[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 24, 2006
No. 06-10878 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00124-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARY LAMAR WALTHOUR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(October 24, 2006)
Before CARNES, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Gary Lamar Walthour appeals his convictions and sentence for possession of
cocaine and crack cocaine, in violation of 21 U.S.C. § 844; manufacture of crack
cocaine, in violation of 21 U.S.C. § 841(a)(1); and possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g). On appeal, Walthour argues
that the district court erred in: (1) denying his motion to suppress evidence; (2)
granting the government’s Batson motion to overrule Walthour’s peremptory strike
of two jurors; (3) allowing the government to impeach a defense witness with a
conviction from 1971; (4) preventing Walthour from offering evidence that the
cocaine found in his home belonged to other residents; and (5) misapprehending its
authority under United States v. Booker, 543 U.S. 220 (2005), to depart from the
Sentencing Guidelines.
I. Denial of Motion to Suppress
Walthour argues that the affidavit supporting the warrant to search his
home, which detailed three controlled buys, the last of which took place two days
before officers obtained the warrant and nine days before the warrant was
executed, did not give rise to probable cause. We review de novo the district
court’s determination that the warrant was supported by probable cause, and we
review its factual findings for clear error, giving due deference to the court’s
inferences from those findings. United States v. Jiminez, 224 F.3d 1243, 1248
(11th Cir. 2000).
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A search warrant establishing probable cause “state[s] facts sufficient to
justify a conclusion that evidence or contraband will probably be found at the
premises to be searched.” United States v. Martin, 297 F.3d 1308, 1314 (11th Cir.
2002). The affidavit must establish “a connection between the defendant and the
residence to be searched and a link between the residence and any criminal
activity,” id., and it must establish that probable cause exists at the time the
warrant was issued. United States v. Bervaldi, 226 F.3d 1256, 1264 (11th Cir.
2000). While there is “no [universal] time limit for when information becomes
stale,” we have stated that, “where an affidavit recites a mere isolated
violation[, . . .] it is not unreasonable to believe that probable cause quickly
dwindles with the passage of time.” Id. at 1265. “On the other hand, if an
affidavit recites activity indicating protracted or continuous conduct, time is of less
significance.” Id. In deciding whether information presented in support of a
search warrant is stale, we examine (1) the length of time between when the
information was obtained and the warrant’s execution; (2) the nature of the
suspected crime; (3) the habits of the accused; (4) the character of the items sought;
and (5) the nature and function of the premises to be searched. Id.
In Bervaldi, we found that information regarding the defendant’s residence
in a house was comparable to evidence of protracted or continuous criminal
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activity, and on that basis we held that such information was not stale when the
warrant was issued six months later. Id. at 1265-66. In the present case, although
two of the transactions referenced in the challenged affidavit occurred months
before the warrant application, the most recent transaction transpired within 72
hours of when the affidavit was sworn and nine days before Walthour’s home was
actually searched. If the Bervaldi warrant was not stale, logic dictates that the
contested warrant in this case was not stale either. Accordingly, we affirm the
district court’s denial of Walthour’s suppression motion.1
II. Grant of Government’s Batson Motion
Because a district court’s determination of the reason for a juror’s dismissal
is a finding of fact, we will not overturn it “unless it is clearly erroneous or appears
to have been guided by improper principles of law.” United States v.
Ochoa-Vasquez, 428 F.3d 1015, 1039 (11th Cir. 2005). Thus, in reviewing a
district court’s “resolution of a Batson challenge,” we give “great deference” to the
court’s “finding as to the existence of a prima facie case.” Id.; see also Novaton,
271 F.3d at 1001 (“A district court’s findings regarding whether a peremptory
strike was exercised for a discriminatory reason largely involve credibility
1
Walthour also complains of mistakes regarding his weight, social security number, and
hairstyle, but these do not bear on whether there was probable cause to believe there were drugs
at the premises searched.
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determinations and are therefore entitled to great deference.”).
Walthour argues that he offered sufficient race-neutral reasons for striking
jurors Alan Tanenbaum and Sandra Lynch. He asserts that Lynch was struck
because she gave a “dirty look” to his counsel, who was the only person to observe
the allegedly hostile expression. However, because district courts are entitled to be
skeptical of minimally supported allegations of such fleeting and subjective
conduct, see Barfield v. Orange County, 911 F.2d 644, 648 n.1 (11th Cir. 1990),
we cannot say that the district court clearly erred in its credibility determination
against Walthour’s counsel. As for Tanenbaum, Walthour claimed that he was
struck for owning a business and living in the area for 34 years. But even after
Walthour’s strikes, three business owners and four people who had lived in the
area longer than Tanenbaum were left in the jury box. As Walthour did not object
to these other jurors, the district court did not clearly err in discrediting his
proffered reasons for striking Tanenbaum. Accordingly, we affirm the district
court’s Batson rulings.
III. Impeachment of a Defense Witness with a 1971 Conviction
Walthour argues that the district court committed reversible error when it
allowed the government to impeach his father, Robert Price, with evidence of a
1971 conviction. We review for an abuse of discretion a district court’s decision to
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admit evidence of prior convictions. United States v. Pritchard, 973 F.2d 905, 908
(11th Cir. 1992). “Evidentiary . . . errors do not constitute grounds for reversal
unless there is a reasonable likelihood that they affected the defendant’s substantial
rights; where an error had no substantial influence on the outcome, and sufficient
uninfected evidence supported the verdict, reversal is not warranted.” United
States v. Christopher, 923 F.2d 1545, 1550 (11th Cir. 1991).
Evidence of a witness’s conviction is not admissible if more than ten years
have elapsed since the date the witness was convicted or released from prison.
Fed.R.Evid. 609(b). Nevertheless, an older conviction may be introduced if “the
court determines, in the interests of justice, that the probative value of the
conviction . . . substantially outweighs its prejudicial effect.” Id. In order to
introduce an older conviction, however, the adverse party must be given written
notice and “a fair opportunity to contest the use of such evidence.” Id. Thus, even
if the probative value of Robert Price’s conviction warranted its introduction, the
government failed to provide Walthour the required notice and opportunity for
contestation. Therefore, the government should not have been permitted to
introduce the conviction in evidence.
Nevertheless, the district court’s evidentiary error was harmless. The
evidence against Walthour was overwhelming, as he was found in the same room
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as a loaded firearm, and in a house containing cocaine, crack cocaine, and the
materials for transforming one substance into the other. Officers discovered no
personal affects belonging to Tracy Conley, whom Walthour claimed owned the
drugs found in the home. In light of this evidence, and Walthour’s failure to
convincingly refute it, we find no reversible error as to this claim.
IV. Exclusion of Testimony about the Police Report
Walthour argues that the district court committed reversible error when it
prevented him from introducing evidence – Deputy Danny Pittman’s testimony
about a police report submitted by Tracy Conley – tending to refute the
government’s claim that Walthour lived alone at the house where he was arrested.
We review the district court’s ruling on this matter for an abuse of discretion.
Jiminez, 224 F.3d at 1249. Again, “an erroneous evidentiary ruling will result in
reversal only if the resulting error was not harmless” – that is, unless ‘there is a
reasonable likelihood that it affected the defendant’s substantial rights.’” United
States v. Hands, 184 F.3d 1322, 1329 (11th Cir. 1999). In deciding whether an
error substantially affected the outcome, we weigh the record as a whole against
the evidence of the defendant’s guilt. See id.
Because Conley’s statements in his police report were inadmissible hearsay,
the district court did not abuse its discretion in preventing Deputy Pittman from
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testifying to them. “‘Hearsay’ is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” Fed.R.Evid. 801(c). “Hearsay is not admissible except as
provided by [the Federal Rules of Evidence] or by other rules prescribed by the
Supreme Court pursuant to statutory authority or by Act of Congress.”
Fed.R.Evid. 802. Statements in police reports made by individuals other than the
reporting officer, like those which Walthour sought to introduce, constitute hearsay
upon hearsay, and are therefore inadmissible. In re Boshears, 110 F.3d 1538, 1542
n.4 (11th Cir. 1997) (citing Fed.R.Evid. 805). Moreover, as noted above, any error
in this regard would have been harmless, as ample evidence supported Walthour’s
convictions. Accordingly, we affirm as to this issue.
V. Booker Error
In his sentencing memorandum, Walthour argued that the district court
should vary downward from the Sentencing Guidelines because the Guidelines
overstate the seriousnes of crack offenses, particularly in their 100-to-1 cocaine-to-
crack ratio. Walthour claims on appeal that, in refusing to vary downward on this
basis, the district court failed to appreciate its authority under Booker to impose a
non-Guidelines sentence. We disagree. The district court explicitly and repeatedly
referred to the advisory Guidelines, and this acknowledgment was not merely
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gestural. The court expressly considered mitigating evidence of Walthour’s
criminal history and personal characteristics, and explained its consideration of
other § 3553(a) factors, including just punishment, adequate deterrence, and the
nature, circumstances, and seriousness of the offense. Accordingly, Walthour’s
sentence, like his convictions, is
AFFIRMED.
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