United States v. Gary Lamar Walthour

[DO NOT PUBLISH]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.