United States v. Brian A. Pugh

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 16, 2006
No. 05-10677 THOMAS K. KAHN
CLERK

D. C. Docket No. 04-00088 CR-3-LAC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRIAN A. PUGH,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Florida

(March 16, 2006)

Before TJOFLAT and PRYOR, Circuit Judges, and GEORGE*, District Judge.

_____________________________

*Honorable Lloyd D. George, United States District Judge for the District of Nevada,
sitting by designation.
PER CURIAM:

BACKGROUND

On August 18, 1992, in the Southern District of West Virginia, Pugh was

convicted on a plea of guilty to possession of firearm by a convicted felon, in

violation of 18 U.S.C. § 924(g)(1), and sentenced to prison for a term of 92

months, to be followed by a three-year term of supervised release. On October 13,

1999, Pugh was released from prison and his term of supervised release

commenced.

On September 12, 2002, a Southern District of West Virginia probation

officer petitioned the district court to revoke Pugh’s supervised release. The

petition stated that Pugh had been arrested on September 9, 2002, by the Santa

Rosa County, Florida sheriff’s office for possession of a firearm by a convicted

felon. The arresting officers discovered him riding on the passenger’s seat of a

vehicle driven by Thelma Holt. Holt told the officers that Pugh and an

accomplice, Scott Bowers, who was in the back seat, had carjacked her and her

automobile. It turned out that Pugh, Bowers and Holt were conspiring to rob a

local business and that the officers interrupted their plan. The district court

granted the petition and issued a warrant for Pugh’s arrest.

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 On September 25, 2002, the court entered an order transferring jurisdiction

of the case and Pugh’s supervised release to the Northern District of Florida. The

case was assigned to Chief Judge Roger Vinson, and given Case No. 02-00099-

CR-3-RV.

On January 22, Judge Vinson entered a judgment in Case No. 02-00099-

CR-3-RV, revoking Pugh’s supervised release and sentencing him to prison for 21

months. Pugh appealed that judgment, Appeal No. 03-10588.

On November 19, 2002, while the petition for revocation of supervised

release was pending in No. 02-00099-CR-3-RV, a Northern District of Florida

grand jury indicted Pugh for possessing the firearm on September 9, 2002, as

described in the petition, in violation of 18 U.S.C. §§ 922(g) and 924(c)(1)(C)(i).

The indictment also charged him, in Count Two, with possession of ammunition

on August 18, 2002, in violation of 18 U.S.C. §§ 924(g) and 924(c)(1(C)(i). This

case was assigned to Chief Judge Vinson and given Case No. 02-00110-CR-3-RV.

Pugh entered a not guilty plea, and the case went to trial. The jury found

Pugh guilty on both counts, and, on April 25, 2003, Judge Vinson sentenced him

to consecutive prison terms of 120 months on Count One and 108 months on

Count Two, for a total of 228 months. Pugh appealed his convictions and

sentences. Appeal No. 03-12463.

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 The two appeals were consolidated, and on December 29, 2003, we affirmed

the district court’s revocation of supervised release, and Pugh’s convictions on

two counts for violating 18 U.S.C. §§ 922(g) and 924(c)(1)(C)(i), but we vacated

the sentences imposed on those counts and remanded the case for resentencing.

United States v. Pugh, Nos. 03-10588 and 03-12463 (11th Cir.) (not published).

On March 25, 2004, Judge Vinson resentenced Pugh in No. 02-00110-CR-

3-RV, imposing consecutive prison terms of 120 months on Count One and 90

months on Count Two, for a total of 210 months. The court’s judgment provided

that the 210 months would be consecutive to the 21 months the court imposed

after revoking Pugh’s supervised release in the Southern District of West Virginia

case.

THE INSTANT CASE

With this background in mind, we address the case before us, No. 05-10677.

The indictment in this case was returned by a Northern District of Florida grand

jury on August 17, 2004. In one count, the indictment alleged that on April 25,

2003, during the sentencing hearing in Case No. 02-00100-CR-3-RV, Pugh

did knowingly and corruptly and by threats willfully endeavor to
influence, intimidate and impede the due administration of justice in
the matter of United States v. Brian A. Pugh . . . by threatening an
officer of the court, United States Probation Officer Donna
Easterling, in the discharge of her duty during a sentencing
proceeding, in violation of [18 U.S.C. § 1503].

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 The case was assigned to Judge Lacey Collier. At arraignment, Pugh,

represented by the Federal Public Defender’s office, pled not guilty. Following

the disposition of several motions Pugh filed pretrial, the case proceeded to trial

before a jury on November 9, 2004.

The Government’s proof established that Officer Easterling was the

probation officer assigned to Pugh’s case, that she interviewed him at the Rosa

County jail, that she prepared the presentence investigation report (PSI) for the

district court, which was adverse to Pugh, and that she was present at Pugh’s

sentencing hearing on April 25, 2003. The court reporter at the hearing, Warren

Rayborn, observed the behavior that led to Pugh’s indictment. He described that

behavior; it occurred while Pugh’s attorney, Stephen Sutherland, was presenting

Pugh’s objections to the PSI Officer Easterling had prepared for the court.

A [Rayborn]. Pugh was standing – initially standing next to Mr.
Sutherland.
Q [Prosecutor]. Apparently Mr. Sutherland is making a number of
objections during the course of the proceeding?
A. Right.
Q. And the [chief] judge is hearing argument and ruling on the
objections?
A. Yes.
Q. Did there come a point in time when you observed something in
the proceedings that you stopped the proceedings and called it to the
attention of the chief judge?
A. Yes, I did.
Q. Tell me what you saw and what you did.

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 A. Mr. Pugh, through his counsel, stated that he would like to sit
down, and the marshals brought him a chair, and they actually sat him
down right where he was standing initially. And as Mr. Sutherland
was going through his argument on one objection, which I don’t
remember which objection it was, but Mr. Pugh seemed very
uncomfortable with the proceedings and very unhappy with what was
going on. Ms. Easterling was sitting in the jury box at the time, the
probation officer for Mr. Pugh. And he turns towards Ms. Easterling
and with a clenched fist and a very rigid . . . index finger and pulled
his finger across his throat looking at her and mouthed the words,
‘You bitch,’ not out loud, but I could read his lips. And that’s – that’s
when I just – it kind of startled me. So I stood up and talked to Judge
Vinson over the bench privately, just leaned over the bench and told
him what I had seen. And Judge Vinson was obviously looking down
at his paperwork and not looking at Mr. Pugh until I brought it to his
attention, and that’s when things stopped for a moment, and then we
regrouped and continued.
...
Q. From looking at what you saw, did you perceive it as a threat to
Ms. Easterling?
A. Yes, I did.

Part of the Government’s evidence was the transcript of the exchange that

took place between Judge Vinson and Pugh after Rayborn told the judge what he

had observed. Here is part of that exchange.

THE DEFENDANT: I didn’t threaten the probation officer.
THE COURT: What did you do then?
THE DEFENDANT: All I did was – I did do this (Indicating) motion,
but I –
THE COURT: And you didn’t mouth – you didn’t mouth other
words, like you bitch?
THE DEFENDANT: No.
THE COURT: And what else?
THE DEFENDANT: Well, I did mouth those words, but –
THE COURT: What?

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 THE DEFENDANT: – I didn’t threaten her.

The trial lasted one day. At the close of the Government’s case in chief,

Pugh moved the court for judgment of acquittal. The court postponed its ruling on

the motion until it could hear argument of counsel. After hearing argument, the

court denied the motion.

Pugh took the stand in his own defense; he was the sole defense witness.

On a brief direct examination, he said did not intend to “threaten” Officer

Easterling. On cross examination, in response to the question, “Did you look at

Ms. Easterling during the sentencing . . . and make a threat slashing motion to

your neck,” Pugh said: “Yes sir, I looked at her, and I did make a motion. It

wasn’t with my finger. It was with my hand. . . . I said, ‘This is a bitch, man.’”

The jury found Pugh guilty as charged, and on January 25, 2005, Judge

Collier sentenced him to a prison term of 120 months, to be served consecutive to

the sentences imposed in Case No. 02-00110-CR-3-RV. Pugh now appeals his

conviction and sentence.

Pugh challenges his conviction on several grounds. He seeks a judgment of

acquittal or the dismissal of his indictment on two grounds: (1) the evidence was

insufficient to convict, and (2) he was subjected to “vindictive prosecution.” As

alternative relief, he seeks a new trial because (3) the district court abused its

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discretion in denying his motion for change of venue; (4) the district court

constructively amended the indictment; (5) the court abused its discretion in

permitting the Government to introduce evidence of collateral offenses and bad

acts pursuant to Fed. R. Evid. 404(b); (6) the court infringed his right against self-

incrimination by allowing the Government to introduce statements he made, i.e.,

the portion of the transcript of the April 25, 2003 sentencing hearing set out

above; (7) the court erred in denying his request to present the testimony of those

present at the April 25, 2003 sentencing hearing, including Judge Vinson; (8) the

court abused its discretion in denying his attorney’s motion to withdraw and the

appointment of substitute counsel; (9) the court erred in denying his motion to

dismiss the case on the basis of the Government’s failure to produce the

“writ/detainer that caused [his] transfer . . . from the Middle District of

Pennsylvania to the Northern District of Florida1; and (10) the court erred in

denying his motion to dismiss due to the delay in bringing his case to trial.

Pugh challenges his sentence on these grounds: (11) the court abused its

discretion in denying his request for a continuance of the sentencing hearing; (12)

the Double Jeopardy Clause barred the court from imposing any sentence at all

1
At the time the indictment in this case was returned, Pugh was incarcerated at FCI-
Allenwood in Whitedeer, Pensylvania.

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because a sentence would punish him for the conduct charged in Case No. 02-

00110-CR-3-RV for which he had already been sentenced; and (13) the sentence

he received is unreasonable.

After hearing oral argument and considering the parties’ briefs, we affirm

Pugh’s conviction and sentence. Addressing his conviction, we find nothing in

the record that supports the notion that Pugh was subjected to vindictive

prosecution. Regarding the sufficiency of the evidence, it is clear to us that the

jury was presented with enough probative evidence to find him guilty as charged.

Pugh effectively admitted to Judge Vinson at the April 25, 2003 sentencing

hearing and to the jury at trial that, looking straight at Officer Easterling, he made

the slashing motion the court reporter described and uttered the word “bitch.” All

that the jury had to decide was whether his conduct was threatening to Easterling

and whether he engaged it for the purpose alleged in the indictment. This was

clearly a matter for the jury to decide.

In the light of the record, Pugh’s grounds for a new trial are meritless.

Only one ground merits comment, Pugh’s argument that Judge Vinson was

required to advise Pugh – before addressing and questioning him during the April

25, 2003 sentencing hearing – of his right to remain silent. Pugh contends that

before asking him whether what the court reporter related to the court had

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actually occurred, the court was required to inform him of his constitutional right

to remain silent because it should have known that the elicited statements could

incriminate Pugh.

Pugh challenged the admissibility of his responses to Judge Vinson in a

pretrial motion to suppress. The Government’s response was that it would not

use Pugh’s statements in its case in chief; rather, it would use them for

impeachment if Pugh took the stand and contradicted what he told the judge. The

court deferred ruling on the motion. At trial, Pugh contradicted his statements to

Judge Vinson and the Government impeached him with the transcript of what he

said to the court at the sentencing hearing. Pugh’s counsel did not object. The

impeachment was appropriate. See Harris v. New York, 401 U.S. 222, 225, 91

S.Ct. 643, 645, 28 L.Ed.2d 1 (1971).2

Turning to Pugh’s attacks on his sentence, we find no reason for vacating

the sentence and remanding the case for resentencing. Nothing in the record

2
Pugh contends that, in allowing the statements to be used for impeachment, the court
erred in two respects. First, the statements were involuntary and, thus, could not be used for
impeachment. As far as we can tell, Pugh did not present the involuntariness issue to the district
court in support of his motion to suppress. We find nothing in the record indicating that his
responses to the court’s questions were involuntary. He made them in the presence of his own
attorney, who did not object to the court’s questioning. Second, he contends that the court erred
in not giving the jury a limiting instruction – that the statements could be considered for
impeachment only, not as substantive evidence. Pugh did not request a limiting instruction; thus,
to prevail on the point, he must demonstrate plain error – that is, that the court had a duty to
instruct the jury on its own initiative. We find no case establishing such duty in circumstances
such as these.

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supports his claim that the court abused its discretion in not postponing the

sentencing hearing. His double jeopardy claim is based on the notion that in

sentencing him on remand in Case No. 02-00110-CR-3-RV, Judge Vinson

enhanced Pugh’s sentences for obstruction of justice in part because of the threats

against Officer Easterling at the earlier sentencing hearing, on April 25, 2003.

The additional acts that obstructed justice were that Pugh had threatened a

Supervising Deputy U.S. Marshal; he testified falsely on 35 occasions at his trial;

and he committed battery on his jail cellmate. We have great difficulty in

discerning how Judge Vinson’s inclusion of the threats against Easterling among

the other acts of obstruction precluded Judge Collier from punishing Pugh for

violating 18 U.S.C. § 1503. We therefore find no merit in Pugh’s double

jeopardy claim.

Pugh’s final attack on his sentence appears to be two-fold. First, the

district court committed clear error in determining the sentence range under the

Guidelines. See United States v. Crawford, 407 F.3d 1174 (11th Cir. 2005).

Alternatively, if the court did not commit clear error in this respect, the sentence

it imposed is unreasonable because the court failed properly to consider the

sentencing purposes listed in 18 U.S.C. § 3553(a). We find no clear error in the

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court’s determination of the sentence range, 110 to 137 months imprisonment.3

The court explicitly treated the Guidelines as advisory and imposed a sentence of

120 months, a sentence that was both within the guideline range and the

maximum that the law allows. After imposing sentence, the court elicited the

parties’ objections. After noting his previous objections, Pugh’s counsel did not

present the objection he makes here – that the court failed to consider the

sentencing purposes of § 3553(a).

“Where the district court has offered the opportunity to object and a party is

silent or fails to state the grounds for objection, objections to the sentence will be

waived for purposes of appeal, and this court will not entertain an appeal based

upon such objections unless refusal to do so would result in manifest injustice.”

United States v. Jones, 899 F.2d 1097, 1103 (11th Cir. 1990). The district court

did not state on the record how the sentence it imposed satisfied the sentencing

purposes listed in § 3553(a). We are aware of those purposes and are familiar

with the sentencing record in this case – that is, everything in the record that

relates to the § 3553(a) purposes – and we cannot say that Pugh’s sentence is

3
Pugh urged the court to “group” the offense in the instant case with the offenses in Case
No. 02-00110-CR-3-JV and, after doing so, to impose a sentence of 18 months imprisonment
consecutive to the 210 months of imprisonment imposed in that case, on March 25, 2004. Pugh
contends that the court’s failure to effect such grouping – in two separate cases that could not
possibly have been tried together – constituted an erroneous application of the Guidelines. Pugh
cites no authority for that proposition, and we find none.

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unreasonable. In that it is not unreasonable, affirming the sentence would not

result in a manifest injustice.

AFFIRMED.

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