[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-10667 July 19, 2005
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00079-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID TAYLOR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 19, 2005)
Before BIRCH, CARNES and RONEY, Circuit Judges.
PER CURIAM:
Defendant David Taylor appeals his jury convictions and 322-month
sentence arising from several drug possession and firearm charges. He raises eight
intertwined issues on appeal: five alleged errors on the admission or exclusion of
evidence; cumulative error; insufficiency of the evidence; and a violation of
Booker/Blakely in sentencing. We affirm.
The marijuana, crack and powder cocaine upon which the charges were
based were found on Taylor during an arrest. A central contention made in
Taylor’s defense and on this appeal is that prosecution witness Atlanta Police
Department Officer Matthew Strevel lied about finding drugs on Taylor. The
district court erred, Taylor argues, in not permitting him to put in evidence of bad
character and of thirteen prior complaints against Strevel of police misconduct.
A brief review of the facts shows the critical nature of Strevel’s testimony
before the jury. On April 6, 2002, at approximately 12:45 a.m., Atlanta Police
Department Officers Randy Sheen and Matthew Strevel were dispatched to an
overpass in downtown Atlanta. Officer Sheen arrived first, shone his spotlight,
and saw Taylor sitting near that overpass. He parked his marked police vehicle
and began walking toward Taylor. Taylor then ran from the overpass into a
wooded area, and Officer Sheen followed him. Officer Sheen observed, with the
assistance of a “very powerful” hand-held flashlight, Taylor “drop down a black
object.” Officer Sheen ultimately captured Taylor, escorting him to the road
where Officer Strevel had been waiting near his separate police vehicle. Officer
Sheen then walked back to the area where he had observed Taylor throw down the
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black object, discovering a black, loaded Sig Sauer, Model P-230, .380 caliber
firearm. The firearm was clean and did not appear to have been on the ground for
a long time. Officer Sheen then radioed to Officer Strevel that he had found a
firearm, and Officer Strevel placed Taylor under arrest for carrying a concealed
weapon. Officer Strevel noticed that Taylor had a bleeding cut on his forehead.
Officer Strevel testified that in searching Taylor incident to the arrest, he located
marijuana, as well as individually-packaged crack and powder cocaine bags, and a
black ski mask. The Georgia Bureau of Investigation Crime Laboratory tested the
drugs, revealing 24.89 grams of marijuana and 8.34 grams of cocaine.
The possession of the firearm and those drugs formed the basis of the four-
count indictment against Taylor: (Count 1) felon in possession of a firearm, 18
U.S.C. §§ 922(g), 924(e); (Counts 2 and 3) possession with intent to distribute
cocaine and marijuana, 21 U.S.C. §§ 841, 851; and (Count 4) using and carrying a
firearm during and in relation to a drug trafficking offense, 18 U.S.C. § 924(c).
Argument 1: Excluding testimony and evidence regarding prior
complaints against Officer Strevel.
The day before trial, Taylor advised the district court that he intended to
cross-examine Officer Strevel, a government witness, regarding prior citizens’
complaints against him alleging harassment, planting evidence and brutality
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pursuant to either Federal Rules of Evidence 404(b) or 608. The defense provided
the prosecution with the Atlanta Police Department Internal Affairs Reports,
indicating the nature of the complaints against Officer Strevel and the results of
those investigations. Taylor subsequently filed a very limited “Proffer of
Evidence.” Taylor proffered that: (1) in Complaint No. 00-C-499, a defendant,
Joseph Taylor, alleged that Officer Strevel had planted cocaine on him, kept his
money and property; and (2) as stated in Internal Affairs Investigation case
number 01-C-0296-UAF, Officer Strevel had been “under investigation by
Internal Affairs for brutality at the time of [his] arrest.” The proffer stated nothing
else. Taylor’s proffer of evidence only references one citizen complaint,
Complaint No. 00-C-499, against Officer Strevel which included an allegation that
Officer Strevel had “plant[ed] cocaine on [an arrestee], kept his money and
property.” This complaint was determined to be “unfounded” by the Internal
Affairs Division of the Atlanta Police Department. The other complaint
referenced in the proffer, No. 01-C-0296, only stated, without any explanation,
that “Officer Strevel was under investigation for brutality at the time of Mr.
Taylor’s arrest.” All of the remaining complaints were determined to be
“unfounded” by the Internal Affairs Division as well.
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The government argued that because Internal Affairs had determined that all
of the alleged instances regarding harassment, planting evidence and brutality
were “unfounded based on lack of evidence, . . . the defendant should [not] be
entitled to inquire about those instances . . ..” The district court agreed ruling:
As to the other evidence the defendant seeks to introduce
for use on cross-examination or relative to bias and
matters that were subject to internal affairs . . ., that
evidence is excluded because [its] probative value, if
any, is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, and misleading the
jury; therefore, the jury will not be permitted to pursue
these matters either by oral testimony or by documentary
evidence.
Taylor contends that these thirteen complaints of police misconduct were
relevant to prove that Officer Strevel was “biased,” had a tendency for
“untruthfulness,” and thus may have planted the drugs on him during the arrest.
The district court did not abuse its discretion by denying Taylor’s request to
either reference or admit these thirteen complaints of police misconduct under
Rules 404(b) or 608(b). Taylor’s attempt to offer or reference these “unfounded”
complaints into evidence at trial is similar to the failed defendants’ efforts in
United States v. Novaton, 271 F.3d 968 (11th Cir. 2001). The Novaton defendants
attempted to cross-examine one government agent on his potential involvement in
the “Miami River Cops Scandal,” where that officer had been suspended with pay
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for four months but was later reinstated and no criminal charges were ever brought
against that agent, “although he was formally reprimanded for failing to document
a conversation with an informant.” 271 F.3d at 1004. Like Taylor here, the
defendants had argued to the district court that cross-examination of the officer
regarding this matter should be permitted because it could show the agent’s bias or
motive to lie. The defendants also sought to cross-examine another government
agent concerning one pending investigation and one completed investigation
where the same source had sent the Drug Enforcement Agency a letter alleging
that the agent had stolen cocaine during a drug seizure. 271 F.3d at 1004-05.
The district court in Novaton held that those investigations were
“‘irrelevant, and even if [they were] relevant, [their] probative value is outweighed
by [their] prejudice.’” 271 F.3d at 1005. In affirming the district court’s
evidentiary rulings, this Court reasoned that the “insertion” of one agent’s
involvement in the “Miami River Cops Scandal,” where the agent “was thoroughly
investigated in connection with that scandal, but was never charged with any
crime and only received a reprimand for failing to document a conversation with
an informant,” was irrelevant and “any potential relevance” was substantially
outweighed by the likelihood of unfair prejudice and thus was properly excluded
under Federal Rule of Evidence 403. 271 F.3d at 1007.
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Similarly, the Novaton Court also affirmed the exclusion of the “unproven
allegations” that the second agent had stolen cocaine, ruling that the injection of
the evidence into trial “had the obvious potential to cause serious and unfair
prejudice to the government.” 271 F.3d at 1007. The Court reasoned, “In light of
the fact that [the agent] was cleared during the first investigation and that the
second investigation concerned the same allegations from the same source,
information concerning those investigations elicited during cross-examination
would not have had much, if any, probative value.” 271 F.3d at 1007.
Here, like Novaton, Taylor sought to admit or reference evidence of
unproven, citizen complaints that were brought against Officer Strevel. Also like
the agents in Novaton, there is no record evidence that Officer Strevel was
disciplined for, or convicted of, planting evidence or brutalizing any arrestee. See
Novaton, 271 F.3d at 1007. Next, even if there was evidence that Officer Strevel
had actually injured arrestees in the past, that evidence would be irrelevant in this
case, as this is not a civil rights case where brutality has been alleged. Taylor
further failed to proffer the testimony of any witness who might testify that Officer
Strevel had engaged in any of the alleged acts but instead chose to simply refer to
Internal Affairs documents to support his theory that Officer Strevel had a history
of planting evidence on arrestees and had a character for untruthfulness and racial
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bias. It is axiomatic that the “trial court has broad discretion in determining how
and why bias may be proved and what collateral evidence is material to that
purpose.” United States v. Love, 599 F.2d 107, 108 (5th Cir. 1979). Without
these proffers in the record, our review of the district court’s discretionary
evidentiary decision to determine the existence of an abuse of discretion is
impossible. See, e.g., Love, 599 F.2d at 109 (affirming district court’s limitation
of testimony on cross-examination of a government agent that another agent had
allegedly planted evidence in different incident where “no offer of proof was made
at that time”).
But unlike Novaton, which involved an effort to introduce evidence solely
under Rule 608(b), Taylor also attempted to admit these prior instances of “racial
harassment, brutality and evidence planting” under Rule 404(b) as evidence that
Officer Strevel had “racial bias” and thus had a motivation to frame Taylor and lie
at trial. Rule 404(b) authorizes the admission of evidence of other wrongs to show
“proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident . . ..” Fed. R. Evid. 404(b). Taylor’s arguments are
trumped under Rule 404(b) for similar reasons that they were under Rule 608.
See, e.g., United States v. Farmer, 923 F.2d 1557, 1567 (11th Cir. 1991) (stating
that the word “motive” in the text of Rule 404(b) does not refer to the witness’s
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motive to testify falsely, and noting that “[t]he witness’s motive to testify falsely . .
. is merely an aspect of credibility [controlled by Fed. R. Evid. 608]”) (quotation
and citation omitted).
As to opinion testimony regarding Officer Strevel, the district court held,
“you must show that [the witness] had an opportunity to acquire knowledge about
the officer” and that “the witness’s personal opinion cannot be based solely upon
isolated personal contact with the officer.” At trial, Taylor neither called any
witnesses to testify as to their opinion about Officer Strevel’s truthfulness or his
reputation in the community for truthfulness, nor did he offer any proffers of
evidence regarding the same. Taylor’s argument that the district court erred by
failing to permit witnesses to testify as to their opinion as to Officer Strevel’s
reputation also fails because he never called any witnesses to testify, never
proffered the testimony of any witness as to his or her opinion on the truthfulness
of Officer Strevel, never named the potential witnesses, and never represented to
the court that he had spoken to any witnesses and could proffer what they might
say. Once more, without a proffer or any record to review, the value of their
testimony and the district court’s ruling cannot be assessed on appeal.
Accordingly, there was no abuse of discretion in these evidentiary rulings under
either Rules 404(b) or 608.
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The other issues raised on appeal reveal no reversible error.
Argument 2: Excluding the hearsay testimony of Dr. Barnanda
Kerrium Norwood, a hospital physician who had examined Taylor after
his arrest, and was to testify that Taylor had told her that the injury to
Taylor’s head was caused when the arresting officers had “stepped on”
him.
There was no abuse of discretion by excluding this testimony because it was
irrelevant. Taylor’s statement to Dr. Kerrium Norwood during her post-arrest
treatment of him was irrelevant because where or how Taylor received the injury
to his head was not probative of whether or not he possessed a firearm and illegal
narcotics, which was the subject of this criminal trial.
Argument 3: Limiting the direct examination of Gloria Pittman,
Taylor’s sister, to exclude the background facts that she believed led to
Taylor becoming homeless and living under the overpass.
There was no abuse of discretion by limiting the testimony of Gloria
Pittman, Taylor’s sister, a defense witness. Although the district court permitted
Pittman to testify that her brother was homeless and living under an overpass in
Atlanta, as well as when he became homeless, it sustained the government’s
objection to restrict her from testifying about the circumstances leading to Taylor’s
homelessness, such as his family history and failed boxing career. The
determination of the relevance of this evidence was within the broad discretion of
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the district court. See United States v. Nabors, 707 F.2d 1294, 1298 (11th Cir.
1983).
Argument 4: Permitting Calvin Jones to testify as to Taylor’s jailhouse
confession.
The day before the start of trial, the government notified Taylor that it
would be introducing the testimony of a federal prisoner, Calvin Jones, who had
been housed with Taylor in an Atlanta pretrial detention center, for the purpose of
introducing Taylor’s jailhouse confession of the charged offenses. Although Jones
had contacted the government agent by letter about this information six months
before the start of trial, the government did not interview Jones and did not decide
to call him as a witness until October 15, 2003, the same day it notified the
defense. Jones testified that Taylor had confessed his charged crimes, as well as
his plans to make false allegations against the police because “he was going to try
to sue them.”
Taylor had objected to Jones’s testimony before opening arguments on the
ground that the government had not notified him pursuant to Federal Rule of
Criminal Procedure 16(a)’s notification procedures and that this violated “the
spirit of the rule.” There was no abuse of discretion in admitting this testimony
because Taylor made those voluntary statements to an individual who was not a
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government agent and the statements are thus not discoverable under Federal
Rules of Criminal Procedure 16(a)(1)(A) or (B). Rule 16(a)(1) states:
Upon a defendant’s request, the government must
disclose to the defendant the substance of any relevant
oral statement made by the defendant, before or after
arrest, in response to interrogation by a person the
defendant knew was a government agent if the
government intends to use the statement at trial. . . . [and]
the portion of any written record containing the
substance of any relevant oral statements made before or
after arrest if the defendant made the statement in
response to an interrogation by a person the defendant
knew was a government agent . . ..
Fed. R. Crim. P. 16(a)(1)(A), (B)(ii) (emphasis supplied); see United States v.
Bailey, 123 F.3d 1381, 1399 (11th Cir. 1997) (“Because Rule 16(a)(1)(A)
“requires government disclosure only of a defendant’s oral statements made ‘in
response to interrogations by any person then known to the defendant to be a
government agent,’ a defendant’s voluntary statements made to individuals that
the defendant did not know were government agents do not come within the ambit
of this rule.”) (citation omitted). Jones was not, at any time, a government agent.
There is no record evidence that Taylor was ever “interrogated,” as required by the
Rule.
Argument 5: Admitting “Rule 404(b) evidence” of his prior conviction
for being a felon in possession of a firearm.
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Taylor argues that the district court abused its discretion by admitting
evidence of his prior conviction for being a felon in possession of a firearm
because, he contends, it is “not admissible under Fed. R. Evid. 404(b).” Taylor
never admitted to or stipulated to the fact that he knowingly and intentionally
possessed the firearm found by Officer Sheen. The government had the burden of
proving knowing possession of a firearm. To do so and satisfy the mens rea
element of this offense, it sought admission of evidence that Taylor had knowingly
possessed a firearm at another point in time. See United States v. Jernigan, 341
F.3d 1273, 1281 (11th Cir. 2003) (permitting admission of defendant’s prior felon
in possession of firearm conviction to prove “knowing possession of a firearm”
element of charged offense). The district court instructed the jury of the limited
use of this evidence as well. The district court did not abuse its discretion in
admitting this evidence.
Argument 6: Cumulative error.
There being no error in any of the district court’s rulings, the argument that
cumulative trial error requires that this Court reverse Taylor’s convictions is
without merit.
Argument 7: Sufficiency of the evidence.
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There was sufficient evidence to support the drug possession and
distribution, as well as the firearm charges convictions. The thrust of Taylor’s
arguments is not that there was insufficient evidence to meet a prima facie case for
the charged offenses but instead that the jury should not have believed the
testimony of Officers Sheen and Strevel, who testified that they found a large
quantity of individually-packaged drugs, consistent with distribution, on Taylor’s
person and a firearm in an area where they had seen Taylor “drop down a black
object.” Because all factual and credibility inferences are drawn in favor of the
government, the jury’s verdict must stand unless no reasonable factfinder could
have found Taylor guilty beyond a reasonable doubt. See United States v.
Calderon, 127 F.3d 1314, 1324 (11th Cir. 1997). With these favorable credibility
and factual inferences in mind, the record supports the jury’s convictions.
Argument 8: Booker/Blakely sentencing error.
The district court did not commit Booker/Blakely error by enhancing
Taylor’s sentence based on his prior convictions. In United States v. Shelton, 400
F.3d 1325 (11th Cir. 2005), this Court held that a district court did not violate the
Sixth Amendment by using the defendant’s prior convictions to enhance his
sentence. 400 F.3d at 1329 (“The Supreme Court consistently has rejected [the
defendant’s] argument that a district court errs when it considers prior convictions
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in sentencing a Defendant under the Guidelines.”). Because there was no dispute
as to Taylor’s prior convictions that were utilized by the district court to enhance
his sentence, there was no error, plain or otherwise, for the district court to have
increased his criminal history score based on its findings concerning prior
convictions.
Although the district court did not commit a Sixth Amendment violation in
sentencing Taylor, it did commit a statutory error under Booker. “As we stated in
Shelton, the district court commits a statutory error by sentencing a defendant
‘under a mandatory Guidelines scheme, even in the absence of a Sixth Amendment
violation.’” United States v. Camacho-Ibarquen, ___ F.3d ___, 2005 WL
1297236, *7 (11th Cir. June 2, 2005) (quoting Shelton, 400 F.3d at 1330–31).
As we stated above, because Taylor did not raise this argument before the
district court, our review is only for plain error. United States v. Rodriguez, 398
F.3d 1291, 1298 (11th Cir. 2005). Because the district court treated the guidelines
as mandatory, it committed an error that is plain. Shelton, 400 F.3d at 1330–31.
However, the defendant has the burden to demonstrate that the plain error affected
his substantial rights. That is, he must show that there was a reasonable
probability that he would have been given a lesser sentence had the guidelines
been applied in an advisory rather than a mandatory fashion. Id. at 1331–32.
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Here, Taylor has not presented any evidence that the district court would
have given him a lesser sentence but for the Booker statutory error. Where that is
the case, we have held that the defendant fails to meet his burden under the
substantial prejudice prong of the plain error test. Rodriguez, 398 F.3d at
1300–01. Thus, the district court did not plainly err in sentencing Taylor under a
mandatory guidelines scheme.
AFFIRMED.
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