United States v. Curtis Smith ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16415 ELEVENTH CIRCUIT
SEPTEMBER 23, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00066-CR-J-33-TEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CURTIS SMITH,
CHRISTOPHER WILKINS,
a.k.a. Nati,
RALPH EARL BROWN, JR.,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(September 23, 2009)
Before DUBINA, Chief Judge, BLACK and KRAVITCH, Circuit Judges.
PER CURIAM:
Appellants Christopher Wilkins, Ralph Earl Brown, Jr., and Curtis Smith
appeal their convictions for one count of conspiracy to distribute 100 kilograms or
more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and 846.
The conspiracy involved trafficking marijuana via tractor-trailer from California to
Florida.
I. Fed.R.Evid. 404(b)
Wilkins argues that witness Leslie Quartermann’s testimony to the jury that
years before the alleged conspiracy began, Wilkins and Brown sent her on a trip to
California to transport drugs or drug money was extremely prejudicial, invited
speculation, and was not relevant to the conduct charged in the indictment.
Moreover, Wilkins claims that the government did not present any evidence to
prove that what Quartermann described about the trip was a crime. Accordingly,
Wilkins claims that the district court abused its discretion because the testimony
was not probative and was extremely prejudicial to him.
Brown also argues that Quartermann’s testimony regarding her trip to
California was overly prejudicial, purporting to establish Brown’s character.
Brown claims that (1) the past acts were not linked or intertwined with the series of
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transactions that made up the conspiracy; (2) there was no testimony by
Quartermann that the suitcase contained marijuana or any drug; and
(3) Quartermann’s testimony was irrelevant and immaterial to prove knowledge or
intent to participate in future drug transactions.
We review the district court’s admission of prior crimes or bad acts under
Federal Rule of Evidence 404(b) for abuse of discretion. United States v. Ellisor,
522 F.3d 1255, 1267 (11th Cir. 2008). Rule 404 of the Federal Rules of Evidence
provides that:
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 motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident. Fed.R.Evid. 404(b).
“To be admissible, 404(b) evidence must (1) be relevant to one of the
enumerated issues and not to the defendant’s character; (2) the prior act must be
proved sufficiently to permit a jury determination that the defendant committed the
act; and (3) the evidence’s probative value cannot be substantially outweighed by
its undue prejudice, and the evidence must satisfy Rule 403 [which provides for the
exclusion of relevant evidence whose probative value is substantially outweighed
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by unfair prejudice].” United States v. Chavez, 204 F.3d 1305, 1317 (11th Cir.
2000). Rule 404(b) permits the admission of prior bad acts evidence to show
motive, preparation, knowledge, and intent, as well as an ongoing scheme or plan.
See United States v. Lehder-Rivas, 955 F.2d 1510, 1515-16 (11th Cir. 1992)
(noting that “[e]vidence of criminal activity other than the charged offense is
admissible for purposes of Rule 404(b) if it [] pertains to the chain of events
explaining the context, motive and set-up of the crime and is linked in time and
circumstances with the charged crime”) (internal quotation marks and alterations
omitted). To establish the relevance of other crimes evidence offered as proof of
intent, “it must be determined that the extrinsic offense requires the same intent as
the charged offense.” United States v. Dickerson, 248 F.3d 1036, 1047 (11th Cir.
2001) (internal quotation marks omitted). Finally, “[t]he greater the government’s
need for evidence of intent, the more likely that the probative value will outweigh
any possible prejudice.” United States v. Hicks, 798 F.2d 446, 451 (11th Cir.
1986).
We conclude from the record that Quartermann’s testimony satisfied the
requirements of Rule 404(b), and the district court did not abuse its discretion in
admitting the testimony. Quartermann’s testimony was relevant to prove intent
and its probative value did not outweigh its prejudicial effect. Accordingly,
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Wilkins is not entitled to relief on this claim.
II. Hearsay
Wilkins argues that Alfred Wilkins’s statement, admitted through Agent
Clausen, connecting Wilkins to the residence where law enforcement discovered
large amounts of marijuana, was not made during the course of or in furtherance of
the conspiracy pursuant to Federal Rule of Evidence 801(d)(2)(E), notwithstanding
the fact that Alfred had a motive to implicate someone else as the “lessee” of the
house. Wilkins claims that the district court’s admission of Alfred’s statement
inculpating him was a clear error of constitutional magnitude.
We review a district court’s evidentiary rulings for abuse of discretion.
United States v. Massey, 89 F.3d 1433, 1441 (11th Cir. 1996). However, we
reverse erroneous evidentiary rulings only if “the error was not harmless.” United
States v. Church, 955 F.2d 688, 700 (11th Cir. 1992). An error is harmless unless
“there is a reasonable likelihood that [it] affected the defendant’s substantial
rights.” United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir.1990). We need
not reverse a conviction if the evidentiary error “had no substantial influence on
the outcome and sufficient evidence uninfected by error supports the verdict.”
United States v. Fortenberry, 971 F.2d 717, 722 (11th Cir. 1992).
A statement is not hearsay if it is made by a coconspirator of a party during
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the course and in furtherance of the conspiracy. Fed.R.Evid. 801(d)(2)(E). In order
for evidence to be admissible under Federal Rule of Evidence 801(d)(2)(E), “the
government must prove by a preponderance of the evidence these things: (1) a
conspiracy existed; (2) the conspiracy included the declarant and the defendant
against whom the statement is offered; and (3) the statement was made during the
course and in furtherance of the conspiracy.” United States v. Magluta, 418 F.3d
1166, 1177-78 (11th Cir. 2005). However, “cumulative admission of potentially
erroneous hearsay statements” is harmless in both the constitutional and
nonconstitutional sense. United States v. Weinstein, 762 F.2d 1522, 1535-36 (11th
Cir. 1985).
Although the statement in question was inadmissible hearsay because it was
not made in the course of, or in the furtherance of the conspiracy, the district court
did not err in admitting the statement. The statement was cumulative of other
testimony regarding Wilkins’s rental of the house. Accordingly, we conclude that
the testimony was harmless, and we affirm. See id.III. Speedy Trial Act
Brown argues that the district court failed to comply with Zedner v. United
States, 547 U.S. 489, 126 S. Ct. 1976 (2006), and violated the Speedy Trial Act by
relying on his waiver of his right to a speedy trial instead of entering an “ends of
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justice” order setting forth the reasons for the continuances.
We review the district court’s construction and interpretation of the Speedy
Trial Act de novo and review the district court’s factual determination as to what
constitutes excludable time under the Act for clear error. United States v. Schlei,
122 F.3d 944, 984 (11th Cir. 1997). The Speedy Trial Act mandates that a trial
commence within 70 days after the date the defendant appeared before a judicial
officer or the date of the indictment, whichever occurs later. 18 U.S.C.
§ 3161(c)(1). Excluded from the 70 days are periods of delay resulting from a
continuance where the district court sets forth, either orally or in writing on the
record, its reasons for finding that the ends of justice are served by the continuance
and outweigh the best interest of the public or the defendant in a speedy trial. 18
U.S.C. § 3161(h)(7)(A); see also Zedner, 547 U.S. at 498-99, 126 S. Ct. at 1983-
84. However, the Act specifically states that “[f]ailure of the defendant to move for
dismissal prior to trial or entry of a plea of guilty or nolo contendere shall
constitute a waiver of the right to dismissal under this section.” 18 U.S.C.
§ 3162(a)(2); see also United States v. Tenorio-Angel, 756 F.2d 1505, 1508 (11th
Cir. 1985).
We conclude from the record that Brown waived his right to enforce any
speedy trial violation by failing to move for dismissal of his indictment. Further,
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the record demonstrates that the district court complied with the Speedy Trial Act.
Accordingly, there was no violation.
IV. Impeachment
Smith argues, without citation to case law, that the district court should have
allowed him to impeach witness Maria Karina Corona’s credibility with the
statement that she made to Agent Davis regarding the “drivers” who worked for
Brown, which was inconsistent with her prior testimony that Smith drove the truck.
Prior inconsistent statements made by witnesses are discussed in Federal
Rule of Evidence 613, which specifies that for extrinsic evidence of a prior
inconsistent statement to be admissible, the statement must have been made by the
witness. See Fed.R.Evid. 613(b).
We conclude from the record that the district court did not abuse its
discretion by not permitting Smith to impeach Corona with her inconsistent
statement contained in Agent Davis’s report because her trial testimony was not
inconsistent. Additionally, Smith introduced through Agent Davis’s testimony the
same evidence he complains he was prevented from introducing through Corona
and thus has not shown prejudice. Therefore, Smith is not entitled to relief on this
claim.
V. Bruton violation
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The first statement in Smith’s brief statement of facts is as follows: “Curtis
Smith was a truck driver for Co-Defendant Ralph Brown.” However, Smith argues
that the government did not put forth overwhelming evidence of his guilt, pointing
out that the only evidence of his being the sole truck driver for Brown came from
Corona and Agent Davis. Accordingly, Smith argues that the district court violated
Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620 (1968), by allowing Agent
Davis to testify that Brown told him (Agent Davis) that Smith was the sole driver
of his tractor trailer.
We review preserved Bruton claims for abuse of discretion and evaluate any
Bruton error for harmlessness beyond a reasonable doubt. United States v. Turner,
474 F.3d 1265, 1275 (11th Cir. 2007). In Bruton, the Supreme Court held that the
admission of a statement by a nontestifying codefendant that inculpated the other
defendant in a joint trial violated the defendant’s Sixth Amendment right to
confrontation. Bruton, 391 U.S. at 136-37, 88 S. Ct. at 1628. However, we have
held that a Bruton problem does not exist “where the statement was not
incriminating on its face, and became so only when linked with evidence
introduced later at trial.” United States v. Brazel, 102 F.3d 1120, 1140 (11th Cir.
1997) (internal quotation marks omitted). Accordingly, “for Bruton to apply, a
codefendant’s statement must be clearly inculpatory standing alone.” Id. (internal
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quotation marks and alteration omitted).
We conclude that the district court did not abuse its discretion in denying
Smith’s motion for a mistrial based on the admission of Brown’s statement because
the statement did not incriminate Smith in marijuana trafficking.
For the above-stated reasons, we affirm the defendants’ convictions.
AFFIRMED.
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