[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 6, 2007
No. 06-12685 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00010-CR-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VANDARREL LEON DOE,
a.k.a. Dwan Devon Doe,
a.k.a. Black
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(February 6, 2007)
Before BLACK, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Vandarrel Leon Doe appeals his convictions for manufacture of cocaine base
and conspiracy to manufacture and distribute cocaine base, in violation of 21
U.S.C. §§ 841(a)(1) and 846. On appeal, Doe argues that the district court erred
by failing to find a violation of the Speedy Trial Act, admitting three of his prior
convictions under Rule 404(b) of the Federal Rules of Evidence, denying his
motion for judgment of acquittal, giving an erroneous jury instruction on the
conspiracy offense, and denying his motion for a new trial based on the interests of
justice. For the reasons set forth more fully below, we affirm.
I. Facts
Doe’s codefendant, Stuart John Greger, pled guilty prior to trial. Prior to
trial, the government notified Doe of its intent to offer at trial evidence of six prior
felony cocaine convictions, occurring between 1989 and 2001, under Fed.R.Evid.
404(b). The oldest five convictions were for possession of cocaine. The most
recent conviction was for “Possession/Purchase/Sell/Delivery of cocaine.”
At trial, Kent Munsey, a task force agent with the Drug Enforcement
Administration (“DEA”), testified that, on April 6, 2005, a confidential source
(“CS”) and an undercover agent met with Greger, and the CS purchased 50.9
grams of cocaine base from Greger. On April 8, 2005, Greger sold the CS cocaine
base and powder cocaine. Greger was taken into custody following this transaction
2
and told Munsey that he obtained his cocaine base from a black male known to him
as “Black,” who cooked the cocaine base. Munsey recorded a call made by
Greger, which was played to the jury. In this conversation, Greger referred to
“circles.” He explained to the other speaker that “they” complained about the
circles, but took all seven and said they would give him a chance to make it up
later. The other speaker responded, “I’ll do that there.” Greger responded that he
was trying to get it, and the other speaker responded, “But you know that will cost
them more.” Munsey testified that, based on a photograph of Doe, Greger
identified Doe as the person who cooked the cocaine base for him. This
photograph was admitted into evidence. Munsey also testified that Doe was listed
as the subscriber of the telephone number called during Greger’s conversation.
The government also introduced approximately four months of telephone records
for this phone. Munsey testified that the records showed consistent contact
between the this number and Greger’s number between January and April 8, 2005.
Greger, who had pled guilty to distribution of crack cocaine, testified that,
between January 2005 and April 2005, he sold cocaine and crack cocaine. He
identified Doe, who he knew as Black, and stated that he met Doe around the end
of 2004 and he estimated that Doe cooked crack cocaine for him two or three times
a month beginning around January. Greger paid Doe by giving him cocaine, which
3
Doe would use to cook, and Doe would also keep some for himself. Regarding the
tape recording, Greger explained, inter alia, that the “circles” referred to the
cocaine cookies, which were circular because they were cooked in a round pot, and
that the cookies weighed less than they were supposed to weigh. Greger testified
that Black’s voice was on the tape.
At side bar, the government explained that it agreed to enter three of the
prior convictions and that they went to the issues of intent, lack of mistake, and
identity. The court permitted the introduction of the evidence, noting that the jury
might have some question as to identity and intent. The government introduced
evidence of two cocaine possession convictions from August 1989 and one from
December 1990.
Doe called Pamela Tigner, his fiancee. Tigner testified, inter alia, that
everybody in the house, including her children (aged 9-19) and their friends used
the cell phone which was called by Greger in the recorded conversation. Tigner,
who worked as a cook, testified that she would be able to tell if anyone was
cooking in her kitchen and denied seeing signs of anyone doing so. Tigner further
testified that the voice on the recorded call was not Doe’s voice.
On cross-examination, the government asked Tigner about her drug
convictions from Jacksonville, Florida in 1994. Tigner denied being convicted or
4
pleading guilty to the sale and manufacture of cocaine, although she admitted
being arrested in Jacksonville. When the government showed Tigner a copy of her
criminal history, the following discussion took place:
THE COURT: Ms. Tigner, let me remind you that you took an
oath to tell the truth. If you do not tell the truth,
you will have committed perjury. Perjury is a
federal crime. Listen to the questions carefully?
A [Tigner] Okay.
THE COURT: The answers are being recorded. The Court will
direct further investigation.
A Okay.
Upon further questioning by the government in reference to Tigner’s criminal
history, she denied being convicted of a crime, explaining that she went to court for
the charge of the sale, manufacture, and delivery of cocaine, but that she was told it
would not be on her record because the person she went to jail with claimed it all
and she would not sign anything. After this explanation, the court stated, “All
right. You will investigate this matter, Mr. Konche, and take appropriate actions.”
Tigner then clarified her position that she was arrested and charged, but was told
that the charge would not end up on her record.
Doe testified that his nickname was Black. Doe admitted getting into
trouble in the past, but denied having any contact with cocaine in Georgia. He
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only had contact with Greger once before April 2005, regarding a job to move pine
straw. He denied cooking cocaine for Greger, ever cooking cocaine, or knowing
how to cook cocaine. Doe explained that everybody used his phone and that it was
not him on the tape.
On cross-examination, Doe admitted to convictions for seven prior felony
drug convictions involving cocaine between 1989 and 2001. The government also
replayed a portion of the taped conversation and asked Doe to say one of the
sentences. Doe complied, and the government requested that Doe “try to say it
normally.” Doe then repeated the line. The jury subsequently returned guilty
verdicts as to both counts of the indictment.
II. Standard of review
We review a claim under the Speedy Trial Act de novo and review a district
court’s factual determinations on excludable time for clear error. United States v.
Dunn, 345 F.3d 1285, 1288 (11th Cir. 2003). We review the district court’s
admission of evidence under Rule 404(b) for abuse of discretion. United States v.
Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005), cert. denied, 127 S.Ct. 46 (2006).
“[W]hen employing an abuse-of-discretion standard, we must affirm unless we
find that the district court has made a clear error of judgment, or has applied the
wrong legal standard.” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir.
6
2004) (en banc), cert. denied, 544 U.S. 1063 (2005). However, we will not reverse
Doe’s convictions if the admission of the prior conviction evidence was harmless.
United States v. Harriston, 329 F.3d 779, 789 (11th Cir. 2003). We review the
sufficiency of the evidence de novo, “viewing the evidence in the light most
favorable to the government” and making all reasonable inferences and credibility
choices in favor of the government and the jury’s verdict. United States v. Garcia,
405 F.3d 1260, 1269 (11th Cir. 2005). “We review the legal correctness of a jury
instruction de novo, but defer on questions of phrasing absent an abuse of
discretion . . . .” United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000)
(citations omitted). We review a district court’s denial of a motion for a new trial
for abuse of discretion. United States v. Hernandez, 433 F.3d 1328, 1332 (11th
Cir. 2005), cert. denied, 126 S.Ct. 1635 (2006).
III. Speedy Trial Act
Under the Speedy Trial Act:
In any case in which a plea of not guilty is entered, the trial of a
defendant charged in an information or indictment with the
commission of an offense shall commence within seventy days from
the filing date (and making public) of the information or indictment,
or from the date the defendant has appeared before a judicial officer of
the court in which such charge is pending, whichever date last occurs.
18 U.S.C. § 3161(c)(1). The Act also provides for the exclusion of time counted
7
toward the 70-day deadline under certain circumstances including delay resulting
from the court’s consideration of a proposed plea agreement. 18 U.S.C.
§ 3161(h)(1)(I). In addition, the Act provides for the exclusion of “[a] reasonable
period of delay when the defendant is joined for trial with a codefendant as to
whom the time for trial has not run and no motion for severance has been granted.”
Id. § 3161(h)(7). “[I]n a multi-defendant case, time excluded due to one defendant
results in excludable days for his codefendants.” United States v. Mejia, 82 F.3d
1032, 1035 (11th Cir. 1996).
In this case, resolution of the Speedy Trial Act claim turns on the effect of
an order entered on October 5, 2005, by the magistrate judge finding that all of
Doe’s pretrial motions, including his motion to sever his case from his
codefendant, were moot. Doe argues that this order effectively granted his motion
to sever, and, therefore, his speedy trial clock continued to run during the time that
his codefendant’s plea agreement was under advisement. If Doe is correct, more
than 100 non-excludable days elapsed before trial. If, however, the October 5,
2005 order was not an order of severance, a total of 60 non-excludable days
elapsed before trial.1
In its order, the magistrate stated that it was advised by counsel that all
1
We do not address the issue of the exclusion of an additional seven days under
§ 3161(h)(1)(J) as it does not affect the outcome of this case.
8
pretrial motions were complied with or matters raised in those motions were
resolved by agreement and, therefore, all pretrial motions were moot. Based on the
magistrate’s explanation of why Doe’s motions were moot, the order cannot fairly
be read to be effectively granting a severance.2 Accordingly, the district court did
not err in finding no violation of the Speedy Trial Act.
IV. Prior convictions
Doe challenges the district court’s admission of three cocaine possession
convictions from August 1989 and December 1990 under Rule 404(b) of the
Federal Rules of Evidence, arguing that the evidence should not have been
admitted for the purposes of identity and intent, the evidence lacked probative
value, and, in light of the evidence, the probative value was substantially
outweighed by the danger of unfair prejudice.
Rule 404(b) provides that “[e]vidence 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, [or] identity . . . .”
Fed.R.Evid. 404(b). To be admissible:
2
On September 8, 2005, codefendant Greger had a change of plea hearing. At the hearing
a plea agreement with the government was presented. The district court took the matter under
advisement and did not accept the guilty plea and agreement until December 7, 2005. This
period is excludable.
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First, the evidence must be relevant to an issue other than the
defendant’s character; Second, the act must be established by
sufficient proof to permit a jury finding that the defendant committed
the extrinsic act; Third, the probative value of the evidence must not
be substantially outweighed by its undue prejudice, and the evidence
must meet the other requirements of Rule 403.
Matthews, 431 F.3d at 1310-11 (quoting United States v. Delgado, 56 F.3d 1357,
1365 (11th Cir. 1995)). Whether the probative value is not substantially
outweighed by undue prejudice is a “determination [that] lies within the discretion
of the district court and calls for a common sense assessment of all the
circumstances surrounding the extrinsic offense, including prosecutorial need,
overall similarity between the extrinsic act and the charged offense, as well as
temporal remoteness.” United States v. Perez, 443 F.3d 772, 780 (11th Cir. 2006)
(citation and quotation marks omitted).
Because Doe’s plea of not guilty made intent an issue, see id. at 779, and
Doe’s prior possession convictions were relevant to the issue of intent, see
Matthews, 431 F.3d at 1311, the first prong of the test for admissibility is satisfied.
Moreover Doe’s defense strategy did not make intent irrelevant, as denial of
participation is insufficient to remove the issue of intent in a conspiracy case.
United States v. Kopituk, 690 F.2d 1289, 1334 (11th Cir. 1982). However, the
prior convictions were not properly admitted for the purposes of identity. See
United States v. Lail, 846 F.2d 1299, 1301 (11th Cir. 1988) (holding that, for
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404(b) evidence offered to establish identity, “the likeness of the offenses is the
crucial consideration. The physical similarity must be such that it marks the
offenses as the handiwork of the accused. In other words, the evidence must
demonstrate a modus operandi.”) (citation omitted).
Even though the prior convictions were relevant to the issue of intent, we
nevertheless hold that the admission of these convictions was an abuse of
discretion due to the combined effect of their remoteness, their factual
dissimilarity, and the lack of prosecutorial need for their introduction. While we
do not follow a bright-line rule regarding the remoteness of a conviction,
Matthews, 431 F.3d at 1311, the convictions at issue occurred approximately 14
and 15 years before the beginning of the charged conspiracy. While “circuit
precedent regards virtually any prior drug offense as probative of the intent to
engage in a drug conspiracy,” thereby precluding an abuse of discretion based on
the rejection of the argument that factual dissimilarity resulted in disproportionate
prejudice, see id., the fact that the prior convictions were for simple possession of
cocaine while the conspiracy involved a conspiracy to manufacture and distribute
cocaine base lessens the probative value of the prior convictions. See United
States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005) (“A similarity between the
other act and a charged offense will make the other offense highly probative with
11
regard to a defendant’s intent in the charged offense.”).
Most significantly, the government’s need for these three convictions was
not substantial. First, the government could have selected the three most recent
prior convictions. In addition, the most recent conviction bore the most similarity
to the conspiracy charge because, unlike the simple possession convictions, this
conviction appears to be for the distribution of cocaine. Second, the government’s
other evidence of intent was strong. Unlike cases which rested on the testimony of
co-conspirators or came down to a credibility choice between co-conspirators and
the defendant and his witness, United States v. Calderon, 127 F.3d 1314, 1332
(11th Cir. 1997); United States v. McMahon, 592 F.2d 871, 875-76 (5th Cir. 1979),
in this case, the jury had corroborative evidence in the form of Agent Munsey’s
testimony of Greger’s prior consistent statements and the phone records showing
consistent contact between Doe and Greger’s telephone numbers, and the jury
heard a tape of a conversation Greger placed to “Black” after his arrest. Doe’s
defense further lessened the need for this evidence because Doe’s testimony gave
the jury the opportunity to determine for itself whether Doe was the other
participant in that conversation.
However, this error does not require reversal because we hold that it was
harmless due to the overwhelming evidence of guilt in this case.
12
We often have concluded that an error in admitting evidence of a prior
conviction was harmless where there is overwhelming evidence of
guilt. This Court further has instructed that erroneous admission of
evidence does not warrant reversal if the error had no substantial
influence on the outcome and sufficient evidence uninfected by error
supports the verdict. These harmless-error determinations are highly
fact-intensive and will vary from case to case.
Harriston, 329 F.3d at 789 (citations and quotation marks omitted).
Greger testified that he provided Doe cocaine and Doe would cook crack
cocaine for him. Greger also identified the voice on the phone as that of Black,
who he identified as Doe, and explained that the recorded conversation concerned
the sale of the cocaine base. Agent Munsey testified to Greger’s prior consistent
statement that Black, Doe’s admitted nickname, cooked and supplied him with
cocaine base. The recorded conversation as a whole, particularly the other
speaker’s responses to Greger that “I’ll do that there” and, “But you know that will
cost them more[,]” would allow a jury to find an agreement to manufacture and
distribute cocaine base. Because Doe testified, the jury was able to make its own
comparison of Doe’s voice and the voice on the tape. Doe provided the jury
further evidence because, by taking the stand and, inter alia, denying his
involvement with cocaine and denying that he was the person on the tape, the jury
could infer that the opposite of his testimony was true. United States v. Hasner,
340 F.3d 1261, 1272 (11th Cir. 2003). The same is true regarding Tigner’s
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testimony that it was not Doe’s voice on the recording. In addition, the jury also
had the phone records showing the extent of the contact between Doe’s phone and
Greger’s phone.3
V. Jury instruction
Doe argues that the record is devoid of any evidence that anyone aside from
he and Greger were participants in the charged conspiracy. As a result, Doe
contends that it was error for the district court to charge the jury that: (1) the
government need not prove that all of the people named in the indictment were
members of the scheme; or (2) two or more persons came to the requisite mutual
agreement.4
Generally, district courts “have broad discretion in formulating jury
instructions provided that the charge as a whole accurately reflects the
law and the facts,” and we will not reverse a conviction on the basis of
a jury charge unless “the issues of law were presented inaccurately, or
the charge improperly guided the jury in such a substantial way as to
violate due process.”
Prather, 205 F.3d at 1270 (citation omitted).
Doe challenges the following portion of the conspiracy instruction, which
3
For these reasons, we likewise reject Doe’s claim that the evidence was not sufficient to
sustain his convictions.
4
We disagree with the government’s contention that Doe invited an error by the district
court, as the doctrine is not implicated due to Doe’s objection to the instruction after it was given
to the jury. See United States v. Gray, 626 F.2d 494, 501 (5th Cir. 1980).
14
was almost verbatim from the pattern jury instruction:5
In order to establish a conspiracy offense, it is not necessary for the
government to prove that all of the people named in the indictment
were members of the scheme . . . . A defendant can be found guilty of
the conspiracy offense only if all of the following facts are proved
beyond a reasonable doubt[.] . . . First, two or more persons in some
way or manner came to a mutual understanding to try to accomplish a
common and unlawful plan as charged in the indictment.
The pattern jury instruction accurately reflects the elements of a conspiracy.
United States v. Trujillo, 146 F.3d 838, 846 (11th Cir. 1998). However, where the
indictment alleges that only two people were involved in the conspiracy and does
not contain language to the effect that the conspiracy involved unnamed
conspirators, the use of the challenged language may constitute a constructive
amendment of the indictment. United States v. Keller, 916 F.2d 628, 634-36 (11th
Cir. 1990); United States v. Andrews, 850 F.2d 1557, 1558-60 (11th Cir. 1988) (en
banc). In such a case, it is incorrect for the court to instruct the jury that it need not
find that all those named in the indictment were part of the conspiracy. See Keller,
916 F.2d at 636.
5
The pattern instruction reads, in pertinent part,
In order to establish a conspiracy offense it is not necessary for the Government
to prove that all of the people named in the indictment were members of the
scheme . . . . What the evidence in the case must show beyond a reasonable doubt
is: First: That two or more persons in some way or manner, came to a mutual
understanding to try to accomplish a common and unlawful plan, as charged in
the indictment . . .
15
In this case, the indictment did not charge that the conspiracy was only
between Greger and Doe, but also included other persons both known and
unknown in the conspiracy. Thus, the instruction was not an incorrect statement of
law generally or in relation to the conspiracy charged in this case. See Trujillo,
146 F.3d at 846; Keller, 916 F.2d at 636. Nor did the charge substantially mislead
the jury so as to violate due process. In order for the jury to have convicted Doe of
a conspiracy in accordance with its instructions to follow the court’s instructions as
a whole and to decide the case on the basis of the testimony and other evidence,
which we presumed it followed, Ramirez, 426 F.3d at 1352, it must have found
that Doe conspired with Greger. As these additional instructions provide further
context for the instructions on the conspiracy charge, we discern no abuse of
discretion in the court’s phrasing of the conspiracy charge.
VI. Motion for a new trial
Doe moved for a new trial under Rule 33 of the Federal Rules of Criminal
Procedure, arguing that the government’s improper impeachment of Tigner, and
the court’s comments in the presence of the jury concerning the purported felony
conviction, destroyed Tigner’s credibility and resulted in a miscarriage of justice.
Doe provided a certified copy of the disposition in Tigner’s case, showing that
Tigner entered a plea of nolo contendere to the lesser included offense of
16
possession of a controlled substance and that adjudication of guilt was withheld.
The district court found that the government wrongly impeached Tigner because
she was not convicted under Florida law. However, it further found that Doe did
not establish a miscarriage of justice, reasoning that the evidence in the
government’s case was substantial. On appeal, Doe asserts the importance of
Tigner’s credibility to his case, arguing that the government’s improper
impeachment and the district court’s comments destroyed her credibility, which
resulted in a miscarriage of justice.
A district court may vacate a judgment and grant a new trial if the interest of
justice requires. Fed.R.Crim.P. 33. We cannot conclude that the district court’s
decision to evaluate Doe’s new trial motion based on the strength of the other
evidence against him or the conclusion it reached in doing so constituted an abuse
of discretion. First, improper impeachment is subject to review for harmless error,
taking into account the strength of the government’s case. United States v. Rubin,
559 F.2d 975, 984-88 (5th Cir. 1977), vacated and remanded on other grounds, 439
U.S. 810 (1978).6 Second, in evaluating prejudice stemming from judicial
comments similar to the comments at issue in this case, among the factors
6
Rubin was remanded for consideration of the government’s position regarding the
concurrent sentences doctrine. United States v. Rubin, 591 F.2d 278, 280 (5th Cir. 1979). On
remand, the Court otherwise affirmed based on its reasoning in its prior opinion. Id. at 283.
17
considered was the strength of the evidence against the defendant. See Hellman v.
United States, 339 F.2d 36, 37-38 & n.2 (5th Cir. 1964). In addition, the factors
we consider in determining whether a judge’s comments were not reversible error7
are not clearly weighted in favor of a finding of reversible error. Although the trial
was not lengthy, the court’s three comments including, “All right. You will
investigate this matter, Mr. Konche, and take appropriate actions[,]” occupied a
short period of the trial. The final comment was directed to the prosecutor and not
the jury, and the jury was instructed to disregard the court’s comments other than
its instructions on the law.
Nor was the court’s evaluation of the evidence an abuse of discretion. As
discussed previously, the properly introduced evidence of Doe’s guilt was
overwhelming. In addition, the court’s finding that Doe and Tigner lacked
credibility regardless of the improper impeachment was not an impermissible
finding when evaluating a motion for a new trial in the interests of justice. See
Hernandez, 433 F.3d at 1335 (holding that, on motion for new trial based on the
weight of the evidence, the court could weigh evidence and consider the witnesses’
7
We will not reverse a conviction based upon comments of a trial judge unless the
comments are so prejudicial as to constitute denial of a fair trial. United States v. Morales, 868
F.2d 1562, 1576 (11th Cir. 1989). We have examined three factors weighing in favor of a
determination that the judge’s comments were not reversible error, namely “(1) the comments
occupied but a few seconds of a lengthy trial; (2) the comments were directed to defense counsel
rather than to the jury; and (3) the Trial Judge advised the jury to disregard any intimation by the
Court relating to the facts of the case.” Id. (citation and quotation marks omitted).
18
credibility).
In light of the foregoing, Doe’s convictions are
AFFIRMED.
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