[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 05-14951 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Non-Argument Calendar August 31, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 04-00031-CR-OC-10-GRJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOBBY GUY KING,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 31, 2006)
Before BIRCH, BARKETT and RONEY, Circuit Judges.
PER CURIAM:
Bobby Guy King appeals his 48 month sentence for conspiring to possess
with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), and
(b)(1)(D); and intentionally obtaining and attempting to obtain marijuana, while
being an inmate of a federal prison, in violation of 18 U.S.C. § 1791(a)(2), (b)(3),
and (d)(1)(B). King argues five issues on appeal:
(1) Whether the district court abused its discretion by admitting
evidence of King’s post-indictment criminal conduct at trial
(2) Whether the district court abused its discretion by admitting
evidence at trial that King had threatened a cooperating witness
(3) Whether the district court abused its discretion by denying
King’s belated request to subpoena three inmates to appear at
trial
(4) Whether the evidence was sufficient to sustain a conviction for
conspiracy
(5) Whether the district court’s application of the career offender
guideline under an advisory guidelines scheme violated King’s
Sixth Amendment right to have a jury determine sentencing
enhancements beyond a reasonable doubt
We affirm and address the appellate arguments seriatim, stated as in the
appellant’s brief.
I. “That 404B evidence of a post-indictment extrinsic act should
not have been introduced at trial because the prejudicial value
far outweighed its minimal probative value.”
We review 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).
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Rule 404(b) permits the admission of evidence of extrinsic offenses to show,
inter alia, knowledge, intent, and plan or absence of mistake. See Fed.R.Evid.
404(b); United States v. Lehder-Rivas, 955 F.2d 1510, 1515-16 (11th Cir. 1992).
In determining whether evidence is admissible under
Rule 404(b), we apply a three-part test: (1) the evidence
must be relevant to an issue other than defendant’s
character; (2) the probative value must not be
substantially outweighed by its undue prejudice; (3) the
government must offer sufficient proof so that the jury
could find that defendant committed the act. A similarity
between the other act and a charged offense will make
the other offense highly probative with regard to a
defendant’s intent in the charged offense.
United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005) (citations and
internal quotations omitted). The principles governing extrinsic offense evidence
are the same whether that offense occurs before or after the offense charged.
United States v. Beechum, 582 F.2d 898, 903 n.1 (5th Cir. 1978) (en banc).
The district court did not abuse its discretion by admitting evidence that on
August 30, 2004, a date outside the time frame charged in the indictment, prison
officers witnessed increased traffic at King’s cell, smelled a strong odor of
marijuana emanating from his cell, and seized marijuana from him. With respect
to relevance, King’s plea of not guilty, without an accompanying affirmative
removal, made his intent a material issue. United States v. Matthews, 431 F.3d
1296, 1311 (11th Cir. 2005). King’s post-indictment conduct was relevant to the
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intent at issue in the charged conspiracy to distribute marijuana. United States v.
Delgado, 56 F.3d 1357, 1365 (11th Cir. 1995). King’s post-indictment conduct
was very similar to the offense charged. See Beechum, 582 F.2d at 903.
With respect to the element of prejudice, the district court did not abuse its
discretion by finding that the extrinsic evidence was not unduly prejudicial.
Evidence of King’s August 30 conduct was highly probative of his intent to
participate in a conspiracy to distribute marijuana. See Beechum, 582 F.2d at 914-
15. Moreover, the district court instructed the jurors twice as to the significance of
this evidence and its proper consideration within the subject trial.
II. “That the district court erred in refusing to direct the United
States Marshal Service to transport, pursuant to writs ad
testificandum, three federal inmates that were critical to his
defense.”
The proper method for securing a prisoner’s presence at trial is a petition for
a writ of habeas corpus ad testificandum, however, courts have required defendants
in criminal cases requesting petitions for writs of habeas corpus ad testificandum to
comply with the requirements of Federal Rule of Criminal Procedure 17(b).
United States v. Rinchack, 820 F.2d 1557, 1567 (11th Cir. 1987).
Federal Rule of Criminal Procedure 17 provides for the issuance of
subpoenas in criminal cases, and states: “[u]pon a defendant’s ex parte
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application, the court must order that a subpoena be issued for a named witness if
the defendant shows . . . the necessity of the witness’s presence for an adequate
defense.” Fed.R.Crim.P. 17(b). “This showing must be satisfactory to the district
court, which means that the district court exercises a broad discretion in granting or
denying a motion for the issuance of a subpoena made by a defendant financially
unable to pay the fees of the witness.” Welsh v. United States, 404 F.2d 414, 417
(11th Cir. 1968) (internal quotation omitted). The grant or denial of a Rule 17(b)
motion is reviewed for abuse of discretion. Rinchack, 820 F.2d at 1566.
In Rinchack, we held that a district court may refuse to issue a writ of habeas
corpus ad testificandum solely on the grounds that the petition is untimely so long
as the defendant had adequate notice of the trial date. We held that where the
defendant “had three full weeks from the time the trial was initially set to the time
the case actually went to trial to file a petition for a writ of habeas corpus ad
testificandum, yet did not file the request until the trial actually began” the district
court did not abuse its discretion in denying the request. The defendant in
Rinchack argued that the district court abused its discretion because the court did
not inquire into what the potential witnesses might be expected to testify, however,
we rejected this argument stating that the “law is crystal clear that the burden of
showing necessity and relevance is on the defendant.” Rinchack, 820 F.2d at 1568.
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Pursuant to this precedent, we hold there was no abuse of discretion under
the facts of this case.
King had approximately two months before the continued trial date to collect
and prepare any necessary information to request that the three inmates be
subpoenaed. King, however, waited until two calendar days--and no business
days--prior to trial to submit his request for subpoenas. Aside from alleging that he
did not have the necessary information to make the request, King did not offer any
explanation for his delay.
III. “That the district court erred by allowing evidence that he had
allegedly threatened a co-conspirator and government witness,
Wilcox, for testifying against him because it alerted the jurors
that he was in custody shortly before trial.”
We have held that district courts may consider evidence of threats to
witnesses as relevant in showing consciousness of guilt. United States v. Gonzalez,
703 F.2d 1222, 1223 (11th Cir. 1983). Although 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, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.
Fed.R.Evid. 403. The trial judge must judge the threat’s potential prejudice in the
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same manner as he would other potentially prejudicial evidence. Gonzalez, 703
F.2d at 1223.
The district court did not abuse its discretion by allowing testimony that
King had made threatening statements to Wilcox prior to trial. Wilcox’s testimony
was relevant because it tended to show his consciousness of guilt. See Gonzalez,
703 F.2d at 1223. The argument that the testimony was overly prejudicial because
it informed the jurors that he was previously incarcerated is without merit since the
jurors had to learn of King’s previous incarceration to make the necessary findings
with respect to count two charged in the indictment, because one element of that
offense was that he was an inmate in a federal prison.
IV. “That the evidence was insufficient to sustain his conviction for
participation in the conspiracy to distribute a controlled
substance.”
Federal law provides that any person who attempts or conspires to commit
[an offense such as §§ 841(a)(1), and (b)(1)(D)] shall be subject to the same
penalties as those prescribed for the offense, the commission of which was the
object of the attempt or conspiracy. 21 U.S.C. § 846. Subsection 841(a)(1)
proscribes manufacturing, distributing, or dispensing, or possessing with intent to
manufacture, distribute, or dispense, a controlled substance. 21 U.S.C. § 841 (a)(1).
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Whether the evidence is sufficient to support a defendant’s conviction is
reviewed de novo, to determine whether a reasonable jury could have concluded
beyond a reasonable doubt that the defendant was guilty of the crimes charged
viewing the evidence in the light most favorable to the government. United States
v. Toler, 144 F.3d 1423, 1428 (11th Cir. 1998).
The government must prove beyond a reasonable doubt that there was:
(1) an agreement between the defendant and one or more persons, (2) the object of
which was to do either an unlawful act or a lawful act by unlawful means. Toler,
144, F.3d at 1426. The agreement is the “essential evil at which the crime of
conspiracy is directed,” and “agreement remains the essential element of the
crime.” Toler, 144, F.3d at 1425. There is no requirement that the government
prove the commission of any overt acts in furtherance of the conspiracy. United
States v. Shabani, 513 U.S. 10, 15, 115 S.Ct. 382, 385, 130 L.Ed.2d 225 (1994).
We have indicated, however, that an “agreement may be inferred when the
evidence shows a continuing relationship that results in the repeated transfer of
illegal drugs to the purchaser.” United States v. Mercer, 165 F.3d 1331, 1335
(11th Cir. 1999) (per curiam).
In United States v. Villegas, 911 F.2d 623, 628 (11th Cir. 1990), we held that
participation in a criminal conspiracy need not be proven by direct evidence, but
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may be proven by circumstantial evidence. Nonetheless, “proof that the accused
committed an act which furthered the purpose of the conspiracy is an example of
the type of circumstantial evidence the government may introduce to prove the
existence of agreement.” United States v. Arias-Izquierdo, 449 F.3d 1168, 1182
(11th Cir. 2006). The defendant need not have knowledge of all of the details of
the conspiracy or be aware of all of the participants or participate in every stage,
rather all that is required is that he intentionally joined the conspiracy. United
States v. Reed, 980 F.2d 1568, 1582-1583 (11th Cir. 1993). In Toler, we said that
“a defendant can be convicted even if his participation in the scheme is slight by
comparison to the actions of other co-conspirators,” so long as the defendant’s
intent to participate is proven beyond a reasonable doubt. Toler, 144 F.3d at 1428.
The “uncorroborated testimony of an accomplice is sufficient to support a
conviction . . . if it is not on its face incredible or otherwise insubstantial.” United
States v. LeQuire, 943 F.2d 1554, 1562 (11th Cir. 1991).
There was sufficient evidence to support the conviction in this case. The
record shows that three inmates, Wilcox, Brown, and Helms, provided
uncontradicted testimony that King purchased and distributed quantities of
marijuana to Helms and other prisoners at Coleman. See LeQuire, 943 F.2d at
1562. The government’s witnesses testified that from June until September 2003,
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King made approximately three purchases of marijuana in quarter ounce and half
ounce amounts. See Mercer, 165 F.3d at1335. Even if King did keep some of the
marijuana for his personal use, the record supported a finding that he did not keep
all of it. Rather, he sold drugs to other prisoners in the recreation yard and to his
cell mate. The record showed that King intentionally joined the conspiracy when
he assisted Wilcox to distribute the marijuana to others. See Reed, 980 F.2d at
1582-83.
These facts are further supported by Wilcox’s testimony that King
threatened him prior to trial, which showed a consciousness of guilt. See Gonzalez,
703 F.2d at 1223. In addition, extrinsic evidence from King’s August 30 conduct
further supports the jurors’ finding that King possessed with intent to distribute
marijuana because a correction officer testified that he saw a lot of traffic entering
and exiting King’s cell, and he discovered marijuana on his person. See
Arias-Izquierdo, 449 F.3d at 1182.
Because each of the elements of the charged conspiracy offense was
sufficiently proven, King failed to demonstrate that a reasonable jury could not
have found beyond a reasonable doubt that he committed the offense for which he
was convicted.
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V. “That according to Blakely v. Washington, 542 U.S. 296, 124
S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v.
Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005),
the district court erred by applying the career offender
enhancement where the fact of the predicate offenses was not
charged in the indictment and was not proven to the jurors
beyond a reasonable doubt.”
Because King raised a constitutional objection to his sentence before the
district court based on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159
L.Ed.2d 403 (2004), we review the constitutional issue de novo and will reverse
only for a harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).
In Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219,
1232-33, 140 L.Ed.2d 350 (1998), the Supreme Court held that the government
need not allege in its indictment and need not prove beyond a reasonable doubt that
a defendant had prior convictions for a district court to use those convictions for
purposes of enhancing a sentence. Subsequent to its decision in Almendarez-
Torres, the Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466, 490, 120
S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
Nevertheless, while the Supreme Court indicated in Apprendi that its decision in
Almendarez-Torres might be called into question, it specifically decided not to
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address the issue. Apprendi, 530 U.S. at 489-90, 120 S.Ct. at 2362. Since
Apprendi, the Supreme Court has maintained an exception to its general rule for
enhancements based upon judicial findings regarding prior convictions. See
Blakely, 542 U.S. at 305, 124 S.Ct. at 2538; Booker, 543 U.S. at 230, 125 S.Ct. at
749-51.
Accordingly, we have upheld the decision in Apprendi and its progeny, and
maintained that “a district court does not err by relying on prior convictions to
enhance a defendant’s sentence.” See e.g. United States v. Guadamuz-Solis, 232
F.3d 1363 (11th Cir. 2000) (stating that “Almendarez-Torres remains the law”);
United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005) (holding that the
district court did not violate the Sixth Amendment by using “admitted” facts to
increase defendant’s sentence); United States v. Cantellano, 430 F.3d 1142, 1147
(11th Cir. 2005) (holding that the fact of a prior conviction clearly may be found
by the district court); United States v. Orduno-Mireles, 405 F.3d 960, 961 (11th
Cir.), cert. denied, 126 S.Ct. 223 (2005) (explaining that the Sixth Amendment is
not implicated when a defendant’s sentence is enhanced based on a prior
conviction).
Therefore, there was no Blakely error in this case.
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Although King objected to the inclusion of two of his prior convictions in
the career offender computation, he did not object to the three additional prior
convictions which the district court found were also predicate offenses to the
enhancement. See Shelton, 400 F.3d at 1330. Only two were needed for the career
offender enhancement.
AFFIRMED.
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