[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15436 ELEVENTH CIRCUIT
MAY 19, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-00078-CR-T-33-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES STANTON PERRY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 19, 2010)
Before HULL, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
After a jury trial, James Stanton Perry appeals his conviction for being a
felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). After
review, we affirm.
I. BACKGROUND
Because Defendant Perry claims the district court erred in certain evidentiary
rulings at trial, we review not only the history of the case, but also the trial
testimony in detail.
A. Investigation of Burglary
In the fall of 2008, a series of burglaries occurred in Hillsborough County,
Florida, including a burglary at the home of Kevin Scully on October 21, 2008.
Scully is a special agent with the federal Drug Enforcement Administration
(“DEA”) and a supervisor of a Tampa task force consisting of DEA agents and
deputized local law enforcement officers who investigate narcotics crimes.
Detective Joseph Garcia of the Hillsborough County Sheriff’s Office was in
charge of investigating the burglaries. During the investigation, Garcia had the
assistance of other Sheriff’s Office detectives: Maurique Diaz and James Howard.
Garcia, Diaz and Howard were not part of Scully’s DEA task force.
Agent Scully met with Detective Garcia and offered his assistance. Agent
Scully then asked several DEA task force members, including Detective Angel
Cruz of the Sheriff’s Office, to assist Detective Garcia.
2
Defendant Perry was a suspect in the burglaries. An eyewitness saw a man
leave Agent Scully’s house and walk to a nearby Starbucks, where he called a
taxicab. Investigators obtained a videotape from Starbucks showing the man,
which investigators believed was Perry. Investigators learned from the taxi driver
that the man was dropped off at an apartment belonging to Perry’s girlfriend. The
apartment management identified Perry as having recently lived at the apartments.
Detective Cruz conducted surveillance on Perry’s girlfriend, which led him to a
house on Sunlake Boulevard. Detective Cruz knew that Perry had an outstanding
warrant for his arrest on a charge of grand theft auto.1
On the morning of December 9, 2008, Detective Cruz, along with Agent
Scully and several DEA task force agents, conducted surveillance on the Sunlake
Boulevard house. Detective Cruz saw Perry and another man, later identified as
Steven Tuttle, enter a U-Haul truck and drive away. Tuttle drove the truck with
Perry in the passenger seat. Detective Cruz stopped the U-Haul truck and arrested
Perry under the warrant.
Defendant Perry was taken to the Hillsborough County Sheriff’s Office
substation. During an interview with Detective Garcia, Defendant Perry denied
living at the Sunlake Boulevard house, stating that he had only stored a couch there
1
In 1995, Perry was convicted of two gun-related felonies: armed robbery and grand theft
of a firearm.
3
and lived in an apartment on Memorial Highway. Detective Garcia forwarded this
information to the officers at the Sunlake Boulevard house.
B. Firearm Ammunition at Sunlake Boulevard House
While Perry was taken to the Sheriff’s Office, Detective Cruz, Agent Scully
and other officers went with Tuttle back to the Sunlake Boulevard house. Tuttle
and his mother, Lori Bennett, leased the Sunlake Boulevard house.
Tuttle told the officers that he had rented the basement to Perry the day
before. The officers believed the house contained items stolen during the
burglaries. Tuttle and Ms. Bennett signed consent to search forms for the Sunlake
Boulevard house. The officers searched the basement and found stolen property,
including a watch belonging to Agent Scully. In the basement, Detectives Cruz
and Diaz found a bag containing jewelry, cell phones, a gun loaded with six bullets
and an identification card belonging to Perry.
C. Interviews of Defendant Perry
Three days later, on December 11, 2008, Detectives Cruz and Diaz
interviewed Defendant Perry in jail. Perry admitted (1) committing numerous
burglaries, including the one of Agent Scully’s home; and (2) owning the firearm
found in the Sunlake Boulevard basement. Perry said he bought the firearm at a
pawn shop for $250. In a follow-up interview on December 17, 2008, Perry again
4
admitted that he owned the firearm.
In federal court, Perry was indicted on one count of being a felon in
possession of six rounds of ammunition.2 Before trial, Perry moved to suppress
(1) the evidence seized at the Sunlake Boulevard house; and (2) his two
confessions to the investigators. Defendant Perry claimed only that the search was
performed without valid consent and thus his confessions were fruits of an illegal
search.
D. Suppression Hearing
At a suppression hearing Detectives Cruz, Garcia and Howard testified, as
well as Tuttle and his mother. Detective Cruz testified about the burglary
investigation, Defendant Perry’s arrest and the search of the Sunlake Boulevard
house. According to Detective Cruz, Tuttle gave investigators permission to
search the basement, and both Tuttle and his mother, Bennett, signed forms
consenting to the search.
Detective Garcia testified that he advised Defendant Perry of his Miranda
rights and Perry confessed to burglarizing Agent Scully’s house. When Garcia
asked Perry where he lived, Perry said he lived at an apartment on Memorial
2
Perry stipulated to being a convicted felon. At trial, an expert with the Bureau of
Alcohol, Tobacco, Firearms and Explosives (“ATF”) testified that an interstate nexus could not
be established as to the firearm because it was manufactured in Florida, but that the six bullets
found in the firearm were manufactured in Idaho.
5
Highway. Perry told Garcia he did not live at the Sunlake Boulevard house, but
only stored a couch there. Detective Howard, also present at the interview,
corroborated Detective Garcia’s testimony.
Detective Diaz testified that soon after arriving at the Sunlake Boulevard
house, he received a call from Detective Garcia advising him that Perry claimed
not to live at the house. Detective Diaz informed Detective Cruz of this
information. Diaz also asked Ms. Bennett if Perry lived at the house, and Bennett
responded that he did not. Detective Diaz was present during the search of the
basement and saw Detective Cruz find the bag containing the loaded firearm.
Detective Diaz recounted his December 11 jail interview with Defendant
Perry. Perry admitted owning the gun found at the Sunlake Boulevard house and
said he had purchased it for $250. According to Diaz, Perry agreed to give a
written statement at a later time because Diaz did not have the proper forms.
On December 17, 2008, Diaz returned to obtain the written statement from
Perry. At first Perry said he had obtained counsel and had nothing to say. After
Diaz said he would consult Perry’s attorney about obtaining a statement, Perry
changed his mind. Perry agreed to talk with Diaz, but refused to give a written
statement. After Diaz advised Perry of his Miranda rights and had Perry sign a
consent to be interviewed, Perry reiterated that he owned the firearm found at the
6
Sunlake Boulevard house.
Tuttle and Bennett, the tenants of the Sunlake Boulevard house, testified for
the defense. Bennett stated that the officers who searched the house were
unprofessional, would not allow her to talk to her son and would not allow her to
go in the house. According to Bennett, officers told her they were waiting on a
warrant and, after waiting for about an hour and a half, presented her with a paper
with the word “warrant” on it and asked her to sign it. Bennett signed the paper,
but said she did not know she was consenting to a search and did not tell officers
they could go down to the basement. However, Bennett agreed that she had signed
a consent to search form.
Tuttle testified that he was a friend of Perry’s and that Perry rented the
basement from him and his mother. Perry had stayed at the house for a few nights
before his arrest.
According to Tuttle, when officers asked if they could search the house, he
was initially unsure. When officers said they either could get a warrant or he could
consent to the search, Tuttle told the officers to “do what you need to do.” After
waiting outside the house for two hours, another detective arrived with a paper and
told Tuttle he needed to sign it. Tuttle remembered seeing the word “warrant” in
big red letters at the top of the paper. Tuttle agreed that he had signed a consent to
7
search form. Tuttle thought, however, that he was signing a warrant and did not
knowingly give consent for officers to enter the house.
The magistrate judge issued a report (“R&R”) recommending that Perry’s
motion to suppress be denied. The R&R found that, although Perry rented the
basement of the Sunlake Boulevard house, his statements to Detective Garcia that
he did not live there undercut his subjective expectation of privacy in the basement
and the items stored there. The R&R recommended denying the motion to
suppress because Perry’s Fourth Amendment rights were not implicated in the
search. The magistrate judge also found that Perry knowingly and voluntary
waived his Miranda rights as to his statements to Detective Garcia on the day of his
arrest and to Detective Diaz several days later at the jail. As to Detective Diaz’s
second interview, the magistrate judge found that Detective Diaz properly ceased
questioning when Perry indicated he was represented by counsel, and that Perry
voluntarily initiated the subsequent conversation and knowingly and intelligently
signed the Miranda waiver form.
The district court adopted the R&R over Perry’s objection. The district
court clarified that the R&R did not find that Perry did not enjoy a valid
expectation of privacy at the Sunlake Boulevard house, but that Perry had
abandoned that expectation when he denied living there.
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E. Perry’s Motion in Limine
In a pretrial memorandum, the government stated that it intended to
introduce evidence that Perry had two prior 1995 firearm-related felony
convictions for armed burglary of a dwelling and grand theft of a firearm. Perry
filed a motion in limine to exclude the evidence as inadmissible under Federal
Rules of Evidence 403 and 404(b).
The district court denied Perry’s motion, finding that the evidence showing
that Perry had committed an armed burglary and possessed stolen firearms in the
past was probative to demonstrate knowledge, opportunity, lack of mistake, and
that he possessed the firearm in the instant case. The district court stated that,
under the Rule 403 balancing test, Perry’s prior firearm-related convictions
demonstrated a clear connection to his knowingly possessing a firearm in the
instant case and the risk of undue prejudice to Perry could be reduced with a
limiting jury instruction.
F. Trial
At trial, Perry’s defense was that (1) the officers investigating the burglary
of Agent Scully’s home believed Perry was the burglar, (2) the evidence linking
him to the burglary was weak, and (3) thus the officers framed him for the federal
firearm offense by planting the firearm at the Sunlake Boulevard house and by
9
fabricating Perry’s two confessions.
1. Government’s Trial Witnesses
During the government’s case, inter alia, Detectives Cruz and Diaz testified
about the burglary investigation, Perry’s arrest, the search of the Sunlake
Boulevard house and Perry’s two confessions to owning the firearm and
burglarizing Agent Scully’s house. The detectives denied planting evidence at the
Sunlake Boulevard house or fabricating Perry’s confessions.
Perry’s counsel cross-examined Detectives Cruz and Diaz at length.
Detective Cruz testified that Agent Scully was his supervisor, they visited socially,
and he knew Agent Scully’s 14-year-old daughter, who was in the house during the
burglary. Although state officers serving as DEA task force members ordinarily
would not be involved in burglary investigations, the state officers participating in
the surveillance of Perry and his girlfriend were also DEA task force agents.
Detective Cruz acknowledged that he used DEA magnetic tracking devices on
Perry’s girlfriend’s car and the U-Haul truck during the surveillance. Agent Scully
was present throughout the surveillance. Agent Scully was also present during the
search of the Sunlake Boulevard house.
Detective Cruz accompanied Detective Diaz during Perry’s December 11
jail interview. Detective Diaz had a Miranda waiver form and Detective Cruz
10
could not explain why Detective Diaz, who was in charge of the interview, did not
ask Perry to write out his statement on the back of the Miranda form. Detective
Cruz testified that Perry said during the interview that he bought the gun for $250.
Defense counsel then impeached Detective Cruz with his suppression hearing
testimony, in which he said that Perry told them he got the gun during a robbery.
Detective Cruz also admitted that officers prepare police reports to record
important information so their memory is accurate and that his own police report
for December 11 did not mention that Perry had made any admissions.
On cross-examination, Detective Diaz admitted that he did not obtain a
written statement from Perry during the December 11 jail interview, even though
Perry was willing to give one. Although Detective Diaz explained that he failed to
bring the proper forms, he also admitted that he could have had Perry write his
statement out using paper and pen he had access to at the jail.
After the cross examination of Detectives Cruz and Diaz, the government
called Detective Ralph Lazar with the Hillsborough County Sheriff’s Office.
Detective Lazar served on the area Alcohol Tobacco, Firearm and Explosives task
force and led the investigation into the federal firearm charge. Detective Lazar
presented the case to the United States Attorney’s Office for prosecution.
Detective Lazar did not do so as a favor to anyone. Detective Lazar did not know
11
or speak to Agent Scully until after the federal charge had been filed. The case was
referred to Detective Lazar after the evidence was collected. Detective Lazar
decided not to send the firearm for DNA or fingerprint testing because Perry had
confessed to owning the firearm.
2. Perry’s Trial Witnesses
Perry’s defense counsel called Agent Scully as the first defense witness.
Defense counsel examined Agent Scully at length attempting to show Agent Scully
had both motive and opportunity to frame Perry for the firearm charge.
Agent Scully admitted that his 14-year-old daughter entered the house while
the burglary was in progress and encountered the burglar. After receiving a call
from his wife after the burglar left, Agent Scully became very upset and concerned
for his daughter’s safety. After reporting the burglary to the police, Agent Scully
immediately went to the house, conducted a protective sweep with his gun drawn
and investigated the crime scene. Agent Scully met with Detective Garcia the next
day and offered him assistance in investigating the crime.
According to Agent Scully, the purpose of his DEA task force is to enforce
narcotics laws. Although the DEA manual states that DEA task force members are
not supposed to be assigned non-task force duties, in practice local law
enforcement agencies sometimes gave their DEA task force members work that
12
was not drug-related. Agent Scully described his relationship with his task force
agents, including Detective Cruz, as “close” and that he believed they “ha[d] his
back.”
Agent Scully admitted that he (1) became actively involved in the burglary
investigation; (2) had a strong desire to see the burglar caught and prosecuted, (3)
was absolutely certain that Perry was the burglar; (4) asked several of his DEA task
force members, including Detective Cruz, to help find and arrest Perry on an
unrelated outstanding warrant; (5) used DEA tracking devices to locate Perry; (6)
went with other DEA task force agents to conduct surveillance of Perry and arrest
him; (7) went with Detective Cruz and Tuttle to the Sunlake Boulevard house,
where he hoped to recover some of his stolen property; (8) participated in a
protective sweep of the house; and (9) asked Detective Cruz to participate in
Detective Diaz’s interview of Perry.
Agent Scully admitted he learned that officers, during the search, had found
a firearm in the basement of the Sunlake Boulevard house. When defense counsel
then sought to ask Agent Scully if he told Detective Garcia that he could have
Perry prosecuted in federal court on a firearm charge, the government objected.
The district court sustained the objection. In a sidebar, defense counsel argued (1)
that the government had called Detective Lazar, who testified that the federal
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firearm prosecution had nothing to do with the DEA; and (2) Detective Garcia’s
police report indicated that Agent Scully told him he would try to get Perry
indicted on a federal firearm charge. When the district court asked the relevance of
that evidence, defense counsel explained that Perry’s defense was that law
enforcement framed him for the firearm offense because “they [could not] convict
him for the burglary.” The district court stated that it had already given the defense
a lot of leeway and that the evidence was not relevant.
Defense counsel then asked other questions about the burglary. Defense
counsel had Agent Scully admit that on November 5, 2008 he had officers from the
Hillsborough County Sheriff’s Office return to his home to get additional
fingerprints believed to belong to the burglar. However, the district court sustained
the government’s objections to defense counsel asking whether those fingerprints
matched Perry’s fingerprints and whether Agent Scully’s daughter had identified
Perry in a photographic line-up.
On cross-examination by the government, Agent Scully testified that he did
not ask Detective Lazar or the federal prosecutor to bring the federal firearm
charge against Perry and that he did not direct Detective Garcia’s investigation into
the burglaries. Agent Scully denied planting the gun, the bullets or the
identification card at the Sunlake Boulevard house or instructing anyone else to do
14
so. Agent Scully also denied instructing anyone to fabricate Perry’s confessions
that he owned the firearm.
Defendant Perry next proffered testimony he expected to elicit from
Detective Garcia about the burglary, including that: (1) aviation and canine units
responded to the burglary of Agent Scully’s home with no results; (2) an
eyewitness came face-to-face with the burglary suspect, but was unable to identify
Perry from photos; (3) there were other suspects for the series of burglaries; and
(4) Agent Scully told Detective Garcia that he would assemble a team to prove that
Perry committed the burglaries, have Detective Cruz assist in the investigation and
try to obtain a federal indictment. Perry argued that this testimony showed bias
and motive for Agent Scully and Detectives Cruz and Diaz to lie and could be used
for impeachment.
The district court concluded that Garcia’s proffered testimony about these
details of the burglary investigation were irrelevant and would not be allowed. The
district court stated that Perry “had accomplished whatever [he] wanted to
accomplish” through his examination of Agent Scully about the burglary
investigation and did not need this additional testimony.
Before deliberations, the district court gave the jury a limiting instruction as
to the evidence of Perry’s prior convictions, as follows:
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During the course of the trial, you heard evidence of acts of the
defendant which may be similar to those charged in the Indictment,
but which were committed on other occasions. You must not consider
any of this evidence in deciding if the defendant committed the acts
charged in the Indictment. However, you may consider this evidence
for other, very limited, purposes.
If you find beyond a reasonable doubt from other evidence in
this case that the defendant did commit the acts charged in the
Indictment, then you may consider evidence of the similar acts
allegedly committed on other occasions to determine whether the
defendant had the state of mind or intent necessary to commit the
crime charged in the Indictment.
The jury found Perry guilty. Perry filed a motion for a new trial, which the
district court denied. Perry appealed.
II. DISCUSSION
A. Evidence From the Sunlake Boulevard House
Perry argues that the district court erred in denying his motion to suppress
the evidence found in the Sunlake Boulevard basement.
Generally, the Fourth Amendment requires a search by law enforcement to
be pursuant to either a warrant supported by probable cause or valid consent.
United States v. Magluta, 418 F.3d 1166, 1182 (11th Cir. 2005); United States v.
Dunkley, 911 F.2d 522, 525 (11th Cir. 1990). A defendant cannot seek to suppress
evidence unless he shows “that his Fourth Amendment rights were violated by the
challenged search or seizure.” United States v. Padilla, 508 U.S. 77, 81, 113 S. Ct.
1936, 1939 (1993). To meet this burden, the defendant must demonstrate that he
16
had a legitimate expectation of privacy in the areas searched. United States v. Lee,
586 F.3d 859, 864 (11th Cir. 2009), cert. denied, ___ S. Ct. ___, 2010 WL
1186198 (U.S. Apr. 26, 2010). When a defendant explicitly denies owning or
relinquishes possession or control over an area to be searched, he cannot carry his
burden to show an expectation of privacy. See, e.g., United States v. Sweeting,
933 F.2d 962, 964 (11th Cir. 1991); United States v. Cofield, 272 F.3d 1303,
1306-07 (11th Cir. 2001).3
Here, Perry denied living at the Sunlake Boulevard residence. Perry told
Detective Garcia that he lived at an apartment on Memorial Highway and that he
was only storing a couch in Tuttle’s basement. Given these facts, the district court
did not clearly err in finding that Perry failed to show an expectation of privacy in
the Sunlake Boulevard residence and, thus, did not err in concluding that Perry
lacked standing to assert a Fourth Amendment violation.
B. Admission of Prior Convictions
Perry argues that the district court should have excluded evidence of his two
3
“In reviewing a district court’s ruling on a motion to suppress, we review findings of
fact for clear error and the application of the law to those facts de novo.” United States v.
Martinelli, 454 F.3d 1300, 1306 (11th Cir. 2006). Thus, we review a district court’s factual
finding as to the subjective expectation of privacy for clear error, but review de novo its legal
conclusion as to the objective reasonableness of the expectation of privacy. United States v.
McKennon, 814 F.2d 1539, 1543 (11th Cir. 1987). In determining whether the defendant has
demonstrated a legitimate expectation of privacy, we view the evidence in the light most
favorable to the government, as it was the prevailing party in the district court. See United
States v. Bennett, 555 F.3d 962, 965 (11th Cir.), cert. denied, 130 S. Ct. 64 (2009).
17
prior felony firearm-related convictions.
Under Federal Rule of Evidence 404(b), evidence of other crimes may be
admitted to prove “motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” Fed. R. Evid. 404(b).4 Prior bad acts
evidence is subject to a three-part test for admissibility: (1) the evidence must be
relevant to an issue other than the defendant’s character; (2) the probative value
must not be substantially outweighed by its undue prejudice; and (3) the
government must offer sufficient proof so that the jury could find that the
defendant committed the act. United States v. Ellisor, 522 F.3d 1255, 1267 (11th
Cir. 2008).5
In this case, Perry pled not guilty to being a felon in possession of
ammunition, which placed in issue the element of his knowing possession and put
the government to its burden to prove this element beyond a reasonable doubt. See
United States v. Jernigan, 341 F.3d 1273, 1281 n.7 (11th Cir. 2003) (explaining
4
Rule 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of
a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident . . . .
Fed. R. Evid. 404(b).
5
We review admissions of Rule 404(b) evidence for abuse of discretion. Ellisor, 522
F.3d at 1267. Furthermore, evidence admitted in violation of Rule 404(b) is harmless when
there is substantial evidence of the defendant’s guilt. United States v. Chavez, 204 F.3d, 1305,
1317 (11th Cir. 2000).
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that when a defendant pleads not guilty to being a felon in possession, he puts at
issue his knowing possession). Further, Perry’s defense at trial — that the loaded
gun was planted by the police — particularly put in issue his knowledge of and
intent to possess the loaded gun.
To show that Perry’s possession of the loaded gun was knowing and
intentional, the government introduced the prior convictions for armed burglary of
a dwelling, in violation of Florida Statutes § 810.02(2)(b), and grand theft of a
firearm, in violation of Florida Statutes § 812.014(2)(c)(3) (1995). Each of Perry’s
prior convictions involved the knowing possession of a firearm. This Court
repeatedly has upheld the admission of prior convictions involving the possession
of a firearm to prove the defendant’s present knowing possession of a firearm.
See, e.g., United States v. Taylor, 417 F.3d 1176, 1182 (11th Cir. 2005) (involving
admission of prior conviction for felon in possession of a firearm); United States v.
Gonzalez, 183 F.3d 1315, 1328 (11th Cir. 1999) (superseded by regulation on
other grounds) (involving prior weapon possession conviction); see also United
States v. Dickerson, 248 F.3d 1036, 1047 (11th Cir. 2001) (explaining that to
establish relevance of other crimes evidence offered as proof of intent, “it must be
determined that the extrinsic offense requires the same intent as the charged
offense” (quotation marks omitted)). The district court properly conducted a Rule
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403 balancing test and then concluded that the probative value of the firearms
evidence outweighed any prejudicial effects. The district court also instructed the
jury that the prior firearm-related convictions were introduced for a limited
purpose. Accordingly, the district court did not abuse its discretion in admitting
Perry’s two prior firearm-related convictions as evidence of Perry’s intent.6
C. Perry’s Defense
Perry contends that the district court deprived him of his Fifth and Sixth
Amendment rights to present a complete defense by excluding the proffered
testimony of Detective Garcia and certain testimony during his examination of
Agent Scully.
We review a district court’s exclusion of defense evidence at trial for an
abuse of discretion. United States v. Todd, 108 F.3d 1329, 1331-32 (11th Cir.
1997). However, when the district court’s evidentiary rulings rise to the level of
depriving the defendant of his constitutional right to present a defense, such rulings
amount to constitutional error. See Chambers v. Mississippi, 410 U.S. 284, 302-
03, 93 S. Ct. 1038, 1049 (1973). A defendant’s right under the Fifth and Sixth
Amendments to present a defense “‘is violated when the evidence excluded is
6
Perry also did not carry his “heavy burden” to show “an abuse of the court’s broad
discretion in determining” that the prior convictions were not too remote to be probative. See
United States v. Matthews, 431 F.3d 1296, 1311-12 (11th Cir. 2005) (finding eight-year-old
prior conviction not too remote) (quotation marks omitted); see also United States v. Lampley,
68 F.3d 1296, 1300 (11th Cir. 1995) (upholding admission of fifteen-year-old prior drug deals).
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material in the sense of a crucial, critical, highly significant factor.’” United States
v. Hurn, 368 F.3d 1359, 1363 (11th Cir. 2004) (quoting United States v. Ramos,
933 F.2d 968, 974 (11th Cir. 1991)). “In assessing a defendant’s claims under the
Fifth and Sixth Amendments to call witnesses in [his] defense,” we first determine
“whether this right was actually violated, [and] then turn to whether this error was
‘harmless beyond a reasonable doubt’ under Chapman v. California, 386 U.S. 18,
24, 87 S. Ct. 824, 828, 12 L.Ed.2d 705 (1967).” Id. at 1362-63.
Perry contends the excluded evidence was necessary (1) to show law
enforcement’s motive for planting the firearm in the basement of the Sunlake
Boulevard house and manufacturing his two confessions; (2) to challenge the
credibility of the government’s witnesses, Detectives Cruz and Diaz; and (3) to
place the government’s story of the events in a different light for the jury.
The problem for Perry is that the district court actually allowed Perry to
introduce substantial evidence about the burglary to support his defense theory that
Scully and the other officers planted the gun because they believed he was the
burglar and wanted to make sure he was caught and prosecuted.7 For example,
7
There is some question as to whether the burglary evidence against Perry was weak (as
Perry claims) given that: (1) a Starbucks surveillance video showed the burglary suspect, who
resembled Perry, entering a taxi; (2) the taxi drove the suspect to the apartments where Perry’s
girlfriend lived; (3) the U-Haul truck was seen by law enforcement parked at both Perry’s
girlfriend’s apartment and at the Sunlake Boulevard home; and (4) items from the burglary were
found in the Sunlake Boulevard basement Perry rented. But for purposes of this argument, we
merely assume the evidence linking Perry to the burglary was weak as Perry claims.
21
Perry was able to show, inter alia, that: (1) that the burglary occurred at Agent
Scully’s house while his daughter was at home; (2) his wife called him and Scully
was very upset; (3) Agent Scully adamantly believed Perry was the burglar, had
feelings of ill-will for Perry and wanted to see Perry caught and prosecuted; (4)
contrary to agency policy and custom, Agent Scully became actively involved in
the state burglary investigation and committed DEA resources and personnel in
order to arrest Perry; (5) only DEA task force members, including Agent Scully,
conducted surveillance on Perry and arrested him; (6) DEA task force members
loyal to Agent Scully were involved in the search of the Sunlake Boulevard
basement and one of them, Detective Cruz, claimed to have found the loaded gun
with Perry’s identification card; (7) Detective Cruz participated in one of the
interviews in which Perry confessed to owning the gun; (8) there is no written
record of either confession; (9) no physical evidence, such as DNA or fingerprints,
linked Perry to the loaded firearm; and (10) no eyewitness testimony placed the
loaded firearm in Perry’s physical possession. At closing argument, Perry’s
attorney specifically argued that Agent Scully believed Perry burglarized his home,
wanted to prosecute Perry for the burglary, and then directed the investigation
against Perry. Given the substantial evidence that was actually admitted, Perry
arguably has not shown the additional motive evidence was so “crucial, critical, or
22
highly significant” to Perry’s defense that its exclusion actually rose to the level of
a constitutional violation. See Ramos, 933 F.2d at 974.
However, we need not reach that constitutional issue because any alleged
error was harmless beyond a reasonable doubt. See Wyzykowski v. Dep’t of
Corrs., 226 F.3d 1213, 1218 (11th Cir. 2000) (explaining that the court should “not
pass on questions of constitutionality . . . unless such adjudication is unavoidable”
(quotation marks omitted)). Detectives Cruz and Diaz found the loaded gun with
Perry’s identification in the Sunlake Boulevard basement Perry rented from Tuttle.
Perry confessed twice to owning that gun. Despite extensive cross-examination,
the jury credited the testimony of Detectives Cruz and Diaz and Perry’s
confessions and rejected the defense’s theory of a set up. We cannot say there is a
reasonable possibility that the additional motive evidence would have changed the
jury’s verdict in this case. See Chapman, 386 U.S. at 24, 87 S. Ct. at 828
(explaining that the harmless “beyond a reasonable doubt” standard applies for
alleged constitutional errors); see also Neder v. United States, 527 U.S. 1, 18, 119
S. Ct. 1827, 1838 (1999) (explaining that the Chapman standard asks whether it is
“clear beyond a reasonable doubt that a rational jury would have found the
defendant guilty absent the error”).
For all these reasons, we affirm Perry’s conviction.
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AFFIRMED.
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