United States v. Wilson Jean , 315 F. App'x 907 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 27, 2009
No. 08-11208 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 01-00587-CR-JTC-5-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILSON JEAN,
a.k.a. Nixon,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(February 27, 2009)
Before BIRCH, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Wilson Jean (“Jean”) appeals his conviction for conspiracy to make and sell
counterfeit currency. Jean raises three issues on appeal: (1) the district court erred
in admitting evidence seized from a Brooklyn, New York apartment in August
2001; (2) a co-defendant’s in-court identification of Jean was tainted by an unduly
suggestive out-of-court identification procedure; and (3) there was insufficient
evidence to support his conviction. For the following reasons, we AFFIRM.
I. BACKGROUND
Jean, also known as “Nixon,” and four co-defendants (Eric Bey, Kurt
Campbell, Julnet Constontin, and Ludger Elibert), were indicted with conspiring to
make and sell counterfeit currency, in violation of 18 U.S.C. §§ 471 and 473, from
approximately June through 2 August 2001. R1-1 at 1-2. The evidence at trial
established that Jean met with Ludger Elibert (“Elibert”), also known as “Rick,” in
Brooklyn, New York. R4 at 124, 128-29. Jean gave Elibert a sample of
counterfeit currency and said, “This is what I do.” Id. at 129. Jean also gave
Elibert his home and cell phone numbers. Id. at 143-45. Elibert then returned to
Georgia and sold the counterfeit money to a Russian electronics store owner named
Igor Genut (“Genut”) in July 2001. Id. at 68, 70, 129-30. Elibert told Genut that
he could sell him as much counterfeit money as he wanted. Id. at 69.
That same month, Elibert returned to Brooklyn with co-defendant Eric Bey
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(“Bey”). Id. at 135-36. Bey sold his Mercedes Benz to Jean for approximately
$60,000 to $70,000 counterfeit currency but did not give Jean the title to the car at
that time. Id. at 136-39; R5 at 262, 264. Bey identified Jean at trial as the person
who gave him the counterfeit money. R5 at 265-66.
Genut, who was cooperating with authorities, told Elibert he had a friend
who wanted to buy counterfeit currency. R4 at 99. On 17 July 2001, Genut and
undercover Secret Service agent Scott Donovan (“Donovan”) met with Elibert,
Bey, and co-defendant Julnet Constantin (“Junior”). Id. at 99-100. Donovan
posed as a wealthy Russian businessman wanting to bring counterfeit currency
back to Russia. Id. at 73, 98. At the meeting, Donovan bought $2000 counterfeit
currency for $1000 genuine currency. Id. at 101. Elibert said the more Donovan
bought, the better the price would be so long as their source in New York
approved. Id. at 104.
On 19 July 2001, Donovan made a second purchase from Elibert and Bey of
approximately $17,000 counterfeit currency for $6,500 genuine currency. Id. at
105-107. Genut also sold the co-defendants a DVD player and television in
exchange for counterfeit money. Id. at 90-91, 117. During their negotiations for
future purchases, Elibert and Bey mentioned that the printing of the counterfeit
currency was being done in New York. Id. at 110.
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A third and final transaction occurred on 2 August 2001, at which Elibert,
Bey, Junior, and co-defendant Kurt Campbell were present. Id. at 111-12, 118.
Donovan purchased $25,000 counterfeit currency for $10,000 genuine currency
and agreed to purchase $500,000 in the future. Id. at 112, 118-19. All four co-
defendants were then arrested at that time. Id. at 119.
Later that day, Jean called Elibert and instructed him to send the Mercedes
Benz title to Wilson Jean at 50 Lenox Road, Apartment 1E, Brooklyn, New York,
11226. Id. at 145-47; Exh. Folder 1, Gov. Exh. 105B at 3. After authorities
verified this was Jean’s address, agents went there on 6 August 2001 to arrest him.
R5 at 192. Jean’s mother opened the door and said Jean had not come home last
night. Id. at 192-93. Authorities advised her of their arrest warrant for Jean and
asked to come in. Id. at 193. In plain view in the living room, agents saw
counterfeit currency and numerous items used to make it. Id. at 193-95, 197. The
serial numbers of the counterfeit currency matched those seized in Atlanta. Id. at
186, 213. A total of $176,950 counterfeit currency with identical serial numbers
was detected throughout much of the United States during the summer of 2001. Id.
at 181-82. A paper with the words “Rick” and “Atl” and different phone numbers
for Elibert was also found in the Brooklyn apartment. R4 at 149-50; R5 at 207.
Jean moved for a directed verdict of acquittal after the government rested.
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R5 at 228. The court denied the motion. Id. at 229. Jean testified at trial that he
never met Elibert or Bey before and had no involvement in any counterfeit
currency scheme. Id. at 281, 287. He claimed he moved out of the Lenox Road
apartment in October 2000 but admitted keeping the apartment keys and having his
mail sent there. Id. at 276, 278. After Jean presented evidence, and prior to
closing argument, he renewed his motion for a judgment of acquittal, which the
court again denied. R6 at 307. The jury found Jean guilty of the conspiracy count
and the court sentenced him to forty months of imprisonment to be followed by
three years of supervised release. R2-144, 151. This appeal followed.
II. DISCUSSION
A. Motion to Suppress Evidence
Jean first argues that the district court erred in denying his motion to
suppress evidence seized from the Brooklyn apartment because officers did not
have a reasonable belief that Jean lived at that apartment and was present when
they entered. Further, Jean argues that the agents had no permission to enter.
At a pre-trial hearing on Jean’s motion to suppress, United States Secret
Service Agent James Taylor testified that Elibert had advised agents his source of
counterfeit currency was a person called “Nixon” who lived in New York. R3 at
12-13. After “Nixon” told Elibert to send the Mercedes Benz title to Wilson Jean
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at the Brooklyn apartment, agents obtained a booking photograph of Jean taken on
22 May 2001, which also listed the same address. Id. at 19-20; Exh. Env. 2, Def.
Exh. 1. Elibert had confirmed that “Nixon” was the same man in Jean’s
photograph. R3 at 20.
At approximately 6:00 A.M. on 6 August 2001, Secret Service agents went
to the Brooklyn apartment to execute Jean’s arrest warrant. Id. at 28, 41.
According to the agents’ report, Jean’s mother, Ms. Jean, allowed them to come in
after the agents identified themselves and explained they had a warrant for Jean’s
arrest. Id. at 28. Ms. Jean said her son lived there and she had expected him home
the previous night. Id. at 29. Upon entering the apartment, agents saw in plain
view in the living room counterfeit U.S. Federal Reserve notes on paper in a
printer, paraphernalia used to make counterfeit currency, and open trash bags with
discarded printings of federal reserve notes. Id.In contrast to the agents’ report, Ms. Jean testified that the agents entered her
apartment without her permission. Id. at 46-47, 49. She initially testified that the
agents did not ask her any questions. Id. at 47-49. On cross-examination, Ms. Jean
admitted the agents did ask about her son and she told them he did not live there.
Id. at 57. Ms. Jean claimed a man named “Jerry Nixon” lived in her apartment and
that she did not remember any bags of counterfeit money or a copier machine
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being in her living room. Id. at 54-55. Ms. Jean confirmed that her apartment’s
phone number was 718-856-7593. Id. at 61. This was the same number Elibert
had stored in his cell phone as Nixon’s home phone number. Id. at 15.
The magistrate judge recommended that Jean’s motion to suppress evidence
be denied. R1-122 at 1. The magistrate judge concluded that the facts of the case
were more than sufficient to support a reasonable belief that Nixon and Jean were
the same person, that Jean lived at the Brooklyn apartment, and that agents could
have reasonably presumed that Jean would be home at 6:00 A.M. Id. at 6-7. The
magistrate judge discredited Ms. Jean’s testimony based on her contradictory and
evasive responses to questions about her son and the incriminating items in her
apartment. Id. at 8. Additionally, the magistrate judge concluded that the agents
could have believed that Ms. Jean was attempting to protect her son and thus
“could have reasonably chosen not to believe her in light of the strong evidence
they possessed indicating that [Jean] did live in the apartment.” Id. Finally, the
magistrate judge found that the incriminating items seized were in plain view in the
living room. Id. The district court adopted the magistrate judge’s report and
recommendation. R1-132 at 4-5.
We review the district court’s legal conclusions de novo and its factual
findings for clear error. See United States v. Bervaldi, 226 F.3d 1256, 1262 (11th
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Cir. 2000). All facts are construed in the government’s favor. See id. Where there
is conflicting testimony, we defer to a magistrate judge’s credibility determinations
“unless [the judge’s] understanding of the facts appears to be unbelievable.”
United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (quotation
marks and citation omitted).
An arrest warrant gives law enforcement officers “‘limited authority to enter
a dwelling in which the suspect lives when there is reason to believe the suspect is
within.’” Bervaldi, 226 F.3d at 1263 (quoting Payton v. New York, 445 U.S. 573,
603, 100 S. Ct. 1371, 1388 (1980)). An entry pursuant to an arrest warrant
satisfies the Fourth Amendment if the officers reasonably believe the suspect lives
at the dwelling and is inside at the time of entry. See id. Courts must apply
common sense and evaluate all the facts and circumstances known to the agents in
determining whether a reasonable belief exists. See id.The record supports the district court’s conclusion that the agents had a
reasonable belief that Jean lived at the Brooklyn apartment. As found by the
magistrate judge and district court, “Nixon” gave the name Wilson Jean and the
Brooklyn address to Elibert so that “Nixon” could obtain the title to the Mercedes
Benz he had received in exchange for counterfeit money. Elibert then identified
“Nixon” from a booking photograph of Jean taken less than three months before
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the search at the apartment. Further, the home phone number Elibert had for Nixon
was the same number for the Brooklyn apartment. These facts sufficiently
supported the agents’ reasonable belief that Jean lived at that address.
The district court also correctly concluded that the agents had a reasonable
belief that Jean was inside the apartment when they entered. We have previously
held in Bervaldi that, in the absence of contrary evidence, officers may reasonably
presume a suspect is at his residence at 6:00 A.M. and enter pursuant to an arrest
warrant. See id. at 1267 (presumption that a person is home at certain times of the
day may be rebutted with evidence about the suspect’s schedule). As in Bervaldi,
there was no contrary evidence about Jean’s schedule to rebut the presumption that
he would be home at 6:00 A.M. Although Jean’s mother testified that she told the
agents her son was not there, the magistrate judge discredited her testimony based
on her conflicting statements and evasive responses. The magistrate judge’s
evaluation of the facts is not “unbelievable” and her credibility determinations are
thus entitled to deference. See Ramirez-Chilel, 289 F.3d at 749 (quotation marks
and citation omitted).
Because the entry was permitted under Payton, the seizure of the evidence in
plain view was also permissible. See United States v. Rodgers, 924 F.2d 219, 221
(11th Cir. 1991) (“The plain view doctrine allows police officers to seize any
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contraband in plain view if the officers have a right of access to the place where the
contraband is located.”). Accordingly, the district court did not err in denying
Jean’s motion to suppress evidence seized from the Brooklyn apartment.
B. In-Court Identification
Jean next contends that the district court erred in permitting Elibert to
identify him in court because that identification was impermissibly tainted by
Elibert’s out-of-court identification based on Jean’s single booking photograph.
The government responds that Elibert’s in-court identification was reliable under
the totality of the circumstances and that the district court correctly found that a
sufficient basis had been laid for Elibert to identify Jean in court without reference
to the booking photograph. The government also argues that any error would be
harmless in light of Bey’s trial identification of Jean.
Prior to trial, Jean moved to suppress Elibert’s out-of-court identification of
Jean and any in-court identification tainted by out-of-court error. R1-95.
Following the pre-trial hearing on Jean’s motion to suppress, the magistrate judge
concluded that because Elibert was only shown one photograph of Jean (the May
2001 booking photograph), the pre-trial identification procedure was unduly
suggestive. R1-122 at 10. Nevertheless, the magistrate judge found “a strong
indication that Elibert’s identification of [Jean] would be reliable and that the
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suggestive pre-trial procedure did not create a substantial risk of misidentification.”
Id. at 11. The magistrate judge ultimately deferred ruling on the issue to the trial
court to evaluate the totality of the circumstances based on the evidence presented
at trial. Id. The district court agreed and took under advisement the motion to
suppress identification. R1-132 at 5.
Elibert testified at trial that both he and Jean are Haitian. R4 at 125, 127,
131. Before moving to Atlanta, Elibert previously worked in a barbershop in
Brooklyn which Jean frequented. Id. at 125-26. During a trip to New York, a
mutual friend named Nikko reintroduced Jean to Elibert, at which time Elibert
received a sample of counterfeit currency from Jean. Id. at 127-29. Elibert
testified that, in 2001, Jean was heavy set, wore his hair in braids, had slightly
darker skin than him, and was about 5'8" or 5'9" tall. Id. at 131-32. This was the
same physical description that Elibert had given the agents in August 2001. R5 at
162-63. Elibert also testified at trial that he was born in 1970 and Jean was slightly
younger than him. R4 at 126. In a side bar conference, the district court ruled that
a sufficient basis had been laid for Elibert to identify Jean without reference to
Jean’s booking photograph and denied Jean’s motion to suppress. Id. at 134.
Elibert then identified Jean in court as the person with whom he conducted the
2001 transactions. Id. at 134-35. On cross-examination, the defense introduced
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into evidence Jean’s May 2001 booking photograph and questioned Elibert about
it. R5 at 158. Elibert testified that he did not remember previously identifying
Jean from his booking photograph, however. Id. Elibert said he always
mistakenly called Jean “Nixon” instead of Wilson. Id. at 164.
An in-court identification violates due process if: (1) “the original
identification procedure was unduly suggestive;” and (2) “the procedure, given the
totality of the circumstances, created a substantial risk of misidentification at trial.”
Marsden v. Moore, 847 F.2d 1536, 1545 (11th Cir. 1988). The district court’s
conclusion in this case that the photo identification procedure was unduly
suggestive is subject to clear error review. See United States v. Diaz, 248 F.3d
1065, 1103 (11th Cir. 2001). In this case, the district court did not clearly err in
determining that showing Elibert only one photograph of Jean was unduly
suggestive. See Manson v. Brathwaite, 432 U.S. 98, 109, 97 S. Ct. 2243, 2250
(1977) (single photograph of defendant suggestive and unnecessary); accord
United States v. Cannington, 729 F.2d 702, 711 (11th Cir. 1984); United States v.
Cueto, 611 F.2d 1056, 1064 (5th Cir. 1980).
Nevertheless, an in-court identification based on an independent source may
be admissible despite a suggestive out-of-court identification procedure. See
Marsden, 847 F.2d at 1546; Cannington, 729 F.2d at 711. In determining whether
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Elibert’s in-court identification had a reliable, independent basis, we must consider
all the circumstances, including Elibert’s opportunity to view Jean at the time of
the offense, Elibert’s degree of attention at that time, the accuracy of Elibert’s prior
description of Jean, Elibert’s level of certainty when identifying Jean at trial, and
the length of time between their prior meetings and the trial identification. See
Marsden, 847 F.2d at 1546. Even if the in-court identification is found to be
unreliable, any constitutional error is subject to harmless error analysis. See id.Applying these factors, we conclude that Elibert’s in-court identification was
reliable. Elibert met Jean face-to-face on at least two occasions, when Jean gave
him a sample of the counterfeit currency and when Jean traded counterfeit currency
in exchange for Bey’s Mercedes. Elibert spoke with Jean on both occasions and
there is no evidence he was not attentive. The May 2001 booking photograph of
Jean shows that he has dark skin, is six feet tall, weighs 190 lbs, and was born in
1974. Exh. Env. 2, Def. Exh. 1. His hair also appears to be in tight braids. Id.;
Exh. Folder 1, Gov. Exh. 516. Elibert’s description of Jean in August 2001 is thus
fairly accurate. Although several years passed between the confrontations in 2001
and the trial in 2007, Elibert showed no hesitation in identifying Jean at trial. In
addition, Elibert testified on cross-examination that he did not remember seeing
Jean’s booking photograph or identifying Jean from the photograph. Thus, the
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booking photograph had minimal, if any, effect on Elibert’s trial identification.
Jean points out that Elibert failed to identify Jean from two other photo line-
ups before trial, Elibert did not tell agents about Jean’s tattoos or broken front
tooth, and Elibert knew where a defendant sits in a courtroom. These arguments
were raised during Elibert’s cross-examination at trial, however, and were merely
“grist for the jury mill.” O’Brien v. Wainwright, 738 F.2d 1139, 1143 (11th Cir.
1984) (quotation marks and citation omitted). When viewed in light of all the
circumstances, Elibert’s in-court identification had a reliable and sufficient basis
independent of the booking photograph. See Cannington, 729 F.2d at 711 (in-
court identifications admissible despite single photograph display where witnesses
observed defendant at close range on several occasions); O’Brien, 738 F.2d at
1141-42 (in-court identification reliable despite unduly suggestive photographic
lineup where witness had a clear view of the defendant, never identified anyone but
the defendant, and his identifications were made with certainty except when the
defendant disguised himself with a beard). Accordingly, the district court did not
err in denying Jean’s motion to suppress and in admitting Elibert’s in-court
identification.
C. Sufficiency of the Evidence
Jean submits that the evidence showed nothing more than a one-time deal to
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trade an automobile for counterfeit currency. He contends this was a “buyer-
seller” relationship, rather than a conspiracy to make and sell counterfeit currency.
Jean further argues there is no evidence that he knew of any agreement between his
co-defendants to sell counterfeit currency. Because there was no joint criminal
objective, Jean contends the district court erred in denying his motion for a
judgment of acquittal on the conspiracy count.
We review de novo the district court’s denial of Jean’s motion for judgment
of acquittal. See United States v. Yates, 438 F.3d 1307, 1311-12 (11th Cir. 2006)
(en banc). We must affirm Jean’s conviction if the jury could have found him
guilty beyond a reasonable doubt under any reasonable construction of the
evidence. See United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005) (per
curiam). All reasonable inferences and credibility choices are drawn in the
government’s favor. See id.To prove Jean participated in a conspiracy, the government had to show that
he made an agreement with one or more persons to make and sell counterfeit
currency, and that he knowingly and voluntarily joined this agreement. See id.The government need not prove that Jean knew every detail, each conspirator, or
participated in all aspects of the conspiracy. See id. at 1270; United States v.
Solomon, 686 F.2d 863, 869 (11th Cir. 1982). Instead, Jean need only know the
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conspiracy’s essential nature, proof of which may be shown by direct or
circumstantial evidence. See Garcia, 405 F.3d at 1269-70. What distinguishes
conspiracy from its underlying offense is an agreement with a joint criminal
objective beyond that of the immediate transaction. See United States v. Mercer,
165 F.3d 1331, 1335 (11th Cir. 1999) (per curiam). “Where the buyer’s purpose is
merely to buy and the seller’s purpose is merely to sell, and no prior or
contemporaneous understanding exists between the two beyond the sales
agreement, no conspiracy has been shown.” Id. (quotation marks and citations
omitted).
In this case, there was sufficient evidence of a prior and an ongoing
understanding between Jean and his co-conspirators to make and sell counterfeit
currency beyond the sale of the Mercedes Benz. The evidence showed that Jean
met Elibert in New York, told him “this is what I do,” and gave him a sample of
the counterfeit currency he made. Jean gave Elibert multiple telephone numbers to
reach him, and Elibert’s phone numbers were found in the Brooklyn apartment to
which Jean had access. Their exchange of phone numbers indicates a desire for an
ongoing relationship. Elibert sold the sample currency to a buyer and then went
back to Brooklyn with Bey to buy more counterfeit currency in exchange for Bey’s
Mercedes Benz. During Elibert’s negotiations with Donovan, Elibert said that with
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enough front money and lead time, his source in New York could make as much
counterfeit money as Donovan wanted. R4 at 122. Donovan’s agreement at the
last transaction to purchase $500,000 of counterfeit currency in the future supports
an inference that Elibert planned to obtain more counterfeit money from Jean. The
fact that Jean was supplying Elibert with large sums of counterfeit currency for
distribution is supported by the evidence of manufacturing equipment and
counterfeit currency seized from the New York address which Jean gave to Elibert.
The serial numbers of this counterfeit currency were found disbursed throughout
the United States.
This evidence, viewed in the light most favorable to the government,
supports the jury’s conclusion beyond a reasonable doubt that Jean participated in
a knowing agreement with others to make or counterfeit United States currency
and to broker sales of that currency. Even if Jean was not necessarily involved in
all of his co-conspirators’ transactions, the evidence showed that Jean’s
participation extended beyond a one-time buy-sell deal. A jury could reasonably
have inferred that Jean had an agreement to participate in a joint criminal objective,
namely Jean’s supplying Elibert and his co-conspirators with as much counterfeit
currency as they could sell. Accordingly, the evidence was sufficient to support
Jean’s conviction for conspiracy as charged.
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III. CONCLUSION
Wilson Jean appeals his conviction for conspiracy to make and sell
counterfeit currency. We conclude that the district court correctly admitted
evidence seized in plain view from a Brooklyn apartment in August 2001 because
the agents had a reasonable belief that Jean lived at that apartment and was inside
at the time of their entry. Elibert’s in-court identification of Jean was also
admissible because Elibert could reliably identify Jean independent of his prior
out-of-court identification. Finally, the evidence demonstrated that Jean
participated in an ongoing, criminal conspiracy as opposed to a mere one-time
transaction. Jean’s conviction and sentence are AFFIRMED.
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