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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-15874
________________________
D.C. Docket No. 1:13-cr-20334-CMA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH PETER CLARKE,
BOBBY JENKINS,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 11, 2016)
ON PETITION FOR REHEARING
Before MARTIN and DUBINA, Circuit Judges, and RODGERS, * District Judge.
PER CURIAM:
*
Honorable Margaret C. Rodgers, Chief United States District Judge for the Northern
District of Florida, sitting by designation.
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We vacate our prior opinion in this case, issued March 17, 2015, and replace
it with the following opinion.
Joseph Peter Clarke and Bobby Jenkins appeal their convictions of
conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951(a) (Count 1);
conspiracy to possess with intent to distribute five or more kilograms of cocaine,
21 U.S.C. §§ 841(a)(1), 846 (Count 2); possession of a firearm by a convicted
felon, 18 U.S.C. § 922(g)(1) (Counts 3 and 4, respectively); and using and carrying
a firearm during and in relation to a crime of violence and possession of a firearm
in furtherance of a crime of violence, specifically, the Hobbs Act robbery, id.
§ 924(c)(1)(A) (Count 5). The case concerns a reverse sting operation, in which
the Defendants joined a fake conspiracy to rob a house of drug dealers. Clarke and
Jenkins challenge a number of aspects of their trial, conviction, and sentence.
After careful consideration, and with the benefit of oral argument, we affirm. 1
1
We address in a separate opinion Jenkins’s conviction under 18 U.S.C. § 922(g)(1)
(Count 3), which makes it a federal offense for a person convicted of a felony to possess a
firearm. The government argued that Jenkins was a convicted felon because he had earlier
pleaded guilty to possession of cocaine in Florida. Although Jenkins was found guilty of cocaine
possession, adjudication of that offense was withheld. Whether a conviction qualifies under §
922(g)(1) is “determined in accordance with the law of the jurisdiction in which the proceedings
were held.” 18 U.S.C. § 921(a)(20). We therefore certified to the Florida Supreme Court the
question of whether that State treats a guilty plea with adjudication withheld as a “conviction”
for purposes of its felon-in-possession statute. Because the Florida Supreme Court answered this
question “in the negative,” Clarke v. United States, 184 So. 3d 1107, 1108 (Fla. 2016), we have
vacated Jenkins’s § 922(g)(1) conviction.
2
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I.
On May 10, 2013, a grand jury returned a five-count indictment against
Bobby Jenkins and Joseph Peter Clarke. The detective who engineered the reverse
sting which led to the indictment was Kenneth Veloz, who had experience with
these sorts of “proactive investigations” of “individuals that are interested in
committing [armed] robbery.” In this type of case, Detective Veloz typically
proposed “an extremely violent scenario” to give the targets the “chance . . . to
walk away if they [were] not interested in committing [a] robbery.” Here,
Detective Veloz first became interested in Jenkins when a confidential informant
(CI) told him that Jenkins “may be interested in committing a robbery.”
After a series of phone calls in which Detective Veloz thought Jenkins
seemed to be interested in participating in the robbery, Detective Veloz set up three
in-person meetings in which he posed as a drug trafficker. In the first, Detective
Veloz represented that he routinely picked up and delivered kilogram quantities of
cocaine for a group of drug traffickers, and that they had failed to adequately pay
him for work he had done. He told Jenkins he needed someone to help him rob the
traffickers. He said that they were violent drug dealers who would kill Detective
Veloz and his family if they found out that he stole the cocaine. Jenkins responded
that he and his “people” could handle the job, saying they were “certified.” He
also asked questions about the job, like what the dealers were “capable of, what
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area they [worked] in, . . . what people[] they know,” and whether they “hav[e]
guns in there.” Jenkins also said that he had “AR-15s that come from the army,”
and that he would wear a bulletproof vest.
Jenkins brought Clarke—an acquaintance—to the second meeting, and he,
Clarke, Detective Veloz, and the CI continued to discuss the plan to rob the drug
traffickers. Detective Veloz emphasized that these were dangerous people who
“don’t play” and stated that, personally, when it came to guns, “I’m running the
other way.” Still Jenkins persisted in asking questions, including the location of
the house, who the “head” of the traffickers was, and whether there would be cash
in the house along with the drugs. Clarke noted that if there were only two drug
dealers in the house when they robbed them, “it shouldn’t really be [an] issue as far
as getting in and getting out.” Both Jenkins and Clarke asked Detective Veloz if
he wanted the traffickers dead, and Veloz responded “you could do what you got to
do.” Clarke suggested that he would need to kill them so that no one would know
Detective Veloz was associated with them. And Clarke said he would need to
“hit” Detective Veloz to make it look like Detective Veloz was not involved. In a
follow-up phone call between the CI and Jenkins, Jenkins told the CI that he
wanted the robbery “to get bloody regardless” because then the traffickers “can’t
talk.”
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At the third and final meeting, the same group discussed details of the
robbery. Clarke repeatedly insisted that they be told the location in advance so
they could plan their entry. Detective Veloz also told them there would be ten to
fifteen kilograms of cocaine, and he and Clarke discussed splitting the drugs
“fifty/fifty.” Clarke noted that when he “move[s] [his] trigger, [he is] on
precision,” and that Detective Veloz should “get out of the way” if shooting
begins. In a phone call the day before the robbery, Jenkins told the CI that
everything was “good,” but expressed concern that Detective Veloz might be
involved with the police. The CI assured him that “everything [was] straight.”
On the day of the robbery, the government provided a car to the CI, who
picked up Jenkins and Clarke and drove them to the robbery location. When they
arrived, a team of ATF Detectives converged on the car. Jenkins had a .40 caliber
Sig Sauer handgun and was wearing gloves. Clarke dropped his loaded
semiautomatic assault rifle in the back seat.
Both Clarke and Jenkins went to trial, where two juries were impaneled.
Both were found guilty of all counts. Jenkins was sentenced to 240 months
imprisonment for Counts 1 and 2, a concurrent 120-month sentence for Count 3,
and a consecutive term of 60 months imprisonment for Count 5. Clarke was
sentenced to life imprisonment for Counts 1, 2, and 4, and a consecutive life term
5
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for Count 5. Both timely appealed on a number of grounds, and we address each
issue in turn.
II.
Jenkins argues that six different errors at trial resulted in cumulative error,
for which he should receive a new trial. The cumulative-error doctrine provides
that “an aggregation of non-reversible errors” can result in the denial of the
constitutional right to a fair trial warranting reversal. United States v. Baker, 432
F.3d 1189, 1224 (11th Cir. 2005) (quotation omitted). We ask whether the
combined effect of the errors had a “substantial influence on the outcome by
weighing the record as a whole, examining the facts, the trial context of the error,
and the prejudice created thereby as juxtaposed against the strength of the evidence
of defendant’s guilt.” United States v. Hands, 184 F.3d 1322, 1329 (11th Cir.
1999) (internal quotation marks and citations omitted).
First, Jenkins argues that Detective Veloz’s testimony “deliver[ed] a jury
argument from the witness stand.” United States v. Cano, 289 F.3d 1354, 1363
(11th Cir. 2002). During trial, Detective Veloz testified repeatedly, over
objections, about the “significance” of various things Jenkins said during the
recorded phone and in-person meetings. See, e.g., Trial Tr. 24, Oct. 8, 2013, ECF
No. 137 (Q: Now, what is the significance to your investigation of Mr. Jenkins
making the statement, ‘Yeah, yeah, yeah, yeah, that’s the only reason I’m
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[expletive] with it?” A: Because it—he has an interest . . . That he had an interest
because the outcome is . . . he’s going to gain something.”); id. at 45–46 (testifying
that the phrase “certified” meant to Detective Veloz that Jenkins was “representing
. . . that he is skilled to do this [crime]” and “has the intent to do this, the know-
how, the ability to . . . commit this robbery”); id. at 51 (testifying that when
Jenkins asked “who we are dealing with, basically, like what they are capable of,
what area they be in, what area they [expletive] with, [and] what people they
know,” Detective Veloz understood those statements to mean he “want[s] to do
intelligence, gather intelligence so that way they can plan on how to do this
robbery”). Jenkins argues that this testimony allowed Detective Veloz to make
judgments on the stand about the significance of Jenkins’s statements that only the
jury should have been allowed to make.
We cannot agree. “[E]videntiary rulings will be disturbed on appeal only
where there appears a clear abuse of discretion.” United States v. Taylor, 17 F.3d
333, 340 (11th Cir. 1994). Beyond that, “[a] trial judge has broad discretion in
controlling the extent of direct and cross-examination.” United States v. James,
510 F.2d 546, 551 (5th Cir. 1975). 2 We understand the purpose of Detective
Veloz’s testimony explaining his impressions of Jenkins’s statements was to
2
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
Id. at 1209.
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counter Jenkins’s entrapment defense and explain to the jury why he proceeded
with the reverse-sting operation at each stage of the investigation. In this regard,
this Court has noted that “an experienced narcotics agent may testify about the
significance of certain conduct or methods of operation unique to the drug
distribution business.” United States v. Butler, 102 F.3d 1191, 1199 (11th Cir.
1997) (quotation omitted). We recognize the need for the government to explain
Jenkins’s testimony to a jury that may not be familiar with the language used
throughout the phone calls and meetings. The district court did not abuse its
discretion by allowing this testimony at trial.
Relatedly, Jenkins argues that when Detective Veloz compared Jenkins’s
actions to the actions of others in reverse-sting operations based on Detective
Veloz’s experience, he was improperly acting as an expert witness. See, e.g., Trial
Tr. 41–42, Oct. 8, 2013, ECF No. 137 (noting that in most cases, when targets hear
that people could die, “[t]hey usually say it right there, this is too much for me, or
. . . they won’t call back, they won’t return, they won’t want to meet”); id. at 46
(“Mr. Jenkins is representing this to me, based on my experience, is that he wants
me to buy in that I should hire him to do this.”). Not so. In United States v.
Jayyousi, 657 F.3d 1085 (11th Cir. 2011), this Court held that a law enforcement
agent involved in a terrorism investigation could draw inferences about the
meaning of code words used during recorded conversations and relay those
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inferences to the jury. Unlike a case where an agent merely testified “about the
meaning of a simple code that the jury could have deciphered easily based on
evidence admitted at trial,” in Jayyousi, the agent’s “familiarity with the
investigation allowed him to perceive the meaning of coded language that the jury
could not have readily discerned.” Id. at 1103. This Court allowed the agent’s
testimony even though the district court admitted that “it appears as if this
witness’s training and experience to opine on what certain things mean is the
investigation of this case.” Id. at 1104 (quotation marks omitted). So too here.
Detective Veloz was permitted to testify about the particular words Jenkins used
based on his experience, and it was not an abuse of discretion for the district court
to allow him to do so.
Second, Jenkins argues that it was improper for the district court to allow the
prosecutor to ask a series of questions to Detective Veloz about whether certain
things the CI told him about Jenkins “w[ere] true.” The CI initially told Detective
Veloz that Jenkins “may be interested in committing a robbery.” According to
Jenkins, questioning Detective Veloz about whether this statement was true
violated the rule that “it is improper to ask a testifying [witness] whether another
witness is lying” since such questions “invade the province of the jury.” United
States v. Schmitz, 634 F.3d 1247, 1268 (11th Cir. 2011). We recognize that such a
rule exists. But here, read in context, it is clear that the prosecutor was not asking
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Detective Veloz whether the CI’s testimony was credible. Rather, the prosecutor’s
purpose was to have Detective Veloz confirm Jenkins’s interest in committing the
crime based on having listened to the recorded conversations between Jenkins and
the CI, not just the CI’s statements at the start of the investigation. This, again,
was a justifiable attempt to counter Jenkins’s entrapment defense. We cannot say
that the district court abused its discretion in allowing this testimony. In fact,
because Jenkins did not object to that question at trial, his argument on appeal is
subject to plain-error review. We see no plain error that affected his substantial
rights here. See United States v. Olano, 507 U.S. 725, 731–32, 113 S. Ct. 1770,
1776 (1993).
Jenkins points to four additional errors. He argues that he suffered
“spillover prejudice” from being erroneously characterized as a convicted felon. 3
He also argues that the district court abused its discretion by allowing evidence of
3
As described above, we have vacated Jenkins’s § 922(g)(1) conviction because the
Florida Supreme Court has told us that his guilty plea with adjudication withheld is not a
“conviction” for purposes of Florida’s felon-in-possession statute. Clarke, 184 So. 3d at 1108.
In light of the Florida Supreme Court’s response to our certified question, it’s clear that it was
error to call Jenkins a felon. However, “[vacatur] of some counts . . . does not automatically
warrant reversal of convictions reached on remaining counts” on the basis of spillover prejudice.
United States v. Prosperi, 201 F.3d 1335, 1345 (11th Cir. 2000). Rather, reversible spillover
prejudice occurs only when “there [was] evidence (1) that would not have been admitted but for
the [vacated counts] and (2) that [evidence] was improperly relied on by the jury in their
consideration of the remaining [counts].” Id. Part of determining whether the jury improperly
relied on evidence concerning a vacated count is “assess[ing] the strength of the evidence against
the defendant on the remaining counts.” Id. at 1346. Because this inquiry dovetails with the
harmless-error review we apply to Jenkins’s overall cumulative-error claim, we do not address it
here.
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his prior conviction for cocaine possession under Federal Rule of Evidence 404(b).
He next argues that the district court committed plain error under Rule 404(b) by
allowing his NCIC criminal report to be brought into evidence. 4 Finally, he argues
that the district court abused its discretion when it allowed the prosecutor to admit
expert-witness testimony suggesting he malingered on a disability evaluation in
order to gain Social Security benefits. We do not address the merits of these four
arguments because even if Jenkins can show error, the cumulative error was
harmless.5 Under the cumulative-error doctrine, reversal is warranted only if the
4
The government argues that the invited-error doctrine bars this argument because
Jenkins had “no problem” and “no objection” to the government’s introduction of the report. But
although Jenkins did not object, he also did not solicit the evidence. The invited-error doctrine
applies only when the party challenging the introduction of the evidence affirmatively asked for
it, not when the party merely fails to object to its introduction. When a party fails to object, the
appellate court reviews the challenged evidence for plain error. See United States v. Jones, 743
F.3d 826, 828 n.1 (11th Cir. 2014) (noting that the invited-error doctrine “does not apply” where
the error is “not attributable to the action of the defense” because the defendant “failed to object
to the error, but he did not ask for it” (quotation omitted)).
5
We note, however, that despite the fact that any error was harmless, Jenkins’s argument
that the district court wrongfully allowed evidence of his prior conviction for cocaine possession
is compelling. Under Rule 403(b), “the probative value of . . . evidence must not be substantially
outweighed by its undue prejudice.” United States v. Matthews, 431 F.3d 1296, 1310–11 (11th
Cir. 2005) (per curiam) (quotation marks omitted). Admittedly, we have said that “a not guilty
plea in a drug conspiracy case . . . makes intent a material issue and opens the door to admission
of prior drug-related offenses as highly probative, and not overly prejudicial, evidence of a
defendant’s intent.” United States v. Calderon, 127 F.3d 1314, 1332 (11th Cir. 1997). For
instance, we have held that “a three-year-old prior conviction for possession of cocaine for
personal use was relevant and admissible for purposes of demonstrating defendant’s intent in the
charged conspiracy for possession with intent to distribute.” Matthews, 431 F.3d at 1311 (citing
United States v. Butler, 102 F.3d 1191, 1195–96 (11th Cir. 1997)). However, this is not a drug-
conspiracy case. This is a conspiracy to commit a violent, armed robbery of a house of drug
dealers. The fact that Jenkins was arrested for possession with intent to distribute, which
resulted in his guilty plea for simple possession of cocaine, seems unlikely to be probative of
whether he would have committed this robbery crime. Still, we must affirm because any error
was harmless.
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combined effect of the errors had a “substantial influence on the outcome.” Hands,
184 F.3d at 1329 (internal quotation marks and citations omitted). Looking to the
record as a whole and examining all the facts, the recorded phone calls and in-
person meetings are difficult for Jenkins to overcome on harmless-error review.
Throughout those recordings, Jenkins discussed details of the proposed crime,
never backed out even when they talked about killing the traffickers, and suggested
that he wanted the robbery to be “bloody.” Beyond that, the fact that he arrived at
the location of the proposed crime with a firearm in hand is powerful evidence that
a jury would have found persuasive beyond a reasonable doubt. In short, these
purported trial errors, even taken together, are harmless. We cannot reverse
Jenkins’s convictions on this basis.
III.
Clarke argues, in the same way, that the district court abused its discretion
by admitting evidence of his 2006 burglary conviction. He says that the conviction
was not probative of his intent to commit the robbery, the conviction occurred
seven years ago, and the government did not need the evidence because it had
audio and video recordings of the offense. Clarke makes a colorable argument that
this 2006 burglary of an electronics store is so different and so remote in time from
the attempted armed robbery of a house of drug traffickers that the district court
may have erred in admitting it. However, “[w]e review preserved evidentiary
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objections for harmless error.” Baker, 432 F.3d at 1202. As with Jenkins, there is
overwhelming evidence of Clarke’s guilt. He was recorded during numerous
phone calls and in-person meetings planning the robbery; he described his plans to
shoot and kill the occupants of the house if they resisted; and he arrived at the
scene with gloves and a firearm on the appointed date. We cannot reverse because
this prior conviction was admitted.
IV.
Next, Jenkins argues that the government engaged in sentencing-factor
manipulation by selecting a quantity of cocaine—ten to fifteen kilograms—
sufficient to trigger a ten-year mandatory-minimum sentence. This Court has
“considered sentencing manipulation as a viable defense.” United States v.
Ciszkowski, 492 F.3d 1264, 1270 (11th Cir. 2007). “[S]entencing factor
manipulation occurs when the government’s manipulation of a sting operation,
even if insufficient to support a due process claim, requires that the manipulation
be filtered out of the sentencing calculus.” Id. The bar is “high”: we have
generally noted that “[g]overnment-created reverse sting operations are recognized
and useful methods of law enforcement investigation.” Id. at 1271. Thus, to find
sentencing factor manipulation, we must find that the government’s conduct was,
as we have put it, “so objectionable” or “sufficiently reprehensible” or
“extraordinary misconduct.” Id. at 1270–71.
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We cannot say that the government’s conduct in this case met that high bar.
In United States v. Sanchez, 138 F.3d 1410 (11th Cir. 1998), the
[d]efendants argue[d] that the conduct of the government in creating a
fictitious crime for them to commit—robbery of a non-existent house
allegedly stocked with large quantities of cocaine and marijuana,
which did not in fact exist—was so outrageous as to warrant either
dismissal of the superseding indictment, or reversal of their
convictions, or a downward departure of their sentences.
Id. at 1413. Regarding the sentencing-factor-manipulation claim in Sanchez, this
Court held that “[t]he fact that the government’s fictitious reverse sting operation
involved a large quantity of drugs does not amount to the type of manipulative
governmental conduct warranting a downward departure in sentencing.” Id. at
1414. So too here. Detective Veloz testified that the ten- to fifteen-kilogram
amount was simply “realistic[].” Trial Tr. 50–51, Oct. 8, 2013, ECF No. 137 (“Q:
Why not pose 35 kilos? A: Well, realistically, nowadays home invasions that I
have investigated and that—that my unit has been involved in, that quantity
amount is not as prevalent as it was back, you know, in the ’80s.”).
Jenkins argues that Sanchez is distinguishable because in that case, “[t]he
availability of defendants, their weapons, and vehicles was not the result of any
governmental activity.” Id. at 1414. By contrast, the government here provided
Jenkins and Clarke with a car in order to commit the crime. However, our
precedent makes clear that this fact is not dispositive. See Ciszkowski, 492 F.3d at
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1271 (“The fact that law enforcement may provide drugs or guns essential to a
willing and predisposed offender does not necessarily constitute misconduct.”).
We have certainly taken note that the government went to great lengths to
construct a violent plan here. This is especially striking in light of the fact that
before this incident, Jenkins had never engaged in anything like the violent armed
robbery that he attempted here. However, all Jenkins is challenging on appeal is
the government’s decision to quantify the amount of cocaine at ten to fifteen
kilograms instead of, say, two kilograms. We cannot agree that this amount is a
particularly “objectionable” or “extraordinary” quantity of cocaine. The district
court did not err.
V.
Next, both Jenkins and Clarke argue that the jury instructions constructively
amended the indictment on Count 5, the count for using and carrying a firearm
during and in relation to a crime of violence and possession of a firearm in
furtherance of a crime of violence. “[A] court cannot permit a defendant to be
tried on charges that are not made in the indictment against him.” Stirone v.
United States, 361 U.S. 212, 217, 80 S. Ct. 270, 273 (1960). Under this rule, a
district court may not constructively amend the indictment. See id. at 215–16, 80
S. Ct. at 272. A constructive amendment “occurs when the essential elements of
the offense contained in the indictment are altered to broaden the possible bases for
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conviction beyond what is contained in the indictment.” United States v. Keller,
916 F.2d 628, 634 (11th Cir. 1990).
Here, although Jenkins and Clarke were convicted of knowingly using and
carrying a firearm during and in relation to a crime of violence, and knowingly
possessing that firearm in furtherance of a crime of violence, the district court’s
definition of “possession” in the jury instructions repeatedly referred to a “drug
trafficking” crime. 6 At first, the court correctly said that “it is a separate federal
crime for anyone to use, carry, possess[] or brandish a firearm in furtherance of a
crime of violence.” However, the district court then went on to say that “[t]o
‘possess’ a firearm is to have a firearm on one’s person or to transport or control a
firearm in a way that makes it available for immediate use while committing the
drug-trafficking crime” (emphasis added). The Court continued that “[s]ome
factors to consider are the type of drug activity that is being conducted,
accessibility of the firearm, the type of the weapon, whether the weapon is stolen,
the status of the possession (legitimate or illegal), whether the gun is loaded, [and]
proximity to the drugs” (emphasis added). In short, the jury instructions referred to
a “drug-trafficking crime” when they should have referred to a “crime of
violence.” The government admits in its brief that “[an] error occurred.”
However, neither Clarke nor Jenkins objected to the jury instructions at trial.
6
A drug-trafficking offense is not a “crime of violence” for purposes of Section 924(c).
See United States v. Cruz, 805 F.2d 1464, 1474 (11th Cir. 1986).
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[W]e may only reverse a defendant’s conviction based on an
unobjected-to constructive amendment if the constructive amendment
satisfies the Olano7 plain-error standard. That is, the amendment must
(1) be an error (2) that is plain (3) that affects the defendant’s
substantial rights and (4) that seriously affects the fairness, integrity,
or public reputation of judicial proceedings.
United States v. Madden, 733 F.3d 1314, 1321 (11th Cir. 2013). In Madden, we
held that a district court’s constructive amendment of the indictment met the plain-
error standard for reversal. There, while the indictment stated that the defendant
“did knowingly use and carry a firearm during and in relation to a crime of
violence and did knowingly possess a firearm in furtherance of a drug trafficking
crime,” the jury instructions stated that “[t]he superseding indictment alleges that
the defendant knowingly carried a firearm during and in relation to a drug
trafficking offense or possessed a firearm in furtherance of a drug trafficking
offense.” Id. at 1318 (emphasis added). In other words, the instructions allowed
for a conviction of carrying a firearm during and in relation to a drug trafficking
offense, but the indictment charged the defendant with possessing a firearm only in
furtherance of a drug trafficking offense. We noted in that case that “adding
‘during and in relation to’ broadened the possible bases for conviction beyond
what was specified in the superseding indictment,” because “‘in furtherance of’ is
narrower than ‘during and in relation to.’” Id.
7
Olano, 507 U.S. 725, 113 S. Ct. 1770.
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We held that this constructive amendment met Olano’s plain-error standard.
First, there was error because “constructively amending an indictment is a
departure from the legal rule that a defendant can only be convicted for a crime
charged in the indictment.” Id. at 1322 (quotation omitted). Second, the error was
plain because “[i]t [was] clear that ‘in furtherance of’ and ‘during and in relation
to’ are alternative methods of conviction[,] [a]nd it [was] clear under current law
that a court errs when it allows for an alternative method of conviction that is not
included in the indictment.” Id. (citation omitted). Third, the error affected
Madden’s substantial rights because “Madden may well have been convicted on a
charge not in the indictment. In the end, . . . we [could not] say with certainty that
with the constructive amendment, Madden was convicted solely on the charge
made in the indictment.” Id. at 1323 (quotation omitted). Fourth, “we f[ou]nd it
self-evident . . . that the error seriously affect[ed] the fairness, integrity and public
reputation of judicial proceedings.” Id.
Although it is a close case, the jury-instruction error here is sufficiently
different from the one in Madden that we cannot say that it affected Jenkins’s and
Clarke’s substantial rights. For one thing, the instructions clearly and correctly set
forth the elements of the offense before erroneously referring to “drug trafficking”
when defining the term “possess.” Beyond that, because the government
repeatedly argued during its closing that the crime of violence at issue was
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“narcotics-related robberies” and that “robbery is violent,” we find it certain that
the jury would have understood that firearms were possessed with respect to the
robbery. Finally, unlike in Madden, where the amendment encompassed a broader
range of conduct than what was charged in the indictment, no new element was
added here. And while there actually was a drug-trafficking crime charged in
Madden, and the jury could therefore have reasonably been confused, there was no
drug-trafficking crime at issue here. The only offense during which Jenkins and
Clarke could have possibly used a firearm was the Hobbs Act robbery. The jury
could not have convicted Jenkins and Clarke for using and carrying a firearm
during and in relation to a drug-trafficking crime when no drug-trafficking crime
was ever mentioned before the misstatements in the jury instructions. Thus, we
cannot say that the error affected their substantial rights, and we find no plain
error.
VI.
Next, Jenkins argues that his Sixth Amendment rights were violated when
the prosecutor refused to withdraw a Section 851 notice of enhancement after he
declined to enter a guilty plea. At a status conference before trial, the prosecutor
said that “[t]he government has told [Jenkins’s lawyer] that it would be willing to
withdraw the information based on what he has put forward. . . . [A]fter that plea
expiration deadline, the government would not do that.” “[W]hat he has put
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forward” is, we assume, the Social Security documents that suggest that Jenkins is
“mildly, mentally retarded,” as discussed earlier in that status conference. Jenkins
argues that because the prosecutor suggested he was willing to withdraw the
enhancement based on what Jenkins had put forward, the government conceded
that the twenty-year mandatory-minimum sentence was not warranted in light of
his disability, but applied it anyway because he refused to plead guilty.
Jenkins’s argument is precluded by precedent of the Supreme Court and this
Court. In Bordenkircher v. Hayes, 434 U.S. 357, 98 S. Ct. 663 (1978), the
Supreme Court addressed “whether the Due Process Clause of the Fourteenth
Amendment is violated when a state prosecutor carries out a threat made during
plea negotiations to reindict the accused on more serious charges if he does not
plead guilty to the offense with which he was originally charged.” Id. at 358, 98 S.
Ct. at 665. The Court held that “so long as the prosecutor has probable cause to
believe that the accused committed an offense defined by statute, the decision
whether or not to prosecute, and what charge to file or bring before a grand jury,
generally rests entirely in his discretion.” Id. at 364, 98 S. Ct. at 668. In United
States v. Darby, 744 F.2d 1508 (11th Cir. 1984), we applied the Bordenkircher rule
to a case in which “the government expressed its intent to seek sentence
enhancement under section 849 and offered to forego prosecution as a dangerous
special drug offender if [the Defendant] would plead guilty as charged.” Id. at
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1539. The Defendant refused the offer, was sentenced under Section 849, and
challenged the sentence enhancement as a “vindictive effort to penalize his
exercising his right to trial by jury.” Id. This Court said that “case [was]
indistinguishable from Bordenkircher. [The Defendant] was fully informed of the
terms of the plea offer and simply declined to accept. Accordingly, we f[ou]nd no
support for his claim of prosecutorial vindictiveness.” Id. (footnote omitted).
We are bound by our ruling in Darby. Although it is certainly true that the
prosecutor considered withdrawing the section 851 notice during plea negotiations,
he was fully within his rights under the law to apply the enhancement. That he
used the application of the enhancement to try to convince Jenkins to plead guilty
is no different from the facts in Darby. Jenkins has therefore failed to make out a
claim of prosecutorial vindictiveness in violation of his Sixth-Amendment rights.
VII.
Jenkins next argues that his prior Florida arrest, for which adjudication was
withheld and he received a suspended sentence, should not qualify as a prior
conviction under 21 U.S.C. §§ 841 and 851. 8 He argues that we should follow the
definition of “conviction” used in the Immigration and Nationality Act (INA). He
8
This question is different from the one Jenkins raised with regard to his section
922(g)(1) charge. For section 922(g)(1), we look to whether Florida state law treats the prior
arrest as a “conviction” for Florida’s felon-in-possession law. Here, we look to federal law. See
United States v. Mejias, 47 F.3d 401, 403–04 (11th Cir. 1995) (per curiam) (“[F]ederal law,
rather than state law, governs the interpretation of section 841(b)(1)(B).”).
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notes that immigration law and criminal law both fall within the federal scheme,
and since “[t]he general analytical framework and principles . . . are analogous,”
we “routinely import[] holdings from one context to the other.” Donawa v. U.S.
Att’y Gen., 735 F.3d 1275, 1280 n.3 (11th Cir. 2013). The INA definition says
that a “conviction” includes a situation where an “adjudication of guilt has been
withheld” if “a judge or jury has found the alien guilty or the alien has entered a
plea of guilty or nolo contendere or has admitted facts to warrant a finding of guilt
and the judge has ordered some form of punishment, penalty, or restraint on the
alien’s liberty to be imposed.” 8 U.S.C. § 1101(a)(48)(A) (emphasis added). Here,
the adjudication was withheld and no form of punishment was imposed—the
sentence was suspended.
Because Jenkins did not raise this argument in the district court, it is subject
to plain-error review. An error is plain only if precedent of this Court or the
Supreme Court or the unequivocal language of a statute establishes that the
decision was erroneous. United States v. Johnson, 694 F.3d 1192, 1195 (11th Cir.
2012). There is no precedent of this Court or the Supreme Court that clearly holds
that the district court’s acceptance of the Section 851 enhancement was erroneous.
In fact, there is precedent suggesting the opposite. In Mejias, we held that
“Mejias’ prior plea of nolo contendere with adjudication withheld in Florida state
court is a ‘conviction’ that supports an enhanced sentence under section
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841(b)(1)(B).” 47 F.3d at 404. And in United States v. Fernandez, 234 F.3d 1345
(11th Cir. 2000) (per curiam), we reaffirmed that “a prior state court nolo plea in
which adjudication was withheld can be used as a conviction to make the
defendant eligible for career-offender status under the Sentencing Guidelines.” Id.
at 1347.
We recognize that Jenkins is not merely arguing that he had his adjudication
withheld; he is also arguing that he received a suspended sentence. The defendant
in Mejias was sentenced to probation, and so it could be argued that he received
“some form of punishment, penalty, or restraint on the alien’s liberty” under the
INA. 8 U.S.C. § 1101(a)(48)(A)(ii); see also Appellant’s Initial Br., Mejias, No.
91-4020, 1994 WL 16056228, at *8 (noting that “adjudication [was] withheld
pending successful completion of probation, and probation [was] successfully
completed”); Fernandez, 58 F.3d at 600 (holding “that a state offense in which the
defendant pleads nolo contendere and adjudication is withheld pending completion
of probation constitutes a ‘prior conviction’ for purposes of the enhancement
provision of 21 U.S.C. § 841” (emphasis added)). However, this distinction
between the present case and Mejias is not enough to overcome plain-error review.
Because there is no controlling precedent on point, we cannot say that the district
court plainly erred in holding that Jenkins’s state felony was a conviction even if
adjudication was withheld and he was not punished or penalized in any way.
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VIII.
Jenkins next argues that his conviction under the Hobbs Act and Section
924(c) are unconstitutional after the Supreme Court’s recent decision upholding
the Affordable Care Act in National Federation of Independent Business v.
Sebelius, 567 U.S. ___, 132 S. Ct. 2566 (2012) (NFIB). Although constitutional
issues are generally reviewed de novo, we review them only for plain error when a
defendant fails to raise them before the district court. United States v. Underwood,
446 F.3d 1340, 1344 (11th Cir. 2006). Jenkins admits that in United States v.
Taylor, 480 F.3d 1025 (11th Cir. 2007), we held that “[t]he interstate nexus” can
be shown in a Hobbs Act conspiracy even when the “intended victims and
narcotics [are] fictional.” Id. at 1027. But he argues that decision “has since been
called into question” by NFIB. There, the Court held that the Affordable Care Act
could not be sustained under the commerce power because “[t]he power to regulate
commerce presupposes the existence of commercial activity to be regulated.”
NFIB, 132 S. Ct. at 2586 (emphasis omitted). However, although NFIB did
address the Commerce Clause generally, the Supreme Court gave no indication
that it was overruling the numerous circuit-court opinions upholding the Hobbs Act
on Commerce-Clause grounds. This Court is bound to follow its prior precedent
unless it is overruled by the Court sitting en banc or by the Supreme Court. United
States v. Martinez, 606 F.3d 1303, 1305 (11th Cir. 2010). We cannot say the
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district court committed plain error by failing to find that the Supreme Court has
implicitly overruled our prior precedent.
IX.
Finally, Jenkins argues that the district court lacked the authority to enhance
his sentence based on his prior conviction because that prior conviction was neither
alleged in the indictment nor proven to the jury. This argument is foreclosed by
binding precedent of the Supreme Court. See Almendarez-Torres v. United States,
523 U.S. 224, 235, 118 S. Ct. 1219, 1226 (1998).
X.
For all these reasons, we affirm on each of the issues considered here.
AFFIRMED.
25
United States v. Joseph Peter Clarke
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2016-05-11
Citations: 649 F. App'x 837
Copy CitationsCombined Opinion