[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 22, 2009
No. 08-12763 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00389-CR-RDP-RRA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL ANDRE BRYANT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(June 22, 2009)
Before CARNES, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Michael Andre Bryant appeals his convictions for possession with intent to
distribute cocaine, in violation of 21 U.S.C. § 841, possession of a firearm during
and relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c), and
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g).
After a thorough review of the record, we affirm.
I. Background 1
On December 10, 2006, Birmingham Police Office Matthew Hutchins was
patrolling a high-crime area known for drug activity when he observed two cars
stopped beside each other and facing in opposite directions in the middle of the
road. As he approached, both cars drove away abruptly. Hutchins became
suspicious and followed one of the cars, which Bryant was driving. While
following Bryant’s car, Hutchins checked the license plate in the National Crime
Information Center and learned the car had been reported stolen. Hutchins
confirmed this report through dispatch.
Hutchins stopped Bryant, believing the car to be stolen, and approached the
car with his weapon drawn. Hutchins instructed Bryant to exit the car; Bryant
refused and Hutchins attempted to remove Bryant from the car. Bryant began to
struggle, shoving Hutchins and running. As Hutchins pursued Bryant, he observed
1
We recount the facts as presented during the suppression hearing and trial, viewed in
the light most favorable to the government. United States v. Newsome, 475 F.3d 1221, 1224
(11th Cir. 2007); United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000).
2
Bryant toss what Hutchins later learned was a gun to the ground. Bryant
eventually surrendered. A search of his car uncovered cocaine, digital scales, and
cash. After Bryant was arrested and had waived his Miranda2 rights, Bryant
admitted the gun and drugs were his. Police did not fingerprint any of the
evidence.
Hutchins later learned the car was registered to Charles Bryant (no relation
to the defendant) and that Charles Bryant had sold the car to the defendant but had
kept the registration in his name. In November, police had impounded the car after
the defendant’s brother was arrested with drugs in the car. The defendant had
contacted Charles Bryant and instructed him, as the registered owner, to report the
car stolen. Although the car was, in fact, in police custody, the police department’s
system contained the report that the vehicle was stolen. After Charles Bryant
learned the car had been impounded he retrieved the car and returned it to the
defendant. The police department’s system did not remove the stolen vehicle
report.
Bryant moved to suppress the evidence and the statements made at his arrest
on the grounds that the police improperly relied on the report that the car was
stolen and their negligence did not constitute good faith reliance. He further
2
Miranda v. Arizona, 384 U.S. 436, 458-71, 86 S.Ct. 1602, 1619-26, 16 L.Ed.2d 694
(1966).
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asserted that the was no probable cause to stop and search the car. The court
denied the motion, finding there was reasonable suspicion of criminal activity
based on Hutchins’ observations in the high-crime area and Bryant’s attempt to
flee.
At trial, Detective Heath Boackle confirmed that Bryant admitted possession
of the drugs and firearm. Boackle referred to a photograph in which Bryant was
seen holding a gun that was different from the firearm involved in the instant
offenses. Over Bryant’s objection, the court admitted the photo with a limiting
instruction for the jury.
In closing argument, the prosecutor referred to Charles Bryant’s testimony
that he had sold the car to the defendant. The prosecutor told the jury, “He was
certain he sold that car, and the testimony is unrebutted. You have heard nothing
to the contrary.” The jury convicted Bryant on all counts. Bryant was sentenced to
life imprisonment.
Bryant now appeals, challenging (1) the denial of his motion to suppress;
(2) the admission of the photograph; (3) the prosecutor’s comments during closing
argument; and (4) the failure by police to obtain fingerprint evidence.
II. Standards of Review
In reviewing a district court’s ruling on a motion to suppress, we review
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factual findings for clear error and legal conclusions de novo. United States v.
Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999). We may consider the evidence
presented during the suppression hearing, as well as that presented at trial, and we
construe the evidence in the light most favorable to the government as the
prevailing party. United States v. Newsome, 475 F.3d 1221, 1224 (11th Cir.
2007); United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000). We
review a district court’s evidentiary rulings for abuse of discretion and will not
reverse unless it is shown the error has a substantial influence on the outcome of
the trial. United States v. Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006); United
States v. Fortenberry, 971 F.2d 717, 722 (11th Cir. 1992).
When a defendant fails to object to an error before the district court, we
review the argument for plain error and will remand only if it is shown that there
is (1) error, (2) that is plain, (3) that affects substantial rights, and (4) seriously
affects the fairness, integrity, or public reputation of judicial proceedings. United
States v. Arias-Izquierdo, 449 F.3d 1168, 1185 (11th Cir. 2006).
III. Discussion
On appeal, Bryant argues that the evidence seized and statements made
should have been suppressed because the stop lacked probable cause and was
based solely on the incorrect report that the vehicle was stolen. He contends that,
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under United States v. Herring, 129 S.Ct. 695 (2009), the exclusionary rule applied
because the police department’s record-keeping system contained wide-spread and
systemic errors. He further asserts that the court erroneously admitted the
photograph that was unauthenticated, irrelevant, and prejudicial. He also argues,
for the first time on appeal, that the prosecutor’s statement during closing argument
was an indirect comment on his right to remain silent and that police violated his
due process right to exculpatory evidence by failing to obtain fingerprints from the
drugs and firearm. We address each argument in turn.
1. Motion to Suppress
The Fourth Amendment protects against unreasonable searches and seizures.
U.S. Const. amend. IV. The Fourth Amendment “contains no provision expressly
precluding the use of evidence obtained in violation of its commands.” Arizona v.
Evans, 514 U.S. 1, 10, 115 S.Ct. 1185, 1191, 131 L.Ed.2d 34 (1995). Nonetheless,
the exclusionary rule, when applicable, forbids the use of improperly obtained
evidence at trial. Herring, 129 S.Ct. at 699. The exclusionary rule, however, does
not apply to bar at trial the use of evidence seized by officers acting in reasonable
reliance on a search warrant ultimately found to be invalid. United States v. Leon,
468 U.S. 897, 913 (1984). This “good faith exception” to the exclusionary rule
does not apply when police obtain evidence in an unconstitutional arrest or search
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based on objectively unreliable information. Evans, 514 U.S. at 16. Recently, in
Herring, the Supreme Court examined whether a district court should have
excluded contraband found during a search incident to an arrest when the arrest
was based on a police officer’s reasonable but mistaken belief that there was an
outstanding arrest warrant for the defendant after another department failed to
update its computer database to show the warrant had been recalled. 129 S.Ct. at
698. The Supreme Court concluded that the exclusionary rule would not apply
because there was no evidence that errors in the recordkeeping system were
“routine or widespread.” Herring, 129 S.Ct. at 704. Significantly, the Supreme
Court explained that it did not intend to imply that all recording keeping errors
were immune from the exclusionary rule; if police were “reckless in maintaining a
warrant system” or “knowingly made false entries to lay the groundwork for future
arrests,” then exclusion would be justified. Id. at 703.
Although Bryant urges us to consider the scope of Herring and the
exclusionary rule in his case, we need not do so because we conclude there was no
Fourth Amendment violation.
In United States v. Lopez-Garcia, 2009 WL 1044594 (11th Cir. Apr. 21,
2009), this court addressed an alleged Fourth Amendment violation resulting from
a stop almost identical to the one at issue here. This court concluded that an officer
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had reasonable suspicion to stop a vehicle where: (1) the defendant’s vehicle was
stopped in a roadway in a high-crime area known for street-level drug transactions;
(2) a person was leaning into the window of the vehicle and having a conversation
with the defendant; and (3) once the person saw the officer, he abruptly withdrew
from the car window and the defendant drove away. Id. at *4.
Here, Hutchins testified that he became suspicious after observing two
vehicles stopped in the middle of a road next to each other pointing in opposite
directions in an area known for drug transactions, and he witnessed both vehicles
abruptly leave when his patrol car was within their view. Accordingly, Hutchins
had reasonable suspicion to stop Bryant, and therefore, did not violate his Fourth
Amendment rights. See Lopez-Garcia, 2009 WL 1044594, at *4. As such, the
court properly denied the motion to suppress the evidence and Bryant’s statements.
2. Admission of the Photograph
Federal Rule of Evidence (“Rule”) 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of mistake, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
Fed.R.Evid. 404(b). To be admissible under Rule 404(b): (1) “the evidence must
be relevant to an issue other than the defendant’s character”; (2) “the act must be
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established by sufficient proof to permit a jury finding that the defendant
committed the extrinsic act”; and (3) “the probative value of the evidence must not
be substantially outweighed by its undue prejudice, and the evidence must meet the
other requirements of Rule 403.” United States v. Matthews, 431 F.3d 1296,
1310-11 (11th Cir. 2005). The district court has a great degree of discretion in
weighing probative value and prejudice under Rule 403, but this court has “also
recognized that Rule 403 is ‘an extraordinary remedy which the district court
should invoke sparingly and [t]he balance . . . should be struck in favor of
admissibility.’” United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003)
(internal citations omitted). The risk of undue prejudice can be reduced by a
district court’s limiting instruction. United States v. Ramirez, 426 F.3d. 1344,
1354 (11th Cir. 2005).
Authentication, as a precedent to admissibility, is satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent
claims. Fed.R.Evid. 901.
Upon review, we conclude that the district court properly admitted the
photograph into evidence. The photograph was relevant to establish Bryant’s
“knowing possession” with respect to the possession of a firearm by a convicted
felon charge. United States v. Deleveaux, 205 F.3d 1292, 1296-97 (11th Cir.
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2000). The photograph was also admissible under Rule 404(b) to establish that
Bryant did not act by mistake or accident in possessing the firearm. See
Fed.R.Evid. 404(b).
Moreover, the district court gave a limiting instruction with regard to the
photograph on two separate occasions, stating that the purpose of the photograph
was to determine whether Bryant had the necessary knowledge to commit the
crime charged, thus mitigating any risk of prejudice. We presume the jury
followed the court’s instructions. United States v. Brown, 983 F.2d 201, 202 (11th
Cir. 1993).
Finally, the photograph was properly authenticated by Detective Boackle’s
testimony that when he opened Bryant’s cell phone, he found a picture of Bryant
holding a gun. Accordingly, based on the record, we conclude the district court
properly admitted the evidence.
3. Closing Argument
A prosecutor’s indirect reference to a failure to testify is not reversible error
per se. United States v. Norton, 867 F.2d 1354, 1364 (11th Cir. 1989). “A
comment is deemed to be a reference to a defendant’s silence if it was the
prosecutor’s manifest intention to refer to the defendant’s silence or if it was of
such a character that the jury would ‘naturally and necessarily’ understand it to be
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a comment on a defendant’s silence.” United States v. Dodd, 111 F.3d 867, 869
(11th Cir. 1997). When it appears more likely that a prosecutor was attempting to
point out to the jury that a government’s case was unrebutted, the comment does
not violate a defendant’s right not to testify. United States v. Downs, 615 F.2d
677, 679 (5th Cir. 1980).3
Here, the prosecutor was attempting to point out that the government’s case
was unrebutted. The statement was not an indirect reference to Bryant’s failure to
testify and it is unlikely that the jury would have construed it as a comment on his
silence. Accordingly, the prosecutor’s comment does not amount to plain error
warranting remand.
4. Fingerprint Evidence
To establish a due process claim for the alleged destruction or withholding
of exculpatory evidence, Bryant must show that the government acted in bad faith.
Arizona v. Youngblood, 488 U.S. 51, 58 (1988). Upon review of the record, we
conclude that Bryant’s claim that fingerprint evidence would have exonerated him
does not establish any error. Bryant admitted the drugs and firearm belonged to
him. Thus, there is no evidence the police acted in bad faith when they did not
3
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this
court held that all decisions handed down by the former Fifth Circuit before the close of business
on September 30, 1981, are binding precedent in the Eleventh Circuit.
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obtain fingerprint evidence and Bryant cannot show that the outcome of his case
would have been different if he had such evidence.
IV. Conclusion
For the foregoing reasons, we AFFIRM Bryant’s convictions.
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