[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 25, 2006
No. 05-16118 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-20972-CR-MGC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDERICK THOMAS HARRINGTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 25, 2006)
Before TJOFLAT, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Frederick Thomas Harrington appeals his convictions and
sentences for his role in a marijuana trafficking operation in which he sailed boats
from Jamaica to south Florida with hidden compartments full of marijuana.
Harrington was also involved in a conspiracy that was the subject of a different
prosecution in which he trafficked marijuana in Hernando County, Florida. On
appeal, Harrington argues that the district court: (1) erred in denying his motion to
suppress wiretap evidence; (2) abused its discretion in instructing the jury venire;
(3) abused its discretion in allowing the government to introduce evidence pursuant
to Fed. R. Evid. 404(b); (4) abused its discretion in denying his motion for a
mistrial based on prosecutorial misconduct; and (5) erred in sentencing Harrington
based on a larger drug amount than the one found in the jury’s special verdict.
A. Wiretap Evidence
1. Staleness
Harrington first argues that the district court erred in finding that stale
information provided by the confidential informant (“CI”) was updated and
corroborated. The information was stale because the CI had not been involved in
the conspiracy for a year, surveillance revealed only that Harrington had minimal
contacts with some of his “customers,” and there was no evidence that he was
involved in a continuous conspiracy.
We review de novo the legal sufficiency of a wiretap application presented
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to a district court. See United States v. Butler, 102 F.3d 1191, 1199 (11th Cir.
1997) (reviewing de novo the sufficiency of an affidavit supporting a search
warrant). We review the district court’s findings of fact on a motion to suppress
only for clear error, but review its application of law to those facts de novo. United
States v. Jackson, 120 F.3d 1226, 1228 (11th Cir. 1997).
“[T]he probable cause needed to obtain a wiretap must exist at the time
surveillance is authorized.” United States v. Domme, 753 F.2d 950, 953 (11th Cir.
1985) (citations omitted). The probable cause standard is not satisfied if:
the government can demonstrate only that the items to be
seized could have been found at the specified location at
some time in the past. Rather, the government must
reveal facts that make it likely that the items being sought
are in that place when the warrant issues. . . . The length
of time between the date on which all of the facts
supporting probable cause were known and the date the
warrant was issued is only one factor. Probable cause is
not determined merely by counting the number of days
between the facts relied upon and the warrant’s issuance.
Rather, the probable cause standard is a practical,
nontechnical one. When criminal activity is protracted
and continuous, it is more likely that the passage of time
will not dissipate probable cause. In such circumstances,
it is reasonable to assume that the activity has continued
beyond the last dates mentioned in the affidavit, and may
still be continuing. Time becomes less significant in the
wiretap context, because the evidence sought to be seized
is not a tangible object easily destroyed or removed.
Therefore, when police describe telephone activity
occurring over an extended period of time, the stale
information issue should be construed less rigorously.
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Id. (citations omitted). Even assuming that an affidavit is stale, “such information
is not fatal where the government’s affidavit updates, substantiates, or corroborates
the stale material.” United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000)
(quoting United States v. Magluta, 198 F.3d 1265, 1272 (11th Cir. 1989)).
After reviewing the record, we conclude that the district court did not err in
denying Harrington’s motion to suppress the wiretap based on facts found in the
affidavit. First, the affidavit for the wiretap stated that Harrington was involved in
two continuing drug importation conspiracies, so it was reasonable for the issuing
magistrate to assume that the activity mentioned in the affidavit was ongoing.
Further, the government updated and corroborated the information presented by the
CI by surveilling Harrington and determining that he: (1) regularly met with people
that the CI named as his customers; (2) traveled to Montego Bay, Jamaica; (3)
traveled to Miami at least once and returned with a large cardboard box in the bed
of his truck; and (4) had a freezer in his garage for storing the marijuana, as
previously stated by the CI. Thus, the district court did not err because there was
probable cause for the wiretap.
2. Omissions and Misrepresentations
Harrington further argues that the affidavit omitted the fact that the CI was a
drug addict and former employee of Harrington’s shrimping business. Further, the
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CI’s information was not corroborated because the surveillance merely confirmed
that Harrington was in contact with his fellow shrimpers. Harrington asserts that
the affiant knowingly and intentionally made false representations in the wiretap
application.
In order to suppress evidence obtained using a wiretap, a defendant must
carry his burden of proving that (1) the alleged misrepresentations or omissions
were knowingly or recklessly made by the affiant, and (2) the result of excluding
the alleged misrepresentations and including the alleged omissions would have
been a lack of probable cause for issuance of the warrant. United States v.
Novaton, 271 F.3d 968, 986-987 (11th Cir. 2001) (citations omitted). Even though
law enforcement officers observe circumstances which could have innocent
explanations, it does not mean that probable cause does not exist. See United
States v. Reeh, 780 F.2d 1541, 1544-1545 (11th Cir. 1986) (holding that apparently
innocent circumstances can justify an officer’s reasonable suspicion of illegal
activity when considered, in light of the officer’s experiences, with all of the
circumstances).
We conclude from the record that the district court correctly found that the
wiretap application did not omit or misrepresent any information that resulted in a
lack of probable cause. Harrington did not present any evidence to support his
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argument that the affidavit contained omissions and misrepresentations. Further,
Harrington did not present any evidence to show that the affiant knew that: (1) the
CI was one of Harrington’s former shrimping employees or that he was fired from
that position; (2) the CI received immunity for the information he provided; or (3)
information about the location of a freezer in Harrington’s garage was false.
Contrary to Harrington’s assertion, the affidavit did state that the information was
reliable. Harrington’s claim that the affidavit misrepresented his fellow shrimpers
as customers is meritless because the affidavit stated that his marijuana customers
were mainly in the shrimping industry.
B. Jury Venire Instructions
Next, Harrington argues that the district court abused its discretion in stating
to the jury venire during voire dire that a jury could only convict him using
evidence brought against him in court. Harrington claims that this statement,
coupled with the district court’s comments that “CSI” evidence would not be
required to convict Harrington, lessened the burden of proof and undermined the
court’s reasonable doubt instruction.
Where a party timely objects, we review the legal correctness of a jury
instruction de novo, but defer to the district court on questions of phrasing absent
an abuse of discretion. United States v. Prather, 205 F.3d 1265, 1270 (11th Cir.
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2000). We review a “district court’s determination whether to strike an entire jury
panel for manifest abuse of discretion.” United States v. Trujillo, 146 F.3d 838,
842 (11th Cir. 1998) (citations omitted).
“Generally, district courts have broad discretion in formulating jury
instructions provided that the charge as a whole accurately reflects the law and the
facts, and we will not reverse a conviction on the basis of a jury charge unless the
issues of law were presented inaccurately, or the charge improperly guided the jury
in such a substantial way as to violate due process.” Prather, 205 F.3d at 1270
(citations and internal quotations omitted). A jury is presumed to have followed
the district court’s comprehensive instructions. United States v. Ramirez, 426 F.3d
1344, 1352 (11th Cir. 2005).
Here, we conclude from the record that the district court did not abuse its
discretion by telling the jury venire that it could only convict Harrington based on
evidence presented in court. The district court’s use of the word “convict” was a
matter of phrasing and did not change the burden of proof. Additionally, the
district court did not err by questioning jurors about whether they would be able to
separate television shows from the facts of the case and stating that there may not
be “CSI” evidence presented to them. The district court’s statements were not
actual instructions and did not inaccurately reflect the law. Further, the district
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court instructed the paneled jury, before opening arguments, on the applicable
burden of proof, and the jury is presumed to have followed this instruction. Thus,
the district court did not abuse its discretion.
C. Rule 404(b) Evidence
Harrington also argues that the district court abused its discretion in
allowing the government to introduce seized marijuana and other items relating to
the Hernando Conspiracy from the Le Club apartment.
We review properly preserved challenges to the district court’s rulings on
admission of evidence for an abuse of discretion. Jiminez, 224 F.3d at 1249. A
court abuses its discretion when its decision “rests upon a clearly erroneous finding
of fact, an errant conclusion of law, or an improper application of law to fact.”
United States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005), cert. denied, Pless v.
United States, 126 S. Ct. 1809 (2006).
Evidence showing “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 [otherwise] be” is “[r]elevant evidence,” and “[a]ll relevant evidence is
[generally] admissible” at trial. Fed. R. Evid. 401, 402. However, even if evidence
is relevant, it “may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”
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Fed. R. Evid. 403. However, this rule is an “extraordinary remedy. . . which
should be used sparingly since it permits the trial court to exclude concededly
probative evidence.” United States v. Wright, 392 F.3d 1269, 1276 (11th Cir.
2004), cert. denied, 544 U.S. 968, 125 S. Ct. 1751 (2005) (quoting United States v.
Fallen, 256 F.3d 1082, 1091 (11th Cir. 2001)). Rule 404(b) prohibits all evidence
of “other crimes, wrongs, or acts” to prove that a person is of a character that
would commit the crime charged, but it permits such evidence to prove, among
other things, motive, intent, or absence of mistake or accident. Baker, 432 F.3d at
1204; Fed. R. Evid. 404(b).
We apply a three-part test for determining the admissibility of evidence
under Rule 404(b). United States v. Calderon, 127 F.3d 1314, 1330 (11th Cir.
1997). “First, the evidence must be relevant to an issue other than the defendant’s
character.” Id. Second, the government must show, by a preponderance of the
evidence, that the defendant actually committed the extrinsic act. United States v.
Bowe, 221 F.3d 1183, 1192 (11th Cir. 2000). “Third, the probative value of the
evidence must not be substantially outweighed by unfair prejudice.” Calderon,
127 F.3d at 1330. As for the third prong of the test, “[i]n measuring the probative
value of the evidence, the judge should consider the overall similarity of the
extrinsic and charged offenses.” United States v. Beechum, 582 F.2d 898, 915 (5th
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Cir. 1978). “If they are dissimilar except for the common element of intent, the
extrinsic offense may have little probative value to counterbalance the inherent
prejudice of this type of evidence.” Id. Also, we have stated that “[t]he greater the
government’s need for evidence of intent, the more likely that the probative value
will outweigh any possible prejudice.” United States v. Delgado, 56 F.3d 1357,
1366 (11th Cir. 1995) (citation omitted).
In the context of a conspiracy charge, when the defendant pleads not guilty,
he has made his intent a material issue. United States v. Matthews, 431 F.3d 1296,
1311 (11th Cir. 2005), petition for cert. filed, 74 U.S. L.W. 3619 (U.S. April 24,
2006) (No. 05-1355). (quotations omitted). “Evidence of such extrinsic evidence
as may be probative of a defendant’s state of mind is admissible unless [the
defendant] affirmatively take[s] the issue of intent out of the case.” Id. (citation
omitted).
After reviewing the record, we conclude that the district court did not abuse
its discretion by allowing the government to introduce the Hernando conspiracy
evidence seized from the Le Club apartment. First, the marijuana, yellow note
pads, satellite phone box, and other items seized from the Le Club apartment are
relevant because they show that Harrington knew that there was marijuana onboard
the Blue Moon, the boat used in the Jamaican conspiracy, and that he intended to
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bring it into the United States. Second, these items were found during a search of
the Le Club apartment, which was rented by Harrington. This satisfies the
preponderance of the evidence standard and fulfills the second prong of the 404(b)
admissibility test. Further, the probative value of the Hernando conspiracy
outweighed any possible prejudice because the two acts were similar in that they
both involved the smuggling and distribution of large quantities of marijuana in
south Florida. Lastly, the district court provided an extensive limiting instruction.
D. Prosecutorial Misconduct
Harrington argues that the government violated his Fifth Amendment rights
by stating, during its closing argument, that he lied. Harrington alleges that the
government also violated his right to a fair trial by stating that defense counsel was
attempting to distract the jury. Lastly, the government improperly shifted the
burden of proof by arguing that Harrington had subpoena powers.
“In reviewing a claim of prosecutorial misconduct, we must assess (1)
whether the challenged comments were improper, and (2) if so, whether they
prejudicially affected the substantial rights of the defendant.” United States v.
Arias-Izquierdo, 449 F.3d 1168, 1177 (11th Cir. 2006). “In order to assess the
prejudicial impact of a prosecutor’s statements, we must evaluate them in the
context of the trial as a whole and assess their probable impact on the jury.”
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United States v. Hernandez, 145 F.3d 1433, 1438 (11th Cir. 1998). “[W]hile a
prosecutor may not comment about the absence of witnesses or otherwise attempt
to shift the burden of proof, it is not improper for a prosecutor to note that the
defendant has the same subpoena powers as the government, ‘particularly when
done in response to a defendant’s argument about the prosecutor’s failure to call a
specific witness.’” Id. at 1439. (quotations omitted). “To warrant reversal of a
verdict prosecutorial misconduct must be so pronounced and persistent that it
permeates the entire atmosphere of the trial.” United States v. Thomas, 8 F.3d
1552, 1561 (11th Cir. 1993). “[We have] noted that an unflattering
characterization of a defendant will not provoke a reversal when such descriptions
are supported by the evidence.” United States v. Tisdale, 817 F.2d 1552, 1555
(11th Cir. 1987) (quotations omitted).
We conclude that the district court did not err in denying Harrington’s
motion for a mistrial because the government’s statements that Harrington had lied
were supported by the evidence. Harrington lied to the authorities by stating that
he departed from the Dry Tortugas and then lied again by stating that he was
coming from the Cayman Islands. Testimony presented at trial established that the
Blue Moon actually had departed Jamaica. Therefore, the government’s statements
that Harrington lied were supported by the evidence and were not prosecutorial
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misconduct. Further, while the government’s comments during closing argument
that defense counsel was employing “smoke” to distract the jury from the facts of
the case were improper, they were not so pronounced or persistent that they
permeated the entire trial atmosphere. Lastly, the government’s statements that
Harrington had subpoena powers did not constitute prosecutorial misconduct
because the government was responding to Harrington’s argument that the
government chose not to call several witnesses.
E. Booker Error
Finally, Harrington argues that the district court violated his Sixth
Amendment rights, pursuant to United States v. Booker, 543 U.S. 220, 125 S. Ct.
738, 160 L. Ed. 2d 621 (2005), when it increased his base offense level based on a
drug amount that was higher than that found by the jury’s special verdict.
If, as here, a defendant raises his Booker objection to the district court’s
application of the Sentencing Guidelines at his sentencing, we review the issue de
novo, and reverse “only if any error was harmful.” United States v. Paz, 405 F.3d
946, 948 (11th Cir. 2005). We have held that there are two types of Booker errors:
(1) constitutional error resulting from enhancements based on judicial fact-finding;
and (2) non-constitutional statutory error resulting from mandatory application of
the Sentencing Guidelines. United States v. Shelton, 400 F.3d 1325, 1330-31 (11th
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Cir. 2005).
There is no error, as is the case here, when a sentencing court, after Booker,
makes factual determinations, or extra-verdict enhancements, that go beyond a
defendant’s admissions if the sentencing guidelines are applied in an advisory
manner. United States v. Chau, 426 F.3d 1318, 1323-1324 (11th Cir. 2005)
(holding that a sentencing court did not err in finding facts that went beyond those
found in the indictment by a preponderance of the evidence in an advisory
guidelines scheme). A district court must, however, find these facts by a
preponderance of the evidence. Id. We have noted that it is not Booker error for a
sentencing court to find facts that differ with those found by a jury in a special
verdict form. United States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir.), cert.
denied, 126 S. Ct. 432 (2005) (reviewing for plain error, and holding that it is not
Booker error for a sentencing court to consider acquitted conduct outside of a
special verdict if the conduct is proven by a preponderance of the evidence and the
ultimate sentence does not exceed the statutory maximum for the offense contained
in the jury verdict).
Here, the record demonstrates that Harrington was sentenced after Booker,
under an advisory guidelines system, and, thus, there was no Booker error. The
jury’s special verdict held Harrington accountable for only 100 kilograms or more
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of marijuana as to each count, and, thus, the statutory maximum for Harrington’s
offense is 40 years imprisonment. See 21 U.S.C. §§ 841 (b)(1)(B)(vii) and
960(b)(2)(G). The district court considered the advisory guidelines and the 18
U.S.C. § 3553(a) factors in imposing sentence. Harrington’s 151-month sentence
was well below the statutory maximum authorized by the jury’s verdict and at the
low end of the guideline range of 151-188 months imprisonment. Thus,
Harrington’s sentences were reasonable.
For the above-stated reasons, we affirm Harrington’s convictions and
sentences.
AFFIRMED.
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