[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 9, 2006
No. 05-11952 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-60264-CR-CMA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRED CARSWELL, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 9, 2006)
Before CARNES, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Fred Carswell appeals his conviction and sentence for conspiring to possess
with intent to distribute cocaine, 21 U.S.C. § 846, and possessing with intent to
distribute cocaine, 21 U.S.C. § 841(a)(1).1 On appeal, Carswell raises four
challenges to his conviction, and one challenge to his sentence. First, he argues
that the trial court erred by admitting evidence under Federal Rule of Evidence
404(b) when the government failed to give reasonable notice of its intent to use
such evidence. Second, he argues that evidence related to his 1996 and 1997
convictions was improperly admitted under Rule 404(b) as it “could do nothing
more than show criminal propensity.” Third, Carswell argues that the trial court
erred in not granting his motion for judgment of acquittal because the evidence was
insufficient to support his convictions. Fourth, he argues that the district court
erred by refusing to provide transcripts of certain trial testimony to the jury during
deliberations.
Finally, Carswell argues that the district court erred at sentencing by (1)
applying the Federal Sentencing Guidelines as mandatory; (2) finding that he was
responsible for 265.55 grams of crack cocaine and that he was a career offender
when the jury did not find those facts, in violation of United States v. Booker, 543
1
During trial, after the issue was raised by the court, the government admitted that the
indictment erroneously identified the defendant as Fred Carswell, Jr., when his name was actually
Fred Carswell, III. (See R6 at 161-165). After the parties submitted authority on the subject, the
court used the name Fred Carswell, III, on the jury instructions and verdict form, and noted in its
written judgment that the defendant’s true name was Fred Carswell, III. (See R1-175, 176, 180, 181,
212 at 1; R7 at 4-5). Because this discrepancy is not material to the outcome of this appeal, we will
refer to the appellant as “Carswell” for ease of reference.
2
U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); (3) failing to consider the factors
enumerated under 18 U.S.C. § 3553(a).
I.
We review a preserved challenge to a district court evidentiary ruling for
abuse of discretion. United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir.
2003). We find none here.
Federal Rule of Evidence Rule 404(b) prohibits all evidence of “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, “provided that upon request by the
accused, the prosecution in a criminal case shall provide reasonable notice in
advance of trial, or during trial if the court excuses pretrial notice on good cause
shown, of the general nature of any such evidence it intends to introduce at trial.”
Fed.R.Evid. 404(b) (emphasis added).
We have held that three factors govern a district court’s determination of the
reasonableness of the notice provided: “(1) [w]hen the [g]overnment, through
timely preparation for trial, could have learned of the availability of the witness;
(2) [t]he extent of prejudice to the opponent of the evidence from a lack of time to
prepare; and (3) [h]ow significant the evidence is to the prosecution’s case.”
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United States v. Perez-Tosta, 36 F.3d 1552, 1562 (11th Cir. 1994). “To protect
defendants from ‘trial by ambush,’ the [g]overnment should be charged with the
knowledge of 404(b) evidence that a timely and reasonable preparation for trial
would have revealed.” Id. at 1561.
In Perez-Tosta, the government only gave notice of some of its 404(b)
evidence a couple minutes before jury selection, but the district court found that the
notice was reasonable because the government had only learned the witnesses
would be available the day before, and because the defense ultimately had six days
to prepare. Id. at 1560. We found that the government had not intentionally
waited, that the appellant had not explained how he was prejudiced, and that the
evidence was important to the government’s case. Id. at 1562. By contrast, in
United States v. Carrasco, 381 F.3d 1237 (11th Cir. 2004), cert. denied, 543 U.S.
1177 (2005), the government never gave the defense notice of the evidence, and
we reversed the conviction because the evidence went to the heart of the defense
and because the government’s case was not overwhelming. Carrasco, 381 F.3d at
1241.
Here, the certificate of service reflects that the government faxed its notice
to Carswell the day before the start of trial, and Carswell filed a motion in
opposition on the first day of trial. Argument was had on the motion on the second
4
day of trial, and Carswell was able to fully address the issue. He was also on some
notice, as to the convictions, as the government had filed notice that it would use
them at sentencing. Moreover, despite his claim that he was prejudiced, he failed
to show the district court how the admission of the evidence would force him to
change his strategy or impair his ability to present a defense. We find that
Carswell has not demonstrated that the failure to strike the late notice constituted
an abuse of the court’s discretion.
II.
We review properly preserved challenges to the district court’s rulings on
admission of evidence for an abuse of discretion. United States v. Jiminez, 224
F.3d 1243, 1249 (11th Cir. 2000). 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, 126 S.Ct. 1809 (2006).
Federal Rule of Evidence 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident . . . .
Fed.R.Evid. 404(b). If (1) the evidence is relevant to one of these elements, (2)
5
there is “sufficient proof that the defendant committed the prior act, and [(3) the
government] can show that the probative value of the evidence is not substantially
outweighed by its undue prejudice, and [it] meets the other requirements of
[Fed.R.Evid.] 403,” then it may be admissible under Rule 404(b). Baker, 432 F.3d
at 1205.
Even relevant evidence “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury.” 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 (2005). Rule 404(b) “is a rule of
inclusion.” Baker, 432 F.3d at 1204-05. Both the “rules and practice favor the
admission of evidence rather than its exclusion if it has any probative value at all.”
Young v. Illinois Cent. Gulf R.R. Co., 618 F.2d 332, 337 (5th Cir. 1980).
In this case, the government argued before the district court that it wanted to
use the evidence to show identity and intent to counter Carswell’s defense that he
did not know drugs were being sold in the premises. Carswell admitted that he
could only argue that the evidence would be more prejudicial than probative.
Analyzing the motion, the district court expressly found that the evidence was
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more probative than prejudicial, and noted how important it would be where there
was no physical evidence of Carswell’s offense. Finally, although the district court
did not give a limiting instruction at the time the evidence came in, it did so later,
and again with the rest of its instructions at the close of the trial. We cannot say
that there was an abuse of discretion.
III.
We review de novo the disposition of a defendant’s properly preserved
motion for judgment of acquittal. Perez-Tosta, 36 F.3d at 1556. “The district
court’s decision on sufficiency of the evidence is entitled to no deference by this
court.” United States v. Taylor, 972 F.2d 1247, 1250 (11th Cir. 1992). The district
court’s denial of “motions for judgment of acquittal will be upheld if a reasonable
trier of fact could conclude that the evidence establishes the defendant’s guilt
beyond a reasonable doubt.” United States v. Rodriguez, 218 F.3d 1243, 1244
(11th Cir. 2000). “It is not necessary that the evidence exclude every reasonable
hypothesis of innocence or be wholly inconsistent with every conclusion except
that of guilt, provided a reasonable trier of fact could find that the evidence
establishes guilt beyond a reasonable doubt.” United States v. Young, 906 F.2d
615, 618 (11th Cir. 1990). This is so because “[a] jury is free to choose among
reasonable constructions of the evidence.” United States v. Vera, 701 F.2d 1349,
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1357 (11th Cir. 1983). We must view the facts, and draw all reasonable inferences
therefrom, in the light most favorable to the government. United States v. Hansen,
262 F.3d 1217, 1236 (11th Cir. 2001).
To sustain a conviction for conspiracy to possess cocaine with intent to
distribute under 21 U.S.C. § 846, the government must prove beyond a reasonable
doubt that (1) an illegal agreement existed; (2) the defendant knew of it; and (3) the
defendant, with knowledge, voluntarily joined it. United States v. McDowell, 250
F.3d 1354, 1365 (11th Cir. 2001). “Although mere presence at the scene of a
crime is insufficient to support a conspiracy conviction, presence nonetheless is a
probative factor which the jury may consider in determining whether a defendant
was a knowing and intentional participant in a criminal scheme.” Id.
To support a conviction for possession of cocaine with intent to distribute
under 21 U.S.C. § 841(a), “the government had to show that [Carswell] knowingly
possessed the cocaine and that he intended to distribute it.” United States v.
Pollock, 926 F.2d 1044, 1050 (11th Cir. 1991).
In arguing before the district court, Carswell only addressed his motion for
judgment of acquittal due to insufficient evidence as to Counts 2 and 5 while he
was eventually convicted only of Counts 1 and 4. Moreover, it is possible that
Carswell actually conceded the sufficiency of the evidence as to Counts 1 and 4
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when arguing in favor of the former motion. However, the government does not
raise this point. Furthermore, it does not matter what standard of review we apply,
as it is clear that the evidence was sufficient to support Carswell’s convictions.
Here, the DEA agents testified that Carswell delivered the cocaine to Witsell
Williams on October 23, 2003, and then was at least present, if not watching, while
the confidential informant paid Williams for the cocaine and the payment was
counted, and that Carswell then took the money from Williams after the deal was
completed. In addition, the government provided pictures of Carswell, apparently
with the money in his hand, leaving the scene. One of the DEA agents testified
that the baggies of cocaine purchased were the same ones that he observed
Carswell take out of his pocket and deliver to Williams. Another agent testified
that both Williams and Samuel Carswell told him, after they were arrested, that
they got all the crack cocaine they sold from Fred Carswell. He further testified
that, before the arrests, their confidential informant told him that the cocaine came
from Samuel Carswell, but that Fred Carswell “may have” had something to do
with it. The agent testified that their investigation determined that the crack
cocaine came from Fred Carswell.
Williams testified that he sold crack cocaine for Samuel and Fred Carswell.
He testified that Fred Carswell cooked the cocaine, and that either Samuel or Fred
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Carswell would hide the cocaine in Ruth Carswell Victor’s carport. Williams
specifically testified that Carswell had surprised him by personally delivering the
cocaine on October 23, 2003, then was present as the money was counted, and that
Carswell put the money in a white paper bag that he was carrying. Samuel
Carswell also testified that Fred Carswell cooked cocaine, alleging that he did so at
his sister’s house. He testified that he got the cocaine from Fred Carswell and
would hide it in the carport. He further testified that Williams worked for him as a
dealer, and that Fred Carswell was a bigger dealer than he or Williams.
On this basis, a reasonable trier of fact could conclude that the evidence
established beyond a reasonable doubt that Williams and Samuel and Fred
Carswell had knowingly and voluntarily made an illegal agreement to possess and
distribute crack cocaine, and that Fred Carswell had knowingly possessed crack
cocaine with the intent to distribute it. Accordingly, we affirm the district court’s
denial of Carswell’s motion for a judgment of acquittal.
IV.
We find no merit to Carswell’s argument that the district court erred by
refusing to provide transcripts of certain trial testimony to the jury during
deliberations. There is nothing to suggest reversible error occurred in this regard.
“A district court has broad discretion in determining whether to grant or deny a
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jury’s request to read a portion of the trial transcript.” United States v. Edwards,
968 F.2d 1148, 1152 (11th Cir. 1992) (“[i]n a case such as this one, allowing a jury
to read requested portions of the transcript could easily result in jurors’ placing
undue weight on the reviewed testimony”). “This is one of those cases where the
trial court, having given the matter proper consideration, could have been right on
either course of action.” United States v. Quesada-Rosadal, 685 F.2d 1281, 1283
(11th Cir. 1982) (affirming district court’s instruction to the jury to rely on their
own recollection). Here the court gave the jury’s request due consideration,
including consulting the parties for argument on the issue. The parties mutually
suggested an instruction, and the court agreed that it was fitting. Accordingly, we
find no abuse of discretion.
V.
In Booker, the Supreme Court recognized that the then-mandatory Federal
Sentencing Guidelines violated a defendant’s Sixth Amendment rights. See
Booker, 543 U.S. at 233, 125 S.Ct. at 749-50. The Court cured the problem by
excising 18 U.S.C. §§ 3553(b)(1) and 3742(e), thereby making the Guidelines
advisory only. Id. at 245-46, 125 S.Ct. at 756-57. Therefore, a post-Booker
sentencing court must still apply the Guidelines. United States v. Crawford, 407
F.3d 1174, 1179-80 (11th Cir. 2005). Nevertheless, a court violates a defendant’s
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Sixth Amendment right to trial when it applies them as mandatory. See United
States v. Shelton, 400 F.3d 1325, 1331 (11th Cir. 2005).
After applying the Guidelines correctly, the district court may impose a
sentence more severe or more lenient than the Guidelines range, but we will review
it for reasonableness “in the context of the factors outlined in” 18 U.S.C. § 3553(a).
United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005). This review is
deferential. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
“[N]othing in Booker or elsewhere requires the district court to state on the record
that it has explicitly considered each of the § 3553(a) factors . . . .” United States
v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).
In this case, the only possible suggestion that the court applied the
Guidelines as mandatory was its brief statement, after explaining that the
calculation of Carswell’s guideline range as a career offender was not affected by
any of the challenges he had raised, that it had “no discretion to disregard” his
career offender status once it was established. While reading this comment alone
could imply that the court was approaching the guidelines as mandatory, the court
itself specifically clarified later that Carswell’s sentence was imposed under the
advisory Guidelines, and that it considered it to be reasonable.
Finally, we have held that Booker did not disturb the holding in
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Almendarez-Torres v. United States, 523 U.S. 224, 228, 243-44, 118 S.Ct. 1219,
1223, 1230-31, 140 L.Ed.2d 350 (1998), that sentence-enhancing factors, notably
prior convictions, do not need to be included in the indictment unless they are an
element of the charged offense. United States v. Cantellano, 430 F.3d 1142, 1147
(11th Cir. 2005), cert. denied, 126 S.Ct. 1604 (2006) (“[A] district court does not
err by relying on prior convictions to enhance a defendant's sentence”). Further,
the elements of the career offender Guideline, U.S.S.G. § 4B1.1, are questions of
law. United States v. Gibson, 434 F.3d 1234, 1247-48 (11th Cir. 2006).
Accordingly, the court did not err when it determined that Carswell was a career
offender, and this dictated his Guideline range. For this reason, we need not
determine whether the court erred when it found that the applicable drug amount
was 265.55 grams.
AFFIRMED
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