United States v. Donnell Hester ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-12285 SEPTEMBER 18, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 03-00105-CR-T-24MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONNELL HESTER,
WALLACE REED,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(September 18, 2006)
Before TJOFLAT, BLACK and HULL, Circuit Judges.
PER CURIAM:
Donnell Hester and Wallace Reed appeal their convictions for conspiring to
distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B)(ii)(II) and 846; and possessing with intent to distribute 500 grams or
more of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(ii)(II). Hester
also appeals his conviction for possessing a firearm in furtherance of a drug crime,
in violation of 18 U.S.C. § 924(c). Hester and Reed have adopted each others’
arguments on appeal. They argue the district court: (1) erred in denying their
motions to strike the jury venire; (2) erred in denying their motions for judgment of
acquittal and Hester’s motion for a new trial; (3) violated their due process rights
by interfering with Reed’s defense witness; and (4) erred by failing, sua sponte, to
declare a mistrial based on the Government “vouching” for its witness. Reed also
argues his trial counsel provided ineffective assistance. We affirm.
I. DISCUSSION
A. Motions to strike jury venire
Reed first argues the underrepresentation of African-Americans in the jury
venire prevented a fair cross-section of the community from sitting on the jury.
Hester has adopted Reed’s argument.
We review de novo constitutional challenges to the jury selection process.
United States v. Grisham, 63 F.3d 1074, 1077 (11th Cir. 1995). The Supreme
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Court has held while “petit juries must be drawn from a source fairly representative
of the community,” there is “no requirement that petit juries actually chosen must
mirror the community and reflect the various distinctive groups in the population.
Defendants are not entitled to a jury of any particular composition.” Holland v.
Illinois, 110 S. Ct. 803, 808 (1990) (quotation omitted). A defendant claiming a
violation of the fair-cross-section requirement has the burden of proving the
underrepresented group: (1) is distinctive; (2) is systematically excluded from the
jury source; and (3) its underrepresentation is unfair and unreasonable. Berryhill v.
Zant, 858 F.2d 633, 638 (11th Cir. 1988).
Hester and Reed failed to prove a violation of the Sixth Amendment fair-
cross-section jury-selection requirement. Although they identified a distinctive
group in the community, African-Americans, they failed to present evidence that
African-Americans are systematically underrepresented in the jury pool.
Moreover, Hester and Reed acknowledged in the district court that they could not
show bad will in the process as a whole, and in their briefs that the district court’s
jury-selection process is “widely accepted as fair, reasonable and [c]onstitutional.”
B. Motions for judgment of acquittal and for a new trial
Hester argues the evidence against him was insufficient as to all three counts
and further argues the district court abused its discretion in denying his motion for
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a new trial. Hester’s arguments as to why the denial of his motion for a new trial
should be granted are identical to those regarding the denial of his motion for a
judgment of acquittal.1
As an initial matter, although Reed has adopted Hester’s arguments, we have
explained the fact-specific nature of an insufficiency of evidence claim requires
independent briefing if we are to reach the merits of the defendant’s claim. United
States v. Khoury, 901 F.2d 948, 963 n.13 (11th Cir. 1990). A defendant’s
challenge to the sufficiency of the evidence should not be addressed on appeal in
the absence of briefing, even though the defendant has adopted a co-defendant’s
arguments. Id. We thus do not address Reed’s motion for judgment of acquittal.
We review a district court’s denial of a motion for judgment of acquittal de
novo, viewing the facts and drawing all inferences in the light most favorable to
the Government. United States v. Descent, 292 F.3d 703, 706 (11th Cir. 2002).
“[W]e need only determine that a reasonable fact-finder could conclude that the
evidence established the defendant’s guilt beyond a reasonable doubt.” Id.(quotation omitted). “We review the denial of a motion for a new trial for abuse of
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Because Hester limits his motion for a new trial arguments to the same arguments he
presented to support his motion for judgment of acquittal, he has abandoned all arguments raised
below in his motion for a new trial. See United States v. Ford, 270 F.3d 1346, 1347 (11th Cir.
2001) (“[O]ur well established rule is that issues and contentions not timely raised in the briefs
are deemed abandoned.”).
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discretion.” United States v. Hernandez, 433 F.3d 1328, 1332 (11th Cir. 2005),
cert. denied, 126 S. Ct. 1635 (2006). “On a motion for a new trial based on the
weight of the evidence, the court need not view the evidence in the light most
favorable to the verdict. It may weigh the evidence and consider the credibility of
the witnesses.” Id. at 1335 (quotation omitted). “If the court concludes that,
despite the abstract sufficiency of the evidence to sustain the verdict, the evidence
preponderates sufficiently heavily against the verdict that a serious miscarriage of
justice may have occurred, it may set aside the verdict, grant a new trial, and
submit the issues for determination by another jury.” Id. (quotation omitted).
1. Conspiracy to possess with intent to distribute
“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.” Hernandez, 433 F.3d at 1333 (quotation
omitted). “Participation in a conspiracy can be inferred from a development and
collocation of circumstances.” Id. “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. (quotation
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omitted). We have also noted “evidence of resistance to arrest and flight is
admissible to demonstrate consciousness of guilt and thereby guilt.” Ventura v.
Attorney Gen., Fla., 419 F.3d 1269, 1290 (11th Cir. 2005).
The evidence presented at trial showed: (1) prior to the arrest of Dixon,
Reed, and Hester, Collins had purchased drugs from three individuals on numerous
occasions; (2) on January 5, 2003, Dixon, Reed, and Hester were in a vehicle that
was stopped by police for speeding and contained $25,000; (3) on the day before
the arrest, Collins bought a half-kilo of cocaine from Dixon, Reed, and Hester;
(4) on the day of the arrest, January 30, 2003, Hester and Reed waited in the
vehicle while Dixon brought the cocaine to Collins; and (5) the amount of cocaine
recovered, 995 grams, was consistent with distribution, not personal use. When
the arrest occurred, Hester also fled and attempted to dispose of his gun. Viewing
the evidence in the light most favorable to the government, a reasonable jury could
find Hester guilty of conspiracy to possess with intent to distribute beyond a
reasonable doubt. The district court did not err in denying Hester’s motion for
judgment of acquittal or his motion for a new trial as to the conspiracy count.
2. Possession with intent to distribute
“To sustain a conviction for possession of a controlled substance with intent
to distribute, the government must show that a defendant knowingly possessed the
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controlled substance with the intent to distribute it.” Hernandez, 433 F.3d at 1333(quotation omitted). “The government may prove possession by showing actual or
constructive possession.” Id. “Constructive possession exists when a defendant
has ownership, dominion, or control over an object itself or dominion or control
over the premises or the vehicle in which the object is concealed.” Id. “Intent to
distribute may be inferred from the amount of [the drug] involved.” Id.The Government presented sufficient evidence to support the conclusion that
Hester constructively possessed the cocaine with an intent to distribute it. Collins
positively identified Hester as the third individual in the Miami Boys, who, along
with Dixon and Reed, sold him a half-kilo of cocaine on the day before the arrest.
On the day of the arrest, both Reed and Hester were in the vehicle with the cocaine.
Also, the amount of cocaine, 995 grams, was sufficient to support a finding of an
intent to distribute the drugs. Accordingly, a reasonable jury could find Hester
guilty of the possession count, and the district court did not err in denying his
motion for judgment of acquittal or his motion for a new trial.
3. Possessing a firearm in furtherance of a drug crime
To sustain a conviction under § 924(c), the government must show, during
and in relation to the conspiracy to possess with intent to distribute cocaine, Hester
used, carried, or possessed a firearm in furtherance of that conspiracy. United
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States v. Gunn, 369 F.3d 1229, 1234 (11th Cir. 2004) (citing 18 U.S.C. § 924(c)).
“The government must also establish some nexus between the firearm and the drug
trafficking offense to show possession was in furtherance of the crime.” Id.Hester admitted the gun found at the scene of the crime was his, and several
officers testified that they saw Hester carrying the gun and then toss it when he fled
from the scene. Viewing the evidence in the light most favorable to the
Government, a reasonable jury could find Hester guilty of carrying a firearm in
furtherance of a drug transaction beyond a reasonable doubt. The district court did
not err in denying his motion for judgment of acquittal or motion for a new trial.
C. Interference with a defense witness
Reed argues the district court singled out Dixon to admonish him about
possible perjury and obstruction of justice charges when no other witness was so
admonished. Reed contends this resulted in judicial interference with his sole
witness by having a chilling effect on that witness’s testimony and violating
Reed’s due process rights. Hester has adopted Reed’s argument.
We review questions of constitutional law de novo. United States v. Noel,
231 F.3d 833, 836 (11th Cir. 2000). “[A] criminal defendant has a constitutional
right to present his own witnesses to establish a defense.” Unites States v.
Terzado-Madruga, 897 F.2d 1099, 1108 (11th Cir. 1990) (quotation omitted).
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“Substantial interference with a defense witness’ free and unhampered choice to
testify violates due process rights of the defendant.” Demps v. Wainwright, 805
F.2d 1426, 1433 (11th Cir.1986). “When such a violation of due process rights
occurs, a court must reverse the conviction without regard to prejudice to the
defendant.” Id. For example, the Supreme Court has reversed a defendant’s
conviction where the “the judge’s threatening remarks, directed only at the single
witness for the defense, effectively drove that witness off the stand.” Webb v.
Texas, 93 S. Ct. 351, 353 (1972).
The court did not substantially interfere with Reed’s right to present his
witness. The court did not single out Dixon for perjury warnings; in fact, it
specifically advised Hester and Reed as to the dangers of providing untrue
testimony. The court explained it was advising Dixon of potential perjury issues
because he, unlike Reed and Hester, had entered into a plea agreement and thus
risked contradicting his plea colloquy with his trial testimony. Neither the
Government nor the court made any threatening remarks to Dixon. Most
importantly, Dixon was not hindered by the court’s warnings because he testified.
D. Government “vouching” for its witness
Reed argues the Government committed prosecutorial misconduct by
vouching for Collins. Reed asserts the Government inaccurately contended in
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closing arguments that Collins had no reason to lie since there was nothing the
Government could do for him.
Because this issue was raised for the first time on appeal, we review it for
plain error. United States v. Rahim, 431 F.3d 753, 756 (11th Cir. 2005), cert
denied, 126 S. Ct. 1820 (2006). “To establish plain error, a defendant must show
there is (1) error, (2) that is plain, and (3) that affects substantial rights.” United
States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005). “If all three conditions
are met, we may exercise our discretion to recognize a forfeited error, but only if
the error seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. (quotation omitted).
We reverse a defendant’s conviction on the basis of prosecutorial
misconduct only where the remarks “(1) were improper and (2) prejudiced the
defendant’s substantive rights.” United States v. Delgado, 56 F.3d 1357, 1368
(11th Cir.1995). “When reviewing a defendant’s ‘vouching’ claim, we examine
whether (1) the prosecutor placed the prestige of the government behind the
witness by making explicit personal assurances of the witness’s credibility, or
(2) the prosecutor implicitly vouched for the witness’s credibility by implying that
evidence not formally presented to the jury supports the witness’s testimony.”
United States v. Arias-Izquierdo, 449 F.3d 1168, 1177-78 (11th Cir. 2006). “The
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prohibition against vouching does not forbid prosecutors from arguing credibility,
which may be central to the case; rather, it forbids arguing credibility based on the
reputation of the government office or on evidence not before the jury.” United
States v. Hernandez, 921 F.2d 1569, 1573 (11th Cir. 1991).
The district court did not plainly err by failing, sua sponte, to declare a
mistrial based on the Government’s allegedly vouching for Collins during its
closing argument. The Government did not argue Collins’s credibility based on
the Government’s reputation, but based on his having “nothing to gain” by
testifying about his prior drug deals. Moreover, the Government’s argument was
based on evidence before the jury since both Collins and Mosley had testified as to
Collins’ agreement with the Government, and the court informed the jury to
disregard the Government’s statement as to when Collins would complete his
current prison term.
E. Ineffective assistance of trial counsel
Finally, Reed argues his counsel provided ineffective assistance. Although
Hester adopted all of Reed’s arguments, he presented no arguments as to the
ineffectiveness of his counsel or explained how Reed’s arguments applied to his
counsel. Thus, we do not review an ineffective assistance of counsel claim on
Hester’s behalf.
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As for Reed’s claim, we generally do not review claims of ineffective
assistance of counsel raised on direct appeal when the district court did not
entertain the claim or develop a factual record. Massaro v. United States, 123 S.
Ct. 1690, 1694 (2003); United States v. Bender, 290 F.3d 1279, 1284 (11th Cir.
2002). Because the record is not sufficiently developed as to Reed’s ineffective-
assistance-of-counsel claim, we decline to consider it on direct appeal, without
prejudice to his ability to raise it later in a 28 U.S.C. § 2255 motion.
AFFIRMED.
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