United States v. Jeremiah Prather

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 23, 2008
No. 05-14627
THOMAS K. KAHN
________________________
CLERK

D. C. Docket No. 03-00736-CR-2-CC-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee
Cross-Appellant,

versus

JEREMIAH PRATHER,
Defendant-Appellant
Cross-Appellee,

TERRY OUTLAW,
DWAN OUTLAW,
Defendants-Appellants.

________________________

Appeals from the United States District Court
for the Northern District of Georgia
_________________________

(May 23, 2008)

Before ANDERSON, BLACK and HILL, Circuit Judges.

PER CURIAM:
 On December 9, 2003, the Government indicted Defendants-Appellants

Dwan Outlaw, Jeremiah Prather, Terry Outlaw, and others for possessing and

distributing marijuana and cocaine in the Atlanta, Georgia metropolitan area. The

Government alleged Dwan Outlaw was the ringleader of the conspiracy, and

Prather was his second-in-command. Terry Outlaw was accused of participating

in the conspiracy by selling drugs.

At trial, all three appellants were convicted of various conspiracy, drug, and

weapons-related charges. They now appeal their convictions and sentences,

challenging (1) the legality of search warrants used to obtain evidence against

them; (2) the prosecutor’s use of peremptory strikes to remove African-Americans

from the jury panel; (3) the admission of hearsay testimony from a non-testifying

witness; (4) the sufficiency of the evidence used to convict Terry Outlaw of

conspiracy and Prather and Dwan Outlaw of possessing guns in connection with

drug trafficking offenses; (5) the trial court’s failure to instruct the jury it could

consider the prosecution’s failure to call a key witness in the case; (6) the

allegedly inflammatory nature of the prosecutor’s closing argument; and (7) the

reasonableness of Prather’s and Terry Outlaw’s sentences.

Although we find no reversible errors were committed at trial, the district

court did not adequately explain the reasoning behind the sentences it imposed on

2
Prather and Terry Outlaw. Therefore, we vacate both sentences, and remand for

further proceedings. In all other respects, we affirm the judgment of the district

court.

I. SEARCH WARRANTS

Prather challenges the validity of search warrants executed by police on

October 11, 1999, October 12, 2000, and November 14, 2003. He contends the

warrants were not supported by probable cause, were overly broad, and did not

specifically authorize police to seize firearms.1 For these reasons, he argues, the

district court erred by admitting into evidence the drugs, guns, and other

paraphernalia obtained during the searches.

A. Searches

We begin with a brief summary of the challenged searches, and the facts

supporting each warrant issued.

1. October 11, 1999

On October 11, 1999, after having observed marijuana transactions at 395

Woodlawn Avenue, Unit 1, on three occasions within a preceding four-month

period, Atlanta police officers obtained a warrant entitling them to search the

1
Prather recounts details regarding several other searches in his brief, but appears to
argue only the fruits of these three searches should have been suppressed.

3
premises. Although the warrant did not authorize a search for handguns, officers

seized a gun, cash, and a small bag of marijuana.

2. October 12, 2000

On October 12, 2000, police officers obtained a warrant to again search 395

Woodlawn Avenue, Unit 1, for “cocaine, money from the sales of cocaine and any

and all items used for the sale, distribution, and manufacturing of cocaine.” The

warrant did not authorize a search for weapons. According to the affidavit

supporting the warrant, undercover police officers had made a controlled purchase

of crack cocaine at the same location two weeks earlier.

When the warrant was executed, police seized marijuana and cocaine, and

arrested a number of persons, including Prather and co-conspirator Kelly Roberts.

At that time, keys to Units 1 & 2 of 395 Woodlawn were found in Prather’s

possession.

After searching Unit 1, officers noticed the “odor of marijuana” emanating

from Unit 2. Officers asked Prather for permission to search the unit; when he

refused, they obtained a warrant authorizing the seizure of marijuana, money from

sales of marijuana and any and all items used for the sale, distribution, and

manufacturing of marijuana from Unit 2. Officers entered the unit and seized

marijuana and cocaine.

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 3. November 14, 2003

On November 7, 2003, police filed an affidavit seeking a search warrant for

1285 North Avenue in connection with an ongoing investigation of Dwan Outlaw.

Within 72 hours of the affidavit’s filing, an undercover agent had made a

controlled purchase of marijuana from Dwan Outlaw at the North Avenue

residence. According to the affidavit, the Atlanta Police Department had also

received a report indicating Dwan Outlaw was selling drugs at the residence.

The warrant issued on November 14, 2003, and authorized officers to search

for drug records, drug proceeds, communications records, telephone records, drug

scales, drug paraphernalia, and “other indicia of illegal narcotics.” When law

enforcement officers executed the warrant, they found large quantities of hidden

drugs, drug paraphernalia (scales and a cooking pot), a gun, and ammunition.

B. Fourth Amendment Challenge

We review the district court’s denial of a motion to suppress under a mixed

standard, “reviewing the district court’s findings of fact for clear error and its

application of law to those facts de novo.” United States v. Lyons, 403 F.3d 1248,

1250 (11th Cir. 2005). All facts must be viewed in the light most favorable to the

prevailing party, United States v. Heard, 367 F.3d 1275, 1278 (11th Cir. 2004),

which in this case is the Government.

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 The Fourth Amendment requires search warrants to “particularly describ[e]

the place to be searched, and the persons or things to be seized,” U.S. Const.

amend. IV, in order to protect individuals from being subjected to general,

exploratory searches. Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S. Ct.

2022, 2038 (1971); United States v. Khanani, 502 F.3d 1281, 1289 (11th Cir.

2007). Therefore, “when a police officer engages in a search outside of the proper

scope (whether that scope be defined by a warrant or by circumstances), evidence

obtained in that search may be excluded.” United States v. Hendrixson, 234 F.3d

494, 497 (11th Cir. 2000).

Prather argues the search warrants executed October 11, 1999, October 12,

2000, and November 14, 2003, were issued without probable cause and were

impermissibly broad because they did not specify the items to be seized.

However, each warrant was supported by affidavits which contained facts

regarding recent controlled purchases of drugs made by undercover agents or, in

the case of the October 11, 1999 warrant, recent arrests of persons exiting the

residence who possessed marijuana. The facts detailed in the affidavits provided

probable cause to believe drug activity was occurring at the residences in question,

and justified the issuance of the warrants. The warrants were broad with respect to

their inclusion of all drug-related items; however, because the police had probable

6
cause to believe drug dealing was occurring at the locations being searched, the

scope of the warrants appropriately matched the scope of police suspicion.

Prather contends police also exceeded the scope of the warrants by seizing

guns during the October 11, 1999, and November 14, 2003 searches. Although

neither warrant specifically authorized the seizure of weapons, the police did not

err in confiscating weapons when they found them. When law enforcement

officers stumble across hidden guns during a lawful search for drugs, they are

allowed to draw the reasonable inference that the guns may be related to drug

trafficking occurring at the location. United States v. Smith, 918 F.2d 1501, 1509

(11th Cir. 1990) (finding firearms not named in a warrant were properly seized

during search of drug house as “tools of the trade”). That is precisely what the

police did in this case.

The district court did not err by denying Prather’s motion to suppress the

fruit of the search warrants executed October 11, 1999, October 12, 2000, and

November 14, 2003; therefore, we affirm the district court’s denial of the

suppression motion and the subsequent admission at trial of evidence obtained

from the challenged searches.

II. BATSON CHALLENGE

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 Next, Prather and Terry Outlaw contend their right to equal protection was

violated when the Government exercised six of its seven peremptory strikes to

exclude five of the nine black jurors on the venire panel, along with one proposed

alternate juror. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986).

When a court assesses a defendant’s challenge to a peremptory strike, it

engages in a three-step inquiry. First, the trial court must determine whether the

defendant has made a prima facie showing the prosecutor exercised a peremptory

challenge on the basis of race. Rice v. Collins, 546 U.S. 333, 338, 126 S. Ct. 969,

973 (2006). Second, if the showing is made, the burden shifts to the prosecutor to

present a race-neutral explanation for striking the juror in question. Id. Third, the

court must determine whether the defendant has carried his burden of proving

purposeful discrimination. Id. This final step involves evaluating “the

persuasiveness of the justification” proffered by the prosecutor, but “the ultimate

burden of persuasion regarding racial motivation rests with, and never shifts from,

the opponent of the strike.” Id. (quoting Purkett v. Elem, 514 U.S. 765, 768, 115

S. Ct. 1769, 1771 (1995).

During voir dire, defendants objected immediately to the prosecutor’s

peremptory strikes of African Americans, contending they were racially motivated.

Although the judge did not explicitly find Appellants had made a prima facie

8
showing, he required the prosecutor to provide an explanation for each strike

made.

In response to the trial court’s inquiry, the Government represented the

jurors had been stricken for the following reasons: one had a son and brother who

had been convicted of drug offenses; another worked at the same General Motors

plant as a potential defense witness in the case; and a third had health problems

and had fallen asleep during voir dire. The prosecutor explained she had stricken

two additional jurors after sensing they might be biased against the Government

based on their demeanor when describing their personal histories. A final juror

was stricken because her only hobby was “teaching in the ministry,” an activity the

prosecutor believed might indicate a commitment to rehabilitating criminals rather

than punishing them.

After hearing the Government’s explanation for its strikes, the district court

stated, “The government has given nondiscriminatory race-neutral reasons for

exercising its strikes.” The defendants did not proffer any additional evidence to

rebut the Government’s explanation, and without further comment from the court

or counsel, the trial commenced.

Appellants take the position that this Court should reverse their convictions

because the district court failed to make on-the-record findings regarding the

9
credibility of the prosecutor’s explanations. They argue the district court’s failure

to discuss the explanations proffered by the prosecutor amounts to a failure to

determine whether their equal protection rights were violated. We disagree.

Recently, the Supreme Court confronted a case in which a district court had

allowed a trial to proceed without “making a specific finding on the record”

concerning the credibility of a prosecutor’s proffered reason for striking a

potential juror. Snyder v. Louisiana, — U.S. —, 128 S. Ct. 1203, 1209 (2008). In

that case, after the prosecutor offered two racially-neutral reasons for striking a

black juror, the trial court accepted the explanations without comment. Id. at

1208. After determining one of the two proffered reasons was plainly incredible,

the Supreme Court reversed Snyder’s conviction, concluding that it could not tell

from the transcript how much weight the trial court had placed on the prosecutor’s

pretextual explanation. Id. at 1211-12. The Supreme Court did not reverse

Snyder’s conviction because the district court had failed to explain itself clearly,

but because it was unclear whether the district court’s finding rested on a plausible

or implausible explanation for the strike.

None of the reasons the Government offered for its strikes in this case is

inherently incredible. Most jurors were stricken for prudent reasons—a serious

health problem, knowledge of potential witnesses, or close familial connections to

10
persons convicted of similar crimes. Although the prosecutor’s reasons for

striking other jurors were less concrete, they were not inherently suspicious.

Prather and Terry Outlaw focus on the district court’s failure to articulate

reasons for its decision that no discrimination had taken place; however, once the

Government had come forward with a race neutral explanation for its strikes, the

Appellants bore the burden of proving purposeful discrimination. Purkett, 514

U.S. at 768, S. Ct. at 1771. During jury selection, defense counsel made no effort

to rebut the prosecutor’s explanations with evidence and did not argue the reasons

the Government provided were pretextual. Counsel asked to preserve an objection

to the peremptory strikes, but they did not argue the Batson issue further.

After listening to the prosecutor’s explanation for her strikes, the district

court noted for the record the prosecutor had offered race neutral explanations.

The court then proceeded to impanel the jury. In the absence of any additional

argument or evidence from Appellants, the court did not err in concluding

Appellants had not met their burden of proving the strikes were based on the

prospective jurors’ race, rather than on their personal circumstances.

III. CRAWFORD CHALLENGE

Terry Outlaw and Dwan Outlaw contend their Sixth Amendment right to

confrontation was violated when the Government asked Detective S. H. Kim to

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repeat the out-of-court statements to him made by Lydia Headspeth (a non-

testifying co-conspirator) regarding the scope of the conspiracy and Dwan

Outlaw’s role in it. Appellants did not object to Kim’s testimony in the trial court;

therefore, we review for plain error only. United States v. Rodriguez, 398 F.3d

1291, 1298 (11th Cir. 2005).2

At trial Detective Kim testified he interviewed co-defendant Lydia

Headspeth at police headquarters in February 2002, regarding Dwan Outlaw’s

alleged involvement in the conspiracy. During direct examination, the

Government elicited details regarding what transpired:

Gov’t: I’m not going to ask you to read the statement, it may be
something we end up doing later, but based on this
statement that you took from Ms. Headspeth, what did
you learn with respect to 1645 Derry Avenue and Mr.
Dwan Outlaw?

Kim: Basically, confirmed the information that I received. It
was confirmed through Lydia Headspeth in the statement
that she had made.

Gov’t: Did she tell you anything about Dwan Outlaw and his
connection to 1645 Derry Avenue?

2
The Government argues Appellants invited the alleged error by asking another law
enforcement officer, Alan Abercrombie, whether Headspeth had ever implicated Dwan Outlaw in
the sale of drugs. Appellants’ counsel asked Abercrombie whether Headspeth had ever accused
Outlaw of selling drugs, but specifically directed the witness not to repeat the content of
Headspeth’s statements. Given the limited nature of defense counsel’s inquiry, we cannot
conclude the error was invited.

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Kim: Yes.

Gov’t: What did she tell you?

Kim: Based on her—our conversation, she advised that Mr.
Outlaw would, number one, pay for the rent of the house.
Also he will [sic] bring large quantities of narcotics to
that location. I believe on the statement it says eight to
ten kilos of cocaine. I don’t know the time frame, I don’t
know if it’s a week or a month. And he would actually
cook the powder cocaine into crack cocaine and would
distribute it from that location and also from other
location that is on the chart [sic].

Gov’t: Did she make any references to 1469 Simpson Road and
the connection that location had to Derry Avenue and
Dwan Outlaw’s drug distribution?

Kim: Yes. On the statement, like I said, he would cook the
powder cocaine to crack cocaine, cook it at Derry
Avenue. And he would also distribute or sell from that
location. But also would take it to, I believe it’s 1469
Simpson Road, and he will also distribute or sell from
that location also. And then the statement is a little more
detailed about the vehicles and the process of how he
went about, done the whole operation.

Gov’t: Did you ask her about 395 Woodlawn Avenue?

Kim: Yes.

Gov’t: And in sum and substance what did you learn about 395
Woodlawn Avenue?

Kim: If I could see that statement one more time, but I believe
it’s–

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 Gov’t: Hold on, I’m showing it to you.

Kim: Yeah, right from the start, on the statement on the front
of the sheet, she advised that she had gotten arrested
from 395 Woodlawn selling narcotics for Dwan Outlaw
and after a certain period has passed Mr. Outlaw for the
house on Derry Avenue, then she was back selling
narcotics for him again.

A transcript of the interview between Kim and Headspeth was entered into

evidence as Government’s Exhibit 17.3 Defendants’ counsel did not object to

Kim’s testimony or to the admission of Exhibit 17.4

Under plain error review, “[a]n appellate court may not correct an error the

defendant failed to raise in the district court unless there is: (1) error, (2) that is

plain, and (3) that affects substantial rights.” Rodriguez, 398 F.3d at 1298.

Testimonial statements of absent witnesses are admissible at trial only when a

defendant has had a prior opportunity to confront the unavailable witness.

Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369 (2004). It is

undisputed that neither Terry Outlaw nor Dwan Outlaw was able to cross-examine

3
A second copy of the interview transcript was admitted into evidence as Government
Exhibit 57. Exhibit 57 was a photocopy of the statement police found during a search of Dwan
Outlaw’s mother’s home. Both Exhibits 17 and 57 were published and sent out with the jury
during their deliberations.
4
Appellants contend counsel did not object to the admission of the exhibit or to Kim’s
testimony because the Government had represented it would be calling Headspeth as a witness
later in the proceedings.

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Headspeth before or at trial and her statements, given to a police officer during a

custodial interview, were incontrovertibly testimonial. Consequently, it was

plainly erroneous to admit the statements into evidence at trial. Cf. United States

v. Arbolaez, 450 F.3d 1283, 1291 (11th Cir. 2006) (finding “error” that was

“plain”—but not “plain error”—in admission of statement obtained through

custodial interrogation).

That leaves the question whether the error affected Dwan Outlaw’s or Terry

Outlaw’s substantial rights. For an error to affect substantial rights, “the error

must have been prejudicial: It must have affected the outcome of the district court

proceedings.” United States v. De La Garza, 516 F.3d 1266, 1269 (11th Cir.

2008) (quoting United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1778

(1993)).

With respect to Terry Outlaw, there is little in Headspeth’s statements to

prejudice him. Headspeth did not mention Terry Outlaw to Detective Kim at all.

She did, however, identify Terry Outlaw’s residence, 395 Woodlawn Avenue, as a

drug house. Beyond that tenuous link, there was no connection between

Headspeth’s testimony and Terry Outlaw’s conviction. As we discuss at greater

length below (see § III.A, infra), Terry Outlaw was convicted based on the

testimony of Detective Kim and co-conspirator Kelly Roberts—not on the hearsay

15
testimony of Lydia Headspeth. Headspeth’s statements, while wrongly admitted,

did not prejudice Terry Outlaw’s substantial rights by affecting the outcome of his

trial.

Slightly more difficult is the question whether Headspeth’s statements made

the difference between conviction and acquittal for Dwan Outlaw. Because

Headspeth’s statements directly implicated Dwan Outlaw in the sale of narcotics at

several different locations, her testimony was plainly prejudicial. In order to

decide whether Headspeth’s statements determined the outcome of the trial—that

is, whether the result would have been different but for the admission of the

hearsay statements—we must consider what other evidence of Dwan Outlaw’s

guilty was placed before the jury. See Arbolaez, 450 F.3d at 1291.

In the course of a three-week trial, the Government presented evidence of

numerous drug seizures linked to Dwan Outlaw. On November 11, 2000, an

officer stopped Dwan Outlaw’s vehicle and recovered crack cocaine from his

pocket. On March 20, 2002, officers searching 1391 Kennesaw Drive found

documents suggesting the residence belonged to Dwan Outlaw. From that

location, officers seized large quantities of cocaine, along with weapons and drug

paraphernalia. On April 25, 2002, a search of Dwan Outlaw’s home at 3167

Sunnyford Lane led to the seizure of several firearms and marijuana. On

16
November 6, 2003, an undercover officer purchased $500.00 of marijuana from

Dwan Outlaw, and on November 14, 2003, Dwan Outlaw was arrested at 1285

North Avenue, where officers found drug cooking equipment and a firearm.

Finally, Kelly Roberts testified extensively regarding Dwan Outlaw’s leading role

in the drug conspiracy. In short, the evidence from which a jury could have found

Outlaw guilty was overwhelming. In light of that evidence, we cannot conclude

Dwan Outlaw’s substantial rights were prejudiced by the improper admission of

Headspeth’s out-of-court statements.

IV. SUFFICIENCY OF THE EVIDENCE

Terry Outlaw challenges the sufficiency of the evidence used to convict him

of conspiracy; Prather and Dwan Outlaw challenge the sufficiency of the evidence

supporting their convictions for possessing weapons in connection with a drug

trafficking offense. We review the sufficiency of the evidence de novo, viewing

the evidence in the light most favorable to the Government and drawing all

reasonable inferences in the Government’s favor. United States v. Schlei, 122

F.3d 944, 952-53 (11th Cir. 1997). We must affirm unless no reasonable jury

could have found the defendant guilty beyond a reasonable doubt. Id.

A. Conspiracy

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 To prove conspiracy, the Government must show an agreement between two

or more persons to possess and distribute drugs illegally. United States v. Lyons,

53 F.3d 1198, 1201 (11th Cir. 1995). It must also show Terry Outlaw knowingly

and voluntarily joined or participated in the agreement. Id. At trial the

Government presented evidence Terry Outlaw was present during the March 20,

2002 search of 390 Woodlawn Avenue, where police found cocaine base and

marijuana hidden in a vent. Moreover, co-conspirator Kelly Roberts testified

Terry Outlaw was in charge of drug sales at the residence for almost one year.

In arguing the evidence was insufficient to prove his guilt, Outlaw discounts

Roberts’ testimony, contending the jury was not entitled to believe him because he

was a “hostile” drug addict. Although Outlaw acknowledges that credibility is a

matter for the jury to assess, he contends that Roberts was so unreliable, and some

of his testimony so absurd, that the Court should find as a matter of law the jury

was not entitled to believe him.

We are not persuaded. At trial, defense counsel impeached Roberts

thoroughly, pointing out inconsistencies in his testimony and highlighting the

reasons he may have had for offering false testimony. Nevertheless, the jury

credited his testimony, as it was entitled to do. Furthermore, Outlaw’s sufficiency

challenge ignores completely the evidence recovered in the March 20 search. As

18
the Government properly notes, although “mere presence, guilty knowledge, even

sympathetic observation have all been held by this court to fall short of the proof

required” for conspiracy, Outlaw’s presence at 390 Woodlawn at the time the

search warrant was executed is not a fact without legal relevance. Lyons, 53 F.3d

at 1201. The jury was free to infer from Terry Outlaw’s presence at the drug

house that he was a conspirator. Id. (“Presence at such drug trafficking . . . raises

a permissible inference of participation in the conspiracy.”). While the inference

alone would be insufficient to convict him, “the inference is a material and

probative factor that the jury may consider in reaching its verdict.” Id.

Combining Roberts’s testimony with the evidence recovered during the March 20

search, the evidence was more than adequate to support the jury’s verdict.

Consequently, we affirm Terry Outlaw’s conviction on the conspiracy charge.

B. Gun Possession

Prather and Dwan Outlaw both contend the evidence adduced at trial was

insufficient to link their possession of guns to drug trafficking offenses, as

required by 18 U.S.C. § 924(c)(1)(A). That statute applies to:

any person who, during and in relation to any crime of violence or
drug trafficking crime (including a crime of violence or drug
trafficking crime that provides for an enhanced punishment if
committed by the use of a deadly or dangerous weapon or device) for
which the person may be prosecuted in a court of the United States,

19
 uses or carries a firearm, or who, in furtherance of any such crime,
possesses a firearm . . . .

United States v. Suarez, 313 F.3d 1287, 1291 (11th Cir. 2002). Conviction under

§ 924(c) requires the prosecution to establish the firearm “helped, furthered,

promoted, or advanced the drug trafficking.” United States v. Timmons, 283 F.3d

1246, 1252 (11th Cir. 2002). In other words:

The government must clearly show that a firearm was possessed to
advance or promote the commission of the underlying offense. The
mere presence of a firearm in an area where a criminal act occurs is
not a sufficient basis for imposing this particular mandatory sentence.
Rather, the government must illustrate through specific facts, which
tie the defendant to the firearm, that the firearm was possessed to
advance or promote the criminal activity.

Id. at 1252.

Prather and Dwan Outlaw contend there was insufficient evidence to show

they possessed guns “in furtherance of” the drug conspiracy. They concede the

Government proved Prather possessed a weapon and Dwan Outlaw had access to

one; however, they contend no evidence was adduced showing they used the

firearms to forward, promote, advance, or facilitate the conspiracy. We assess the

evidence against each in turn.

1. Jeremiah Prather

The evidence against Prather came entirely from Kelly Roberts, who

testified he had seen Prather at the drug houses with guns on three to five

20
occasions. According to Roberts, sometime in 2002, Prather began buying

“Glocks,” which he would wear in holsters over his shoulders. On several

occasions, Prather “play[ed] with folks” who came to 395 Woodlawn by coming

up behind them dressed in black, pulling a gun out of its holster, and waving it in

the air. Roberts testified Prather wore his guns when he made drug deliveries and

had the weapons available to him at the drug houses during transactions.

In the face of this detailed testimony, Prather merely asserts Roberts’

testimony was not credible and the jury should not have believed it. However, it is

axiomatic that credibility determinations are the sole province of the jury, United

States v. Chastain, 198 F.3d 1338, 1351 (11th Cir. 1999), and this Court must

“resolve all reasonable inferences and credibility evaluations in favor of the jury’s

verdict,” United States v. Medina, 485 F.3d 1291, 1296 (11th Cir. 2007). Despite

potential problems with Roberts’ credibility, the jury was entitled to believe

Roberts’ testimony that Prather had used a gun to scare drug customers at the

various residences—a clear example of using a weapon “in furtherance” of drug

trafficking.

2. Dwan Outlaw

With respect to Dwan Outlaw, the Government produced evidence in two

forms. First, police testified to recovering two firearms during a search of 3167

21
Sunnyford Lane. One gun was found on the top shelf of a bedroom belonging to

Dwan and another gun was found between the cushions of the living room couch.

Both weapons were registered to Dwan Outlaw’s fiancee, Cicely Ware.5 The same

search yielded evidence of drug cooking materials and a small amount of

marijuana.

Second, Kelly Roberts testified he had seen Dwan Outlaw with guns on two

occasions. Roberts described one of these incidents in detail, explaining that when

he once tried to extricate himself from the conspiracy, Outlaw drove past him in a

truck, holding a gun aloft so Roberts would see it. Roberts understood the gesture

as a threat.

“A conviction must be upheld unless the jury could not have found the

defendant guilty under any reasonable construction of the evidence.” United

States, 513 F.3d 1293, 1299 (11th Cir. 2008) (quoting United States v. Byrd, 403

F.3d 1278, 1288 (11th Cir. 2005)). The evidence that Dwan Outlaw used a

weapon in connection with drug trafficking may not have been overwhelming, but

it was more than sufficient to support the jury’s verdict. From the evidence

presented by police officers, the jury was free to conclude Dwan had stored one or

more guns for protection and use at the location where he cooked crack cocaine.

5
As a convicted felon, Dwan Outlaw could not legally purchase a weapon.

22
Moreover, from Roberts’ testimony, the jury was free to conclude that, on at least

one occasion, Dwan Outlaw had used a weapon to threaten Roberts, in order to

prevent him from extricating himself from the conspiracy. Consequently, we

affirm Dwan Outlaw’s conviction for violating 18 U.S.C. § 924(c)(1)(A).

V. FAILURE TO PROVIDE JURY INSTRUCTION

Next, Dwan Outlaw challenges the district court’s failure to provide the

jury with the following proposed instruction regarding the Government’s failure to

call Lydia Headspeth as a witness:

You have heard evidence about a witness who has not been called to
testify. The defense has argued that the witness could have given
material testimony in this case and that the government was in the
best position to produce this witness.

If you find that this uncalled witness could have been called by the
government and would have given important new testimony, and that
the government was in the best position to call him [sic], but failed to
do so, you are permitted, but you are not required, to infer that the
testimony of the uncalled witness would have been unfavorable to the
government.

In deciding whether to draw an inference that the uncalled witness
would have testified unfavorably to the government, you may
consider whether the witness’ testimony would have repeated other
testimony and evidence already before you.

At trial, the Government took the position the instruction was inappropriate

because the witness in question “were not necessarily per se available to the

23
government” because “[t]hey had Fifth Amendment rights and . . . it [would be]

unlawful and impermissible to call a witness just to have them [sic] invoke their

Fifth Amendment in the presence of the jury for them to draw an inference.”6 The

court declined to give the requested instruction.

We review a district court’s refusal to give a particular jury instruction for

abuse of discretion. United States v. Eckhardt, 466 F.3d 938, 947-48 (11th Cir.

2006). Under this deferential standard of review, we will reverse only if “we are

left with a substantial and eradicable doubt as to whether the jury was properly

guided in its deliberations.” Id.

A district court’s failure to give a requested jury instruction is an abuse of

discretion when the requested instruction (1) was correct, (2) was not substantially

covered by the charge actually given, and (3) dealt with some point in the trial so

important that failure to give the requested instruction seriously impaired the

defendant’s ability to conduct his defense. Eckhardt, 466 F.3d at 947-48.

Appellants’ proposed instruction was drawn from model jury instructions,

see Sand et al., Modern Fed. Jury Instructions-Criminal § 6.04, Instruction 6-5

(2007); however, the commentary to those instructions suggests a missing witness

6
On appeal, the Government contends for the first time that Lydia Headspeth could not
be called as a trial witness because she had committed a new crime and was on the lam when
Appellants’ trial took place. (Red Brief at 29, n. 1.)

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instruction would have been inappropriate under the circumstances presented by

this case:

When a witness is equally available, or equally unavailable to both
parties, the justification for giving a missing witness instruction is
substantially changed. In such circumstances, the court clearly should
not instruct the jury that an inference may be drawn only against one
side. This includes situations where the witness has indicated that he
would assert his Fifth Amendment right not to testify if called. Thus,
if a witness is physically available to both parties, but has been
cooperating with the defense or is under government subpoena, it is
inappropriate to give the missing witness instruction recommended in
Instruction 6-5.

Id. § 6.04, Instruction 6-7 cmt. (collecting cases).

Our Circuit case law supports the same result. Only “[w]hen a witness is

peculiarly within the control of one party, and the witness’ testimony would

elucidate facts in issue, [is] an instruction . . . appropriate regarding the

permissible inference which the jury may draw from the party’s failure to call the

witness.” United States v. Nahoom, 791 F.2d 841, 846 (11th Cir. 1986) (emphasis

added). In this case, the district court found Headspeth was not particularly within

the control of the Government. Because neither party called her to testify, a

missing witness instruction would have invited the jury to draw an improper

inference in Appellants’ favor. Consequently, the district court did not abuse his

discretion by failing to give the requested instruction.

VI. PROSECUTORIAL MISCONDUCT

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 Next, Prather challenges the prosecutor’s closing argument, during which

she referred to the death of a local police officer and suggested to the jury that

additional officers’ lives would have been endangered had police continued to

gather evidence against Appellants before proceeding to trial. Prather contends

her statements tainted the jury and that his conviction should therefore be

reversed.

We will reverse a defendant’s conviction on the basis of prosecutorial

misconduct only where the prosecutor’s “remarks (1) were improper and

(2) prejudiced the defendant’s substantive rights.” United States v. O’Keefe, 461

F.3d 1338, 1350 (11th Cir. 2006) (emphasis added). A defendant’s substantial

rights are prejudicially affected only when a reasonable probability arises that, but

for the prosecutor’s statements, the outcome of the trial would have been different.

Id.

The Government does not defend the prosecutor’s comments, but points out

the trial judge, acting sua sponte, admonished the jury to disregard the

prosecutor’s remark, and not allow it to factor into their decision. Having

reviewed the Government’s harmless error argument in the context of the entire

record, United States v. Blakey, 14 F.3d 1557, 1561 (11th Cir. 1994), we agree that

the judge’s curative instruction was sufficient. Although the prosecutor’s

26
comment was off-base, it was brief and was almost immediately corrected by the

district court. The prosecutor did not misstate the burden of proof, which she

emphasized required proof “beyond a reasonable doubt.” Moreover, in the context

of a trial in which the jury heard substantial evidence of Prather’s guilt, the

comment was not one likely to have influenced the jury’s verdict, much less

altered it. Consequently, the error was harmless; the district court did not err by

denying Prather’s motion for a mistrial.

VII. SENTENCING

The district court imposed a sentence on Terry Outlaw that fell within the

recommended guideline range and imposed a below-guideline sentence on

Jeremiah Prather. Terry Outlaw appeals his sentence, contending it was

unreasonably high; the Government appeals Prather’s sentence, contending it was

unreasonably low. Unfortunately, we cannot determine whether the sentences

were reasonable because the district court failed to adequately explain the reason

for the sentences it selected. Consequently, we reverse and remand both sentences

for further consideration by the district court.

In determining what sentence is reasonable in any given case, the district

court must consider the correctly calculated advisory guideline range and the

factors set forth in 18 U.S.C. § 3553(a). United States v. Valnor, 451 F.3d 744,

27
749 (11th Cir. 2006). The parties agree the district court properly calculated the

relevant guideline ranges for both Prather and Terry Outlaw, therefore we need not

consider that issue.

We review sentences for two kinds of reasonableness: procedural and

substantive. First, we review the sentence to

ensure that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence—including an explanation for any deviation from the
Guidelines range.

Gall v. United States, — U.S. —, 128 S. Ct. 586, 597 (2007); United States v.

Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). If no procedural errors have been

committed, we assess the substantive reasonableness of the sentence under an

abuse of discretion standard. Gall, 128 S. Ct. at 597.

In order for this Court to affirm that a sentence is reasonable, it must be

clear that the district court considered relevant sentencing factors. Although a

sentencing judge need not make explicit his consideration of all relevant factors,

the judge must “set forth enough to satisfy the appellate court that he has

considered the parties’ arguments and has a reasoned basis for exercising his own

28
legal decision making authority.” United States v. Rita, — U.S. —, 127 S. Ct.

2456, 2468 (2007); Gall, 128 S. Ct. at 597.

The district court sentenced Jeremiah Prather on August 16, 2005, and Terry

Outlaw on September 21, 2005, without the benefit of the Supreme Court’s

guidance in Rita or Gall.7 Having reviewed the transcript of both sentences, we

conclude the district court failed “to adequately explain the chosen sentence” for

either Prather and Terry Outlaw. Gall, 128 S. Ct. at 597. District courts deserve

great deference in deciding sentences; however, the sentences must be adequately

explained. Rita, 127 S. Ct. at 2469 (“By articulating reasons, even if brief, the

sentencing judge not only assures reviewing courts (and the public) that the

sentencing process is a reasoned process but also helps that process evolve.”).

By remanding these sentences to the district court, we do not judge the

reasonableness of either sentence’s length; we ask only for more explanation. On

remand, the district court should exercise its reasoned discretion and impose

whatever sentence it deems appropriate under § 3553(a).

7
Rita was issued on June 21, 2007. Gall issued December 10, 2007, the day before oral
argument was held in this case.

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 VIII. CONCLUSION

For the reasons discussed above, we conclude the district court did not err

when it admitted evidence obtained through validly-executed search warrants;

found Appellants had failed to prove the Government’s use of peremptory strikes

was racially motivated; determined sufficient evidence supported the jury’s

conviction of Terry Outlaw for conspiracy and Prather and Dwan Outlaw for

possessing guns in connection with drug trafficking offenses; failed to provide a

missing witness instruction; and denied Appellant’s motion for a mistrial premised

on the allegedly inflammatory nature of the prosecutor’s closing argument.

Furthermore, although the district court erred by admitting hearsay testimony from

a non-testifying witness, the error did not affect Appellants’ substantial rights and

therefore is not grounds for reversal. Therefore, we affirm the district court’s

judgment with respect to each of these matters. However, we vacate and remand

the sentences of Terry Outlaw and Jeremiah Prather on procedural grounds. On

remand, the district court should explain more fully its reasons for imposing the

sentences it selected.

AFFIRMED IN PART, REVERSED IN PART; REMANDED FOR

FURTHER PROCEEDINGS.

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