[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 13, 2005
No. 04-12264 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00016-CR-CAR-7
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EFRAM BARBER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(September 13, 2005)
Before TJOFLAT, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
On October 3, 2002, a Middle District of Georgia grand jury returned a two-
count indictment charging, in Count One, appellant, Carlton Marshall, Benjamin
Lewis, Timothy Hopkins, Sherman Holt, Johkomia Fletcher, Eric Forehand and
Jeffrey King under 21 U.S.C. § 846 with conspiring to possess with intent to
distribute cocaine in violation of 21 U.S.C. § 841(a)(1), and charging, in Count
Two, appellant and Lewis with carrying a firearm during and in relation to the drug
trafficking crime alleged in Count One, in violation of 18 U.S.C. § 924(c)(1).1 On
May 3, 2003, the Government dismissed Lewis, Fletcher and Forehand from the
case for lack of sufficient evidence to convict. On May 12, 2003, Marshall and
Holt pled guilty to Count One; ten days later, Hopkins and King also pled guilty to
Count One.2 On June 3, 2003, the Government filed a Sentence Enhancement
Information stating that appellant was subject to a mandatory minimum sentence of
20 years’ imprisonment and a maximum sentence of life imprisonment under 21
U.S.C. § 841(b)(1)(A) because he had been convicted in 1991 on two felony
counts of distributing cocaine.
Standing on his pleas of not guilty, appellant went to trial on June 23, 2003.
The trial lasted four days. Lewis, Holt, Hopkins, and Evans (an unindicted co-
conspirator) testified for the Government. Appellant, relying on the defense of
1
The indictment also contained a forfeiture count, Count Three, against all eight
defendants. That count was dismissed and thus is not before us in this appeal.
2
As of the date of appellant’s sentencing hearing in this case, these co-defendants had
not been sentenced.
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entrapment, testified in his own behalf. He claimed that the Government’s
confidential informant (“CI”), who introduced him to the undercover police officer
(who testified for the Government), induced him to commit the Count One offense.
The jury rejected his entrapment defense and found him guilty on Count One, but
not guilty on Count Two. The court thereafter sentenced appellant to the
mandatory minimum sentence of 240 months’ imprisonment called for by 21
U.S.C. § 841(b)(1)(A).
He now appeals his conviction and sentence. He asks that we reverse his
conviction, and direct the district court to enter a judgment of acquittal, because the
evidence was insufficient to convict. Alternatively, he asks that we grant him a
new trial because the district court abused its discretion in the following respects:
(1) in admitting Fed. R. Evid. 404(b) evidence as proof on the issue of criminal
intent; (2) in refusing to allow him to call the CI as a witness for the defense; (3) in
refusing to allow a witness to testify about his, appellant’s, financial status; and (4)
in denying his motion for leave to contact jurors post verdict. Appellant challenges
his sentence on the ground that the court enhanced his sentence based on facts
neither admitted by him nor found by the jury, in violation of the Sixth
Amendment.
We consider first appellant’s attacks on his conviction, then his sentence.
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I.
No discussion is required to dispose of appellant’s argument that the
evidence was insufficient to convict. The evidence was overwhelming, especially
given the testimony of his co-conspirators. We move then to appellant’s
arguments that the court’s abuse of discretion, as asserted above, entitles him to a
new trial.
A.
Three weeks or so prior to trial, the Government, informing the court that
appellant’s criminal intent was an issue in the case, informed the court that it
intended to introduce testimony under Fed. R. Evid. 404(b); some of appellant’s
co-conspirators would testify to appellant’s previous involvement in cocaine
trafficking, his leadership role in the conspiracy, and the occasions when he cooked
crack cocaine. After hearing what the witness would say, and appellant’s argument
that the testimony should be excluded, the court ruled it admissible.
Appellant concedes, as he must, that although evidence of other crimes,
wrongs, or acts is not admissible to prove character, such evidence, upon
reasonable notice in advance of trial, “may be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Fed. R. Evid. 404(b). Appellant’s complaint with
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the court’s admission of the Rule 404(b) evidence at issue is that (1) he was given
inadequate notice of the Government’s intention to use the evidence, (2) there was
insufficient evidence that the extrinsic acts actually occurred, (3) his trial attorney
admittedly was unprepared, and (4) the Government intended to use the evidence
to show his bad character.
We utilize the following three-part test for evaluating the admissibility of
Rule 404(b) evidence: (1) the “evidence must be relevant to an issue other than the
defendant’s character;” (2) there must be sufficient proof so that a jury could find
that the defendant committed the extrinsic act; and (3) “the evidence must possess
probative value that is not substantially outweighed by its undue prejudice.”
United States v. Matthews, 411 F.3d 1210, 1224 & n. 14 (11th Cir. 2005). Even
though the evidence may reflect negatively on the defendant’s character, it is
admissible when “‘inextricably intertwined’ as an integral and natural part of the
witness’s accounts of the circumstances surrounding the offenses for which [the
defendant] was indicted.” United States v. Foster, 889 F.2d 1049, 1053 (11th Cir.
1982).
The policy behind Rule 404(b)’s reasonable notice requirement is “to reduce
surprise and promote early resolution on the issue of admissibility.” United States
v. Perez-Tosta, 36 F.3d 1552, 1561 (11th Cir.1994) (citation omitted). Although
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Rule 404(b) “imposes no specific time limits,” the court should consider the
following three factors in determining the reasonableness of pretrial notice:
(1) “[w]hen the government . . . could have learned of the availability of the
witness; (2) [t]he extent of prejudice to the opponent of the evidence from a lack of
time to prepare; and (3) [h]ow significant the evidence is to the prosecution’s
case.” Id. at 1561-62.
Addressing the four reasons appellant advances for excluding the evidence,
we conclude (1) that appellant had ample notice of the Government’s intent to call
his co-conspirators as witnesses, (2) their testimony was sufficient to establish that
the extrinsic acts occurred, (3) his trial lawyer, if prepared, could not have
convinced the court to exclude the testimony, and (4) the Government did not use
the testimony to show appellant’s bad character. To the contrary, the challenged
testimony was clearly probative of appellant’s intent to participate in the charged
conspiracy. In sum, we find no abuse of discretion in the court’s handling of the
matter.
B.
Appellant contends that the court denied him his right to a fair trial when it
refused to allow him to call the CI as a defense witness. He says that, because his
name had been disclosed, there was no need to maintain the CI’s confidentiality.
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Because the CI played a prominent role in the drug conspiracy and was essential to
support his entrapment defense, his need to have the CI testify outweighed the
Government’s need to protect his identity.
In determining whether the court abused its discretion in barring appellant
from calling the CI to the stand, we use a “balancing test that weighs a defendant’s
need for access against the government’s interest in encouraging citizens to
communicate their knowledge of the commission of crimes to law-enforcement
officials by preserving the anonymity of informants.” United States v. Kerris, 748
F.2d 610, 613 (11th Cir. 1984) (citations omitted). The test requires us to consider
the extent to which the CI participated in the criminal activity and the directness of
the relationship between the defendant’s asserted defense and the CI’s probable
testimony. Id. at 613-14. “The defendant must show that the informant’s testimony
would significantly aid in establishing an asserted defense.” Id. at 614.
Because appellant failed to establish the importance of the CI’s testimony
and the Government demonstrated a genuine interest in protecting the CI’s identity,
the challenged ruling fell well within the district court’s discretion.
C.
Appellant asserts that the district court abused its discretion by refusing to
allow him to call witnesses who would have shown that he was not predisposed to
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commit the charged offense. He told the court that these witnesses would testify
that his financial status was poor and that this testimony would have refuted the
Government’s theory that he was a “big time drug dealer.” In other words, a big
time drug dealer would have plenty of money, and he didn’t. The court precluded
the testimony on the ground that it had very little relevance, if any at all.
Relevant evidence is “evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” Fed. R. Evid. 401. Even
if relevant, evidence properly may be excluded if admitting it will result in a waste
of time. See Fed. R. Evid. 403.
Appellant’s financial situation was not an issue in the case. Moreover, had
the evidence been admitted, the proceedings would have been delayed while
Government rebutted what would have been a purely collateral issue, one not
germane to the question of whether appellant committed the crime charged in the
indictment.
D.
After the trial concluded, an anonymous juror informed appellant that one of
the other jurors had not supported the guilty verdict. Appellant contends that to
determine whether for this reason the verdict was not unanimous, the court should
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have allowed him to contact the jurors to resolve the matter. The court did inquire
into the situation and determine (for itself) that the verdict was unanimous, but
appellant says that this was not enough; he had a right to conduct his own inquiry.
“Investigation of alleged juror misconduct is committed to the discretion of
the district court and is reviewed only for an abuse of that discretion.” Prosperi,
201 F.3d at 1340. This means that “the court . . . enjoys substantial discretion in
choosing the investigative procedure to be used in checking for juror misconduct,”
United States v. Register, 182 F.3d 820, 840 (11th Cir. 1999) (internal quotation
and citations omitted). When an inquiry is made into the validity of a verdict, a
juror may not testify or provide an affidavit unless there is a question as to
“whether extraneous prejudicial information was improperly brought to the jury’s
attention or whether any outside influence was improperly brought to bear upon
any juror.” Fed. R. Evid. 606(b).
The court inquired of the jury foreperson. The foreperson said that no
irregularities had occurred during the deliberation process and that the verdict was
unanimous, as indicated by the verdict form which all twelve jurors signed. In
view of the court’s substantial discretion in choosing the investigatory technique,
see Register, 182 F.3d at 840, as well as the constraints provided by Rule 606, we
conclude that the court properly denied appellant’s motion to contact the jurors.
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II.
Appellant challenges his sentence on the ground that the court rather than
the jury, in violation of the Sixth Amendment, made the factual findings regarding
drug quantity and his leadership role in the offense. 3
Where, as here, a defendant fails to raise a Sixth Amendment objection in
the district court, the standard of review is for plain error. See United States v.
Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, 125 S.Ct. 2935 (2005).
Under plain-error review, the defendant has the burden to show that “there is
(1) error (2) that is plain and (3) that affects substantial rights. If all three
conditions are met, we may then exercise our discretion to notice a forfeited error,
but only if (4) the error seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” Id. (internal citations and quotations omitted).
At the time the district court sentenced appellant, the Sixth Amendment
required that, “[o]ther than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S.
466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000). After appellant was
3
He also contends that the court erred in denying him an offense level reduction for
acceptance of responsibility. Given our reason for affirming appellant’s sentence, this claim is
irrelevant.
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sentenced, the Supreme Court revisited this rule in the context of the state of
Washington’s sentencing guideline scheme, clarifying that “the ‘statutory
maximum’ for Apprendi purposes is the maximum sentence a judge may impose
solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant . . . . In other words, the relevant ‘statutory maximum’ is not the
maximum sentence a judge may impose after finding additional facts, but the
maximum he may impose without any additional findings.” Blakely v.
Washington, 542 U.S. 296, ___, 124 S.Ct. 2531, 2537 159 L.Ed.2d 403 (2004).
(emphasis in original).
Later, in United States v. Booker, 543 U.S. __, 125 S.Ct. 738, 749, 160
L.Ed.2d 621 (2005), the Court found “no distinction of constitutional significance
between the Federal Sentencing Guidelines and the Washington procedures at
issue” in Blakely. Resolving the constitutional question left open in Blakely, the
Court held that the mandatory nature of the federal guidelines sentencing system
rendered the system incompatible with the Sixth Amendment’s guarantee to the
right to a jury trial. Id. at ___,125 S.Ct. at 749-51. The Court concluded that the
appropriate remedy was to excise two specific sections of the Sentencing Reform
Act, 18 U.S.C. § 3553(b)(1) (requiring the court to impose a sentence within the
guideline range, absent a departure) and 18 U.S.C. § 3742(e) (establishing
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standards of review on appeal). Thus, the remedy left the Guidelines intact, while
rendering them advisory only. Id. at ___, 125 S.Ct. at 764.
In this case, as noted above, the court was required to impose a sentence in
accordance with the statutory mandatory minimum prescribed by 21 U.S.C. §
841(b)(1)(A). Appellant’s Booker challenges are therefore moot.
AFFIRMED.
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