[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 3, 2006
No. 05-13039 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-80109-CR-WJZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCUS MALONE MARTIN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 3, 2006)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Marcus Malone Martin appeals his conviction for possession with intent to
distribute more than five grams of crack cocaine. 21 U.S.C. § 841(a)(1), (b)(1)(B).
Martin argues that the district court erred when it denied Martin’s motion to
suppress evidence and his motion for a mistrial. Martin also argues that the
evidence was insufficient to support his conviction. We affirm.
I. BACKGROUND
On May 27, 2004, Officers Walker and Ellis were conducting surveillance
on Beautiful Street in West Palm Beach, Florida, an area known for pervasive drug
dealing. Walker was in an unmarked vehicle and, with a pair of binoculars, he
observed Martin arrive in a blue Chevrolet with a female passenger. Walker and
Ellis were familiar with Martin; they had arrested him previously for drug dealing
and stopped him for traffic violations. The officers knew Martin was driving with
a suspended license and that there was an outstanding capias warrant for his arrest.
Walker observed Martin engage in what appeared to be a drug transaction
after the female passenger left and entered a nearby building. A brown truck
arrived at the scene and Martin conferred with an unidentified man in the brown
truck. Martin returned to his car, removed a black container from his pocket,
shook something out of the container into his hand, placed the container inside the
wheel well of the vehicle, and delivered the item in his hand to the man in the
brown truck. Martin received what appeared to be money from the man in the
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brown truck, and the brown truck left the scene. Walker could not identify what
Martin removed from the black container or the denominations of the money
Martin received.
Approximately ten minutes later, another unidentified man approached
Martin and spoke with him. Martin removed the black container from the wheel
well of the car, poured something from the container into his hand, replaced the
container in the wheel well of the car, and traded the item in his hand with the
unidentified man for a wad of money. Walker again could not identify what
Martin removed from the container or the denominations of the money.
Walker believed he had observed two drug transactions and by radio told
Ellis to apprehend Martin. Two officers arrested Martin while Ellis unsuccessfully
searched for the second unidentified man. Walker then by radio told Ellis to
remove the black container from the wheel well of the car. Ellis was unable to
reach the container until a tow truck arrived thirty to forty minutes later and lifted
the car. When Ellis opened the container, he discovered 5.8 grams of rock cocaine.
After the officers arrested Martin, they placed him in the back seat of a
police vehicle. Martin’s cousin, who lived nearby, had arrived at the scene and
was talking to Martin while he was seated in the back of the police vehicle.
Walker observed Martin tossing a wad of money to his cousin, and Walker
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recovered the money from Martin’s cousin. The wad of money consisted of $266.
A grand jury indicted Martin with one count of possession with intent to
distribute more than five grams of cocaine. 21 U.S.C. § 841(a)(1), (b)(1)(B).
Before trial, Martin moved to suppress evidence seized from the car. After a
hearing, the district court denied the motions on the ground that the black container
would have been found based on an inventory search of the vehicle. Martin moved
for a judgment of acquittal after the government rested, but the motion was denied,
and Martin did not renew the motion at the conclusion of his case.
During direct examination of Ellis, the government asked Ellis why he used
harsh and profane language when he talked to Martin after the arrest, and Ellis
responded, “In this case, you have an individual that’s always there dealing and
doing what he’s doing.” Defense counsel objected and moved for a mistrial on the
grounds that Ellis’s statement was unfairly prejudicial. The government responded
that, to the extent the statement may be prejudicial, the court could give an
instruction to the jury, and that the defense had opened the door for the discussion
by stating in its opening statement that the police frequently encountered Martin
near the Beautiful Street location. The district court denied the motion for mistrial.
The jury convicted Martin of one count of possession with intent to
distribute more than five grams of cocaine. The district court sentenced Martin to
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240 months of imprisonment and eight years of supervised release.
II. STANDARD OF REVIEW
“A district court’s ruling on a motion to suppress presents a mixed question
of law and fact. This Court reviews the district court’s finding of facts under the
clearly erroneous standard. The district court’s application of the law to those facts
is subject to de novo review.” United States v. Zapata, 180 F.3d 1237, 1240 (11th
Cir. 1999) (internal citations omitted). We review de novo the denial of a motion
for judgment of acquittal based on the sufficiency of the evidence. United States v.
Dulcio, 441 F.3d 1269, 1276 (11th Cir. 2006). If the defendant does not move for
a judgment of acquittal at the close of evidence, we will reverse a denial of that
motion for acquittal only to prevent a manifest miscarriage of justice. United
States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002). We review denial of a
motion for mistrial for abuse of discretion. United States v. Mendez, 117 F.3d 480,
484 (11th Cir. 1997).
III. DISCUSSION
There are three issues on appeal. First, Martin argues that the district court
improperly admitted into evidence the cocaine retrieved from the wheel well of his
car. Second, he argues that the evidence was insufficient to support the verdict of
the jury. Third, Martin argues that a single statement by Ellis during his direct
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examination testimony was overly prejudicial and required a mistrial. We discuss
each argument in turn.
A. The District Court Did Not Err When It Denied the Motion to
Suppress the Cocaine Seized from the Black Container.
Martin moved to suppress the cocaine as evidence on the ground that it was
seized as part of an unlawful search of the car he had been driving. “In ruling on
the correctness of the trial court’s denial of a motion to suppress, [] we may
consider any evidence presented at the trial of the case and are not limited to the
evidence introduced at the hearing on the motion.” United States v. Villabona-
Garnica, 63 F.3d 1051, 1056 (11th Cir. 1995) (internal quotations and citations
omitted). The police officers did not have a warrant to search Martin’s vehicle, but
under the automobile exception to the warrant requirement, the police are
permitted to search any container in an operational automobile if they have
probable cause to believe the container contains evidence of criminal activity.
United States v. Magluta, 418 F.3d 1166, 1182 (11th Cir. 2005). Probable cause
exists when, under the totality of the circumstances, “there is a fair probability that
contraband or evidence of a crime will be found in a particular place.” United
States v. Goddard, 312 F.3d 1360, 1363 (11th Cir. 2002). Martin’s argument fails.
The police had probable cause to believe Martin’s vehicle contained
evidence of drug activity. Walker twice observed Martin shake something out of
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the black container before replacing it in the wheel well of the vehicle and then
conduct what appeared to be a trade of the substance in the black container for
money with an unidentified individual. Although Walker was unable to see what
was taken out of the container or whether the substance removed from the
container was actually traded to the unidentified individual, Walker testified that
Martin’s actions clearly resembled a drug transaction. Martin’s repeated use of the
black container and his obvious attempts to secrete it in the wheel well of the
vehicle created a fair probability that the black container contained contraband.
These observations of Martin gave Walker probable cause to order Ellis to remove
the black container from the wheel well of the vehicle and to search the container
for evidence of a crime. The district court correctly denied the motion to suppress.
B. The District Court Did Not Err When It Denied Martin’s Motion
for Acquittal.
Martin argues that the district court erred when it denied his motion for
acquittal because the evidence was insufficient to support his conviction. Martin
states that the police officers never saw him handle the crack cocaine and never
saw him give anything to the driver of the brown truck. Martin also argues that the
police did not provide evidence that Martin had access to or knowledge of the
cocaine hidden in the black container in the wheel well of the vehicle and that the
police could not establish even that Martin was a knowing spectator to the alleged
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drug transactions. Martin’s arguments fail.
Because Martin did not move for a judgment of acquittal at the close of
evidence, we will reverse the district court only to prevent “a manifest miscarriage
of justice.” Bender, 290 F.3d at 1284. When we review a claim for insufficient
evidence to support a verdict, we view all evidence in the light most favorable to
the government. United States v. Thomas, 8 F.3d 1552, 1556 (11th Circ. 1993).
We will only reverse a conviction if no reasonable jury could find proof of guilt
beyond a reasonable doubt. Id. “It is not necessary that the evidence exclude
every reasonable hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt . . . [as a] jury is free to choose among reasonable
constructions of the evidence.” United States v. Bell, 678 F.2d 547, 549 (5th Cir.
Unit B 1982) (en banc).
The evidence was sufficient to support Martin’s conviction. Martin had
knowing possession of the black container because the police observed him
remove the black container from his pocket, place it in the wheel well, remove it
from the wheel well, and place it in the wheel well again. The police also saw
Martin shake something from the black container on two occasions, and the police
discovered cocaine inside the container when they recovered it from the wheel well
of the vehicle. From this evidence, a reasonable jury could conclude that Martin
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had knowing possession of the black container and that Martin shook out of the
container cocaine, which he gave to two unidentified persons in exchange for
money.
C. The District Court Did Not Abuse Its Discretion When It Denied
Martin’s Motion for a Mistrial.
Martin argues that the district court abused its discretion when it denied his
motion for a mistrial based on Ellis’s statement on direct examination that Martin
was always in the area “dealing and doing what he is doing.” Martin argues that
the statement implied that Martin was always dealing drugs and was so overly
prejudicial that it deprived him of a fair trial. We disagree.
“A defendant is entitled to a grant of mistrial only upon a showing of
substantial prejudice.” United States v. Chastain, 198 F.3d 1338, 1352 (11th Cir.
1999). “Prejudicial testimony will not mandate a mistrial when there is other
significant evidence of guilt which reduces the likelihood that the otherwise
improper testimony had a substantial impact upon the verdict of the jury.” United
States v. Rodriguez-Arevalo, 734 F.2d 612, 615 (11th Cir. 1984). The single
comment by Ellis did not cause substantial prejudice to Martin.
Any potential prejudicial impact from Ellis’s statement was severely reduced
by Martin’s own counsel, who opened the door to discussion of Martin’s previous
encounters with the police and his involvement with drugs. In his opening
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statement, Martin’s counsel referred to Martin’s repeated presence in the area, his
previous encounters with the police in that area, and his previous arrest by the
same police officers on drug charges. During cross-examination of Walker,
Martin’s counsel elicited facts from Walker regarding Martin’s drug arrest in 2001
and his repeated encounters with police officers who asked him to leave the area.
This testimony occurred before Ellis’s allegedly prejudicial statement. After
Ellis’s statement, Martin’s counsel continued with the same line of questioning on
cross-examination of Ellis. In response to questions from Martin’s counsel, Ellis
testified that Martin had engaged in narcotics activities previously and that Ellis
had talked to Martin on numerous occasions and asked him to stop selling drugs.
Ellis’s statement was not overly prejudicial. A lone statement by Ellis
amidst all the other statements regarding Martin’s drug dealing activities could not
have had a substantial prejudicial impact on the jury. Furthermore, there was
substantial evidence to establish Martin’s guilt apart from the statement by Ellis.
IV. CONCLUSION
Martin’s conviction is
AFFIRMED.
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