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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14663
________________________
D.C. Docket No. 3:11-cr-00054-SLB-JEO-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICKY WALTER DENTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(August 28, 2013)
Before CARNES, Chief Judge, TJOFLAT, Circuit Judge, and EVANS, * District
Judge.
PER CURIAM:
*
Honorable Orinda D. Evans, United States District Judge for the Northern District of
Georgia, sitting by designation.
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Ricky Walter Denton, after electing to proceed pro se with standby counsel,
was convicted by a jury of the armed robbery of the First Southern Bank in Ford
City, Alabama, in violation of 18 U.S.C. § 2113(a) and (d), and brandishing a
firearm during that federal crime of violence, in violation of 18 U.S.C. §
924(c)(1)(A)(ii). Denton, now with the aid of court-appointed counsel, appeals his
convictions on numerous grounds, contending that: (1) the district court violated
his Sixth Amendment right to self-representation under Faretta v. California, 422
U.S. 806, 95 S.Ct. 2525 (1975), by limiting his access to the court’s law library and
legal materials; (2) the district court erred in denying his motion to suppress
evidence seized during the searches of his hotel room and apartment; (3) the
government violated the Jencks Act, 18 U.S.C. § 3500, by failing to timely
disclose the grand jury testimony of one of the investigating officers, FBI Special
Agent Patrick Stokes; (4) the evidence presented at trial was insufficient to prove
his guilt beyond a reasonable doubt; and (5) the district court erred in denying his
request to subpoena an unnamed correctional officer as a rebuttal witness. Relying
on post-judgment interrogatory responses from two prosecution witnesses, which
were first submitted to the district court in support of his still pending motion for a
new trial based on newly discovered evidence, Denton also alleges that the
government committed various acts of misconduct warranting reversal of his
convictions.
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I.
Denton first contends that the district court violated his Sixth Amendment
right to self-representation by denying him “meaningful access” to a law library or
legal materials in preparation for his jury trial. He asserts that, at a minimum, the
right to self-representation prohibits courts from imposing unjustified restrictions
on a pro se defendant’s access to readily available legal materials attainable
“through a de minimis, reasonable accommodation,” and that the district court
violated that right by imposing “unnecessary and extreme restrictions” on his
access to such materials.
While awaiting trial, Denton was housed in a county jail that lacked a law
library. Before granting his request to proceed pro se, the magistrate judge
repeatedly urged Denton to accept the aid of counsel and cautioned him about the
disadvantages of self-representation, including the difficulties he would face in
gaining access to legal materials and the fact that he could not expect to visit the
district court’s law library. With full knowledge of the consequences of
proceeding without court-appointed counsel, Denton remained adamant about
representing himself. Even so, and despite his earlier warnings, the magistrate
judge allowed Denton to be brought to the United States Marshals’ office in the
courthouse on a daily basis for a two-week period, where he could review
discovery and request legal materials from the court’s law librarian. During those
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visits, Denton was given access to treatises on federal trial procedures, trial
techniques, and Fourth Amendment issues. He was also provided with copies of
the applicable criminal statutes, rules of evidence, and rules of criminal procedure.
Although the district court judge eventually put an end to Denton’s daily, escorted
visits to the courthouse, she did not categorically deny him access to legal
materials that he reasonably required in order to prepare for trial. The court
informed Denton that, instead of routine visits to the courthouse, he could file
requests for specific legal materials that were relevant to the remaining trial
proceedings. On one of the few occasions where Denton actually complied with
the court’s instruction instead of filing general requests for access to a law library
or legal materials, he was permitted to visit the courthouse to view the specific
materials he had requested.
Under the Sixth Amendment, as interpreted in Faretta, criminal defendants
have a right to waive the assistance of counsel and represent themselves when they
voluntarily elect to do so with knowledge of the disadvantages of self-
representation. Faretta, 422 U.S. at 807, 835, 95 S.Ct. at 2527, 2541. Nothing in
Faretta or the Sixth Amendment, however, expressly establishes that a defendant
who has knowingly elected to proceed pro se has a right of access to a law library
or legal materials. See Kane v. Garcia Espita, 546 U.S. 9, 10, 126 S.Ct. 407, 408
(2005) (noting, in the context of habeas review under 28 U.S.C. § 2254, that
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“Faretta says nothing about any specific legal aid that the State owes a pro se
criminal defendant” and so does not “clearly establish” a pro se defendant’s right
to access a law library). Faretta itself recognized that “[w]hen an accused manages
his own defense, he relinquishes, as a purely factual matter, many of the traditional
benefits associated with the right to counsel.” 422 U.S. at 835, 95 S.Ct. at 2541.
We have held that a pro se criminal defendant has no constitutional right of
access to a law library or legal materials where counsel has been offered. Edwards
v. United States, 795 F.2d 958, 961 nn. 1 & 3 (11th Cir. 1986) (rejecting a
collateral challenge to a criminal conviction based on the denial of library access
while the petitioner proceeded pro se at trial, and concluding that “[w]hen counsel
is offered, the alternative of a library is not mandatory”). Although Denton takes
issue with the soundness and adequacy of our decision in Edwards, we are bound
by that decision under the prior panel precedent rule unless and until it is overruled
by the Supreme Court or this Court sitting en banc. Cohen v. Office Depot, Inc.,
204 F.3d 1069, 1076 (11th Cir. 2000); see also Smith v. GTE Corp., 236 F.3d
1292, 1302–03 (11th Cir. 2001) (rejecting a “wrong result” or “overlooked reason”
exception to the prior panel precedent rule); Wascura v. Carver, 169 F.3d 683, 687
(11th Cir. 1999) (responding to the argument that the reasoning of a prior panel
decision was “unclear and inadequate to support its holding” by stating that “[w]e
have no occasion to pass on that criticism, because we are bound by the [prior
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panel] decision regardless of whether we agree with it”). Even assuming that a
Faretta defendant has a right of reasonable access to legal materials, as Denton
argues, under the circumstances of this case that right was not violated. There is
no merit to Denton’s contention that the district court imposed unjustified and
extreme restrictions on his ability to access legal materials relevant to the criminal
proceedings against him.
II.
Denton challenges the denial of his motion to suppress evidence seized from
his hotel room and apartment, arguing that the district court erred in finding that he
had voluntarily consented to the searches of those premises. Denton maintains that
he was under the influence of drugs and alcohol, and otherwise intimidated by the
presence of six law enforcement agents, when he signed written consent forms to
search his hotel room and apartment on December 18, 2009.
In reviewing the denial of a motion to suppress evidence, we review the
district court’s factual findings for clear error and its application of the law to those
facts de novo. United States v. Gibson, 708 F.3d 1256, 1274 (11th Cir. 2013). A
warrantless search of property is valid under the Fourth Amendment if it is
preceded by a defendant’s voluntary consent or the consent of a third party who
has “common authority over or other sufficient relationship to the premises or
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effects sought to be inspected.” United States v. Harris, 526 F.3d 1334, 1339 (11th
Cir. 2009) (quotation marks omitted).
In challenging the denial of his motion to suppress the evidence seized from
his apartment, Denton fails to differentiate between the two searches of it. The
first of those searches, which was executed on December 18, 2009, with the
written consent that Denton now claims was involuntary, yielded no incriminating
evidence that was introduced at trial. Only the second of the two searches of his
apartment, which was conducted two months later while Denton was in police
custody, resulted in the seizure of evidence introduced at trial. That search was
based upon the consent of Hollie Anderson Todd, who lived there and whose
name, rather than Denton’s, was on the lease at that time. The district court
correctly denied the motion to suppress as to the evidence from that search because
of Todd’s consent. See Harris, 526 F.3d at 1339.
There was also a search of Denton’s hotel room on December 18, 2009,
which uncovered evidence that was introduced at trial. The district court denied
the motion to suppress that evidence after correctly finding that both Denton and
the co-occupant of the room, James Wimberly, had given their voluntary consent.
Denton argues that his own consent was not voluntary but that does not matter
because Wimberly’s consent was enough to justify the search. See id.
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III.
Denton next contends that the government violated the Jencks Act by failing
to timely disclose Special Agent Stokes’ grand jury testimony. Denton asserts that
he requested Jencks Act material on Agent Stokes during the suppression hearing
but did not receive a complete copy of Stokes’ grand jury testimony “until well
after the trial.” He maintains that the delay in disclosure prejudiced his defense at
trial because the grand jury transcripts revealed “material inconsistencies” between
Agent Stokes’ testimony before the grand jury and his testimony at trial.
The Jencks Act, which is incorporated into Federal Rule of Criminal
Procedure 26.2, shields the statements of government witnesses, including their
grand jury testimony, from discovery or inspection until the “witness has testified
on direct examination in the trial of the case.” 18 U.S.C. § 3500(a), (e)(3). Once a
government witness testifies on direct examination, whether at trial or at a
suppression hearing, the court must, on the defendant’s motion, order the
government to produce any statement by that witness in its possession “that relates
to the subject matter of the witness’s testimony.” Fed. R. Crim. P. 26.2(a), (g); see
18 U.S.C. § 3500(b). The underlying purpose of the Jencks Act is to enable a
defendant to impeach a government witness on cross-examination by bringing out
any variances between his trial or hearing testimony and his earlier statements.
United States v. Prieto, 505 F.2d 8, 11 (5th Cir. 1974); see also United States v.
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Delgado, 56 F.3d 1357, 1364 (11th Cir. 1995) (“Jencks Act statements are strictly
limited to impeachment.”).
Even assuming that Denton properly requested Jencks Act material on Agent
Stokes during the suppression hearing, which is by no means evident from the
record, his claim nevertheless fails. The only Jencks Act statements the
government could have been obligated to turn over during the suppression hearing
would be statements relating to the subject matter of that hearing. See 18 U.S.C. §
3500(b) (requiring the government to produce a statement by its own witness
“which relates to the subject matter as to which the witness has testified” on direct
examination). But Denton does not contend that any of Agent Stokes’ grand jury
testimony was of that nature.
Instead, Denton argues that the government’s failure to turn over Agent
Stokes’ grand jury testimony at the suppression hearing hindered his ability to
impeach Stokes’ testimony at trial. That argument does not make sense in light of
the Jencks Act. The government had no Jencks Act obligations with respect to
Agent Stokes at the time of trial because Stokes was not called as a government
witness, but as a witness for the defense. In addition, the portions of Agent Stokes’
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grand jury testimony that Denton highlights on appeal are not inconsistent with
Stokes’ later testimony at trial and thus lack any impeachment value anyway. 1
IV.
Denton argues that the evidence presented at trial was insufficient to prove
beyond a reasonable doubt that he was the masked man who robbed the First
Southern Bank at gunpoint on the afternoon of December 17, 2009. He notes that
one of the government’s witnesses, Forrest Sims, described the bank robber as an
African-American man with a “gold grill” and that no evidence directly linking
Denton to the bank robbery was found at his hotel room, apartment, or carwash
business. Although he acknowledges that several witnesses implicated him as the
bank robber, Denton contends that the testimony of those witnesses was, for one
reason or another, unworthy of belief.
We review de novo the sufficiency of the evidence underlying a conviction,
viewing the evidence in the light most favorable to the jury’s verdict with all
reasonable inferences and credibility choices drawn in its favor. United States v.
1
In his reply brief on appeal, Denton asserts that he could have used Agent Stokes’ grand
jury testimony to impeach Stokes’ testimony at the suppression hearing. Because he did not
raise that argument in his opening brief, he has abandoned it. See Davis v. Coca-Cola Bottling
Co. Consol., 516 F.3d 955, 972 (11th Cir. 2008) (“It is well settled in this circuit that an
argument not included in the appellant’s opening brief is deemed abandoned.”). In any event,
the belated argument rests on the unsupported assertion that Agent Stokes informed the grand
jury that Denton was arrested before, and not after, he signed the written consent-to-search
forms. The portion of Stokes’ grand jury testimony cited by Denton in support of this assertion
says no such thing and we have been unable to find any such testimony in the available grand
jury transcripts.
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White, 663 F.3d 1207, 1213 (11th Cir. 2011). Our inquiry is limited to
determining whether a reasonable jury could have found the defendant guilty
beyond a reasonable doubt. United States v. Broughton, 689 F.3d 1260, 1276
(11th Cir. 2012). It is not necessary that the evidence “exclude every reasonable
hypothesis of innocence or be wholly inconsistent with every conclusion except
that of guilt.” Id. at 1277. The jury is free to choose among “the reasonable
conclusions to be drawn from the evidence presented at trial,” and we “must accept
all reasonable inferences and credibility determinations made by the jury.” Id.
The evidence presented at trial, when viewed in the light most favorable to
the jury’s verdict, weaves a compelling narrative of the bank robbery with Denton
at its center. Shortly after 4:00 p.m. on December 17, 2009, witnesses saw a clean-
shaven white male with dirty blonde hair and sporting a yellow-hooded coat, blue
jeans, and a backpack approach the entrance of the First Southern Bank. As he
entered the bank, the man donned a black ski mask with yellow coloring around
the mouth and eyes, brandished a small silver gun, told everyone to get down on
the floor, and ordered the bank tellers to empty their cash drawers. He then
commanded one of the three tellers on duty that day, Kayla Lash, to hand over the
keys to her black Geo Tracker. Latisha Clay, another bank teller, noticed the
robber’s distinctively “slow,” stuttering, and “not altogether normal” speech
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pattern, and at trial she unequivocally identified Denton as the bank robber by his
voice.
As the bank robber fled in Lash’s car with $8,928, he nearly collided with
another motorist, Forrest Sims, and then pulled into an abandoned service station
beside a green Ford Mustang. Although Sims, based on his limited view of the
driver, described the bank robber as “a black man with a gold grill” wearing a
“yellow hoodie,” the jury was not obligated to credit Sims’ description as accurate,
particularly in light of the testimony of other witnesses identifying the robber as a
clean-shaven white male — a description matching Denton’s physical
characteristics. Wimberly, Denton’s friend, coworker, and initially unwitting
accomplice, was waiting at the abandoned service station in Denton’s green Ford
Mustang for Denton to arrive. Wimberly’s trial testimony tied Denton to the
clothing and small silver gun captured on the bank’s surveillance system and
described by other witnesses, and he identified Denton as the source of the money
recovered by law enforcement agents from the home of a mutual acquaintance,
which included several “bait bills” traceable to the First Southern Bank.
Following his arrest, Denton confessed his role in the bank robbery to a
fellow inmate, James Murphy, and urged him to contact one of Denton’s sons to
fabricate an alibi for Denton for the time of the robbery. Denton also persuaded
another inmate, Charles Brown, to sign a false confession and, to give that
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confession an air of credibility, he provided Brown with specific details of the
bank robbery, such as the fact that the bank robber wore a ski mask and a yellow
sweatshirt. Murphy and Brown testified to those facts at trial and assured the jury
that they had not received or been promised anything in exchange for their
cooperation.
The combined testimony of the government’s witnesses was more than
sufficient to allow the jury to conclude beyond a reasonable doubt that Denton was
the person who had robbed the First Southern Bank. Denton’s sufficiency
challenge essentially boils down to a claim that the jury should have credited Sims’
description of the bank robber while wholly discounting the testimony offered by
Wimberly, Murphy, Brown, Clay, and other government witnesses. The jury,
however, was entitled to believe the testimony it believed, and we must accept the
jury’s credibility determinations. See United States v. Peters, 403 F.3d 1263, 1268
(11th Cir. 2005) (“[W]e are bound by the jury’s credibility determinations, and by
its rejection of the inferences raised by the defendant.”).
V.
Denton asserts that the district court abused its discretion when it denied his
request to subpoena a rebuttal witness, an unnamed correctional officer who
apparently could have testified that Charles Brown was “mentally challenged” and
“always telling on people” in the jail where he and Denton were incarcerated.
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A defendant’s request for a subpoena must comply with Federal Rule of
Criminal Procedure 17(b), which directs district courts to issue a subpoena at
government expense “for a named witness if the defendant shows an inability to
pay the witness’s fees and the necessity of the witness’s presence for an adequate
defense.” Fed. R. Crim. P. 17(b) (emphasis added). Because Denton has not
demonstrated that his subpoena request complied with Rule 17, he has not
established that it was an abuse of discretion to deny that request. See United
States v. Rinchak, 820 F.2d 1557, 1565 (11th Cir. 1987) (“The grant or denial of a
Rule 17(b) motion is committed to the discretion of the district court and is subject
to reversal on appeal only upon a showing of abuse of that discretion.”). Less than
one week before trial, Denton filed a motion to subpoena a witness to impeach the
anticipated testimony of Charles Brown, but he failed to identify that witness by
name in the motion he filed. Even assuming that the district court was somehow
obligated to grant that motion, Denton cannot show that the denial of it was
anything more than harmless error. The government presented abundant evidence
of guilt apart from Brown’s trial testimony. Cf. United States v. Khanani, 502 F.3d
1281, 1292 (11th Cir. 2007) (explaining that an erroneous evidentiary ruling is
harmless if “sufficient evidence uninfected by [the] error supports the verdict, and
the error did not have a substantial influence on the outcome of the case.”)
(quotation marks omitted).
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VII.
Finally, Denton has a motion for a new trial based on newly discovered
evidence pending in the district court. It concerns the post-verdict interrogatory
responses of Jonathan and Hollie Todd, which he contends show that the
government engaged in various forms of misconduct, including improperly
pressuring the Todds to testify at trial and failing to disclose the contents of their
pre-trial interviews with law enforcement agents. Until the district court rules on
that motion, there is nothing for us to review concerning it. It is not properly
before us in this appeal.
AFFIRMED.
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