[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 03-15610
Non-Argument Calendar FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 9, 2005
D.C. Docket No. 03-00008-CR-3-RV THOMAS K. KAHN
CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM JEROME OVERTON,
Defendant-Appellant
__________________________
Appeal from the United States District Court for the
Northern District of Florida
_________________________
(June 9, 2005)
Before BLACK, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
William Jerome Overton appeals his conviction for theft from a licensed
firearms dealer of a firearm in and affecting interstate commerce, in violation of 18
U.S.C. §§ 922(u), 924(i)(1). He argues that (1) the district court erred by denying his
requested jury instruction that Count I of the indictment was “dismissed” and instead
charging the jury that “the indictment had a Count One, but that’s a matter that’s no
longer for your consideration,” and (2) the prosecutor’s closing argument improperly
inflamed the jury and, when coupled with the district court’s failure to give a separate
curative instruction, violated his right to a fair trial. Upon thorough review of the
record, and careful consideration of the parties’ briefs, we find no reversible error and
affirm.1
1
We deny Overton’s motion to file a supplemental brief to argue, for the first time, that
Blakely v. Washington, __ U.S. __, 125 S. Ct. 2531 (2004), applies to his case. It is well-established
that we will not consider such arguments when they are not raised in the initial brief. See United
States v. Duncan, 400 F.3d 1297, 1299 n.1 (11th Cir. 2005) (citing United States v. Levy, 379 F.3d
1241(11th Cir. 2004) (holding that defendant waived his Blakely claim as issue on appeal by failing
to raise it in his initial brief); United States v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000) (“Defendant
abandoned the [Apprendi] indictment issue by not raising the issue in his initial brief.”); United
States v. Ford, 270 F.3d 1346, 1347 (11th Cir. 2001) (“[O]ur well established rule is that issues and
contentions not timely raised in the briefs are deemed abandoned.”); United States v. Curtis, 380
F.3d 1308 (11th Cir. 2004) (declining to permit a supplemental brief raising a Blakely issue for the
first time)).
We note that Overton not only failed to raise this issue in a timely manner on appeal, but also
failed to raise the issue in the district court or at sentencing. Therefore, even if the issue had been
adequately raised on appeal, we would review it only for plain error, which we correct only where
(1) there is an error; (2) the error is plain or obvious; (3) the error affects the defendant’s substantial
rights in that it was prejudicial and not harmless; and (4) the error seriously affects the fairness,
integrity, or public reputation of a judicial proceeding. See United States v. Chisholm, 73 F.3d 304,
307 (11th Cir. 1996). Overton cannot satisfy the third prong, which requires him to show that the
Blakely error affected his substantial rights, a standard that “almost always requires that the error
must have affected the outcome of the proceedings below.” See United States v. Curtis, 400 F.3d
1334, 1336 (11th Cir. 2005) (citing United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir.
2005)). “[I]n applying the third prong, we ask whether there is a reasonable probability of a different
result if the Guidelines had been applied in an advisory instead of binding fashion by the sentencing
judge.” Rodriguez, 398 F.3d at 1301. Overton has not argued, and our own review of the record
does not reveal, that the district court would have imposed a lesser sentence, even if it could have.
On this record, Overton has not shown a reasonable probability of a different result, within the
meaning of Rodriguez. Thus, even if he had properly raised this issue, we would not find reversible
error.
2
The district court has “broad discretion in formulating a jury charge as long as
the charge as a whole is a correct statement of the law.” United States v. Schlei, 122
F.3d 944, 969 (11th Cir. 1997). We review a district court’s refusal to give a
proposed jury instruction for abuse of discretion. See United States v. Puche, 350
F.3d 1137, 1150 (11th Cir. 2003). A defendant is entitled to appellate relief on this
basis only where (1) the rejected instruction was substantively correct; (2) the actual
charge to the jury did not substantially cover the proposed instruction; and (3) the
failure to give the requested instruction substantially impaired the defendant’s ability
to present an effective defense. See United States v. Zlatogur, 271 F.3d 1025, 1030
(11th Cir. 2001), cert. denied, 122 S. Ct. 1338 (2002).
To find prosecutorial misconduct, we apply a two-part test: “‘(1) the remarks
must be improper, and (2) the remarks must prejudicially affect the substantial rights
of the defendant.’” United States v. Gonzalez, 122 F.3d 1383, 1389 (11th Cir. 1997)
(quoting United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir. 1991)). “A
defendant’s substantial rights are prejudicially affected when a reasonable probability
arises that, but for the remarks, the outcome [of the trial] would be different.” United
States v. Hall, 47 F.3d 1091, 1098 (11th Cir. 1995).
The relevant facts are these. On January 22, 2003, Overton was charged with
possession of a firearm in and affecting interstate commerce by a convicted felon, in
3
violation of 18 U.S.C. § 922(g)(1) (Count I); theft from a licensed firearms dealer of
a firearm in and affecting interstate commerce, in violation of 18 U.S.C. § 922(u)
(Count II); and possession of a stolen firearm in and affecting commerce, in violation
of 18 U.S.C. § 922(j) (Count III). Without objection from the government, the district
court dismissed Count I of the indictment after agreeing that Overton was not a
“convicted felon” for the purposes of § 922(g) and Overton proceeded to trial on the
remaining two counts.
The government presented the following evidence, inter alia, against Overton.
On November 21, 2002, at approximately 9:30 p.m., Deputy Sheriff Joseph Dixon of
the Escambia County Police Department was on routine patrol when he heard an
alarm sounding. After he had determined that the alarm was emanating from Jack’s
Super Pawn on the corner of “S” Street and Fairfield Drive, he parked his car along
the west side of the building and subsequently observed Overton walk around the
corner of the building. Overton was wearing blue jeans, a black T-shirt, black shoes,
a black hat, a grayish jacket, and holding a pair of black leather gloves in his hand.
Deputy Dixon approached Overton, who was standing directly outside the store
where the alarm was sounding, and asked Overton if he worked at the store. Overton
gave no response. Deputy Dixon then asked him if he saw anybody else in the area,
and if he knew why the alarm was sounding. Overton responded that he did not know
4
anything and that he was “coming from Popeye’s,” which was in the same area of the
pawn shop. Deputy Dixon noticed that Overton was sweating, breathing heavily, his
clothes were “especially dirty,” and that his hat had a pinkish-yellow fiber on it.
Subsequent analysis determined that the fiber on his clothing, including his jeans,
shirt, and hat, was insulation.
Soon after, other deputies and the manager of Jack’s Super Pawn arrived at the
scene. Once inside the store, the officers observed that the access panel from the attic
into the store had been forced open. The officers found a crowbar (that did not
belong to the pawn shop) just beneath the attic access area. The deputies also
observed pink and yellow insulation fibers, similar to the substance found on
Overton’s clothing, on the floor of the store, just below the opened access area of the
attic. Subsequent investigation revealed that there was a three- or four-foot hole in
the roof of the building, and that the only way to access the attic from the hole in the
roof was by crawling through insulation. A microanalyst from the Florida
Department of Law Enforcement testified that the insulation found in the attic and on
the floor of the store and that found on several items of Overton’s clothing were the
same type.
Located just below the attic opening was a three-gun rack with two firearms
missing from it and one firearm laying on the floor beneath it. The owner of Jack’s
5
Super Pawn was federally licensed to sell firearms. A rifle and a shotgun, both items
from the pawn store’s inventory, were discovered outside of the store. The firearms
previously had been placed on the gun rack located just below the attic opening. Jack
Khorram, the owner of Jack’s Super Pawnshop, testified that he had seen Overton in
the store approximately two weeks prior to the burglary and that Overton had been
in the store for a “tremendous” period of time, walking from one end of the store to
the other. Overton told Khorram that he was “just looking.”
Overton testified in his own defense. According to his testimony, on the night
of November 21, 2002, he was walking along Pace Street after having attended
church when a van pulled up and the driver called out his full name. The van
approached Overton with its side door open. Overton did not recognize the
individuals in the van. As the van passed Overton, the individuals “patted [him]
down from head to toe to [his] shoes” with insulation. They then ordered Overton to
walk “up Pace, down Fairfield to approximately S Street,” the intersection where
Jack’s Super Pawn was located. Overton testified that as soon as he crossed the street
in front of Jack’s Super Pawn, the alarm “went off,” and the van then “pulled off.”
After Overton testified, the defense rested.
In its closing argument, the government argued the following:
6
[I]n order for the defendant’s version to be true, these men, these
mystery men, had to break in, pull insulation out and go find someone
to frame for this job while someone else is committing the rest of the
robbery. I suggest to you that that’s ridiculous, that the only person who
was there at this crime was the defendant, and that it’s virtually an insult
to your intelligence to believe otherwise.
The government also argued that Overton knew where to pry a hole in the roof of the
pawn shop in order to steal the three firearms from the gun rack based on the
observations he had made during his previous lengthy visit to the pawn shop. The
government’s theory of the evidence, as argued to the jury, was that Overton crawled
through the attic to the attic access panel, reached down and removed two guns from
the gun rack, and then attempted to steal the third gun. The prosecutor argued: “If
he had just been satisfied with those two guns, he probably would have gotten away
with it. And he may still get away with it. It’s up to you.”
Defense counsel then objected, arguing that the government’s comments that
“its virtually an insult to your intelligence” and “he may still get away with it” were
improper. Defense counsel then requested that the district court “remind[] the jury
that it’s up to them to make a decision as to what the evidence shows.” The district
court sustained the defense’s objection as to the comment that “he may still get away
with it,” but did not give the requested instruction. The district court overruled the
objection as to the “insult to your intelligence” comment, stating “I don’t think there
7
is anything that I can instruct them that would be helpful to the jury as a matter of fact
or as a matter of law, so, request is denied.” Defense counsel then moved for a
mistrial, which also was denied. The government then continued with its closing
argument, asserting that Overton reached for the third firearm with his crowbar, the
gun rack fell to the floor taking the crow bar with it, Overton then jumped off the
roof, walked around the building right into the area where Deputy Dixon was located.
The district court submitted a redacted indictment for the jury’s review during
its deliberations. The indictment redacted “Count One” and set forth “Count Two”
and “Count Three.” The defendant requested that the district court instruct the jury
that Count One had been “dismissed.” Over the defendant’s objection the district
court instead instructed the jury as follows:
You will also have with you a copy of the indictment and the indictment
shows the two charges, Count Two and Count Three. Now, I note that
there is no Count One in this indictment. The original indictment had
a Count One, but that’s a matter that’s no longer for your consideration.
It’s not a matter that’s being tried before you, and the only two charges
for your consideration at this trial.
The jury subsequently found Overton guilty as to both Counts II and III. After the
verdict, district court dismissed Count III as duplicitous of Count II. On Count II, the
district court sentenced Overton to a 66-month term of imprisonment, which was to
8
run consecutive to an existing Florida state sentence related to the robbery. This
appeal followed.
Overton first argues that the district court abused its discretion by denying his
request to instruct the jury that Count I of the indictment had been “dismissed” and
instead stating that “the indictment had a Count One, but that’s a matter that’s no
longer for your consideration.” Overton urges that this instruction, coupled with the
court’s decision to use a redacted copy of the indictment with “Count Two” and
“Count Three” as the listed offenses for the jury’s review, gave the misleading
impression to the jury that Count I was still at issue or that he had pled guilty to it
prior to trial.
The district court has “broad discretion in formulating a jury charge as long as
the charge as a whole is a correct statement of the law.” United States v. Schlei, 122
F.3d 944, 969 (11th Cir. 1997). We assume “that a jury follows the instructions given
to it by the district court.” United States v. Bennett, 368 F.3d 1343, 1351 (11th Cir.
2004). We will not reverse a conviction based on a jury charge “‘unless the issues of
law were presented inaccurately, or the charge improperly guided the jury in a
substantial way as to violate due process.’” United States v. Anderson, 326 F.3d
1330, 1330-31 (11th Cir. 2003) (quoting United States v. Moore, 253 F.3d 607, 609
(11th Cir. 2001)). Moreover, the district court is “not bound to use the exact words
9
and phrasing suggested by counsel in its charge.” United States v. Russell, 717 F.2d
518, 521 (11th Cir. 1983).
Although Overton’s requested instruction that Count I was “dismissed” was a
correct legal statement, the district court nonetheless substantially covered the
requested charge (and in so doing correctly stated the law) by instructing the jury to
“not worry about” Count One. Moreover, the court accurately instructed the jury,
“The only counts that are for your consideration are Counts Two and Three, the only
two charges for your consideration in this trial.” Because the jury is presumed to
have followed the district court’s instructions, we can find no abuse of the district
court’s broad discretion on this issue.2
We are likewise unpersuaded by Overton’s contention that the prosecutor’s
comments during closing argument -- that “he may still get away with it. It’s up to
you” -- and the district court’s refusal to give his requested curative instruction,
violated his due process and fair trial rights. To demonstrate that substantial rights
have been prejudiced, Overton must show that “there is a reasonable probability that,
2
Overton’s reliance on our decision in United States v. Artrip, 942 F.2d 1568 (11th Cir.
1991), is misplaced. In Artrip, the district court’s instruction “failed to provide guidance” to the jury
concerning its consideration of certain evidence. We found that this failure resulted in the
modification of an essential element of the charged crime and created a “substantial likelihood” that
Artrip was convicted of a crime other than the crime charged in the indictment. Id. at 1570-71.
Here, we can find no such failure to provide guidance and Overton does not argue (nor can we find)
a modification of essential elements.
10
but for the remarks, the outcome would have been different.” United States v.
Adams, 74 F.3d 1093, 1097 (11th Cir. 1996). “[A] criminal conviction is not to be
lightly overturned on the basis of a prosecutor’s comments standing alone, for the
statements or conduct must be viewed in context; only by doing so can it be
determined whether the prosecutor’s conduct affected the fairness of the trial.”
United States v. Young, 470 U.S. 1, 11, 105 S. Ct. 1038, 1044 (1985); see also United
States v. Hernandez, 145 F.3d 1433, 1438 (11th Cir. 1998) (in assessing the
prejudicial impact of the comments, the Court evaluates them in the context of the
trial as a whole and considers their probable impact on the jury).
Viewing the record as a whole and the comment in its context, the prosecutor’s
argument that Overton “may still get away with it. It’s up to you,” did not prejudice
Overton’s substantial rights. First, the district court sustained the defense objection
to this comment. Before opening argument, the court instructed the jury that it would
have to rule on objections, and that regardless of how the court ruled, the jurors
should not be influenced by the court’s decision on an objection.3 Second, the court
twice instructed the jury -- once before opening arguments and another time before
3
The court further explained: “if I sustain an objection, for example, that means that’s an
improper question that should not be asked. Don’t in any way infer from that that I have any feelings
about one side or the other. And don’t speculate on what answer the witness might have given if I
had allowed the witness to answer the question itself.”
11
closing arguments -- that what the lawyers stated was not evidence, and that the jury
was to base its verdict on only the evidence presented in the case. The jury is
presumed to follow the district court’s instructions. See Bennett, 368 F.3d at 1351.
Simply put, Overton has not met his burden to show that there is “a reasonable
probability . . . that, but for the remarks,” the outcome of his trial would be different,
and thus, he has not shown prejudice to his substantial rights. See Hall, 47 F.3d at
1098. Accordingly, we affirm.
AFFIRMED.
12