[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12566 ELEVENTH CIRCUIT
Non-Argument Calendar SEPTEMBER 8, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:09-cr-00387-VMC-TBM-2
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
CURTIS SPEIGHT,
a.k.a. Curtis Lavar Speight,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 8, 2011)
Before TJOFLAT, CARNES and FAY, Circuit Judges.
PER CURIAM:
Curtis Speight appeals his convictions for conspiracy to possess with intent
to distribute five or more grams of cocaine base, in violation of 21 U.S.C. §§ 846
and 841(b)(1)(B)(iii), and possession with intent to distribute five or more grams
of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). On
appeal, Speight argues that the district court should have granted a mistrial after a
government witness testified about his involvement in other uncharged crimes. He
also asserts that the district court erred by denying his motion for a continuance to
secure the testimony of an additional witness who could have rebutted the
testimony of his brother, Leonard Speight, who was a witness for the government.
Finally, Speight argues that the district court should have directed the government
to provide him with Jencks Act materials relevant to Leonard’s testimony. For the
reasons stated below, we affirm.
I.
A grand jury charged Speight with conspiracy to possess with intent to
distribute five or more grams of cocaine base, in violation of 21 U.S.C. §§ 846 and
841(b)(1)(B)(iii), and possession with intent to distribute five or more grams of
cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). Speight’s
brother Leonard also was charged in the indictment. Leonard pled guilty shortly
before the trial began.
At Speight’s trial, the government called a series of law enforcement
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officers who testified to the following facts. On July 24, 2009, Detective Eddie
Benitez of the Lakeland, Florida, Police Department received a tip that Speight
was going to be transporting crack cocaine in a Ford F150 pickup truck. A check
of Speight’s driving history revealed that his license had been suspended. Benitez
and Detective Jason Perez located Speight’s truck and followed it until they
observed it run a stop sign. The detectives radioed for a marked patrol unit to stop
the truck.
Officer Oscar Wesley responded to the call, pulled up behind the truck, and
activated his lights and siren. However, the truck failed to pull over. Suddenly,
Leonard jumped out of the passenger’s side of the vehicle and ran through an
opening between some bushes. Wesley exited his vehicle and pursued Leonard on
foot. He saw Leonard drop what appeared to be styrofoam plates. Wesley
eventually took Leonard into custody. Officer Ruben Garcia later recovered the
styrofoam plates and discovered pieces of crack cocaine in the vicinity.
Meanwhile, Detectives Benitez and Perez were traveling down another
street in an attempt to head off the truck. Benitez heard over the radio that a
passenger had jumped out of the truck, so he exited the vehicle in order to catch
the passenger if he attempted to flee in that direction. Meanwhile, Perez drove
down Davis Street, where he saw Speight’s truck pull into a driveway of a
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residence and then start to back out again. Perez positioned his vehicle to block
the truck, and then arrested Speight for driving on a suspended license. A few
weeks later, Detective Benitez arrested Speight on the present drug trafficking
charges. After waiving his Miranda1 rights, Speight admitted that he had
purchased the crack cocaine and identified his supplier.
At one point, the prosecutor asked Detective Perez to relate what happened
after he stopped Speight’s truck. Perez responded, “I asked him to step out of the
vehicle, which he complied. I asked him if he had a driver’s license. He did not.
He was placed under arrest for driving while license suspended or revoked, and a
search incident to arrest yielded a small amount of cannabis in his pocket.”
Defense counsel objected to that statement and moved for a mistrial. The district
court declined to order a mistrial, but it did instruct the jury to disregard the
testimony about the marijuana.
Speight’s brother Leonard testified on behalf of the government. Leonard
explained that, on the date in question, he and Speight had driven to a residence
where Speight had purchased crack cocaine. As they were driving, a police car
pulled up behind them and activated its lights. Leonard started to hide the drugs in
the glove compartment, but Speight told him that he had to do better than that.
1
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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Leonard then took the crack cocaine, jumped out of the truck, and ran through the
hedges. Eventually, Officer Wesley caught Leonard and placed him under arrest.
Leonard confirmed that Speight was planning to sell the crack cocaine.
Following Leonard’s testimony, the government rested its case. Defense
counsel briefly recalled Detective Benitez, and then informed the court that he did
not have any further witnesses. The district court then inquired whether Speight
intended to testify in his own defense. Defense counsel stated that he was not
planning to call Speight as a witness. Counsel then started to argue that, under the
Jencks Act, the government should have turned over all of the recorded telephone
calls that Leonard had made while in custody. Counsel acknowledged that the
government probably was not in possession of those recordings, but he asserted
that they were nonetheless subject to disclosure under the Jencks Act. The district
court responded, “At the present moment, Mr. Hovsepian, I wish to proceed with
what we started out to discuss.” The court then engaged in a colloquy with
Speight to confirm that he did not wish to testify. Defense counsel did not renew
his Jencks Act argument and the district court never ruled on that issue.
Defense counsel later moved for a continuance to secure the testimony of a
rebuttal witness who would be able to impeach Leonard’s testimony. Counsel
explained that Speight had just told him about a witness in the Pinellas County Jail
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who would have some information regarding Leonard’s testimony. The district
court denied the motion for a continuance. The jury convicted Speight with
respect to both counts of the indictment, and the district court sentenced him to
concurrent terms of 235 months’ imprisonment.
II.
In the proceedings below, Speight objected to Detective Perez’s testimony
about the marijuana found on his person, but not the testimony that he was driving
on a suspended license. Therefore, we are reviewing Speight’s arguments
regarding the marijuana for an abuse of discretion, and his arguments concerning
the suspended license for plain error. See United States v. Emmanuel, 565 F.3d
1324, 1334 (11th Cir. 2009) (a district court’s refusal to grant a mistrial is
reviewed for an abuse of discretion); United States v. Edouard, 485 F.3d 1324,
1343 (11th Cir. 2007) (unpreserved evidentiary objections are reviewed for plain
error). Under the plain error standard, a defendant must establish: (1) error; (2)
that is plain; and (3) that affects his substantial rights. Id. at n.7. An error affects
a defendant’s substantial rights if there is a reasonable probability that it altered
the outcome of the case. United States v. Rodriguez, 398 F.3d 1291, 1299 (11th
Cir. 2005). If the first three elements of plain error review are met, this Court has
discretion to correct an error that “seriously affects the fairness, integrity, or public
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reputation of judicial proceedings.” Edouard, 485 F.3d at 1343 n.7 (quotation
omitted).
A district court should grant a mistrial based on improper testimony only if
there is a reasonable probability that the testimony altered the outcome of the case.
Emmanuel, 565 F.3d at 1334. The stronger the government’s case, the less likely
it is that the inadmissible evidence had an effect on the verdict. United States v.
Rouco, 765 F.2d 983, 992 (11th Cir. 1985). If the district court issued a curative
instruction, this Court will reverse only if “the evidence is so highly prejudicial as
to be incurable by the trial court's admonition.” United States v. Slocum, 708 F.2d
587, 598 (11th Cir. 1983).
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,” but can be admitted for other purposes. Fed.R.Evid. 404(b). Rule
404(b) only applies to evidence that is extrinsic to the charged offenses. Edouard,
485 F.3d at 1344. Evidence is not extrinsic, and therefore falls outside the scope
of Rule 404(b), if it is: “(1) an uncharged offense which arose out of the same
transaction or series of transactions as the charged offense, (2) necessary to
complete the story of the crime, or (3) inextricably intertwined with the evidence
regarding the charged offense.” Id. (quotation omitted).
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In this case, the district court did not abuse its discretion by denying
Speight’s motion for a mistrial after Detective Perez testified that he found a small
amount of marijuana on Speight’s person. The government introduced substantial
evidence of Speight’s guilt, including the testimony of the law enforcement
officers, Speight’s own confession, and the testimony of his brother Leonard. In
light of that overwhelming evidence, it is unlikely that Detective Perez’s brief
statement about the marijuana had a significant impact on the jury’s verdict. The
court’s instruction to the jury to disregard that testimony was sufficient to cure any
prejudice that the detective’s remark might have caused. See Slocum, 708 F.2d at
598.
In addition, the district court did not commit plain error by failing to sua
sponte exclude the evidence that Speight had been driving on a suspended license.
That testimony was not extrinsic under Rule 404(b) because it was necessary to
complete the story of Speight’s arrest. See Edouard, 485 F.3d at 1344. Also, that
testimony was not particularly prejudicial, so it likely did not have any impact on
the jury’s verdict. Speight has not established that the admission of that testimony
affected his substantial rights. See Rodriguez, 398 F.3d at 1299.
III.
We review the denial of a motion for a continuance for an abuse of
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discretion. United States v. Douglas, 489 F.3d 1117, 1128 (11th Cir. 2007). We
examine the district court’s decision “in light of the circumstances presented,
focusing upon the reasons for the continuance offered to the trial court when the
request was denied.” Id. (quotation omitted). Relevant factors include:
(1) the diligence of the defense in interviewing the witness and
procuring his testimony; (2) the probability of obtaining the testimony
within a reasonable time; (3) the specificity with which the defense
was able to describe the witness’s expected knowledge or testimony;
and (4) the degree to which such testimony was expected to be
favorable to the accused, and the unique or cumulative nature of the
testimony.
Id. The defendant must show that the denial of a continuance caused him
“specific substantial prejudice.” Id. (quotation omitted). To establish specific
prejudice, the defendant “must identify relevant, non-cumulative evidence that
would have been presented if his request for a continuance had been granted.”
United States v. Saget, 991 F.2d 702, 708 (11th Cir. 1993).
This Court reviews constitutional issues de novo. Douglas, 489 F.3d at
1126. The Sixth Amendment protects a criminal defendant’s right to confront the
witnesses against him. U.S. Const. amend. VI. “The principal protection derived
from the confrontation right is the right to effective cross-examination of the
[government’s] witnesses.” Childers v. Floyd, 642 F.3d 953, 972 (11th Cir. 2011)
(en banc), pet. for cert. filed, (U.S. July 6, 2011) (No. 11-42).
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In this case, the district court did not abuse its discretion by denying
Speight’s motion for a continuance. Speight informed the district court that his
new witness would rebut Leonard’s testimony, but he did not provide any
additional information about the witness. He did not describe the witness’s
expected knowledge or testimony with specificity, nor did he explain how the
witness’s testimony would be non-cumulative and favorable to his defense. See
Douglas, 489 F.3d at 1128. Therefore, it was reasonable for the district court to
deny the motion for a continuance.
Moreover, the denial of a continuance did not violate Speight’s right to
confrontation. Although Speight contends that the right to confrontation also
includes the right to call rebuttal witnesses, he does not cite to any precedent to
support that argument. Speight was given a full and fair opportunity to
cross-examine Leonard, which is all that the Confrontation Clause requires. See
Childers, 642 F.3d at 972.
IV.
A district court’s enforcement of the Jencks Act’s disclosure requirements is
reviewed for an abuse of discretion. United States v. Schier, 438 F.3d 1104, 1107
(11th Cir. 2006). The Jencks Act requires the government to “produce any
statement . . . of the witness in the possession of the United States which relates to
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the subject matter as to which the witness has testified.” See 18 U.S.C. § 3500(b).
“A statement is ‘in the possession of the United States’ for Jencks Act purposes if
it is in the possession of a federal prosecutorial agency.” United States v.
Cagnina, 697 F.2d 915, 922 (11th Cir. 1983).
In this case, Speight has not established that the government violated the
Jencks Act. Speight argues that the prosecution should have turned over
recordings of Leonard’s telephone calls from the Pinellas County Jail, but there is
nothing in the record to suggest that the government actually possessed those
recordings. In fact, defense counsel acknowledged below that the government
probably did not have the recordings. Moreover, Speight has not established that
the recorded calls were related to the subject matter of Leonard’s testimony. See
18 U.S.C. § 3500(b). Because Speight has not identified any specific materials
relevant to Leonard’s testimony that the government had in its possession but
failed to disclose, he has failed to establish a violation of the Jencks Act. See 18
U.S.C. § 3500(b); Cagnina, 697 F.2d at 922. In light of the foregoing, it is
unnecessary for us to address the government’s alternative argument that this issue
is unreviewable because Speight failed to obtain a ruling from the district court.
Accordingly, after review of the record and the parties’ briefs, we affirm
Speight’s convictions.
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AFFIRMED.
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