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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12728
________________________
D.C. Docket No. 2:12-cr-00087-WKW-CSC-11
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM JAMES REESE,
ERIC ORLANDO REESE,
ROBERT MARSHALL,
a.k.a. Big Daddy,
WILLIE JEROME DAVIS,
a.k.a. Mobey,
Defendants - Appellants.
________________________
No. 13-12986
________________________
D.C. Docket No. 2:12-cr-00087-WKW-CSC-8
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CLIFTON PETTUS,
a.k.a. Biscuit,
Defendant - Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Alabama
________________________
(June 1, 2015)
Before MARCUS, ROSENBAUM and GINSBURG, ∗ Circuit Judges.
PER CURIAM:
This appeal was considered on the record and the briefs and oral arguments
of the parties. Although the issues presented occasion no need for a published
opinion, they have been accorded full consideration by the court. Each of the
appellants in this case — William James Reese, Eric Orlando Reese, Robert
Marshall, Willie Jerome Davis, and Clifton Pettus — was indicted in the Middle
District of Alabama upon various drug-related charges, including conspiracy.
Individually and together, they raised nine separate issues on appeal.
∗
Honorable Douglas H. Ginsburg, United States Circuit Judge for the District of Columbia,
sitting by designation.
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First, the appellants argue the district court, following a “reverse Batson
challenge” by the Government, inappropriately seated Juror 29 notwithstanding the
defendants’ collective peremptory strike, on the basis that defendants apparently
lacked any reason for the strike aside from Juror 29’s race.
Under Batson v. Kentucky and its progeny, neither prosecutors nor
defendants may exercise their peremptory strikes in a racially discriminatory
manner. United States v. Walker, 490 F.3d 1282, 1290 (11th Cir. 2007) (citing
Batson, 476 U.S. 79 (1986)). This court “appl[ies] harmless error review to any
misapplication of Batson that results in the seating of a juror who is otherwise
qualified for juror service.” United States v. Williams, 731 F.3d 1222, 1236 (11th
Cir. 2013). An error is harmless if it does not “affect the substantial rights of the
parties.” Id.
Assuming without deciding that the district court erred in seating Juror 29,
the error was nonetheless harmless. Nothing in the record indicates Juror 29 was
biased or otherwise not qualified to serve. Therefore, Juror 29’s inclusion in the
jury did not affect the defendants’ substantial rights. See, e.g., United States v.
Bowles, 751 F.3d 35, 39 (1st Cir. 2014); Jimenez v. City of Chicago, 732 F.3d 710,
715-16 (7th Cir. 2013).
Second, Pettus argues the district court erred in the amount of cocaine it
attributed to him for the purpose of calculating his base offense level. In a
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conspiracy case the Sentencing Guidelines specify that to determine a defendant’s
base offense level, a district court is to consider “all reasonably foreseeable acts
and omissions of others in furtherance of the jointly undertaken criminal activity.”
U.S.S.G. § 1B1.3(a)(1)(B). “We review a district court’s determination of the
quantity of drugs used to establish a base offense level for sentencing purposes
under the clearly erroneous standard.” United States v. Simpson, 228 F.3d 1294,
1298 (11th Cir. 2000).
The district court found Pettus was an “integral component” of the drug
distribution conspiracy at the heart of this case. In addition, the district court
determined upon the basis of the evidence presented — including the size of the
distribution network, Pettus’s relationships with key persons in that network, and
discussions apparently concerning a total of 24 kilograms of cocaine by one of
those key persons and another conspirator — that “it would be reasonably
foreseeable” by Pettus that large amounts of drugs were being distributed; in
particular, it was reasonably foreseeable to him that at least 15 kilograms of
cocaine were being distributed. Based upon that evidence, the district court’s
determination of the quantity of drugs attributable to Pettus for sentencing
purposes was not clearly erroneous.
Third, E.O. Reese argues the district court improperly allowed William Ford
to testify about the meaning of certain terms, used in a conversation between Davis
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and E.O. Reese, as pertaining to drug dealing. Ford was a long-time drug dealer
who knew E.O. Reese, W.J. Reese, and Davis and who had spoken with Davis and
E.O. Reese about drug dealing on multiple occasions.
As we have previously observed, Federal Rule of Evidence 701 “allows a
lay witness to offer opinions or inferences if they are ‘(a) rationally based on the
perception of the witness, (b) helpful to a clear understanding of the witness’[s]
testimony or the determination of a fact in issue, and (c) not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.’” United
States v. Jayyousi, 657 F.3d 1085, 1102 (11th Cir. 2011) (quoting Fed. R. Evid.
701). This Circuit reviews a district court’s rulings on the admissibility of
testimony for abuse of discretion. United States v. Barsoum, 763 F.3d 1321, 1338
(11th Cir. 2014).
According to Reese, “there was nothing [in the record] to indicate that ...
Ford’s opinions were rationally based on his perceptions.” On the contrary, Ford’s
testimony was based upon his years of experience as a drug dealer and as an
associate of the conspirators. Therefore, the district court did not clearly err in
admitting Ford’s testimony. See Jayyousi, 657 F.3d at 1102-03 (admitting the
testimony of a witness as to coded language, based upon the witness’s familiarity
with such language, notwithstanding that the witness did not participate in or
observe the particular conversations about which he testified).
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Fourth, E.O. Reese argues the district court inappropriately enhanced his
sentence based upon facts not found by the jury. The jury found E.O. Reese guilty
of conspiracy to possess with the intent to distribute 500 grams or more of cocaine.
He was not charged with any firearms violation, however, and the jury made no
finding as to any such violation. The district court increased E.O. Reese’s sentence
based upon both its determination that 5.5 kilograms of cocaine could be attributed
to him and upon the nexus between the conspiracy and several firearms. Reese
argues those enhancements increased his sentence based upon facts not found by
the jury, in violation of his right to trial by jury as explicated by the Supreme Court
in Alleyne v. United States, 133 S. Ct. 2151 (2013):
[A]ny fact that, by law, increases the penalty for a crime is an
‘element’ that must be submitted to the jury and found beyond a
reasonable doubt.
The Court also explained, however, id. at 2163:
Our ruling today does not mean that any fact that influences judicial
discretion must be found by a jury. We have long recognized that
broad sentencing discretion, informed by judicial factfinding, does not
violate the Sixth Amendment.
Consequently, we have since held “a district court may continue to make
guidelines calculations based upon judicial fact findings and may enhance a
sentence — so long as its findings do not increase the statutory maximum
[sentence] or [the statutory] minimum [sentence] authorized by facts determined in
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a guilty plea or jury verdict.” United States v. Charles, 757 F.3d 1222, 1225 (11th
Cir. 2014).
Because E.O. Reese did not object to the sentencing enhancements on the
basis of Alleyne when he was before the district court, we review those
enhancements only for plain error. See United States v. McKinley, 732 F.3d 1291,
1295-96 (11th Cir. 2013) (per curiam). Under any standard of review, however,
the enhancements did not violate E.O. Reese’s right to trial by jury because they
did not increase the statutory minimum sentence to be imposed or increase a
statutory maximum for the offense charged.
Fifth, Marshall argues the evidence against him was insufficient to establish
that he was guilty either of conspiracy to distribute cocaine or of using a cellular
telephone to facilitate the conspiracy; the evidence, he says, established only that
he engaged in buy-sell transactions.
“We review de novo a [d]istrict [c]ourt’s denial of judgment of acquittal on
sufficiency of evidence grounds, considering the evidence in the light most
favorable to the Government, and drawing all reasonable inferences and credibility
choices in the Government’s favor.” United States v. Capers, 708 F.3d 1286, 1296
(11th Cir. 2013). The court is “obliged to affirm the convictions if a reasonable
jury could have found the defendant guilty beyond a reasonable doubt.” United
States v. Reeves, 742 F.3d 487, 497 (11th Cir. 2014).
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Conviction for conspiracy to distribute drugs in violation of 21 U.S.C. § 846
requires proof of “1) an agreement ... between two or more people to distribute the
drugs; 2) that the defendant at issue knew of the conspiratorial goal; and 3) that he
knowingly joined or participated in the illegal venture.” Id. “Because conspiracies
are secretive by nature ... participation in the conspiracy may be proven entirely
from circumstantial evidence.” United States v. White, 663 F.3d 1207, 1214 (11th
Cir. 2011) (citation omitted) (internal quotation marks omitted).
Viewing the evidence in the light most favorable to the Government and
drawing all reasonable inferences and credibility determinations in the
Government’s favor, there was sufficient evidence for a reasonable jury to convict
Marshall. Marshall’s knowledge of and knowing participation in the conspiracy
could reasonably be inferred from his repeated purchases from Rajneesh Dikka
Daniels of Davis’s cocaine and from his relationship with Tony Gardner, who
could reasonably be construed as a middle man between Marshall and Bledson; it
could also be inferred from his meeting with Bledson, the drug purchase associated
with that meeting, and his subsequent telephone conversation with Bledson
arranging for further transactions. The jury was free to discount as unreliable
Bledson’s statement that Marshall was not a member of the conspiracy. See
Reeves, 742 F.3d at 500 (noting the jury is “free to discredit” testimony and even
“to believe the opposite” of what is said).
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A conviction for violation of 21 U.S.C. § 843(b) requires proof of “(1)
knowing or intentional (2) use of a ‘communication facility’ (3) to facilitate the
commission of a felony.” United States v. Barnes, 681 F.2d 717, 723 (11th Cir.
1982). The same evidence from which a reasonable jury could conclude Marshall
was involved in a conspiracy to distribute cocaine would allow that jury to
conclude Marshall’s telephone call with Bledson was intended to facilitate the
conspiracy.
Sixth, Marshall argues the district court inappropriately allowed the
Government to introduce, over his objection, evidence that he was convicted in
1999 of the sale of a controlled substance. Federal Rule of Evidence 404(b)
provides that “[e]vidence of a crime, wrong, or other act” may be used to “prov[e]
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Fed. R. Evid. 404(b). Before evidence of a prior
criminal act may be admitted, however, the district court must determine, among
other things, that “the probative value of the evidence” is not “substantially
outweighed by its undue prejudice.” United States v. Delgado, 56 F.3d 1357, 1365
(11th Cir. 1995). “[T]emporal remoteness ... depreciates the probity of the
extrinsic offense,” but this Circuit has “refrained from adopting a bright-line rule
with respect to temporal proximity.” United States v. Matthews, 431 F.3d 1296,
1311-12 (11th Cir. 2005) (citation omitted) (internal quotation marks omitted).
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Instead, we review a district court’s decision to admit evidence of a prior offense
for abuse of discretion. See id. at 1311-12 (noting the standard of review).
We have previously held evidence of more remote past acts to be admissible,
as in United States v. Lampley, where we held the district court did not abuse its
discretion in allowing the admission of evidence of acts that took place
approximately 15 years earlier. 68 F.3d 1296, 1300 (11th Cir. 1995). The district
court did not treat Lampley as establishing a 15 year “litmus test” but rather heard
and weighed the arguments from both Marshall’s counsel and the Government
with regard to the probity of the 1999 conviction and its potential for creating
undue prejudice. See Matthews, 431 F.3d at 1311-12 (noting that “because
decisions as to impermissible remoteness are so fact-specific ... a generally
applicable litmus test would be of dubious value”) (citation omitted) (internal
quotation marks omitted). We conclude, therefore, the district court did not abuse
its discretion in admitting Marshall’s prior conviction.
Seventh, Davis argues the district court erred in allowing the introduction of
wiretap evidence because the order authorizing the wiretap was not supported by
probable cause. Clearly, an application for a wiretap must be supported by
probable cause. United States v. Nixon, 918 F.2d 895, 900 (11th Cir. 1990).
Evidence derived from the execution of a wiretap order not supported by probable
cause, however, may still be admitted unless “the magistrate abandoned his
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detached and neutral role” or “the officers were dishonest or reckless in preparing
their affidavit or could not have harbored an objectively reasonable belief in the
existence of probable cause.” United States v. Leon, 468 U.S. 897, 926 (1984)
(allowing the possibility that evidence obtained from invalid search warrants may
be admitted in such circumstances).
When this circuit reviews a district court’s denial of a motion to suppress
evidence, the district court’s findings of fact are reviewed for clear error and its
application of the law to those facts is reviewed de novo. United States v. Ramirez,
476 F.3d 1231, 1235 (11th Cir. 2007). In this case, the district court found various
facts supporting “a fair probability” that the challenged wiretap would “lead to
communications concerning drug trafficking.” Even if those factual findings were
clearly in error, however, Davis has introduced no evidence the warrant was
obtained or executed in bad faith. To the contrary, as the district court noted, the
affidavit offered by Special Agent Devin Whittle in support of the application for
the wiretap order was based on the officer’s reasonable conclusions in light of “the
context supplied by other information lawfully obtained in the investigation at the
time of the application and the benefit of Agent Whittle’s experience.” Therefore,
the wiretap evidence was admissible.
Eighth, Davis argues the district court erred in allowing the introduction of
physical evidence seized pursuant to a search warrant because the warrant was not
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supported by probable cause. Again, however, Davis has failed to offer any
evidence the warrant was obtained or executed in bad faith. Therefore, the
physical evidence was admissible.
Finally, Davis adopted the argument — originally made by Marshall, but
later withdrawn — that the district court impermissibly amended the indictment
after the case was submitted to the jury. Counts 5, 11, 12, 13, and 20 of the
indictment each alleged unlawful use of a communication facility in furtherance of
a conspiracy, to wit, use of a cellular telephone with the number (851) 217-1961.
The proof of guilt offered at trial, however, consisted of calls to or from the
telephone number (815) 217-1961, which caused the jury to ask the court whether,
in order to convict, it had to find the phone number used was identical to the phone
number listed in the indictment. The district court then amended the indictment to
conform it to the evidence.
“[A]n indictment may not be amended except by resubmission to the grand
jury, unless the change is merely a matter of form.” Russell v. United States, 369
U.S. 749, 770 (1962). A pre-Russell case, still binding in this Circuit, states that,
“[i]f a defendant is in no sense misled, put to added burdens, or otherwise
prejudiced, by an amendment, such an amendment ought to be considered and
treated as an amendment of form and not of substance, and, therefore, allowable,
even though unauthorized by the grand jury.” Williams v. United States, 179 F.2d
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656, 659 (5th Cir. 1950).* More recently, we have held that there is no
impermissible amendment where the district court amends an indictment after the
jury begins deliberating so long as the alteration merely corrects a scrivener’s error
(an error of form rather than one of substance). United States v. Baldwin, 774 F.3d
711, 724 (11th Cir. 2014). Other circuits have done this as well. See, e.g., United
States v. Neill, 166 F.3d 943, 947 (9th Cir. 1999). This is true even after a case has
been submitted to the jury. Id. at 947-48.
In this case, the error was merely typographical, and did not affect either the
prosecution or the defense of the charges against Davis. Therefore, the amendment
was permissible.
For the foregoing reasons, each of the appellants’ contentions is rejected.
AFFIRMED.
*
“In Bonner v. Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc), [the Eleventh Circuit]
adopted as binding precedent all decisions of the former Fifth Circuit rendered prior to October
1, 1981.” Matthews, 431 F.3d at 1310 n.13.
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