[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
U.S. COURT OF APPEALS
THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
________________________ AUGUST 1, 2007
THOMAS K. KAHN
No. 06-14848 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 05-00060-CR-WDO-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMY TIMOTHY BURRIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(August 1, 2007)
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Jimmy Timothy Burris appeals his conviction for possession with intent to
distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A)(viii). We affirm.
I. BACKGROUND
In November 2004, a federal grand jury indicted Burris for possession with
intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A)(viii).1 Burris subsequently moved to suppress any evidence discovered
during the search of his house and argued that the search-warrant affidavit failed to
contain any “evidence of honesty, trustworthiness, or reliability” as to the four
confidential informants who supplied information necessary to establish probable
cause for the issuance of the search warrant. R1-49 at ¶ 6. Burris alleged that the
four confidential informants implicated him in the sale of methamphetamine from
his residence.
Burris also filed a motion for disclosure of the confidential informants and
contended that his need for that information outweighed the government’s interest
in withholding the informants’ identities and whereabouts. The government
responded that both motions should be denied. The district judge held an
evidentiary hearing on the motions and denied them both. Burris then filed several
1
Codefendant Cher Ward was indicted for the same crime. This count was later
dismissed, however, after Ward pled guilty to state charges.
2
motions in limine, including, motions to exclude the testimony (1) of “any agent”
that “others have told the agent that they witnessed the defendant selling
methamphetamine,” on the ground that such testimony would constitute hearsay,
R1-75 at ¶ 1, and (2) the government witnesses should be cautioned not to testify
that officers recovered five guns during the search of Burris’s house, because such
evidence was irrelevant under Federal Rule of Evidence 401 on the issue of
whether he possessed with intent to distribute methamphetamine, R1-78 at p. 2.
Concerning the first motion in limine, the district judge determined that the
government could establish that police officers searched Burris’s house pursuant to
a search warrant, but the government could not elicit any testimony that the
officers received information from a third source that Burris was dealing
methamphetamine from his house. With respect to the second motion, the district
judge denied the motion and concluded that the government could elicit testimony
that officers discovered guns while conducting the search of Burris’s residence.
During his opening statement at trial, defense counsel admitted that Burris
was “guilty of possessing . . . methamphetamine, and that is against the law,”
however, he denied that Burris intended to distribute the drug. R5 at 48. The
government called Hubert Jordan, an agent with the Drug Enforcement
Administration (“DEA”), who testified that he discovered methamphetamine at
3
Burris’s residence during the execution of the search warrant. Peter Echevarria, a
DEA forensic chemist, testified that the gross weight of the drugs recovered from
the search of Burris’s residence totaled 206.06 grams. Brandon Sellers, another
government witness, testified that, during the search of Burris’s house, he
discovered $1,558, primarily in one dollar bills, wrapped inside aluminum foil in a
freezer, as well as two firearms. Defense counsel asserted a standing objection to
the relevancy of the guns, but the district judge overruled the objection.
Thereafter, a juror submitted a question to the judge and asked why officials
searched Burris’s house. During a side-bar conference, the government argued that
it was “essential” that its witnesses be permitted to explain that they had obtained a
search warrant “because of information [from confidential informants] that [Burris]
was dealing drugs out of the house.” Id. at 82. In contrast, defense counsel
maintained that such testimony would violate the Confrontation Clause of the Sixth
Amendment to the Constitution. The judge, however, ruled that the government
could elicit testimony regarding the reason that the officers searched Burris’s
residence.
The government next presented the testimony of Anna Lumpkin, a local
law-enforcement officer, who testified that she discovered a scanner, which was
programmed to the frequency used by the Baldwin County Sheriff’s Department,
4
in Burris’s kitchen during the execution of the search warrant. Over another
defense objection, Lumpkin testified that criminals often use scanners to listen to
communications within the Sheriff’s Department regarding ongoing investigations
or arrests. Lumpkin also testified that the officers recovered digital scales that
were located in the same box with the methamphetamine, a razor blade, and a glass
tube that probably was used “as a smoking device.” Id. at 98. Lumpkin further
noted that the search of Burris’s master bedroom revealed a book, entitled Secrets
of Methamphetamine Manufacture, Including Recipes for MDMA, Ecstasy, and
Other Psychedelic Amphetamines, as well as firearms. Id. at 100-101, 103.
Defense counsel again objected to the testimony with respect to the discovery of
firearms at Burris’s house.
Lt. Joseph King, another government witness, testified that, in his
experience as an officer in the Baldwin County Sheriff’s Department, “it’s hard to
find a user that ever has much more than a gram” of methamphetamine because he
or she is “going to take it” if it is available. Id. at 112. In describing the
differences between a “dealer” and a “user,” Lt. King testified that the majority of
dealers in Baldwin County carried over a half-ounce of methamphetamine, and
those that carried even more than that were “prominent ice dealer[s].” Id. at 114.
Lt. King also explained that a dealer ordinarily possessed digital scales and had a
5
large amount of currency at home. Moreover, Lt. King testified that the seven
ounces of methamphetamine recovered from Burris’s residence would sell for
more than $20,000 in Baldwin County, and between $7,000 and $9,000 in Atlanta.2
Id. at 118. Importantly, Lt. King also explained to the jury how he sought and
received the search warrant for Burris’s residence:
Q. And how did you become involved in that case?
A. I gathered enough evidence to seek a search warrant from a
magistrate judge in Baldwin County.
Q. All right. And what evidence did you come into?
A. I received information regarding narcotics activity and
presented it to the judge and was granted a search warrant for
[Burris’s] residence and the adjacent shop to his house.
Id. at 120 (emphasis added).
Defense counsel then moved for a mistrial on the basis that Lt. King’s
testimony violated Federal Rule of Evidence 801, as well as the Confrontation
Clause, because “[w]e’ve just been given hearsay evidence from unknown,
unnamed people to which we don’t have the right to confront and cross.” Id. at
121. The district judge denied the motion and did not give a limiting instruction
with respect to Lt. King’s testimony. The government’s final witness, Cher Ward,
2
The DEA forensic chemist testified that the 206.6 grams of methamphetamine yielded
140.4 grams of pure methamphetamine. R5 at 58.
6
testified that she was Burris’s girlfriend and that he provided her with
methamphetamine daily. Ward did not see Burris selling to anyone, although she
occasionally noticed some of Burris’s friends, who also were methamphetamine
users, visiting Burris in his mechanic’s workshop, which was located “[a]bout 150
yards from the house.” Id. at 178.
Ward further testified that she had been charged in state court with
trafficking in methamphetamine, but, as a result of a plea bargain, she eventually
pled guilty to a lesser charge of possession of methamphetamine in exchange for
agreeing to testify truthfully for the government at Burris’s trial in federal court.
Consequently, Ward testified that she was placed on probation for five years and
was fined $1,000. Additionally, Ward testified that the government charged her
with the offense of misprision, but this charge subsequently was dismissed because
she pled guilty in the state court proceeding. The government introduced into
evidence Ward’s indictment, plea agreement, and sentence.
On cross-examination, Ward conceded that she could have been charged in
federal court with possession with intent to distribute methamphetamine. When
defense counsel began to cross-examine Ward over the possible sentence she could
have received if she had been convicted of that crime, the district judge stopped the
questioning because it was irrelevant. Defense counsel tried to explain that he was
7
“exploring the deal she got,” but the district judge told counsel to “move onto
something else,” because that line of questioning was “not relevant to [his] client.”
Id. at 190-92. After Ward’s testimony, the government rested.
Defense counsel moved for an advance ruling on whether the government
would be allowed to rebut Burris’s good character witnesses with hearsay that
other people told law enforcement that Burris sold methamphetamine. Defense
counsel explained that this decision would affect his decision on whether to call
character witnesses. The district judge did not rule in advance, and Burris did not
present any testimony on his behalf.
During his closing argument, defense counsel admitted that Burris possessed
methamphetamine but denied that he distributed the drug. The jury subsequently
found Burris guilty of possession with intent to distribute methamphetamine. This
appeal followed. On appeal, Burris presents three arguments that we will address:
whether the district judge erred in (1) permitting a government witness to testify
that he obtained a search warrant based on an out-of-court statement “regarding
narcotics activity” at Burris’s house; (2) admitting evidence at trial that firearms
were discovered during the search of Burris’s house; and (3) limiting defense
counsel’s cross-examination of a government witness at trial.3
3
Burris also presents a fourth argument, that the district judge abused his discretion in
refusing to provide an advance ruling on the nature and scope of the government’s rebuttal
8
II. DISCUSSION
A. Search Warrant Based on Out-of-Court Statement
Burris argues that Lt. King’s testimony that he obtained a search warrant
based on information from “unnamed, unidentified, confidential informants and a
concerned citizen that there had been repeated drug activity at or near Burris’s
home” constituted hearsay, and that the prejudicial effect of this hearsay
substantially outweighed its probative value. Appellant’s Br. at 10. Burris also
asserts that the government cited certain decisions during his trial for the
“erroneous proposition of law” that hearsay may be admitted if the circumstances
of a search warrant were “inextricably intertwined” with a drug case itself. Id. at
13. Accordingly, Burris contends that he “was denied his right to a fair trial and
his conviction must be reversed.” Id. at 15.
As a preliminary matter, it appears that Burris, on appeal, is challenging Lt.
King’s testimony that he applied for a search warrant based on “information
regarding narcotics activity” exclusively on hearsay grounds and not on both
hearsay and Confrontation Clause grounds as he did in the district court. Id. at 11;
R5-120; see Favre v. Henderson, 464 F.2d 359, 363 (5th Cir. 1972) (noting that
evidence, if certain defense witnesses were called to testify at trial. Because Burris did not make
an offer of proof on the witnesses’ expected testimony, we cannot consider this claim, since
review of the district judge’s decision for error is “impossible.” United States v. Taylor, 417
F.3d 1176, 1180 (11th Cir. 2005) (per curiam).
9
hearsay rules and the Confrontation Clause, while “generally designed to protect
similar values,” are not congruent and “merely because evidence is admitted in
violation of a long-established hearsay rule does not lead to the automatic
conclusion that confrontation rights have been denied”). Burris frames his
argument on appeal in terms of an evidentiary violation and not a constitutional
violation. Additionally, the evidentiary standard of review is abuse of discretion,
whereas a Confrontation Clause challenge is reviewed de novo. United States v.
Yates, 438 F.3d 1307, 1311-12 (11th Cir. 2006) (en banc). Moreover, while there
are passing references in the appellate brief to the fact that defense counsel raised a
Confrontation Clause issue in the district court, see generally Appellant’s Br. at 10-
15, the brief presents no formal Sixth Amendment or constitutional argument with
respect to Lt. King’s testimony. Consequently, we must determine whether Burris
has waived any Confrontation Clause challenge on appeal. See United States v.
Gupta, 463 F.3d 1182, 1195 (11th Cir. 2006) (recognizing that a party waives any
substantive argument that is not included on appeal and that a passing reference to
the order from which the appealed is taken is insufficient to raise the issue).
“We generally review a district court’s admission of evidence for an abuse
of discretion.” United States v. Arbolaez, 450 F.3d 1283, 1289 (11th Cir. 2006)
(per curiam). The Federal Rules of Evidence define hearsay as “a statement, other
10
than one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). “We have
ruled that testimony as to the details of statements received by a government agent
and later used as the basis for an affidavit in support of a search warrant, even
when purportedly admitted ‘not . . . for the truthfulness of [what the informant said
but] to show why [the agent] did what he did’ after he received that information,
constitutes inadmissible hearsay.” Arbolaez, 450 F.3d at 1290 (citation omitted)
(omission and alteration in original).
Even if hearsay is improperly admitted, however, reversal of a conviction is
not necessarily mandated: “[t]o require a new trial . . . [a] significant possibility
must exist that, considering the other evidence presented by both the prosecution
and the defense, the . . . statement had a substantial impact upon the verdict of the
jury.” Id. (citation omitted) (omissions and alterations in original). We have
recognized: “‘[E]videntiary and other nonconstitutional errors do not constitute
grounds for reversal unless there is a reasonable likelihood that they affected the
defendant’s substantial rights; where an error had no substantial influence on the
outcome, and sufficient evidence uninfected by error supports the verdict, reversal
is not warranted.’” Id. (citation omitted) (alteration in original). In Arbolaez, we
concluded that the challenged statement constituted inadmissible hearsay, but
11
nonetheless determined that the error was harmless and, therefore, did not require
reversal. Id. at 1291.
A statement by a law-enforcement officer during trial that he obtained a
search warrant for Burris’s residence based on information that he received
“regarding narcotics activity” there constitutes hearsay. See Arbolaez, 450 F.3d at
1290. Because none of the hearsay exceptions applies in this case, it appears that
the admission of the challenged statement into evidence was improper.
Nevertheless, we conclude that the error, if any, was harmless, because other
evidence independently supported the jury’s verdict. This included seizure of
seven ounces, or 206.06 grams, of methamphetamine, digital scales that were
located in the same box with the methamphetamine, a razor blade, a glass tube that
could have been used as a smoking device, a book entitled Secrets of
Methamphetamine Manufacture, Including Recipes for MDMA, Ecstasy, and
Other Psychedelic Amphetamines, five guns, a scanner that was set to the same
frequency used by the Sheriff’s Department, as well as $1,558 wrapped inside
aluminum foil in a freezer. Additionally, the government presented testimony
from police officers who explained the differences between a “user” and a
“dealer.” A user ordinarily does not possess more than a gram of
methamphetamine at any time, and seven ounces, 206.06 grams, of
12
methamphetamine were worth approximately $20,000 in Baldwin County,
Georgia. In contrast, a dealer ordinarily possesses digital scales and has a large
amount of currency at home. Additionally, the testimony of Burris’s girlfriend was
that he provided her with methamphetamine on a daily basis and that his friends,
some of whom also were methamphetamine users, occasionally visited him in his
mechanic’s workshop.
Moreover, Burris’s own attorney admitted during opening and closing
arguments that Burris was “guilty of possessing . . . methamphetamine, and that is
against the law.” R5 at 48. A juror reasonably could have interpreted “narcotics
activity” as referring to the act of possession and personal use of an illegal drug
and not to the distribution of methamphetamine. Consequently, the challenged
statement did not necessarily have any more of a substantial impact on the jury’s
verdict than did defense counsel’s own admission with respect to his client’s drug
use. Accordingly, the judge’s error, if any, in admitting the challenged statement
was harmless, and so reversal is not merited on that basis.4 See Arbolaez, 450 F.3d
at 1291.
B. Admission of Firearms Evidence Found During Search of Burris’s House
4
To the extent that Burris argued in the district court that the police officer’s statements
violated the Confrontation Clause of the Constitution, he waived this claim by not formally
arguing it on appeal. See Gupta, 463 F.3d at 1195. Therefore, we do not address this claim.
13
Burris argues that the district judge erred in admitting evidence at trial that
firearms were discovered during the search of his house, because it was as likely
that he “possessed the weapons for reasons unrelated to an intent to distribute
drugs as it is that he used them to further drug distribution.” Appellants’ Br. at 24.
He asserts that the government failed to establish “a nexus between the gun and the
drug trafficking operation,” id. at 23, and, thus, this evidence was “impermissibly
prejudicial,” id. at 24.
We review a properly preserved claim of evidentiary error for abuse of
discretion. United States v. Lankford, 955 F.2d 1545, 1548 (11th Cir. 1992). We
have identified the presence of weapons with the conclusion that a defendant is
dealing or manufacturing drugs. United States v. Ramsdale, 61 F.3d 825, 830
(11th Cir. 1995). Moreover, we have explained that “[i]t is uniformly recognized
that weapons are often as much ‘tools of the trade’ as the most commonly
recognized narcotics paraphernalia.” Id. (citation omitted) (alteration added).
Under Ramsdale, we conclude that the district judge did not abuse his discretion in
allowing the government to introduce evidence that weapons were seized from
Burris’s house as part of its case in chief to prove the charge of possession with
intent to distribute methamphetamine.
C. Limitation of Cross-Examination of Government Witness by Defense Counsel
14
Burris argues that the district judge abused his discretion in sua sponte
foreclosing his cross-examination of Cher Ward, whose testimony “became the
lynchpin of the Government’s case.” Appellant’s Br. at 20. Burris asserts that it
was “essential” for Ward’s “bias to be revealed to the jury to determine how to
consider her testimony,” id. at 21, and that her bias “could only be revealed in the
method [Burris] used in the beginning of his cross-examination—to set forth the
charges and sentence to which Ward was exposed before she made the decision to
enter a guilty plea and to contrast that with the benefit of the bargain she received
once she agreed to testify for the Government against Appellant Tim Burris,” id. at
21-22. Burris cites three cases, Olden v. Kentucky, 488 U.S. 227, 109 S.Ct.
480 (1988) (per curiam), United States v. Baptista-Rodriguez, 17 F.3d 1354 (11th
Cir. 1994), and Lankford, 955 F.2d 1545, where courts have concluded that a
district judge violated the Sixth Amendment to the Constitution by limiting cross-
examination of a particular witness.
A district judge’s discretion in limiting the scope of cross-examination is
subject to the requirements of the Sixth Amendment. Lankford, 955 F.2d at 1548.
The right of cross-examination is embodied in the constitutional right of
confrontation guaranteed by the Sixth Amendment. Id.
Cross-examination has traditionally been allowed for the purpose of
impeaching or discrediting the witness. In particular, the exposure of a
15
witness’ motivation in testifying has been labelled by the Supreme
Court as an important function of the Sixth Amendment right to
cross-examination. “This court has long recognized the particular
importance of searching cross-examination of witnesses who have
substantial incentive to cooperate with the prosecution.” The
importance of such cross-examination does not depend upon whether
or not some deal in fact exists between the witness and the
government. What counts is whether the witness may be shading his
testimony in an effort to please the prosecution. “A desire to cooperate
may be formed beneath the conscious level, in a manner not apparent
even to the witness, but such a subtle desire to assist the state
nevertheless may cloud perception.” And further, where the witness
sought to be cross-examined is the government’s “star” witness,
“‘providing an essential link in the prosecution’s case, the importance
of full cross-examination to disclose possible bias is necessarily
increased.’”
Id. (citations omitted).
If a district judge improperly limits the cross-examination of a witness,
under the Sixth Amendment, reversal of a conviction is not automatically required.
To the contrary, reversal is required only if the error was not “‘harmless beyond a
reasonable doubt.’” Id. at 1552 (citation omitted). “In making this determination,
a ‘host of factors’ are to be considered, including “the importance of the witness’
testimony in the prosecution’s case, whether the testimony was cumulative, the
presence or absence of evidence corroborating or contradicting the testimony of the
witness on material points, the extent of cross-examination otherwise permitted,
and, of course, the overall strength of the prosecution’s case.” Id. (citation
omitted). “The test for the Confrontation Clause is whether a reasonable jury
16
would have received a significantly different impression of the witness’ credibility
had counsel pursued the proposed line of cross-examination.” United States v.
Garcia, 13 F.3d 1464, 1469 (11 th Cir. 1994).
From an evidentiary standpoint, a trial court has “broad discretion under
Federal Rule of Evidence 611(b) to determine the permissible scope of
cross-examination.” Lankford, 955 F.2d at 1548. “Cross-examination should be
limited to the subject matter of the direct examination and matters affecting the
credibility of the witness. The court may, in the exercise of discretion, permit
inquiry into additional matters as if on direct examination.” Fed.R.Evid. 611(b).
An evidentiary error will require reversal only if it had a prejudicial effect on the
defendant. United States v. Reed, 700 F.2d 638, 646 (11th Cir. 1983). This
requires “‘an examination of the facts, the trial context of the error, and the
prejudice created thereby as juxtaposed against the strength of the evidence of
defendant’s guilt.’” Id. (citation omitted). The defense had the constitutional right
to question the cooperating government witness over the plea bargain and any
“‘substantial incentive’” that she may have received in exchange for testifying at
Burris’s trial. See Lankford, 955 F.2d at 1548 (citation omitted). Because the plea
bargain was initially discussed on direct examination, it was within the scope of
permissible cross-examination under the Federal Rules of Evidence. See
17
Fed.R.Evid. 611(b).
Nevertheless, we conclude that the error, if any, was harmless. While the
witness’s testimony undoubtedly was an important part of the government’s
prosecution of Burris, since she provided direct testimony that Burris distributed
drugs to her on a daily basis, there was overwhelming additional evidence
supporting Burris’s guilt. Moreover, Burris did not argue in the district court and
does not argue on appeal that he intended to introduce evidence to contradict the
witness’s testimony on any material point. Rather, Burris asserts that he wanted to
reveal the witness’s bias in favor of the government because of the plea agreement,
a revelation that already had been made during direct examination. Therefore, this
issue on appeal fails.
III. CONCLUSION
Burris has appealed his conviction for possession with intent to distribute
methamphetamine based on various trial rulings. As we have explained, none of
these challenges on appeal merits reversal of his conviction. Accordingly, Burris’s
conviction is AFFIRMED.
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United States v. Jimmy Timothy Burris
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2007-08-01
Citations: 242 F. App'x 677
Copy CitationsCombined Opinion