United States v. Tracy Garrett

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15033 ELEVENTH CIRCUIT
JULY 21, 2010
Non-Argument Calendar
________________________ JOHN LEY
CLERK

D. C. Docket No. 08-00021-CR-ORL-31KRS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TRACY GARRETT,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(July 21, 2010)

Before EDMONDSON, BARKETT and MARTIN, Circuit Judges.

PER CURIAM:

Tracy Garrett was indicted with six offenses arising out of two carjackings
that occurred on August 10, 2007, and August 17, 2007, and two bank robberies

that occurred on those same dates. Counts One and Three charged Garrett with

carjacking, in violation of 18 U.S.C. § 2119. Counts Two and Four charged him

with bank robbery, in violation of 18 U.S.C. § 2113(a). Counts Five and Six

charged him with knowingly using and carrying a firearm in furtherance of Counts

One and Three, in violation of 18 U.S.C. § 924(c). Garrett pleaded guilty to both

bank robbery charges and was convicted by a jury of the remaining counts. The

district court imposed a total sentence of 480 months’ imprisonment. He now

appeals his convictions for the two counts of carjacking, and the two counts of

using or carrying a firearm during the commission of a crime of violence.

I.

First, Garrett argues, without citation to any authority, that the district court

erred by denying his pretrial motion requesting severance of the counts of the

indictment and four separate trials - one for each bank robbery charge and one for

each carjacking and related firearm count. According to Garrett, separation of

these counts was crucial for the jury to understand that there were two separate

and distinct days of alleged criminal activity. He contends that the government

improperly sought a single indictment for the sole purpose of prejudicing his right

to a fair trial. Garrett further argues that, if the counts had been severed, the

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government then would not have been permitted to seek a 25-year consecutive

prison sentence on the second firearm count, and his sentence would have been

significantly less than the 40-year imprisonment term that he received.

Having reviewed the record, we conclude that Garrett has not shown that he

suffered actual or compelling prejudice from any alleged misjoinder that caused

substantial and injurious effect or influence in determining the jury’s verdict,

against which the district court could offer no protection. Moreover, Garrett’s

contention that the government improperly charged the carjacking and firearm

counts together is without merit, as that discretionary charging decision has no

relevance to the issue of whether he ultimately received a fair trial. Finally, §

924(c)(1)(C)(I) and § 924(c)(1)(D)(ii) mandate a 25-year consecutive prison

sentence for a “second or subsequent” § 924(c) conviction, even if the first §

924(c) conviction was obtained in a separate proceeding. Accordingly, the district

court did not abuse its discretion in denying Garrett’s motion to sever.

II.

Garrett next contends that the district court erred by denying his motion to

strike the entire jury venire due to the racial composition of that venire. Garrett

points out that he is African-American, the alleged victims are Caucasian, and the

entire petit jury was Caucasian. Garrett concedes that “there is no evidence in the

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record to substantiate a claim of race bias,” aside from the racial composition of

the venire. According to Garrett, however, the district court should have, sua

sponte, conducted a new voir dire process, resulting in a venire that better

reflected the diverse racial makeup of the Orlando, Florida, community. However,

Garrett failed to present an argument to the district court or to this court to support

his claim. Accordingly, this claim is meritless.

III.

Garrett contends that the district court erred by denying his untimely motion

to suppress evidence from the search of the home where Garrett was hiding after

the carjackings and bank robberies. Garrett argues, for the first time on appeal,

that, during the eight-hour surveillance on that home, law enforcement had ample

opportunity and time to apply for, and receive, a search warrant. Thus, due to the

lack of a search warrant, Garrett argues that law enforcement violated his Fourth

Amendment rights. Garrett contends that we should review his alleged

constitutional violation under the de novo standard of review.

The government responds that we should not entertain Garrett’s challenge

to the district court’s denial of his untimely motion to suppress. The government

further points out that Garrett raises, for the first time on appeal, his claim that law

enforcement had “ample time” to obtain a warrant, and thus, even if we choose to

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entertain Garrett’s challenge to the denial of his untimely suppression motion, that

ruling should be reviewed only for plain error.

Federal Rule of Criminal Procedure 12(b) provides that a motion to

suppress evidence must be made before trial. Fed.R.Crim.P. 12(b)(3)(C). We

have rejected claims covered by Rule 12(b)(3)(C) when the defendant failed to

preserve them by filing a pre-trial motion to suppress. See e.g., United States v.

Nix, 438 F.3d 1284, 1288 (11th Cir. 2006). Rule 12(e) further provides that “[a]

party waives any Rule 12(b)(3) defense, objection, or request not raised by the

deadline the court sets under Rule 12(c) or by any extension the court provides.”

Fed.R.Crim.P. 12(e). However, “[f]or good cause, the court may grant relief from

the waiver,” id., and a “failure to present a suppression motion prior to trial

constitutes waiver unless the district court grants relief for good cause shown,”

United States v. Ford, 34 F.3d 992, 994 n. 2 (11th Cir. 1994). However here,

Garrett even failed to request relief from his waiver by showing any good cause.

Thus, we decline to entertain this issue.

IV.

Garrett contends that the district court erred by admitting, at trial, testimony

under Federal Rule of Evidence 404(b) concerning the bank robbery charges

because that evidence was not relevant to the carjacking and firearm charges, and

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the probative value of such testimony was outweighed by the fact that it was not

relevant.

Garrett further challenges the district court’s admission of evidence of

phone calls that he made from the jailhouse after his arrest, arguing, without

citation to any authority, that the interception of those phone calls violated his

constitutional rights to privacy and constituted an unreasonable seizure.

We review a district court’s evidentiary rulings for an abuse of discretion,

and will not reverse an evidentiary error “unless there is a reasonable likelihood

that [it] affected the defendant’s substantial rights.” United States v. Frank, 599

F.3d 1221, 1240 (11th Cir. 2010) (quotation omitted). Having reviewed the

record, we cannot say that Garrett met his burden.

With reference to the jailhouse calls, the record shows that Garrett had

neither a subjective, or objectively reasonable, expectation of privacy with regard

to his calls from the jailhouse. Accordingly, his claim that the monitoring of these

calls violated his constitutional rights is without merit. Furthermore, the

statements that he made during the jailhouse calls strongly correlate to the

testimony of the bank tellers and the carjacking victims, and therefore, Garrett’s

contention that this evidence was unreliable is without merit.

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 V.

Finally, Garrett argues that the district court erred by denying his motion for

judgments of acquittal because the government failed to prove that he had the

requisite specific intent to cause death or serious bodily harm to the victims during

the carjackings. Garrett points out that, if the court had granted his motion for

judgments of acquittal as to the carjacking charges, then the firearms charges

under § 924(c) also would have been dismissed. Garrett also argues, for the first

time on appeal, that the evidence did not support the firearms charges because

there was insufficient proof that he used or possessed a firearm in connection with

the carjacking charges.

Judging the evidence objectively, and considering what a reasonable person

in the victims’s positions might conclude, we hold that the evidence was sufficient

for the jury to conclude that Garrett had the requisite intent to kill or seriously

harm the victims, if necessary, in order to steal their car. Moreover, there was

sufficient evidence for a reasonable jury to conclude beyond a reasonable doubt

that the device that Garrett carried and used during the carjackings was a firearm.

AFFIRMED.

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