Case: 14-15700 Date Filed: 09/30/2015 Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-15700
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cr-00199-ODE-GGB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICE HAIRSTON,
a.k.a. Claudette Harris,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 30, 2015)
Before TJOFLAT, WILSON, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Case: 14-15700 Date Filed: 09/30/2015 Page: 2 of 10
Patrice Hairston was a realtor who, along with three others, was involved in
a mortgage-fraud scheme. In broad terms, Hairston and her coconspirators induced
various lenders to fund fraudulent mortgages by supplying them with false loan
applications and supporting documentation in the names of straw borrowers. After
their arrest, Hairston’s three codefendants pled guilty and agreed to cooperate with
the government. Hairston proceeded to trial before a jury and was found guilty of
one count of conspiracy to defraud, 18 U.S.C. § 1349, two counts of mail fraud, 18
U.S.C. § 1341, and four counts of wire fraud, 18 U.S.C. § 1343. The district court
sentenced Hairston to a total term of 64 months’ imprisonment, describing her as
the “ringleader” of the mortgage-fraud scheme.
Hairston challenges her convictions and total sentence on appeal. She
argues that her convictions should be vacated because the district court abused its
discretion by excluding a government witness’s two 32-year-old convictions from
cross-examination. She also charges that her total sentence is unreasonable
because it is substantially higher than her codefendants’ sentences and is allegedly
greater than necessary to serve the purposes of sentencing. After careful review,
we affirm Hairston’s convictions and total sentence.
I.
Hairston first contends that the district court abused its discretion in
excluding cooperating codefendant Bonnie Rose’s two 32-year-old convictions for
2
Case: 14-15700 Date Filed: 09/30/2015 Page: 3 of 10
shoplifting and misuse of a credit card from Hairston’s cross-examination of Rose.
Rose was involved in the mortgage-fraud scheme with Hairston, and she testified
on behalf of the government at Hairston’s trial. Hairston argues that the prior
convictions of this “key witness” were admissible under Rule 404(b) of the Federal
Rules of Evidence because “Hairston needed to show the jury Rose’s long-
standing, independent motive and intention to commit fraud.” Appellant’s Br. at
29 (ellipsis and internal quotation marks omitted). By excluding the evidence,
Hairston asserts, the court deprived the jury of the ability to weigh Rose’s
testimony against impeaching evidence.
Where a defendant properly objects at trial, we review a district court’s
evidentiary rulings for an abuse of discretion. United States v. Kapordelis, 569
F.3d 1291, 1312-13 (11th Cir. 2009). Under Rule 404(b), evidence of other
crimes, wrongs, or acts is not admissible to prove a person’s character in order to
show action in conformity therewith. Fed. R. Evid. 404(b)(1). Such evidence is
admissible, however, for other purposes, such as proving “motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” Fed. R. Evid. 404(b)(2). Nonetheless, relevant evidence is subject to
exclusion under Rule 403 if its probative value is substantially outweighed by a
danger of, among other things, unfair prejudice, confusion of the issues, or
3
Case: 14-15700 Date Filed: 09/30/2015 Page: 4 of 10
needless presentation of cumulative evidence. Fed. R. Evid. 403; see United States
v. Sellers, 906 F.2d 597, 604-05 (11th Cir. 1990).
The standard for admission is relaxed when evidence of prior bad acts is
offered by a defendant and involves behavior of a witness other than a defendant.1
United States v. Cohen, 888 F.2d 770, 776 (11th Cir. 1989). However, “the party
advancing the evidence must demonstrate that it is not offered to prove the
character of a person in order to show action in conformity therewith.” Id.
(internal quotation marks omitted). If the evidence “is shown to have a special
relevance to a disputed issue, the court must balance the probative value against
the possibility of unfair prejudice.” Id. When there is no other practical means of
demonstrating a point, the defense’s need weighs strongly in favor of admitting the
proffered evidence. See id.
Here, the district court did not abuse its discretion in excluding codefendant
Rose’s 32-year-old convictions for misuse of a credit card and shoplifting.
Hairston has not offered any valid non-propensity purpose for admission of the
evidence of Rose’s prior convictions under that rule. See id. She contends that the
district court should have admitted evidence of Rose’s prior convictions under
1
In United States v. Morano, 697 F.2d 923, 926 (11th Cir. 1983), we stated that Rule
404(b) did not govern a situation involving admission of “an extraneous offense committed by
someone other than the defendant.” Nonetheless, we found that that the exceptions under Rule
404(b) “should be considered in weighing the relevancy of this evidence and its prejudice under
Rule 403.” Id. Thus, the functional analysis is largely the same. See Sellers, 906 F.2d at 604
n.11 (casting doubt on Morano’s reasoning but finding that it did not affect the court’s analysis).
4
Case: 14-15700 Date Filed: 09/30/2015 Page: 5 of 10
Rule 404(b) because it was consistent with her theory of defense—that Rose and
the other codefendants had manufactured their testimony as it related to Hairston.
In other words, Hairston argues that the prior convictions are relevant to Rose’s
motive to testify falsely against Hairston. But we have explained that “the word
‘motive’ as used in [Rule 404(b)] does not refer to a motive to testify falsely.”
United States v. Farmer, 923 F.2d 1557, 1567 (11th Cir. 1991); see United States
v. Taylor, 417 F.3d 1176, 1180 (11th Cir. 2005). Instead, a witness’s motive to
testify falsely is an aspect of credibility controlled primarily by Rules 608 and 609
of the Federal Rules of Evidence. See Farmer, 923 F.2d at 1567 (citing United
States v. Sampol, 636 F.2d 621, 659 n.24 (D.C. Cir. 1980)).
In addition, Rose’s 32-year-old convictions for shoplifting and misuse of a
credit card would not have tended to show that Hairston did not commit the crimes
with which she was charged. See, e.g., Cohen, 888 F.2d at 776-77 (holding that
the district court should have admitted prior bad acts evidence under Rule 404(b)
because it tended to show that the government witness could have executed the
fraudulent scheme without the defendants’ participation). For that reason,
Hairston’s reliance on United States v. Stephens, 365 F.3d 967 (11th Cir. 2004), is
misplaced. Stephens involved evidence of prior bad acts that tended to show that
the government witness was receiving drugs, which the witness attributed to the
defendant, from sources other than the defendant during the relevant time period.
5
Case: 14-15700 Date Filed: 09/30/2015 Page: 6 of 10
Id. at 972-73, 975. This evidence, we stated, should have been admitted because it
was “directly material” to the defendant’s defense that the witness was setting up
the defendant to get out of a lengthy jail sentence. See id. at 975-76. Here, in
contrast to Cohen and Stephens, Hairston makes no specific claim that the remote,
dissimilar convictions at issue, aside from their general effect on the jury’s
assessment of Rose’s credibility, were relevant to the issue of her guilt.
To the extent that Hairston argues that Rose’s prior convictions bear on her
character for truthfulness as a witness, Hairston is not entitled to relief. Rule 609
of the Federal Rules of Evidence governs the use of evidence of a criminal
conviction to attack a witness’s credibility. See Fed. R. Evid. 609(a). Under that
rule, there is a presumption against using stale convictions to attack a witness’s
character for truthfulness. United States v. Cathey, 591 F.2d 268, 275 (5th Cir.
1979)2; see Fed. R. Evid. 609(b)(1) (providing that, if a conviction is more than ten
years old, evidence of the conviction may be admitted only if “its probative value,
supported by specific facts and circumstances, substantially outweighs its
prejudicial effect”). The proponent must show “exceptional circumstances
justifying the use of an over-age prior conviction.” Cathey, 591 F.2d at 276.
Initially, we note that Hairston has abandoned any challenge under Rule 609
by failing to raise the issue in her appellate brief. See Sapuppo v. Allstate
2
This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
6
Case: 14-15700 Date Filed: 09/30/2015 Page: 7 of 10
Floridian Ins. Co., 739 F.3d 678, 680-81 (11th Cir. 2014) (arguments not raised on
appeal are deemed abandoned). In any case, Hairston has not shown any
exceptional circumstances justifying admission of the over-age convictions.
Assuming that the convictions are even relevant to Rose’s truthfulness, the
probative value of convictions more than three decades old was negligible, and
Hairston was able to argue that Rose was manufacturing her testimony without
them, given Rose’s testimony that she had lied in the past, engaged in the fraud at
issue, and stood to benefit from her testimony.
In sum, the district court did not abuse its discretion in excluding evidence
of government witness Rose’s prior convictions.
II.
Hairston also contends that her sentence is unreasonable because it is
substantially higher than the sentences her codefendants received, despite her
contention that her codefendants engaged in basically the same criminal conduct
and had similar criminal histories.
We review the reasonableness of a sentence under a deferential abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591
(2007). We first ensure that the district court committed no significant procedural
error. Id. at 51, 128 S. Ct. at 597. We then examine whether the sentence was
substantively reasonable in light of the totality of the circumstances. Id. The party
7
Case: 14-15700 Date Filed: 09/30/2015 Page: 8 of 10
challenging the sentence bears the burden of showing that it is unreasonable in
light of the record and the 18 U.S.C. § 3553(a) sentencing factors. United States v.
Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
The weight given to any specific § 3553(a) factor is committed to the sound
discretion of the district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir.
2007). We will vacate a sentence only if “we are left with the definite and firm
conviction that the district court committed a clear error of judgment in weighing
the § 3553(a) factors by arriving at a sentence that lies outside the range of
reasonable sentences dictated by the facts of the case.” United States v. Irey, 612
F.3d 1160, 1190 (11th Cir. 2010) (en banc) (internal quotation marks omitted).
The district court must impose a sentence sufficient, but not greater than
necessary, to comply with the purposes listed in 18 U.S.C. § 3553(a)(2), including
the need to reflect the seriousness of the offense, promote respect for the law,
provide just punishment for the offense, deter criminal conduct, and protect the
public. See 18 U.S.C. § 3553(a)(2). In imposing sentence, the court must also
consider the nature and circumstances of the offense, the history and characteristics
of the defendant, the applicable guideline range, and the need to avoid unwarranted
sentencing disparities, among other factors. See id. § 3553(a)(1), (3)-(7).
8
Case: 14-15700 Date Filed: 09/30/2015 Page: 9 of 10
Hairston argues that her sentence is substantively unreasonable when
contrasted with the less severe sentences her codefendants received. 3 All of
Hairston’s codefendants entered into plea agreements with the government and
agreed to cooperate. They testified at Hairston’s trial, and, at sentencing, received
the benefit of a government motion for a downward departure for substantial
assistance under U.S.S.G. § 5K1.1. Hairston’s codefendants received sentences
ranging from two years’ probation to just over twelve months’ imprisonment.
Hairston was sentenced to 64 months’ imprisonment.
Although the district court must “avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of similar
conduct,” 18 U.S.C. § 3553(a)(6), “[w]e have held that defendants who cooperate
with the government and enter a written plea agreement are not similarly situated
to a defendant who provides no assistance to the government and proceeds to
trial,” United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009). Even
when the sentences of the cooperating defendants are “substantially shorter,” there
is no unwarranted disparity where the complaining party did not provide any
assistance to the government. Id. (internal quotation marks omitted).
3
Although Hairston asserts several times in her appellate brief that her sentence was both
procedurally and substantively unreasonable, she makes no argument respecting the procedural
reasonableness of her sentence. We therefore address only substantive reasonableness.
9
Case: 14-15700 Date Filed: 09/30/2015 Page: 10 of 10
Consequently, there is no “unwarranted” disparity between Hairston’s and her
codefendants’ sentences.
Hairston’s sentence otherwise was substantively reasonable. In sentencing
Hairston, the district court focused primarily on the offense conduct, 18 U.S.C.
§ 3553(a)(1), finding that Hairston was the “ringleader” of the group because she
prepared the fraudulent loan documents, encouraged others to commit the same
type of fraud, and was heavily involved in all aspects of the fraud. The court also
highlighted the calculated and repetitive nature of the fraudulent scheme. Further,
the court stated, the sentence would deter others in the financial community and
adequately punish Hairston, 18 U.S.C. § 3553(a)(2)(A)–(B). Hairston’s total
sentence fell within the guideline range of 57 to 71 months’ imprisonment, and we
normally expect a sentence falling within the guideline range to be reasonable.
United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). Based on the totality of
the circumstances, we cannot say that the district court committed a clear error of
judgment by imposing an unreasonable sentence.
III.
Hairston’s convictions and sentences are AFFIRMED.
10