[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APR 30, 2007
No. 05-16276
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 05-00044-CR-T-24-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TONY L. FORD,
a.k.a. BoBo,
a.k.a. Bo,
a.k.a. Big Head,
ANDREW M. TANNIS,
ELDRED B. HARDY,
a.k.a. Big Face,
a.k.a. Pie Face,
STEVEN R. HARDY,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(April 30, 2007)
Before CARNES, WILSON and HILL, Circuit Judges.
PER CURIAM:
This is a multi-defendant appeal following the infiltration of a large drug
ring operating out of a housing project in Tampa, Florida. The drug scheme
involved obtaining powder cocaine from an overseas supplier in New Orleans and
converting the powder into crack cocaine to sell throughout Tampa. Defendant
Tony Ford lead the conspiracy. Brothers Eldred Hardy and Steven Hardy also
participated. The fourth defendant, Andrew Tannis, was a crewman on a cruise
ship docked in New Orleans. Tannis delivered powder cocaine to Astley Stewart,
who ultimately supplied Ford and the Hardy brothers. The four defendants were
convicted following a two-week jury trial. Ford and the Hardy brothers were
sentenced to life imprisonment, and Tannis was sentenced to 121 months
imprisonment. The four defendants raise numerous issues in this appeal, none of
which are meritorious.
I.
Ford raises four issues. He contends that the district court erred when it (1)
violated his Sixth Amendment right to counsel; (2) erroneously denied his motion
to dismiss based on an alleged Speedy Trial Act violation; (3) improperly denied
his motion to dismiss for an alleged Petite violation; and (4) erred in estimating
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the rate of conversion from powder cocaine to crack cocaine in calculating his
sentence.
None of Ford’s claims has merit. First, as to the Sixth Amendment claim,
Ford had ample opportunity prior to trial to secure his own counsel. The district
court properly denied his appointed counsel’s motion to withdraw, which was filed
less than a week before trial was scheduled to begin. See, e.g., United States v.
Sexton, 473 F.2d 512, 513–14 (5th Cir. 1973).1 Second, there was no Speedy
Trial Act violation here because a federal detainer does not start the running of the
seventy-day clock. See United States v. Skanes, 17 F.3d 1352, 1353 n.1 (11th Cir.
1994). Only the indictment or the defendant’s first appearance triggers the statute.
18 U.S.C. § 3161(c)(1). As a result, Ford’s trial began well within the seventy-day
window, and no violation occurred.
Third, circuit precedent is settled that the Petite policy does not apply
where, as here, there was no adjudication of guilt in the state court. United States
v. Nelligan, 573 F.2d 251, 254–55 (5th Cir. 1978). Ford’s state charges were
dismissed on a technicality without a finding of guilt, so there was no requirement
1
See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc)
(adopting all decisions of the former Fifth Circuit announced prior to October 1, 1981, as binding
precedent in the Eleventh Circuit).
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that the government obtain the approval of the United States Attorney General to
file the successive federal action. Finally, the court’s method of estimating the
conversion of powder to crack cocaine was immaterial. Ford already faced a
mandatory life sentence under 21 U.S.C. § 841 (b)(1)(A) because he had two prior
drug-related felony convictions. Thus, the amount of crack attributed to him by
the court at the sentencing hearing did not affect the sentence imposed.
II.
Eldred Hardy also contends that the district court made four errors. He
contends that it erred (1) in denying his motion for acquittal or new trial based on
insufficient evidence; (2) in admitting improper hearsay testimony at trial; (3) in
admitting evidence of uncharged criminal conduct occurring before the date set
out in the indictment; and (4) in violating his substantial rights through the
cumulative effect of the its errors.
Like Ford’s arguments, Eldred Hardy’s claims have no merit. First, there
was sufficient evidence presented at trial to support his conviction. We must take
the evidence in the light most favorable to the verdict, United States v. Thompson,
473 F.3d 1137, 1142 (11th Cir. 2006), and there was ample evidence linking
Hardy to the larger conspiracy.
Second, there was no reversible error regarding the hearsay testimony
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admitted at trial. As to Michael Reid’s testimony, because it was cumulative any
error that may have occurred in its admission was harmless. Coughlin v. Capitol
Cement Co., 571 F.2d 290, 307 (5th Cir. 1978) (“The improper admission of
hearsay testimony which is merely cumulative on matters shown by other
admissible evidence is harmless error.”). Even if Reid’s testimony regarding
Twan Lee’s out-of-court statements should have been excluded, Reid also offered
testimony of Eldred Hardy’s own admissions directly linking him to Ford. As to
the admission of the tape and transcript from the recorded drug deal, any error in
admitting Reid’s statements made directly to the agents via the body bug was
harmless because this evidence was also cumulative. Id. Hardy only challenges
part of the tape and transcript on hearsay grounds; he does not contest their
authentication. Because Eldred was referenced by name in two other
unchallenged portions of the recording, any error committed by admitting Reid’s
statements to the agents was harmless. The purpose of the recording was to link
Eldred to the staged drug deal, and properly admitted portions of the tape and
transcript did just that.
Third, the district court did not plainly err in admitting evidence of
“uncharged conduct,” because the government established that the earlier drugs
sales in question occurred “reasonably” close to date set out in the indictment.
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United States v. Pope, 132 F.3d 684, 688–89 (11th Cir. 1998); Russell v. United
States, 429 F.2d 237, 238 (11th Cir. 1970) (“It seems well settled that an allegation
as to the time of the offense is not an essential element of the offense charged in
the indictment and, within reasonable limits, proof of any date before the return of
the indictment and within the statute of limitations is sufficient.” (quotations
omitted)). The indictment charged conduct occurring “from at least in or around
the Summer of 2003.” Thus, conduct occurring in February 2003 was “at least in
or around” the date charged. Finally, because there was little if any reversible
error, there was no cumulative error amounting to a violation of Eldred Hardy’s
substantial rights.
III.
The third defendant, Steven Hardy likewise raises four issues. He contends
that the district court erred (1) in estimating the conversion rate of powder cocaine
to crack cocaine in calculating his sentence; (2) in denying his motion for acquittal
or new trial based on insufficient evidence; (3) in refusing to grant a mistrial based
on an alleged Brady violation; and (4) in denying his motion for mistrial based on
the testimony of Detective Mills, one of the agents involved in the case.
We are not persuaded. First, like Ford, Steven Hardy was subject to a
mandatory minimum life sentence under 21 U.S.C. § 841(b)(1)(A) because he had
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two prior drug-related felony charges. Accordingly, the district court’s method of
converting powder cocaine to crack was immaterial to his sentence. Second, the
evidence presented at trial was sufficient to sustain Hardy’s conviction. His claim
that the government relied on the questionable testimony of co-conspirators, drug
dealers and users, and convicted felons is of no avail. We have repeatedly held
that judging the credibility of witnesses is the responsibility of the jury. See, e.g.,
United States v. Parrado, 911 F.2d 1567, 1570–71 (11th Cir. 1990).
Third, no Brady violation occurred here. Steven Hardy did not prove any
prejudice caused by the government’s alleged failure to inform him that one of its
witnesses has been granted use immunity. Additionally, the court allowed Hardy
to recall the witness to ask any additional questions once he “knew” about the
immunity, further dispelling any possible prejudice. See Routly v. Singletary, 33
F.3d 1279, 1285–86 (11th Cir. 1994) (noting that there is no Brady violation when
defense counsel was aware of the grant of immunity and cross-examined the
witness regarding that immunity).
Finally, Hardy’s claim that Detective Mills’ testimony necessitated a
mistrial lacks merit. The trial court did not err in determining that Mills’
testimony encompassed the recorded conversations between Hardy and Ford
without implying that Hardy had been recorded conversing with any of the other
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defendants. And even if there was error, a mistrial is not warranted where, as here,
there is other significant evidence of guilt that would reduce the likelihood that
any improper testimony had a substantial impact on the jury. United States v.
Anderson, 782 F.2d 908, 916 (11th Cir. 1986).
IV.
The last defendant, Andrew Tannis raises five issues on appeal. He
contends that the district court erred (1) in refusing to grant a mistrial based on an
alleged Brady violation; (2) in denying his motion for mistrial based on the
improper testimony of Detective Mills; (3) in denying his motion for acquittal or
new trial based on insufficient evidence; (4) in refusing to give a “mere presence”
instruction specifically directed at Tannis’ involvement in the scheme; and (5) in
improperly instructing the jury that they could use the indictment to determine the
quantity of drugs involved in the offense.
Like the three other defendants, Tannis has not raised any valid claim. He
makes two of the same arguments as Steven Hardy, and as noted above, neither
claim has merit. There was no prejudicial Brady violation because the defendants
were given an opportunity to cross-examine the witness regarding the grant of use
immunity. Second, Detective Mills properly clarified any misstatement he made
regarding Tannis’ involvement in the recorded conversations. Upon the court’s
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instruction, Mills narrowed the scope of his previous testimony and specified that
Tannis was only recorded speaking to Stewart and not to any of the other
defendants.
As to Tannis’ third argument, there was ample evidence to support his
conviction. Again, we must construe the evidence in favor of the verdict. Fourth,
the district court properly read the jury the general conspiracy instruction, which
included the statement that a defendant’s mere presence at the scene cannot alone
establish his involvement in the conspiracy. Tannis was not entitled to his own
specific instruction; the standard instruction was sufficient. See United States v.
Alvarez-Moreno, 874 F.2d 1402, 1413 (11th Cir. 1989) (noting that the district
court must be granted discretion in framing jury instructions and that if the charge
actually given covered the essence of the proposed instruction, no reversible error
occurred).
Finally, the district court did not abuse its discretion in responding to the
jury’s question regarding the quantity of drugs implicated in the charged conduct.
We are to consider the supplemental jury instruction in light of the entire jury
charge, United States v. Johnson, 139 F.3d 1359, 1366 (11th Cir. 1998), and the
jury was specifically told that the indictment was not to be considered evidence.
The supplemental instruction was not erroneous.
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V.
AFFIRMED.
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United States v. Tony L. Ford
Combined Opinion