[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 13, 2008
No. 07-10098 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-20807-CR-ASG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDERICK JOHNSON, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 13, 2008)
Before BIRCH, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Frederick Johnson, Jr., appeals his conviction and 97-month sentence for
conspiracy to possess with intent to distribute crack cocaine, in violation of 21
U.S.C. § 846. Johnson raises several issues on appeal, which we address in turn.
After review, we affirm Johnson’s conviction and sentence.
I.
Johnson first asserts the district court erred in denying his motion to
suppress his post-arrest statements because the rights waiver form that he signed
did not adequately inform him of his constitutional rights.
We review a district court’s findings of fact in resolving a motion to
suppress for clear error and the court’s application of the law to those facts de
novo. United States v. Gil, 204 F.3d 1347, 1350 (11th Cir. 2000). A suspect “held
for interrogation must be clearly informed that he has the right to consult with a
lawyer and to have the lawyer with him during interrogation under the system for
protecting the privilege we delineate today.” Miranda v. Arizona, 86 S. Ct. 1602,
1626 (1966). “Opportunity to exercise these rights must be afforded to him
throughout the interrogation.” Id. at 1630. The Supreme Court later clarified,
however, that Miranda warnings do not have to be provided in the exact form as
stated in that decision, as “no talismanic incantation is required to satisfy its
strictures.” Duckworth v. Eagan, 109 S. Ct. 2875, 2880 (1989) (quotations
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omitted). The Court further found that, where the defendant was informed, inter
alia, of his right to speak to an attorney before and during questioning and to stop
the questioning at any time and speak with an attorney, these statements “touched
all of the bases” required by Miranda. Id.; see also United States v. Street, 472
F.3d 1298, 1311-12 (11th Cir. 2006), cert. denied, 127 S. Ct. 2988 (2007) (noting
the defendant in Duckworth was “fully and completely advised of all of his
rights”). In order for a defendant’s incriminatory statements to be admissible, the
government must prove by a preponderance of the evidence the defendant made a
knowing, voluntary, and intelligent waiver of his Miranda rights. United States v.
Farris, 77 F.3d 391, 396 (11th Cir. 1996).
Although the rights waiver form Johnson signed did not specifically advise
him of his right to consult with an attorney during questioning, it advised him he
had the right to talk to a lawyer before questioning, to have a lawyer present with
him during questioning, and to stop the questioning at any time until he spoke with
a lawyer. Because Miranda requires a suspect be informed of his rights to “consult
with a lawyer and to have the lawyer with him during interrogation,” and Johnson
was apprised of both of these rights, the waiver form was sufficient, and Johnson
made a knowing, voluntary, and intelligent waiver of his rights. See Miranda, 86
S. Ct. at 1626, 1630; see also Farris, 77 F.3d at 396. Accordingly, the district
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court did not err in denying Johnson’s motion to suppress his post-arrest
statements.1
II.
Johnson next contends there was an insufficient basis for the voice
identification Detective Tillman made of Johnson. Johnson did not object on this
basis at trial, so we review this claim under a plain error standard. See United
States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005). “Plain error occurs where
(1) there is an error; (2) that is plain or obvious; (3) affecting the defendant’s
substantial rights in that it was prejudicial and not harmless; and (4) that seriously
affects the fairness, integrity or public reputation of the judicial proceedings.”
United States v. Hall, 314 F.3d 565, 566 (11th Cir. 2002).
Voice identification testimony can be admitted only after it is determined
sufficient evidence supports a finding “the matter in question is what its proponent
claims.” Fed. R. Evid. 901(a). A speaker’s voice may be identified by opinion
testimony “based upon hearing the voice at any time under circumstances
1
Johnson also summarily argues his statements should not have been admitted because
he was impermissibly questioned by an officer prior to waiving his Miranda rights and that he
felt threatened by Detective Wayne Tillman. The magistrate judge made an adverse credibility
determination regarding Johnson’s testimony at the suppression hearing, which the district court
affirmed. Because Johnson has not offered any other evidence on these issues or shown how the
district court committed clear error when it determined his testimony was not credible, these
arguments are without merit. See United States v. Pineiro, 389 F.3d 1359, 1366 (11th Cir. 2004)
(reviewing a district court’s credibility findings for clear error).
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connecting it with the alleged speaker.” Fed. R. Evid. 901(b)(5). “Once a witness
establishes familiarity with an identified voice, it is up to the jury to determine the
weight to place on the witness’s voice identification.” Brown v. City of Hialeah,
30 F.3d 1433, 1437 (11th Cir. 1994).
Detective Tillman testified he heard Johnson’s voice three times prior to the
date on which he made his identification. This was sufficient to establish his
familiarity with Johnson’s voice. See Fed. R. Evid. 901(b)(5). Accordingly, the
district court did not plainly err in permitting the voice identification to go to the
jury, as it was up to the jury to determine the weight to place on Detective
Tillman’s identification. See Brown, 30 F.3d at 1437.
III.
Johnson also asserts the district court erred in prohibiting him from eliciting
the exculpatory portions of his post-arrest statement from Detective Tillman.
Because Johnson did not make an objection to the limitation of Detective Tillman’s
cross-examination during the trial, we review the district court’s evidentiary ruling
for plain error. See Baker, 432 F.3d at 1202. “When a writing or recorded
statement or part thereof is introduced by a party, an adverse party may require the
introduction at that time of any other part or any other writing or recorded
statement which ought in fairness to be considered contemporaneously with it.”
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Fed. R. Evid. 106. In light of Federal Rule of Evidence 611(a)'s requirement the
district court exercise “reasonable control” over witness interrogation and the
presentation of evidence to make them effective vehicles “for the ascertainment of
truth,” Rule 106 has been extended to encompass oral conversations. United States
v. Range, 94 F.3d 614, 621 (11th Cir. 1996); Fed. R. Evid. 611(a). Accordingly,
the exculpatory portion of a defendant's post-arrest statement should be admitted if
it is: (1) relevant to an issue in the case; and (2) necessary to clarify or explain the
portion received. Range, 94 F.3d at 621.
The district court did not plainly err by limiting the scope of Johnson’s
cross-examination of Detective Tillman because, although Johnson’s exculpatory
statements may have been relevant to his involvement in the offense conduct
charged, they were not necessary to clarify those portions of the post-arrest
interview related by the witness. See id. Detective Tillman’s testimony was
unambiguous and did not require any clarification or explanation, and regardless,
the fact Johnson also stated in his interview that he was not involved in any
criminal activity would not have clarified or explained the statements to which
Detective Tillman testified.
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IV.
Johnson contends the evidence presented at trial was insufficient to support
his conspiracy conviction, as there was no evidence presented that he ever
possessed any drugs or marked money used in the drug transactions. Where, as
here, the issue of sufficiency of the evidence has been preserved, we review the
sufficiency of the evidence to support a conviction de novo, “viewing the evidence
in the light most favorable to the government and drawing all reasonable inferences
and credibility choices in favor of the jury’s verdict.” See United States v.
Rodriguez, 218 F.3d 1243, 1244 (11th Cir. 2000). The district court's denial of a
motion for judgment of acquittal “will be upheld if a reasonable trier of fact could
conclude that the evidence establishes the defendant's guilt beyond a reasonable
doubt.” Id. Determinations of the credibility of witnesses fall within the exclusive
province of the jury and may not be revisited by us unless the testimony is
“incredible as a matter of law.” United States v. Calderon, 127 F.3d 1314, 1325
(11th Cir. 1997).
“To sustain a conviction for conspiracy to possess cocaine with intent to
distribute, the government must prove beyond a reasonable doubt that (1) an illegal
agreement existed; (2) the defendant knew of it; and (3) the defendant, with
knowledge, voluntarily joined it.” United States v. Hernandez, 433 F.3d 1328,
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1333 (11th Cir. 2005) (quotations omitted). “Although mere presence at the scene
of a crime is insufficient to support a conspiracy conviction, presence nonetheless
is a probative factor which the jury may consider in determining whether a
defendant was a knowing and intentional participant in a criminal scheme.” Id.
(quotations omitted). Moreover, a defendant’s participation in a conspiracy can be
established by circumstantial evidence, and the government need only prove that
the defendant knew the general nature and scope of the conspiracy. United States
v. Anderson, 326 F.3d 1319, 1329 (11th Cir. 2003).
The evidence was sufficient to sustain Johnson’s conspiracy conviction.
Although there was no photographic or recorded evidence, and Johnson was not
found in possession of any marked money or drugs, Detective Tillman’s testimony
allowed the jury to make the following conclusions: (1) Johnson and Malcolm
Williams called the CI together to arrange the drug transaction, after which
Johnson called the CI on his own and told the CI to go through him for any other
deals with Williams; (2) Johnson made specific references to narcotics in both of
the conversations, showing he knew the nature of the illegal agreement; and
(3) Johnson picked up the CI and drove him to his meeting with Williams,
participated in the meeting, and then drove the CI back to his original location.
Because Detective Tillman’s testimony established Johnson facilitated the
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transaction and participated in the discussions in the parking lot before the money
and drugs were exchanged, a reasonable trier of fact could conclude Johnson was
guilty beyond a reasonable doubt, as he knew of the existence of the illegal
agreement and, with knowledge, voluntarily joined it. See Hernandez, 433 F.3d at
1333. Moreover, it was the province of the jury to assess the credibility of
Detective Tillman, and it could find Johnson guilty beyond a reasonable doubt
based on this testimony alone. See Calderon, 127 F.3d at 1324. Accordingly,
sufficient evidence supported Johnson’s conviction.
V.
Johnson also contends he was denied a fair trial because the prosecutor made
an improper burden-shifting argument and improperly attempted to bolster the
credibility of one of its witnesses during its closing argument. Prosecutorial
misconduct during closing argument, including an improper burden-shifting
argument and improper vouching, requires a new trial only where the remarks were
improper and prejudiced the defendant’s substantial rights. United States v.
Wilson, 149 F.3d 1298, 1301 (11th Cir. 1998). “A defendant’s substantial rights
are prejudicially affected when a reasonable probability arises that, but for the
remarks, the outcome of the trial would be different.” Id. (quotations omitted).
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A. Burden shifting
Johnson objected to the prosecutor’s alleged burden-shifting comment at
trial, and therefore, the claim of prosecutorial misconduct, which generally
involves mixed questions of law and fact, is reviewed de novo. See United States
v. Noriega, 117 F.3d 1206, 1218 (11th Cir. 1997). “[W]hile a prosecutor may not
comment about the absence of witnesses or otherwise attempt to shift the burden of
proof, it is not improper for a prosecutor to note that the defendant has the same
subpoena powers as the government, particularly when done in response to a
defendant's argument about the prosecutor's failure to call a specific witness.”
United States v. Hernandez, 145 F.3d 1433, 1439 (11th Cir. 1998) (quotations
omitted). Moreover, any potential prejudice regarding burden-shifting is
diminished by the prosecutor’s statement during closing argument “that the burden
of proof [is] theirs to carry and by the trial court’s explicit instruction after closing
arguments to that same effect.” Id.
The prosecutor’s comment the defense had the same subpoena power as the
Government was made in response to Johnson’s statement regarding a Government
witness that was not called to testify. Such a statement is not improper,
particularly when made in response to the defendant’s argument about the
government’s failure to call a specific witness. See Hernandez, 145 F.3d at 1438.
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Moreover, any potential prejudice this statement may have caused was alleviated
by: (1) the prosecutor’s statement that the Government held the burden of proof;
and (2) the court’s instruction to the jury that it was not improper for the prosecutor
to note the defendant had the same subpoena powers as the Government, but the
Government could not shift the burden of proof to the defense. See id. at 1439.
Thus, the prosecutor’s comment was not inappropriate, and did not prejudice
Johnson’s substantial rights.
B. Improper vouching
Because Johnson did not object to the prosecutor’s comment until he filed
his motion for a new trial, this comment is reviewed for plain error. See United
States v. Newton, 44 F.3d 913, 920 (11th Cir. 1995) (“[a]bsent a contemporaneous
objection, the propriety of the [g]overnment’s closing argument and alleged
prosecutorial misconduct in improperly vouching for a witness’ credibility are
reviewed under a plain error standard”). “Attempts to bolster a witness by
vouching for his credibility are normally improper and constitute error.” Id. We
have held:
When faced with a question of whether improper vouching occurred
we ask: whether the jury could reasonably believe that the prosecutor
was indicating a personal belief in the witness’s credibility. In
applying this test, we look for whether (1) the prosecutor placed the
prestige of the government behind the witness by making explicit
assurances of the witness’s credibility, or (2) the prosecutor implicitly
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vouched for the witness’s credibility by implying that evidence not
formally presented to the jury supports the witness’s testimony.
United States v. Castro, 89 F.3d 1443, 1456-57 (11th Cir. 1996) (quotations and
citation omitted). When the defense attacks the credibility of the government’s
witness, however, the prosecutor is “entitled to argue fairly to the jury the
credibility of the government and defense witnesses.” United States v. Eley, 723
F.2d 1522, 1526 (11th Cir. 1984).
The prosecutor’s comment that Detective Tillman would use a valid CI
because he would not risk his career did not amount to improper bolstering.
During his closing statement, Johnson attacked Detective Tillman’s credibility,
stating he was desperate to use the CI as his ticket to federal agency employment.
In direct response to this attack, the prosecutor told the jury that Detective Tillman
was not so desperate to become a federal agent that he would risk his career by
using a CI that was “not valid.” A jury could not reasonably have believed the
prosecutor was placing the prestige of the Government behind Detective Tillman
by making an assurance about his credibility, or that he was implying evidence not
presented to the jury supported the witness’s testimony. See Castro, 89 F.3d at
1456-57. Instead, the prosecutor’s comment was a fair argument defending the
credibility of the Government’s witness. Accordingly, the prosecutor’s remark was
not improper and did not prejudice Johnson’s substantial rights.
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VI.
Finally, Johnson contends the district court erred at sentencing because the
five criminal history points it assessed against him over-represented his criminal
history, as all five points were related to the same prior offense. We review de
novo a claim the district court engaged in impermissible double counting during its
calculation of the advisory guidelines range. United States v. Phillips, 363 F.3d
1167, 1168 n.2 (11th Cir. 2004). “‘Impermissible double counting occurs only
when one part of the Guidelines is applied to increase a defendant’s punishment on
account of a kind of harm that has already been fully accounted for by application
of another part of the Guidelines.’” Id. at 1168 (quotations omitted). Double
counting is permissible when “(1) the Sentencing Commission intended the result,
and (2) each guideline section in question concerns conceptually separate notions
related to sentencing.” Id. (quotations omitted).
Section 4A1.1(d) of the Sentencing Guidelines requires an addition of two
points to a defendant’s criminal history calculation if “the defendant committed the
instant offense while under any criminal justice sentence, including probation,
parole, supervised release, imprisonment, work release, or escape status.” U.S.S.G.
§ 4A1.1(d). Section 4A1.1(e) provides that two criminal history points should be
added “if the defendant committed the instant offense less than two years after
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release from imprisonment on a sentence counted under [subsection] (a) or (b) . . . .
If 2 points are added for item (d), add only 1 point for this item.” U.S.S.G.
§ 4A1.1(e). The commentary to § 4A1.1 recognizes the potential overlap of
subsections (d) and (e), but notes their importance to addressing separate
sentencing concerns, stating that subsection (d) “implements one measure of
recency . . . [subsection (e)] implements another measure of recency . . . [,]” and “a
defendant who falls within both (d) and (e) is more likely to commit additional
crimes; thus, (d) and (e) are not completely combined.” U.S.S.G. § 4A1.1,
comment. (backg’d). The commentary provides that, because of their potential
overlap, the combined impact of the two subsections is limited to three points. Id.
The Sentencing Commission intended for § 4A1.1(d) and (e) to apply
together in certain cases, as it specifically addressed the potential overlap and
noted that, although their combined effect would be to add an additional three
points to a defendant’s criminal history instead of four, they were not completely
combined. See id.; see also Phillips, 363 F.3d at 1168. Therefore, the district
court’s double counting was permissible, and the court’s sentencing calculations
were correct.
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VII.
First, the district court did not err in denying Johnson’s motion to suppress
his post-arrest statements because he was fully informed of his rights and
voluntarily chose to waive them before speaking to law enforcement. Second,
Detective Tillman heard Johnson’s voice three times prior to identifying it on the
date on which the offense occurred, so the district court did not plainly err in
permitting his voice identification. Third, the district court did not plainly err in
limiting the scope of Johnson’s cross-examination of Detective Tillman by not
allowing Johnson’s exculpatory post-arrest statements to be admitted, because the
statements were not necessary to clarify those portions of the post-arrest interview
related by the witness. Fourth, the evidence presented was sufficient for
conviction, as it showed that Johnson facilitated a drug transaction between two
individuals. Fifth, the prosecutor did not improperly shift the burden to the defense
during closing argument because he responded to a statement Johnson made in his
closing argument and only told the jury the defense had the same subpoena power
as the Government. The prosecutor also did not improperly bolster the credibility
of a witness, as his comment was a fair argument defending the credibility of the
witness after it was attacked by the defense. Finally, because the district court
applied two subsections of the Sentencing Guidelines that were intended to address
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different sentencing issues and be applied together when necessary, it did not err in
calculating Johnson’s criminal history category. Accordingly, we affirm Johnson’s
conviction and sentence.
AFFIRMED.
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