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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11124
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-20642-KMM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMOTHY MIERS,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 28, 2017)
Before JORDAN, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Timothy Miers appeals his conviction and life sentence for one count of
kidnapping, in violation of 18 U.S.C. § 1201(a)(1) (Count 1), and two counts of
interstate domestic violence, in violation of 18 U.S.C. § 2261 (Counts 2 & 3).
Mr. Miers argues that (1) the district court improperly admitted prior bad acts
under Fed. R. Evid. 404(b); (2) the district court improperly instructed the jury
regarding the interstate travel element of the interstate domestic violence counts;
(3) the government presented insufficient evidence to support the interstate
commerce element of all three counts; and (4) the district court improperly denied
defense counsel’s motion to withdraw at the sentencing hearing. Upon review of
the record and consideration of the parties’ briefs, we affirm.
I
Because we write for the parties, we assume their familiarity with the
underlying record and recite only what is necessary to resolve this appeal.
A
A grand jury indicted Mr. Miers on charges of kidnapping and two counts of
interstate domestic violence. He proceeded to trial.
During trial, Mr. Miers’ girlfriend, J.C.M., testified that Mr. Miers was a
long-distance truck driver who transported goods across the eastern United States.
Mr. Miers invited J.C.M. to join him on several long-distance trips, and the two
took six trips in total together. At the beginning of their sixth trip, on August 15,
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2014, Mr. Miers learned that J.C.M. had been intimate with another man.
Mr. Miers then became aggressive and hit her on her face, but they reconciled after
he apologized.
Between August 17 and 19, Mr. Miers and J.C.M. traveled from New York
to Boston, and then south toward Florida. J.C.M. testified that on August 17,
Mr. Miers “changed totally,” and threatened her and her family when she asked if
should could be dropped off. Mr. Miers also told J.C.M. what he had done to his
previous girlfriends, including that he had killed an ex-girlfriend and would do the
same to J.C.M.; that he had thrown another ex-girlfriend, R.D., out of a moving
truck; that he had hit yet another ex-girlfriend; and that he had beaten his ex-wife
so hard that she became disabled.1
J.C.M. testified that for several days, Mr. Miers raped, bound, and physically
and verbally abused her. On August 19, Mr. Miers stopped at a truck stop in
Virginia, where he and J.C.M. entered private showers. There he locked her up
against her will and strangled, beat, and spit on her. After leaving the truck stop,
they continued to drive and Mr. Miers beat J.C.M. until she admitted her infidelity.
Mr. Miers then strangled J.C.M., bound her with duct tape, gagged her, and told
1
The government sought to introduce evidence of these prior acts at trial through testimony from
the victims themselves, as well as three witnesses to the incident involving R.D. Over defense
counsel’s objection, the district court admitted most of the evidence pursuant to Fed. R. Evid.
404(b), but excluded evidence regarding the disappearance of an ex-girlfriend, for which Mr.
Miers had not been charged, because its probative value was outweighed by the potential for
prejudice.
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her he was going to kill her. The abuse continued, and Mr. Miers filmed while he
raped and demeaned her. J.C.M. was finally able to escape when they arrived in
Medley, Florida, on August 21, 2014.
B
The jury found Mr. Miers guilty on all counts. The PSI recommended a base
offense level of 32; a two-level enhancement because J.C.M. sustained serious
bodily injury; a one-level enhancement because J.C.M. was not released before
seven days had elapsed; and a six-level enhancement because J.C.M. was sexually
exploited. The PSI recommended a total offense level of 41 and a criminal history
category of VI, resulting in an advisory guideline range of 360 months’
imprisonment to life imprisonment.
Mr. Miers’ counsel moved to withdraw as counsel after objections to the PSI
were due, but before sentencing, citing a breakdown in communication. The
district court held a hearing and denied the motion. It also denied a continuance
requested by Mr. Miers.2
The district court then proceeded to sentencing. During sentencing,
Mr. Miers’ counsel did not make any objections to the PSI, explaining that when
he attempted to meet with Mr. Miers regarding the PSI, Mr. Miers had refused and
expressed concerns with his representation. The district court struck Mr. Miers’
2
We note our concern that it appears the exchange between the defendant, his counsel, and the
district court regarding details of the representation occurred in the presence of the government.
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pro se objections to the PSI and did not permit him to present those objections
because he was represented by counsel. The district court found that all three
recommended enhancements applied, and sentenced Mr. Miers to life
imprisonment as to Count 1, and 120 months’ imprisonment as to Counts 2 and 3,
to be served concurrently.
II
Mr. Miers first argues that the district court improperly admitted evidence of
prior incidents involving his ex-girlfriends and ex-wife. “We review for an abuse
of discretion a district court’s admission of evidence of a defendant’s prior bad acts
under Rule 404(b).” United States v. Holt, 777 F.3d 1234, 1266 (11th Cir.).
Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with that character[,]” but it “may be
admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
Fed. R. Evid. 404(b)(1) and (2). For a bad act to be admissible under Rule 404(b),
“(1) the evidence must be relevant to an issue other than the defendant’s character;
(2) the act must be established by sufficient proof to permit a jury finding that the
defendant committed the extrinsic act; and (3) the probative value of the evidence
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must not be substantially outweighed by its undue prejudice.” Holt, 777 F.3d at
1266 (internal quotation marks and citation omitted).
Here, the evidence was admissible under Rule 404(b) to show Mr. Miers’
intent and absence of mistake. With regard to the first prong of the Rule 404(b)
test, Mr. Miers put his intent at issue by pleading not guilty and by contesting
J.C.M.’s lack of consent. See United States v. Edouard, 485 F.3d 1324, 1345 (11th
Cir. 2007) (“A defendant who enters a not guilty plea makes intent a material issue
which imposes a substantial burden on the government to prove intent, which it
may prove by qualifying Rule 404(b) evidence absent affirmative steps by the
defendant to remove intent as an issue.”). “Where the extrinsic offense is offered to
prove intent, its relevance is determined by comparing the defendant’s state of
mind in perpetrating both the extrinsic and charged offenses.” Id. Indeed,
“[s]imilarity of the extrinsic acts to the offenses with which [the defendant] is
charged is the standard by which relevancy is measured under [R]ule 404(b).”
United States v. Williams, 816 F.2d 1527, 1531 (11th Cir. 1987). Here, there were
several important similarities between Mr. Miers’ alleged abuse of J.C.M. and his
prior extrinsic acts—namely, his alleged intent to harm, restrain, and/or dominate
these women.
As to the second prong, the government sufficiently established the extrinsic
acts. It presented testimony from the victims and the witnesses to R.D.’s alleged
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assault, as well as J.C.M.’s testimony that Mr. Miers himself admitted that he had
committed those acts.
With regard to the third prong, the determination of whether the probative
value of the evidence is not substantially outweighed by its undue prejudice “lies
within the sound discretion of the trial court and calls for a common sense
assessment of all the circumstances surrounding the extrinsic offense.” Id. “Factors
to be considered include whether it appeared at the commencement of trial that the
defendant would contest the issue of intent, the overall similarity of the charged
and extrinsic offenses, and the temporal proximity between the charged and
extrinsic offenses.” Edouard, 485 F.3d at 1345. Moreover, “extrinsic evidence of
similar acts will possess great probative value if the defendant’s intent is in issue
and if the government lacks other strong evidence of defendant’s intent.” Williams,
816 F.2d at 1532. “[D]etermining prejudice to outweigh probativeness . . . is an
exceptional remedy” to be “invoked sparingly.” Id.
Here, Mr. Miers contested intent, and the details of alleged prior abusive acts
were similar to his alleged acts toward J.C.M. Further, the prior acts were the only
evidence the government had to refute Mr. Miers’ theory of consent aside from
J.C.M.’s own testimony and the video of her alleged abuse, increasing the
probative value of the extrinsic evidence. Finally, the district court provided a
limiting instruction regarding the extrinsic evidence, thus mitigating any unfair
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prejudice. See Edouard, 485 F.3d at 1346 (“[A]ny unfair prejudice possibly caused
by admitting evidence of Edouard’s prior smuggling activities was mitigated by the
district court’s limiting instruction to the jury.”). The district court therefore did
not abuse its discretion by permitting the admission of certain prior acts under Rule
404(b).
III
Mr. Miers’ second argument is that the district court improperly instructed
the jury on the interstate travel element of the interstate domestic violence offense.
The district court, over defense counsel’s objection, instructed the jury as follows:
“The Government must prove that the Defendant possessed the intent to kill,
injure, harass or intimidate J.C.M. concurrently with the interstate commerce. But
the Government does not have to prove that this intent was the significant or
predominant reason that the Defendant crossed state lines. In other words, the
Government only has to prove that the Defendant traveled in interstate commerce
and, while doing so, intended to kill, injure, harass or intimidate J.C.M.” D.E. 114
at 202.
We review de novo “the district court’s jury instructions when determining
whether they misstate the law or mislead the jury to the prejudice of the objecting
party.” United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002). “We give
the district court wide discretion as to the style and wording employed in the
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instructions, ascertaining that the instructions accurately reflect the law.” Id. We
will reverse a district court because of an erroneous instruction only if we are “left
with a substantial and ineradicable doubt as to whether the jury was properly
guided in its deliberations.” United States v. Felts, 579 F.3d 1341, 1342–43 (11th
Cir. 2009).
The district court did not misstate the law so as to leave a “substantial and
ineradicable” doubt that the jury was misguided in its deliberations. Indeed, the
plain language of the statute does not require that the defendant’s intent be the
significant and predominant reason for the travel. It requires only that the
defendant “travel in interstate . . . commerce . . . with the intent to kill, injure,
harass, or intimidate.” 18 U.S.C. § 2261(a)(1).3 See also United States v.
Al-Zubaidy, 283 F.3d 804, 809 (6th Cir. 2002) (interpreting identical language in
18 U.S.C. § 2261A to mean only that the defendant must have intended to harass
or injure at the time he crossed the state line). Accordingly, the district court’s
instruction to the jury was proper.
IV
Mr. Miers’ third argument is that the government presented insufficient
evidence to satisfy the “interstate commerce” element of all three charged offenses
3
A defendant violates the interstate domestic violence statute if he “travels in interstate or
foreign commerce . . . with the intent to kill, injure, harass, or intimidate a spouse, intimate
partner, or dating partner, and who, in the course of or as a result of such travel or presence,
commits or attempts to commit a crime of violence against that spouse, intimate partner, or
dating partner . . . .” 18 U.S.C. § 2261(a)(1).
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and the “initial abduction” element of the kidnapping charge. “We review de novo
whether sufficient evidence supports a jury’s verdict in a criminal trial, taking the
evidence in the light most favorable to the government.” Holt, 777 F.3d at 1259.
We therefore “resolve any conflicts in favor of the government, draw all
reasonable inferences that tend to support the prosecution’s case, and assume that
the jury made all credibility choices in support of the verdict.” Id. The
government’s evidence “is sufficient to support a conviction if a reasonable trier of
fact could find that the evidence established guilt beyond a reasonable doubt.” Id.
As to the kidnapping count, to support a conviction under 18 U.S.C.
§ 1201(a), the government must demonstrate that the defendant (1) knowingly and
willfully (2) transported in interstate commerce (3) an unconsenting person who
was (4) held for ransom, reward, or otherwise. See United States v. Lewis, 115 F.3d
1531, 1535 (11th Cir. 1997). With regard to the last element, “the prosecution need
only establish that the defendant acted for any reason which would in any way be
of benefit.” Id. at 1536 (emphasis in original).
J.C.M. testified that Mr. Miers inflicted violent acts upon her under threat of
death to her and her family for his own sexual gratification. See id. (concluding
that the language “ransom, reward, or otherwise” encompassed an explicit
admission that defendant kidnapped victim for “companionship”). The evidence
also supported a finding that Mr. Miers willfully transported J.C.M. across state
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lines from Virginia to Florida. A reasonable jury could therefore conclude that the
evidence established that Mr. Miers kidnapped and willfully transported J.C.M.
The government also presented sufficient evidence with regard to the
interstate domestic violence counts under 18 U.S.C. §§ 2261(a)(1) & (2). The
statute requires that the defendant “travel in interstate . . . commerce . . . with the
intent to kill, injure, harass, or intimidate,” see § 2261(a)(1), or that the defendant
“causes . . . a dating partner to travel in interstate . . . commerce . . . by force,
coercion, duress, or fraud, and . . . in the course of, as a result of, or to facilitate
such conduct or travel, commits or attempts to commit a crime of violence against
that . . . dating partner,” see § 2261(a)(2). The evidence sufficiently supported a
finding that Mr. Miers communicated several threats to J.C.M., abused her, and
forced her to continue with him from Virginia to Florida. Accordingly, a
reasonable jury could conclude that Mr. Miers formulated the requisite intent at the
time he crossed state lines, and abused J.C.M. in the course of such travel,
therefore satisfying the interstate commerce element.
V
Mr. Miers’ final argument is that the district court erroneously denied his
counsel’s motion to withdraw. We review the denial of a motion for new counsel
for abuse of discretion. See United States v. Calderon, 127 F.3d 1314, 1343 (11th
Cir. 1997). “In making this determination, several factors that should be considered
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by a reviewing court have been identified, the most relevant of which include: 1)
the timeliness of the motion; 2) the adequacy of the court’s inquiry into merits of
the motion; and 3) whether the conflict was so great that it resulted in a total lack
of communication between the defendant and his counsel thereby preventing an
adequate defense.” Id.
It is not entirely clear that the district court conducted an adequate inquiry
into the merits of the motion, and whether there was a total breakdown in
communication, particularly given that counsel failed to make any arguments or
objections regarding the recommendations set forth in the PSI. Even assuming that
the district court abused its discretion by denying the motion, however, Mr. Miers
“must still demonstrate that, in the context of the sentencing hearing, he was
somehow prejudiced by trial counsel continuing to represent him.” Id. To
demonstrate prejudice, he “must show that counsel’s performance was not within
the range of competence demanded of attorneys in criminal cases and that but for
counsel’s continued representation at the sentencing hearing, the result of the
proceeding would have been different.” Id. (internal quotation marks and citation
omitted). See also United States v. Lott, 310 F.3d 1231, 1251 (10th Cir. 2002)
(observing that, on appeal of the denial of a motion for new counsel, the Eleventh
Circuit applies the more onerous Strickland prejudice analysis—which requires the
defendant to show that but for the counsel’s deficiencies, the result of the
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proceeding would have been different—in lieu of a Chapman harmless error
standard—which requires the government to prove beyond a reasonable doubt that
the error was harmless). 4
Mr. Miers argues that his counsel should have requested a downward
variance below the guideline range, and that the § 2A4.1(b)(4)(B) enhancement for
not releasing the victim before more than seven days had elapsed should not have
applied. As noted earlier, counsel did not object to the PSI, and the district court
did not allow Mr. Miers to state his own objections. Mr. Miers maintains that the
absence of objections to the PSI and the failure to request a downward variance
prejudiced him.
Even if counsel’s failure to object to the PSI constituted performance that
was not within the requisite range of competence, we conclude that the sentence
would have been the same. First, the district court specifically addressed each of
the enhancements in the PSI and found that “substantial and overwhelming”
evidence supported the application of each of the enhancements. See D.E. 119 at
24. Second, although we agree with Mr. Miers that the one-level enhancement
pursuant to § 2A4.1(b)(4)(B)—for holding J.C.M. for seven days or more—likely
did not apply because the kidnapping began at the earliest on August 17, 2014, see
4
We note that other circuits have disagreed with the standard we apply to our review of such
motions, and instead conduct the harmless error analysis. See, e.g., Lott, 310 F.3d at 1251–52
(citing cases).
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Lewis, 115 F.3d at 1535 (kidnapping under 18 U.S.C. § 1201(a) requires the
holding of an “unconsenting person”), that would have left Mr. Miers with an
offense level of 40 and an identical guidelines range of 360 months’ imprisonment
to life imprisonment. Third, the district court specifically considered the 18 U.S.C.
§ 3553(a) factors, and emphasized that “those factors would be considered by the
Court in considering a sentence outside the otherwise applicable guideline range
that would support the Court’s judgment or sentence in this case.” Id. at 33. The
district court noted that it had taken into account the nature and circumstances of
the offense, including “the defendant’s cruel, brutal[,] and degrading conduct
towards the victim.” Id. The district court further considered Mr. Miers’ history
and characteristics, describing in detail his lengthy criminal history, and ultimately
concluding that Mr. Miers has had no respect for the law throughout his entire
adult life, and that “[i]t is clear the only way to deter this defendant is to imprison
him; otherwise he will commit further crimes.” Id.
The district court’s handling of the motion to withdraw, and the fact that the
sentencing hearing proceeded without any defense objections to the PSI, are
matters of concern. Nevertheless, the record does not lead us to believe that the
outcome of the sentencing hearing would have been different if other counsel had
represented Mr. Miers. Accordingly, even if the district court abused its discretion
by denying counsel’s motion to withdraw, no demonstrable prejudice resulted.
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VI
For the reasons stated above, Mr. Miers’ conviction and sentence of life
imprisonment are affirmed.
AFFIRMED.
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