[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JAN 13, 2009
No. 07-15338
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 06-00314-CR-T-30-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TONY JEROME HENRY,
EDWARD DELL,
TOMIKI JENKINS,
HELENA JONES,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(January 13, 2009)
Before ANDERSON, CARNES and FAY, Circuit Judges.
PER CURIAM:
Tony Henry appeals his convictions for conspiracy to possess with intent to
distribute and to distribute crack cocaine, in violation of 21 U.S.C. §§ 846,
841(a)(1), (b)(1)(A), possession with intent to distribute a quantity of cocaine
base, in violation of § 841(a)(1) and (b)(1)(C), distribution of crack cocaine, in
violation of § 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2, and knowingly opening,
using, and maintaining a place for the purpose of manufacturing and distributing
cocaine base, in violation of 21 U.S.C. § 856 and 18 U.S.C. § 2.
Tomiki Jenkins appeals his convictions and sentence for conspiracy to
possess with intent to distribute cocaine, in violation of § 846, distribution of
crack cocaine, in violation of § 841(a) and 18 U.S.C. § 2, and knowingly opening,
using, and maintaining a place for the purpose of manufacturing and distributing
cocaine base, in violation of § 856 and 18 U.S.C. § 2.
Helena Jones appeals her convictions and sentence for conspiracy to possess
with intent to distribute cocaine, in violation of § 846, and knowingly opening,
using, and maintaining a place for the purpose of manufacturing and distributing
cocaine base, in violation of § 856(a)(1) and 18 U.S.C. § 2.
Edward Dell appeals his sentence for conspiracy to possess with intent to
distribute crack cocaine, in violation of § 846, possession with intent to distribute
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crack cocaine, in violation of § 841(a)(1), (b)(1)(C), distribution of crack cocaine,
in violation of § 841(a)(1), (b)(1)(B), and knowingly opening, using, and
maintaining a place for the purpose of manufacturing and distributing cocaine
base, in violation of § 856.
The four codefendants are accused of selling crack cocaine out of two
residences, the “Dahlia” residence, and, later, after the Dahlia residence was
closed, “the Pit.” The Pit initially was purchased by Henry, who directed the
operations and supplied the crack cocaine until his arrest. After Henry was
arrested, Jones, his wife, operated the Pit until her own arrest.
I. Henry
Henry raises two issues on appeal: (1) the district court abused its discretion
by disqualifying one of his attorneys; and (2) the district court abused its
discretion by excluding photocopies of forms from casinos, retained by his “tax
preparer,” which reflected his gambling winnings, and refusing to permit his tax
preparer to testify regarding the amount of money recorded on the excluded forms.
Henry also has filed a motion to supplement his reply brief.
A. Attorney Disqualification
Before the Defendants’ case went to trial, Dell’s counsel filed a motion for a
continuance and a hearing in order to resolve a possible conflict of interest issue.
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Dell’s counsel had learned from his client that one of Henry’s attorney’s, Ty
Trayner, had represented Dell during the prosecution of state charges against him
related to actions for which he and Henry were charged in the third count of the
instant indictment. Finding that Trayner had an “intractable conflict of interest,”
the district court disqualified him, after particularly noting that: (1) Dell had
considered acting as a government witness and might still have chosen to do so;
and (2) Dell might have chosen to testify in his own defense.
On appeal, Henry argues that the district court denied him his Sixth
Amendment right to his choice of counsel. He specifically notes that no evidence
was taken at the hearing where Trayner was disqualified, and the government
never filed a motion or response, only orally joining Dell’s motion. Henry argues
that the district court never inquired into the “essential issue” of whether any
confidential information was shared by Dell and Trayner. He stresses that he was
willing to waive any conflict of interest, even if it would have prevented his
counsel from cross-examining Dell at trial. He also argues that the court
disqualified Trayner on the “remote chance” that a conflict would arise.
While we have recognized a defendant’s presumptive right under the Sixth
Amendment to counsel of his choice, we have held that this right is not absolute,
but is qualified by the judiciary’s “independent interest in ensuring that the
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integrity of the judicial system is preserved and that trials are conducted within
ethical standards.” United States v. Ross, 33 F.3d 1507, 1523 (11th Cir. 1994).
Accordingly, we have held that in light of the limited nature of a defendant’s right
to choose his own counsel, the trial court’s refusal to hear the defendant through
his chosen counsel is reviewed for an abuse of discretion. Id. at 22.
We have held that an attorney’s actual or potential conflict of interest
overcomes the presumption in favor of a defendant’s counsel of choice and
warrants disqualification. Ross, 33 F.3d at 1523 (11th Cir. 1994); see United
States v. Almeida, 341 F.3d 1318, 1323 (11th Cir. 2003) (holding that “the Sixth
Amendment right to have the effective assistance of counsel encompasses the right
to have counsel untainted by conflicts of interest”). “In deciding whether the
actual or potential conflict warrants disqualification, we examine whether the
subject matter of the first representation is substantially related to that of the
second,” in order to determine whether the potential defense counsel has “divided
loyalties that prevent him from effectively representing the defendant.” Ross, 33
F.3d at 1523. “If the conflict could cause the defense attorney improperly to use
privileged communications in cross-examination, then disqualification is
appropriate.” Id. When a witness at trial was defended by an attorney representing
the defendant against charges related to an identical crime, the attorney has an
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“actual” conflict of interest. United States v. Campbell, 491 F.3d 1306, 1311
(11th Cir. 2007).
“The rule of law in this circuit is (and will continue to be) that once the
former client . . . proves that the subject matters of the present and prior
representations are ‘substantially related,’ the court will irrebutably presume that
relevant confidential information was disclosed during the former period of
representation.” Freund v. Butterworth, 165 F.3d 839, 859 (11th Cir. 1999)
(quotations omitted). Although a client may knowingly, intelligently, and
voluntarily waive his right to conflict-free representation, the court may refuse to
accept the waiver where necessary to “ensure the adequacy of representation, to
the protect the integrity of the court, and to preserve trial judge’s interest to be free
from future attacks over adequacy of waiver and fairness of trial.” Almeida, 341
F.3d at 1323 (internal quotations and citation omitted).
Where a court justifiably finds an actual conflict of interest, there can
be no doubt that it may decline a proffer of waiver. . . . [I]n the
murkier pretrial context when relationships between parties are seen
through a glass, darkly . . . [t]he likelihood and dimensions of nascent
conflicts of interest are notoriously hard to predict, even for those
thoroughly familiar with criminal trials[.] . . . [Thus,] the district
court must be allowed substantial latitude in refusing waivers of
conflicts of interest not only in those rare cases where an actual
conflict may be demonstrated before trial, but in the more common
cases where a potential for conflict exists which may or may not
burgeon into an actual conflict as the trial progresses.
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Wheat v. United States, 486 U.S. 153, 162-63, 108 S.Ct. 1692, 1698-99, 100
L.Ed.2d 140 (1988).
Because one of Henry’s attorneys had several potential conflicts of interest
relating to his representation of both Henry and a codefendant, and Henry was able
to receive his choice of representation with respect to one of his attorneys, the
district court did not abuse its discretion by disqualifying his attorney.
B. Exclusion of Evidence and Testimony
At trial, Henry called his mother, Karen Simmons, to the stand, and she
testified that she was Henry’s “tax preparer.” Henry sought to introduce into
evidence, through Simmons, documents that she stated were photocopies of “W-
2G” forms received from casinos reflecting Henry’s gambling winnings for several
years. She stated that they were used to prepare Henry’s income tax returns. The
district court found that they were hearsay and not covered by the “business
records” exception, as argued by Henry. Henry then questioned Simmons
regarding whether she knew, from preparing Henry’s tax returns, what amounts of
money had been recorded on the forms. The court found that, to the extent that
Henry was asking Simmons about his tax returns, her testimony would be
excluded by the best evidence rule. The court also refused to allow Henry to use
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the excluded forms to refresh Simmons’s recollection regarding the amount of
Henry’s gambling winnings.
Henry argues that the district court erred by excluding Simmons’s
photocopies of the W-2G forms provided by casinos regarding his gambling
earnings, because they were admissible as business records. Acknowledging that
Simmons did not prepare the forms herself, he stresses that Simmons kept the
forms in her capacity as a licensed tax-preparer. He contends, further, that the
court denied him a chance to provide proof of a legitimate source of income from
his gambling winnings by refusing to allow Simmons to testify regarding her
recollections of Henry’s gambling winnings as his tax-preparer, or to allow him to
use the inadmissable forms to refresh her recollection regarding Henry’s winnings.
Determinations of the admissibility of evidence are within the discretion of
the trial judge, and we will not reverse unless we find an abuse of discretion.
United States v. Miles, 290 F.3d 1341, 1351 (11th Cir. 2002). We will reverse an
erroneous evidentiary ruling, however, “only if the resulting error was not
harmless.” United States v. Hands, 184 F.3d 1322, 1329 (11th Cir. 1999),
corrected by 194 F.3d 1186 (11th Cir. 1999); see also Fed.R.Crim.P. 52(a) (noting
that errors that do not affect substantial rights must be disregarded). An error is
harmless unless “there is a reasonable likelihood that [it] affected the defendant’s
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substantial rights.” United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir.
1990).
The business records exception to the hearsay rule provides that a record “if
kept in the course of a regularly conducted business activity, and if it was the
regular practice of that business activity to make the . . . record . . ., all as shown
by the testimony of the custodian or other qualified witness,” is admissible unless
the circumstances indicate a lack of trustworthiness. See Fed.R.Evid. 803(6). The
trustworthiness prong is not met when the party authenticating the records can
provide no testimony regarding “the origination and compilation of the
documents” or “about the initial link in the chain producing the record.” United
States v. Petrie, 302 F.3d 1280, 1288 (11th Cir. 2002). The best evidence rule, in
Federal Rule of Evidence 1002, provides that:
[T]o prove the content of a writing, recording, or photograph, the
original writing, recording, or photograph is required, except as
otherwise provided in [the Federal Rules of Evidence]. The purpose
of the best evidence rule is to prevent inaccuracy and fraud when
attempting to prove the contents of a writing. However, where the
original of a [document] has been lost or destroyed, the original is not
required and other evidence of its content is admissible, unless the
proponent lost or destroyed the original in bad faith.
United States v. Ross, 33 F.3d 1507, 1513-14 (11th Cir. 1994) (citations and
quotations omitted). Federal Rule of Evidence 612 provides that a witness may
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use a writing to refresh her memory for the purpose of testifying. Fed.R.Evid.
612.
The district court properly excluded documents and testimony from
evidence because: (1) the forms that Henry’s witness presented were hearsay and
were not business records under the hearsay exception; and (2) the witness’
testimony regarding her memories of Henry’s tax returns was barred by the best
evidence rule. Accordingly, we affirm.
II. Dell
On appeal, Dell argues that the district court erred by failing to “both
determine the scope of [his] criminal activity . . . and to specify the amount of
crack cocaine attributable to . . . Dell in the entire case.” Dell argues that the
evidence indicates that the “scope” of his criminal activity was limited to the drug
transactions taking place in February, September, and October 2005, which totaled
46.39 grams of crack cocaine. He stresses that, with respect to other controlled
buys, his name was not mentioned, and the confidential sources (“CS”) did not
indicate that he was involved. Dell argues that because the parties who testified
to his involvement gave inconsistent testimony, no “credible evidence” supports
the inference that he was more involved in the conspiracy.
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We review a district court’s determination of the amount of drugs for which
a defendant is held accountable at sentencing for clear error. United States v. Lee,
68 F.3d 1267, 1274 (11th Cir. 1995). “When a defendant objects to a factual
finding that is used in calculating his guideline sentence, such as drug amount, the
government bears the burden of establishing the disputed fact by a preponderance
of the evidence.” United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir.
2005).
“For sentencing purposes a member of a drug conspiracy is liable for his
own acts and the acts of others in furtherance of the activity that the defendant
agreed to undertake and that are reasonably foreseeable in connection with that
activity.” United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir. 1993).
[T]o determine a defendant’s liability for the acts of others, the
district court must first make individualized findings concerning the
scope of criminal activity undertaken by a particular defendant.
Once the extent of a defendant’s participation in the conspiracy is
established, the court can determine the drug quantities reasonably
foreseeable in connection with that level of participation. If the court
does not make individualized findings, the sentence may nevertheless
be upheld if the record supports the amount of drugs attributed to a
defendant.
Id. (citations omitted). The district court must take into account all “relevant
conduct” when determining the quantity of drugs attributable to the defendant, i.e.
“all acts and omissions committed, aided, abetted, counseled, commanded,
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induced, procured, or willfully caused by the defendant[.]” U.S.S.G.
§ 1B1.3(a)(1)(A). If the case involves drugs, “the defendant is accountable for all
quantities of contraband with which he was directly involved and, in the case of a
jointly undertaken criminal activity, all reasonably foreseeable quantities of
contraband that were within the scope of the criminal activity that he jointly
undertook.” U.S.S.G. § 1B1.3, comment. (n.2); U.S.S.G. § 1B1.3(a)(1)(B).
Because “the [g]uidelines require a district court to attribute to a defendant all
drugs foreseeably distributed pursuant to a common scheme or plan of which that
defendant’s offense of conviction was a part,” a defendant may be held
accountable for drugs that were not related specifically to his counts of conviction
and for actions taken by others. States v. Mertilus, 111 F.3d 870, 873 (11th Cir.
1997) (quotations and citation omitted).
Because the government presented sufficient evidence to show the quantity
of crack cocaine attributed to the conspiracy and that Dell was extensively
involved in the conspiracy to distribute the entire quantity of crack cocaine, we
hold that the district court did not clearly err holding him accountable for 1.5
kilograms of crack cocaine. Accordingly, we affirm.
III. Jenkins
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Jenkins raises two issues on appeal: (1) the district court erred in
determining that the government had presented sufficient evidence to support his
conviction for distributing crack cocaine on October 3, 2005, which was Count 6
of the indictment; and (2) the district court erred by holding that it did not have the
authority to consider the cocaine base versus powder cocaine disparity at
sentencing.
A. Sufficiency of the Evidence
Relying on United States v. Hamblin, 911 F.2d 551 (11th Cir. 1990),
Jenkins argues that the government presented insufficient evidence to prove him
guilty beyond a reasonable doubt of Count 6. He argues that the government
presented no evidence that he knew that Dell was delivering cocaine to Henry on
October 3, 2005, because it merely presented CS Myron Drayton’s testimony of
the following sequence of events: (1) Drayton met with Henry at the Pit, where
they discussed a crack purchase; (2) Henry then met with Dell alone; (3) Dell and
Jenkins left the Pit and returned; (4) Dell met again with Henry; and (5) Henry
delivered crack cocaine to Drayton. Jenkins argues that the evidence shows that
Dell left the Pit to obtain cocaine that Henry supplied to Drayton, but not that
Jenkins knew that Dell intended to do so.
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We review de novo a district court’s denial of a properly preserved motion
for a judgment of acquittal based on the sufficiency of the evidence. United States
v. Byrd, 403 F.3d 1278, 1288 (11th Cir. 2005). We “view the evidence in the light
most favorable to the government, with all reasonable inferences and credibility
choices drawn in the government’s favor.” Id. “‘A conviction must be upheld
unless the jury could not have found the defendant guilty under any reasonable
construction of the evidence.’” Id. (quoting United States v. Chastain, 198 F.3d
1338, 1351 (11th Cir. 1999)).
To sustain the conviction under § 841, the government must have proven,
either by direct or circumstantial evidence, that Jenkins knowingly distributed five
grams or more of crack cocaine. See United States v. Poole, 878 F.2d 1389, 1391-
92 (11th Cir. 1989); 21 U.S.C. § 841(a)(1). Section 2 “provides that anyone who
‘aids, abets, counsels, commands, induces or procures’ the commission of an
offense against the United States is punishable as a principal for the offense.”
Hamblin, 911 F.2d at 551. “To prove aiding and abetting, the government must
demonstrate that a substantive offense was committed, that the defendant
associated himself with the criminal venture, and that he committed some act
which furthered the crime,” and “the government must show that the defendant
shared the same unlawful intent as the actual perpetrator.” Id.
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In Hamblin, we reversed a defendant’s conviction for aiding and abetting
under 18 U.S.C. § 924(c) when the government failed to present evidence that the
defendant knew that his codefendant was planning on bringing a weapon to a bank
robbery. Hamblin, 911 F.2d at 551. With respect to a later robbery, however, we
found that the jury reasonably could find that, based on the defendant’s knowledge
of the use of the firearm in the original robbery, he knew his codefendant would
use a firearm during the later robbery. Id.
Because Jenkins was involved in his codefendants’ cocaine base
distribution business for years before October 3, 2005, and had participated in a
practically identical sale of crack cocaine before, the jury could infer that Jenkins
knew that his codefendants were distributing crack cocaine when he participated
in the delivery on October 3, 2005. Accordingly, we affirm as to this issue.
B. Crack and Powder Cocaine Disparity
Jenkins argues that, under Kimbrough v. United States, 552 U.S. __, 128
S.Ct. 558, 169 L.Ed.2d 481 (2007), the district court erred by finding, at his
sentencing hearing, that it was unable to consider the disparity between the
guideline sentences for crack versus powder cocaine when sentencing him.
We review the final sentence imposed by the district court for
reasonableness. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir.
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2005). In reviewing a sentence, we are required to “evaluate whether the sentence
imposed by the district court fails to achieve the purposes of sentencing as stated
in [18 U.S.C.] § 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th Cir.
2005). In Kimbrough, the Supreme Court stated that, when sentencing a party,
“[t]he [district court] may determine . . . that . . . a within-Guidelines sentence is
‘greater than necessary’ to serve the objectives of sentencing.” 552 U.S. at __,
128 S. Ct. at 564. The Supreme Court further held that “it would not be an abuse
of discretion for a district court to conclude when sentencing a particular
defendant that the crack/powder disparity yields a sentence ‘greater than
necessary’ to achieve § 3553(a)’s purposes.” Id. at __, 128 S.Ct. at 576.
We since have held that remand of a case for limited re-sentencing, “to
permit the district court to reconsider the § 3553(a) factors in light of the Supreme
Court's holding in Kimbrough,” is necessary when the district court failed to
consider the disparity between the guideline sentences for crack versus powder
cocaine because it “concluded that it lacked authority to consider the crack/powder
sentencing disparity in reaching an appropriate sentence.” United States v.
Stratton, 519 F.3d 1305, 1306-07 (11th Cir. 2008).
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Because the district court ruled that it was unable to consider the sentencing
disparities between crack and powder cocaine cases when imposing sentence on
Jenkins based on our precedent that since has been overruled, we vacate and
remand Jenkins’s case to the district court for limited re-sentencing.
IV. Jones
Jones raises two issues on appeal: (1) the district court erred in determining
that the government had presented sufficient evidence to sustain her conviction for
maintaining a place for the purpose of manufacturing and distributing cocaine; and
(2) the district court erred by holding that it did not have the authority to consider
the cocaine base versus powder cocaine disparity at sentencing.
A. Sufficiency of the Evidence
On appeal, Jones argues that the government failed to present sufficient
evidence to show that she “maintain[ed]” the residence at 5606 86th Street,
because it failed to show that she exercised “any significant control” over the site,
had a “role in the acquisition of the site, rented or furnished the site, repaired the
site, or supplied food to those at the site.”
To support a conviction for maintaining a place for the purpose of
manufacturing and distributing crack cocaine, the government had to prove that
Jones knowingly operated or maintained a place for the purpose of manufacturing
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crack cocaine. See United States v. Clavis, 956 F.2d 1079, 1090 (11th Cir. 1992),
modified in part on other grounds, 977 F.2d 538 (11th Cir. 1992); 21 U.S.C.
§ 856(a)(1). Distribution alone is not enough to establish purposeful maintenance
of a place, but “[a]cts evidencing such matters as control, duration, acquisition of
the site, renting or furnishing the site, repairing the site, supervising, protecting,
supplying food to those at the site, and continuity are, of course, evidence of
knowingly maintaining the place.” Clavis, 956 F.2d at 1091.
Because the government offered testimony that Jones helped direct and
“supervise” the crack cocaine distribution before Henry’s arrest and supervised the
Pit “employees,” in order to continue the distribution operation, after Henry’s
arrest, the government presented sufficient evidence to show that Jones
“maintained” the Pit for the purpose of manufacturing and distributing crack
cocaine. Accordingly, we affirm as to this issue.
B. Crack and Powder Cocaine Disparity
Jones argues that, under Kimbrough, the district court erred by failing to
consider the disparity between the guideline sentences for crack cocaine and
powder cocaine. Jones states that she “raised her Kimbrough claim in the district
court [and] the district court . . . rejected [her] request to consider the . . .
disparity.”
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Because Jones raised the issue in her sentencing memorandum, the district
court failed to address it at sentencing, and the district court ruled that it was
unable to consider the sentencing disparities between crack and powder cocaine
cases, when imposing sentence on Jenkins, we vacate and remand Jones’s case to
the district court for limited re-sentencing.
AFFIRMED IN PART; VACATED AND REMANDED IN PART1
1
Henry’s motion to supplement his reply brief is denied and his and Dell’s requests for oral
argument are denied.
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