in

the plea agreement that she, in fact, conspired to sell crack cocaine on
September 25, 1996. Similarly, if Lumpkin had denied having a conversation
with an African-American male prior to selling drugs to two white individuals,
she would have directly contradicted her sworn plea colloquy. Again, during
the plea colloquy, Lumpkin agreed that she purchased drugs from an individual
on September 25, 1996 (whom the government identified as Williams), and
then sold them to two undercover officers.
22

Moreover, while anticipated responses to other questions posed may not have
immediately contradicted her plea colloquy, it is possible that as counsel probed
Lumpkin's reliability, she may have exposed herself to a perjury charge. It is
entirely foreseeable that in responding to further questions, on cross if not
direct, Lumpkin would have contradicted other aspects of her plea colloquy or
made further admissions and, in so doing, would have been liable for a perjury
charge or other federal or state prosecution. Because there was a real potential
for injurious disclosure had she not invoked her Fifth Amendment privilege, the
district court correctly found Lumpkin had a valid claim of privilege.

23

B. Admission of Hearsay Testimony Under Rule 804(b)(3)

24

Since Williams was unable to elicit direct testimony from Lumpkin, he

attempted to introduce testimony from the public defender's investigator,
Gethoefer, concerning exculpatory hearsay statements made to him by
Lumpkin. Specifically, Gethoefer proposed to testify that, on the day before she
entered her guilty plea, Lumpkin told him (1) she did not know Williams, (2)
she never purchased drugs from Williams, and (3) she never saw him wearing
blue camouflage pants. Lumpkin allegedly made these statements to Gethoefer
in her attorney's office, though her attorney was not present. Gethoefer also
made a contemporaneous written record of his alleged conversation with
Lumpkin. Williams argues the district court should have admitted the
testimony under Rule 804(b)(3), the penal interest exception to the hearsay
rule.

25

Federal Rule of Evidence 804 provides as follows:

26

(b) Hearsay exceptions. The following are not excluded by the hearsay rule if
the declarant is unavailable as a witness:

27

***

28

(3) Statement against interest. A statement which was at the time of its making

so far contrary to the declarant's pecuniary or proprietary interest, or so far

tended to subject the declarant to civil or criminal liability, or to render invalid a
claim by the declarant against another, that a reasonable person in the
declarant's position would not have made the statement unless believing it to be
true. A statement tending to expose the declarant to criminal liability and
offered to exculpate the accused is not admissible unless corroborating
circumstances clearly indicate the trustworthiness of the statement.
29

Fed. R. Evid. 804(b)(3). The district court found that the proposed hearsay
testimony satisfies all elements of Rule 804(b)(3) except for one -trustworthiness. Specifically, the district court concluded Gethoefer's hearsay
testimony should not be admitted because there were not sufficient indicia of
trustworthiness. Williams contests this finding, claiming the alleged statements
were made in an attorney's office, were accompanied by a contemporaneous
written record and, thus, were trustworthy.

30

We review a district court's decision to exclude a statement under Rule 804(b)

(3) for abuse of discretion. See United States v. Doyle, 130 F.3d 523, 544 (2d
Cir. 1997). To evaluate whether a statement is sufficiently trustworthy, we look
to evidence that corroborates both the declarant's trustworthiness and the truth
of the statement. See id.

31

Here, Lumpkin, the declarant, entered a plea agreement the day after making
the contested hearsay statements to Gethoefer. In her sworn plea colloquy,
Lumpkin made admissions that conflict with the hearsay statements offered by
Gethoefer. For instance, Gethoefer proposed to offer a hearsay statement from
Lumpkin that she never purchased drugs from Williams. This is at odds with
her sworn plea colloquy. Specifically, in the plea colloquy, counsel for the
government stated the prosecution was prepared to offer testimony at trial from
two officers who observed Lumpkin purchasing drugs from Williams on the
day in question. Lumpkin then responded she understood this was the
testimony that would be offered at her trial but noted that she was not entirely
sure from whom she purchased the crack cocaine. Notwithstanding Lumpkin's
inability to recall from whom she purchased drugs, her decision to acknowledge
the government's proposed evidence against her and her sworn admission that
she purchased drugs is enough to place her sworn statement at odds with her
proposed hearsay statement. The inconsistency between Lumpkin's sworn plea
colloquy and the proposed hearsay statements she made to Gethoefer plainly
detracts from Lumpkin's reliability. The inconsistencies even suggest certain
portions of Lumpkin's stories may have been fabricated. That the alleged
statements were made in an attorney's office or that contemporaneous notes
were taken simply does not outweigh our concern, and the district court's

concern, that the declarant's reliability is suspect. Consequently, the proposed

hearsay statements are untrustworthy. We therefore reject the claim that the
district court abused its discretion when it refused to allow Gethoefer's
testimony under Rule 804(b)(3).
C. The So-Called "Other Crimes" Evidence
32

At trial, the district court allowed the prosecution to call Officer Reese, a
Niagra Falls police officer who testified he often saw Williams in the area
where the relevant drug transactions occurred. Williams claims the district
court erred in allowing this testimony because it was impermissible propensity
testimony that should have been excluded under Rule 404(b). We disagree.

33

Rule 404(b) provides in part that "[e]vidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to show action in
conformity therewith." Fed. R. Evid. 404(b); see also Huddleston v. United
States, 485 U.S. 681, 685-86 (1988). We review a district court's decision to
admit evidence of other crimes for abuse of discretion. See United States v.
Bok, 156 F.3d 157, 165 (2d Cir. 1998). Similarly, "[d]eterminations of
relevance are entrusted to the sound discretion of the district court, and we will
not override its decision unless arbitrary or irrational." United States v. Rubin,
37 F.3d 49, 52 (2d Cir. 1994).

34

Williams's argument fails because Rule 404(b) is not controlling here; there is
no "other crimes, wrongs, or acts" evidence at issue. More concretely, Reese
testified he observed Williams in the vicinity of the drug sales several times in
the few months prior to the transactions. Importantly, Reese did not testify that
he observed Williams engaging in criminal or other wrongful conduct. Reese's
repeated observations of Williams in a certain area over a period of time does
not qualify as evidence of a crime or bad act. Put another way, nothing in
Reese's observations indicates that Williams is of bad character. Therefore,
Reese's testimony simply does not fall within the ambit of other crimes
evidence that may be excluded under Rule 404(b).

35

In addition, Reese's testimony, which established that Williams frequented the

area where the drug sales took place, was particularly relevant in a case where
the defendant claimed he was misidentified. And, we find nothing in this
testimony to be unduly prejudicial. Accordingly, the district court acted well
within its discretion when it allowed Reese's testimony.
D. In-Court Identifications

36

Because the single photo of Williams shown by McMahon to Officers Galie

and Sherer-Young during the debriefing session was impermissibly suggestive
under United States v. Concepcion, 983 F.2d 369, 377-79 (2d Cir. 1992), the
trial court properly suppressed this pre-trial identification. After this ruling,
however, the court decided Galie and Sherer-Young still had independently
reliable bases upon which to make in-court identifications of the defendant.
Williams claims the district court erred on this issue, arguing his Fifth
Amendment right to due process was violated. Specifically, Williams contends
the officers were careless in their observations of the suspect, noting in
particular that discrepancies in the record exist as to the suspect's height.
Williams also argues identifications made by law enforcement officials are no
more reliable than those made by average citizens. Finally, Williams maintains
that as a general matter, cross-race identifications are less reliable than
identifications of the same race. These factors, according to Williams,
demonstrate that the officers' identification testimony was unreliable.

37

We review a district court's decision to admit identification evidence for clear

error. See United States v. Ciak, 102 F.3d 38, 42 (2d Cir. 1996).

38

Where, as here, there is the potential taint of suggestive pre-trial identification

procedures, the court must decide whether to permit an in-court identification
by weighing the degree of suggestiveness of these procedures against "factors
suggesting that [the] in-court identification may be independently reliable
rather than the product of the earlier suggestive procedures."

39

Id. (quoting United States v. Maldonado-Rivera, 922 F.2d 934, 973 (2d Cir.
1990)). The circumstances here lead us to conclude that Galie and ShererYoung held independently reliable bases for their in-court identifications of
Williams. Both officers had unobstructed views of the suspect selling crack
cocaine on not one, but two occasions. In addition, on each occasion, the
officers observed Williams during daylight, from a distance of approximately
ten to twenty feet, and for a period of at least thirty seconds. The officers also
testified that upon their return to the area of the drug sales, they immediately
recognized Williams as the individual who sold Lumpkin drugs earlier in the
afternoon. Taken together, these factors form sufficient grounds to conclude the
officers' in-court identifications were reliable. And, neither the noted
discrepancy in the record as to defendant's height, nor the alternative theories
concerning identification testimony proposed by defendant undercut the
reliability of the witnesses' identifications. Accordingly, we find no error in the
district court's decision to allow the in-court identifications.

40

E. Correlation Between Confidence and Accuracy in Eyewitness Identifications

41

Williams sought to offer testimony from his expert witness, Dr. Lieppe, that the
degree of confidence a witness purports to have in his or her identification does
not correlate to the accuracy of that identification. Specifically, during an in
limine hearing, Dr. Lieppe relied on and summarized a series of scientific
studies, all of which conclude that confidence in identification is not a good
predictor of accuracy. The trial court precluded Dr. Lieppe from testifying on
this issue at trial, ruling the testimony might confuse or mislead the jury. On
appeal, Williams contends the trial court erred because aside from the officers'
identification testimony, the government had a marginal case against him. And,
to rebut the natural assumption that the confidence shown by Galie and ShererYoung in identifying Williams indicated reliability, Williams maintains that
testimony illuminating the weak relationship between confidence and accuracy
would have been particularly helpful to the jury. Therefore, Williams insists the
trial judge erred when it excluded Dr. Lieppe's testimony on this issue. We
disagree.

42

A decision to exclude expert testimony rests soundly with the discretion of the
trial court and shall be sustained unless "manifestly erroneous." See Boucher v.
U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996) (per curiam) (quoting
Salem v. United States Lines Co., 370 U.S. 31, 35 (1962)). A witness qualified
as an expert typically will be permitted to testify if it "will assist the trier of fact
to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702.
Dr. Lieppe plainly qualifies as an expert and, as the trial court noted, his
testimony and the scientific articles may indeed have been scientifically
reliable. Yet, in reviewing the use of expert testimony, we also look to see "if it
will 'usurp either the role of the trial judge in instructing the jury as to the
applicable law or the role of the jury in applying that law to the facts before it.'"
United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994) (quoting United States
v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991)).

43

Here, Dr. Lieppe's proposed testimony and explication of the scientific studies
would have confused the jury's assessment of the officers' credibility.
Fundamental to the role of juror as trier of fact is the task of assessing witness
credibility. And, a witness's demeanor on the stand, including his or her
confidence, impacts the assessment of credibility. By testifying that confidence
bears little or no relationship to accuracy in identifications, Dr. Lieppe would
effectively have inserted his own view of the officers' credibility for that of the
jurors, thereby usurping their role. Indeed, by our estimation, the added aura of
reliability that necessarily surrounds expert testimony would have placed the
officers' credibility here in jeopardy. As a result, we find Dr. Lieppe's proposed
testimony intrudes too much on the traditional province of the jury to assess
witness credibility. See United States v. Smith, 156 F.3d 1046, 1053-54 (10th

Cir. 1998) (holding the district court did not abuse its discretion when it
excluded expert testimony on the lack of correlation between confidence and
accuracy in eyewitness identifications), cert. denied, 119 S. Ct. 844 (1999);
United States v. Smith, 122 F.3d 1355, 1358-59 (11th Cir.) (per curiam)
(same), cert. denied, 118 S. Ct. 614 (1997); but see United States v. Stevens,
935 F.2d 1380, 1400-01 (3d Cir. 1991) (finding that expert testimony on the
confidence versus accuracy factor should have been admitted because it could
prove helpful to the jury). Accordingly, the trial court committed no error when
it decided to exclude Dr. Lieppe's testimony on witness confidence in
identifications.
44

F. Exclusion of Third-Party Suspect's Photograph

45

At trial, Williams presented his mother and sister as defense witnesses. Both
individuals testified that Williams never wore blue camouflage pants. They
stated, however, that another individual, Darnell Carter, wore blue camouflage
pants, was approximately 5'8" tall, and was known to frequent the area where
the drug sales were made. To bolster this trial testimony, Williams attempted to
introduce a photograph of Carter into evidence. The trial court refused to admit
the photograph. Williams contests the ruling, claiming the photograph would
have created reasonable doubt in light of the testimony from his mother and
sister.

46

We review a trial court's decision concerning the relevance of proffered

evidence for abuse of discretion. United States v. Anglin, 169 F.3d 154, 162 (2d
Cir. 1999). We find the district court did not abuse its discretion. Williams
points to Lyons v. Johnson, 99 F.3d 499 (2d Cir. 1996), as support for his
assertion that the district court should have admitted the photograph of Carter.
In Lyons, defendant and another individual of similar stature were each
identified at the scene of a shooting wearing black leather jackets and gold-cap
front teeth. Lyons, 99 F.3d at 500-01. Although charged with the shooting, the
defendant claimed the other individual actually was the trigger man. As part of
his defense, the defendant attempted to exhibit the other individual, wearing his
gold-cap teeth, to the jury. See id. at 501. The trial judge refused the display.
See id. We concluded the trial court erred, stating "[a] physical display of [the
other individual] wearing gold fronts was relevant and ought to have been
admitted." Id. at 503. Similarly, Williams contends he should have been
allowed to introduce the photograph of Carter to demonstrate that he, Williams,
was misidentified.

47

In Lyons, however, there was no dispute that both individuals were at the scene
of the crime. In this case, there is no substantive link between Carter and the

charged crimes. While Williams's mother and sister testified that Carter fit the
description of the suspect, so too may have numerous other individuals in the
neighborhood where the transactions occurred. And, Williams points to no
evidence that places Carter in the vicinity of the drug sales when they occurred.
Without any foundation that actually links Carter to the crimes, the proffered
photograph was irrelevant and potentially misleading. We therefore reject the
claim that the trial court abused its discretion when it refused to admit the
photographic evidence.
G. Cumulative Error Claim
48

Finally, Williams claims the cumulative effect of the district court's errors
warrants a new trial. See Taylor v. Kentucky, 436 U.S. 478, 487-88 & n.15
(1978) (concluding that "the cumulative effect of the potentially damaging
circumstances of this case violated the due process guarantee of fundamental
fairness."). We find this argument without merit. In short, the trial court did not
commit reversible error as to any of the challenges raised by defendant, and the
accumulation of non-errors does not warrant a new trial. Cf. United States v.
Hurtado, 47 F.3d 577, 586 (2d Cir. 1995) (rejecting defendant-appellant's claim
that the collective impact of the alleged errors warranted a new trial even if
none of the claims standing alone precipitated reversal).
III.

49

For the foregoing reasons, we affirm the judgment of conviction entered against
defendant Williams by the district court.

NOTE:
*

Honorable Richard W. Goldberg, of the United States Court of International

Trade, sitting by designation.