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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-14163
Non-Argument Calendar
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D.C. Docket No. 1:04-cr-00288-ODE-AJB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOPAZ DARDEN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(September 30, 2020)
Before BRANCH, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
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On our own motion, we vacate our prior opinion, and substitute it with the
following opinion, which has been revised only as to one sentence in the second-to-
last paragraph. Appellant’s motion for panel rehearing is denied as moot.
Topaz Darden appeals his twenty-one month sentence imposed following the
revocation of his supervised release under 18 U.S.C. section 3583(e)(3). We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
After serving his prison sentence for possession of a firearm as a convicted
felon, in violation of 18 U.S.C. section 922(g), Darden began his three years of
supervised release. The terms of his release prohibited him from committing another
crime. Within months of finishing his prison term, the government filed a petition
alleging that Darden committed seven violations of his release conditions, including
receiving stolen property, in violation of Georgia law. See O.C.G.A. § 16-8-7(a).
As to the receiving stolen property violation, the petition alleged that Atlanta police
officer James Dimaso pulled over and arrested Darden after receiving a report that
the car he was driving was stolen. The petition also alleged that Darden, in a post-
arrest interview, said he borrowed the car from Eddie McDonald two days prior and
had attempted to return the vehicle but could not find McDonald.
The district court held a hearing on the petition. Darden admitted or did not
dispute five of the violations. He contested the remaining two, including the one
charging him with receipt of stolen property. Officer Dimaso testified. He said that
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on June 21, 2019 he pulled Darden over after learning the car Darden was driving
had been reported stolen. After Darden pulled over, he immediately jumped out of
the vehicle, something Officer Dimaso testified was unusual for a traffic stop. The
officers on the scene, with weapons drawn, ordered Darden back into the car before
they arrested him and placed him in the back of Officer Dimaso’s patrol car. Officer
Dimaso ran Darden’s license and found that it was not valid. While in Officer
Dimaso’s patrol car with Darden, a police recruit mistakenly identified the stolen
car’s owner as Eddie McDonald. In a recorded post-arrest interview, Darden told
officers that he had permission to use the car given by its owner, who he identified
as Eddie McDonald, also called Henry. Darden acknowledged in the interview that
he had agreed to return the car to McDonald on June 19 and had attempted to do so
but could not find McDonald. He also could not provide any contact information
for McDonald. Albert Rushing in fact owned the car and had reported to the police
that it was stolen on June 14. Darden’s sister-in-law, Tammy Simmons, also
testified at the hearing. She had seen Darden and Rushing together on previous
occasions with the car, including after Rushing reported it stolen.
The district court credited the government’s evidence and Officer Dimaso’s
testimony and ruled that the government had established the violation by a
preponderance of the evidence. It found that at the time of his arrest, Darden was
driving the stolen car. It also found that Darden appeared extremely upset and
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nervous when questioned by officers. Darden, according to the district court, “kept
hemming and hawing” and would not answer the officers’ questions. That conduct
reflected Darden’s “feeling of guilt,” said the district court.
The district court also found that Darden had committed all six other
violations and calculated a guideline range of twenty-one to twenty-seven months
based on the grade B receipt-of-stolen-property violation and Darden’s criminal
history category of VI. The court revoked Darden’s supervised release and
sentenced him to twenty-one months’ imprisonment and one year of supervised
release.
STANDARD OF REVIEW
We review for an abuse of discretion a district court’s revocation of supervised
release. United States v. Cunningham, 607 F.3d 1264, 1266 (11th Cir. 2010). We
review its factual findings for clear error. United States v. Almand, 992 F.2d 316,
318 (11th Cir. 1993).
DISCUSSION
Darden argues that the evidence was insufficient to show that he received
stolen property in violation of Georgia law because the government failed to
demonstrate that (1) the car was stolen, (2) Darden knew the car was stolen, and
(3) he did not have the intent to return it to its owner.
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The district court may “revoke a term of supervised release” and impose a
prison sentence if it “finds by a preponderance of the evidence that the defendant
violated a condition of supervised release.” 18 U.S.C. § 3583(e)(3); see also United
States v. Gomez, 955 F.3d 1250, 1257–58 (11th Cir. 2020). The United States
Sentencing Guidelines establish three grades of supervised release violations. See
U.S.S.G. § 7B1.1(a). A defendant commits a grade B violation when he engages in
“conduct constituting any other federal, state, or local offense punishable by a term
of imprisonment exceeding one year.” Id. § 7B1.1(a)(2). If the defendant commits
a grade B violation and has a criminal history category of VI, the applicable
guideline range is twenty-one to twenty-seven months’ imprisonment. Id.
§ 7B1.4(a).
In Georgia, a person commits theft by receiving stolen property “when he
receives, disposes of, or retains stolen property which he knows or should know was
stolen unless the property is received, disposed of, or retained with intent to restore
it to the owner.” O.C.G.A. § 16-8-7(a). If the value of the stolen property is at least
$1,500.01 but less than $5,000, the term of imprisonment is between one and five
years. Id. § 16-8-12(a)(1)(C).
The district court had sufficient evidence to find by a preponderance that
(1) the car was stolen, (2) Darden knew it was stolen, and (3) Darden did not have
the intent to return the car to Rushing. As to the first issue, “[t]here must be proof
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of a larcenous taking.” Johnson v. State, 511 S.E.2d 921, 923 (Ga. Ct. App. 1999).
The district court found that Rushing owned the car and that it had been stolen. The
government introduced the police report showing that the car had been stolen.1 The
government also submitted an indictment brought by the State of Georgia against
Darden. The indictment alleged that Darden had received Rushing’s stolen car
knowing that it was stolen. And the district court found that Rushing had testified
before the Georgia grand jury and that he was willing to testify at Darden’s trial.
For the knowledge element, “possession of recently stolen property is not
alone sufficient to sustain a conviction for receiving stolen property, [but] guilt may
be inferred from possession along with other evidence—including circumstantial
evidence—of guilty knowledge which would excite suspicion in the mind of an
ordinarily prudent person.” Priester v. State, 549 S.E.2d 429, 434 (Ga. Ct. App.
2001); see also Miller v. State, 561 S.E.2d 810, 813 (Ga. 2002). “Whether the
explanation of the possession offered by the defendant in his statement alone is a
satisfactory explanation, is a question for the factfinder.” Bradley v. State, 731
S.E.2d 371, 373 (Ga. Ct. App. 2012) (alteration adopted). “Knowledge that goods
1
“Although the Federal Rules of Evidence do not apply in supervised release revocation
hearings, the admissibility of hearsay is not automatic.” United States v. Frazier, 26 F.3d 110, 114
(11th Cir. 1994). To decide whether to admit hearsay, the district court “must balance the
defendant’s right to confront adverse witnesses against the grounds asserted by the government
for denying confrontation.” Id.; see also Fed. R. Crim. P. 32.1(b)(2)(C). Darden made no hearsay
objection when the government introduced its evidence and does not make a relevant hearsay
argument on appeal, so we do not consider the issue. See United States v. Jernigan, 341 F.3d 1273,
1283 n.8 (11th Cir. 2003).
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are stolen may well be deduced by the [factfinder] from the defendant’s conduct and
behavior, the character of the person from whom the goods were received, and the
nature of the stolen property.” Williams v. State, 540 S.E.2d 305, 310 (Ga. Ct. App.
2000).
Here, in addition to finding that the vehicle was stolen and belonged to
Rushing, the district court determined that Darden’s behavior in his post-arrest
interview—appearing extremely upset, “hemming and hawing,” and not answering
questions—evidenced a guilty mind. Officer Dimaso’s testimony, which the district
court specifically credited, provides even more support for Darden’s intent. As soon
as Officer Dimaso pulled Darden over, Darden jumped out of the car without any
instruction from the officers. Darden did not have a valid driver’s license. Darden
also told officers that he borrowed the car from Eddie McDonald, after Darden
overheard the police recruit (erroneously) identify McDonald as the car’s owner.
And Darden did not have contact information for the person he borrowed the car
from, did not know where he lived, and did not know where he worked. Georgia
courts have determined that all of these pieces of evidence support a finding of guilty
intent. See Ridgeway v. State, 712 S.E.2d 84, 86 (Ga. Ct. App. 2011) (concluding
evidence was sufficient when it showed in part a stolen dirt bike “had been borrowed
from an alleged ‘good friend’ with an unknown last name who disappeared after [the
defendant’s] arrest”); In re C.S., 644 S.E.2d 894, 895 (Ga. Ct. App. 2007) (holding
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that driving without a license or proof of insurance indicates knowledge that the car
was stolen); Williams, 540 S.E.2d at 310 (“Contradictory statements by the
defendant, coupled with the apparent nonexistence of the person from whom he
contended he received the stolen property, authorize the jury to find that the
defendant received the stolen property with knowledge that it had been stolen.”);
Daras v. State, 411 S.E.2d 367, 369 (Ga. Ct. App. 1991) (affirming sufficiency of
the evidence of guilty intent based on registration and insurance papers in the name
of the owner found in the stolen car and the defendant’s testimony that he obtained
the car from someone he knew but “not great”).
Finally, Darden contends that the district court did not have sufficient
evidence to find that he did not intend to restore the car to its owner. He claims the
district court should have credited his statements in his post-arrest interview that he
planned to return the car to McDonald but could not find him. But this argument
and others Darden makes, like that Rushing and McDonald are the same person, are
exactly what we cannot review here because “a trial court’s choice between two
permissible views of the evidence is the very essence of the clear error standard of
review.” United States v. Stanley, 739 F.3d 633, 653 (11th Cir. 2014) (internal
quotation marks omitted). Darden claimed that McDonald told him to return the car
on June 19. But he was stopped on June 21 still with the car reported stolen and
there was no evidence that he was looking for McDonald or returning the car.
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To be sure, even under clear error review, substantial evidence must support
a district court’s factual findings. United States v. Robertson, 493 F.3d 1322, 1330
(11th Cir. 2007). The district court here had enough evidence to rule that Darden
did not intend to return the car. While Rushing reported that the car had been stolen
on June 14, Darden still had possession of it a week later. Darden didn’t know the
name of the person he borrowed the car from, where he lived, or how to contact him.
The district court had sufficient evidence to find that Darden received stolen
property in violation of Georgia law. Given that Darden committed a grade B
violation, the district court correctly calculated his guideline range. See U.S.S.G.
§ 7B1.4(a).
AFFIRMED.
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