United States v. Acevedo , 141 F.3d 1421 ( 1998 )


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  •                                                                                   [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    No. 95-4729
    D.C. Docket No. 94-CR-550-KMM
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    SANTOS ACEVEDO,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Southern District of Florida
    (May 22, 1998)
    Before TJOFLAT and EDMONDSON, Circuit Judges, and O'NEILL*, Senior District Judge.
    _____________________________________________
    *Honorable Thomas N. O'Neill, Jr., Senior U.S. District Judge for the Eastern District of
    Pennsylvania, sitting by designation.
    TJOFLAT, Circuit Judge:
    Rule 24(c) of the Federal Rules of Criminal Procedure requires district judges to
    discharge any alternate juror who has not replaced a regular juror “after the jury retires to
    consider its verdict.” In the case at hand, the district court forgot to dismiss the alternate jurors
    when the jury retired; as a consequence, the alternates participated in deliberations. When the
    court discovered its mistake, it dismissed the alternates and instructed the jury to begin
    deliberations anew – the jury thereafter found the defendant guilty as charged. The defendant
    now appeals, contending that either 1) the court’s violation of Rule 24(c), with nothing more, or
    2) the alternates’ participation in deliberations required the district court to declare a mistrial.
    We disagree and therefore affirm.
    I.
    On March 15, 1995, Santos Acevedo was brought to trial in the Southern District of
    Florida on two federal weapons charges: possession of a firearm as a convicted felon, and
    possession of ammunition as a convicted felon. See 
    18 U.S.C. § 922
    (g)(1) (1994). A jury of
    twelve and two alternates was empaneled; the trial consumed less than one day. Following
    closing argument, the court charged the jury and the jurors retired to deliberate.
    The court, however, did not dismiss the alternates; they accompanied the twelve regular
    jurors to the deliberation room without objection. The fourteen jurors took less than one hour to
    conclude that the defendant was guilty on both counts of the indictment, to have the foreman fill
    out and sign the verdict form, and to inform the court that a unanimous verdict had been
    2
    reached.1 At this point, the court realized that the two alternates had participated in the jury’s
    deliberations, and immediately notified the parties. After speaking to counsel, the court
    proposed that it dismiss the alternates and instruct the twelve regular jurors to begin their
    deliberations again. Acevedo objected, but offered no alternative solution. When the court
    indicated that it would implement its proposal, Acevedo moved for a mistrial. The court denied
    the motion and proceeded to bring the jury back into the courtroom.
    After explaining the problem to all fourteen jurors – that the alternates should not have
    been present during jury deliberations – the court placed under seal the verdict form that had
    been executed. It instructed the twelve regular jurors "to commence deliberations as if anew,
    taking into consideration all of the instructions I previously gave you . . . ," and released them to
    re-deliberate. The court then “polled” the two alternates (the poll indicated that the sealed
    verdict represented their verdict) and, upon Acevedo’s request, confirmed that the alternate who
    handed the court the verdict form had acted as foreman during the jury’s initial deliberations.
    Having made these findings a part of the record, the court discharged the alternates.
    The jury, now composed of only the twelve regular jurors, took approximately five
    minutes to return a verdict of guilty on both counts of the indictment. Following sentencing,
    Acevedo lodged this appeal.
    1
    The jurors did not at this point indicate to the court whether they had found Acevedo
    defendant guilty or not guilty of the two charges in the indictment; as explained infra, the district
    court placed the fourteen jurors’ verdict form under seal without examining its contents. Later,
    after the court adjudged Acevedo guilty pursuant to the verdict of the twelve regular jurors, the
    court unsealed the fourteen jurors’ verdict; the court and the parties then learned for the first time
    that the fourteen jurors had also found Acevedo guilty as charged.
    3
    Acevedo claims that he was entitled to a mistrial. His initial contention is that the
    district court’s failure to discharge the two alternates in adherence to the letter of Rule 24(c)
    constituted reversible error as a matter of law.2 Assuming that such failure did not, standing
    alone, require a mistrial, Acevedo contends that the court should have aborted the proceedings
    upon his motion because the prejudice he suffered from the alternates’ presence in the
    deliberation room was incurable.3
    We first review Acevedo’s contention that the district court committed per se reversible
    error under a de novo standard, as it presents a question of pure law. We then review the trial
    court’s decision to deny Acevedo’s motion for mistrial for abuse of discretion. See, e.g., United
    States v. Puentes, 
    50 F.3d 1567
    , 1577 (11th Cir. 1995); United States v. Prince, 
    883 F.2d 953
    ,
    962 (11th Cir. 1989). Finally, although Acevedo did not object to the court’s curative
    instruction at trial, we review the instruction for plain error. See Fed.R.Crim.Pro. 52(b) (“Plain
    errors or defects affecting substantial rights may be noticed although they were not brought to
    2
    Acevedo’s brief on appeal does not state explicitly that the district court’s failure to
    discharge the alternates as required by Rule 24(c) was error per se; rather, we infer from
    Acevedo’s argument that he considers such failure to require an automatic reversal. Acevedo,
    however, did not object to the court’s failure to discharge the two alternates when the jury retired
    to deliberate; thus, the question arises whether he waived the court’s violation of Rule 24(c).
    Because Acevedo, like the court and the prosecutor, did not know that the alternates had retired
    to deliberate with the twelve regular jurors, we consider Acevedo as having preserved his
    objection to the Rule 24(c) violation by moving the court for a mistrial once the court made
    known the alternates’ presence in the jury room.
    3
    Acevedo also challenges the sufficiency of the evidence to convict. This challenge is
    frivolous. The Government’s proof was overwhelming: the defendant was a convicted felon, and
    he admitted to two law enforcement officers that the pistol and ammunition that formed the basis
    of his indictment were his.
    4
    the attention of the court.”). We conclude after review that Acevedo’s contentions hold no
    merit; we therefore affirm his convictions.
    II.
    A.
    Acevedo’s first argument – for an automatic mistrial – is easily disposed of; in United
    States v. Allison, 
    481 F.2d 468
     (5th Cir. 1973),4 we explicitly rejected a rule of per se reversal
    for Rule 24(c) violations. See 
    id. at 471
     (“We . . . are of the view that such an automatic rule is
    an improper standard to apply to the situation here at issue . . . .”); see also United States v.
    Phillips, 
    664 F.2d 971
    , 994 (5th Cir. Unit B 1981)5 (“This Court . . . does not apply a per se rule
    of reversal to Rule 24(c) violations.”). In doing so, we declined to follow the Fourth and Tenth
    Circuits in United States v. Virginia Erection Corp., 
    335 F.2d 868
     (4th Cir. 1964), and United
    States v. Beasley, 
    464 F.2d 468
     (10th Cir. 1972). Instead, we held that a Rule 24(c) violation
    does not necessitate a new trial unless there is a “reasonable possibility” that the violation
    prejudiced the defendant at trial. See 
    481 F.2d at 472
    .
    In this case, we agree that the district court’s oversight of Rule 24(c) posed a threat of
    prejudice to Acevedo because the court’s failure to dismiss the alternates allowed them to enter
    the deliberation room. The Supreme Court has held that the mere presence of an alternate in the
    4
    In Bonner v. City of Prichard, 
    661 F.2d 1206
    , 1209 (11th Cir. 1981) (en banc), this
    court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
    October 1, 1981.
    5
    In Stein v. Reynolds Securities, Inc., 
    667 F.2d 33
     (11th Cir. 1982), this court adopted
    as binding precedent all decisions of Unit B of the former Fifth Circuit handed down after
    September 30, 1981.
    5
    jury room during deliberations is not inherently prejudicial to the defendant. See United States
    v. Olano, 
    507 U.S. 725
    , 739-41, 
    113 S.Ct. 1770
    , 1780-81, 
    123 L.Ed.2d 508
     (1993). The Court,
    however, implied that once the alternate participates in any way – whether through words or
    gestures – prejudice is manifest. See 
    id. at 739
    , 
    113 S.Ct. at 1780
     (prejudice may arise “either
    because the alternates actually participated in the deliberations, verbally or through ‘body
    language’; or because the alternates’ presence exerted a ‘chilling’ effect on the regular jurors”)
    (citations omitted); United States v. Allison, 
    481 F.2d 468
    , 472 (5th Cir. 1973) (remanding to
    determine whether an alternate instructed merely to observe deliberations “participated in any
    way in the deliberations” and thereby caused the defendant prejudice). In Acevedo’s case, it is
    obvious that the two alternates were full-fledged participants instead of silent observers; not
    only did the court instruct the alternates to deliberate with the regular jurors, the regular jurors
    treated the alternates as members of the jury, electing an alternate as their foreman. Thus, under
    Olano, we assume that the alternates were a prejudicial influence on the jury’s deliberations.
    A mistrial, however, is only warranted if there is a reasonable possibility that the district
    court’s violation of Rule 24(c) actually prejudiced Acevedo by affecting the jury’s final
    verdict.6 See United States v. Allison, 
    487 F.2d 339
     (5th Cir. 1973) (affirming the defendant’s
    6
    The final verdict in this case is the verdict rendered by the twelve regular jurors after
    the district court’s clean slate instruction. As noted supra, the jury composed of twelve regular
    jurors and two alternates informed the district court that they had reached a decision as to
    Acevedo’s guilt. That decision, however, was not the final verdict pursuant to which Acevedo
    was adjudged guilty. See United States v. Taylor, 
    507 F.2d 166
    , 168 (5th Cir. 1975) (establishing
    that a verdict is valid only if it is published in open court with no juror dissent). We therefore
    evaluate the alternates’ effect only on the twelve-juror verdict. We reserve for another day the
    question of whether fourteen jurors can render a valid verdict. Compare United States v.
    Williams, 
    399 U.S. 78
    , 
    102 S.Ct. 1893
    , 
    26 L.Ed.2d 446
     (1969) (stating that “the fact that the jury
    at common law was composed of precisely 12 is a historical accident, unnecessary to effect the
    purposes of the jury system and wholly without significance except to mystics” (internal
    6
    conviction because the district court determined on remand that there was “no reasonable
    possibility” that an alternate present during deliberations had affected the jury’s final verdict).
    In other words, unless there is a reasonable possibility that the alternates’ initial participation
    caused the twelve regular jurors who rendered the final verdict to convict instead of acquit, the
    Rule 24(c) violation is harmless error and Acevedo’s convictions will stand.
    B.
    This brings us to Acevedo’s second contention. He claims that we need not evaluate
    whether the district court cured the prejudice caused by the alternates’ initial participation (by
    issuing its “clean slate” instruction) because that prejudice was incurable. Thus, Acevedo
    reasons, the district court abused its discretion when it denied his motion for mistrial based on
    the alternates’ participation. Cf. United States v. Dodd, 
    111 F.3d 867
    , 870 (11th Cir. 1997)
    (stating that if the trial court has issued a curative instruction, we will reverse a denial of a
    motion for mistrial based on evidentiary error only when “the evidence is so highly prejudicial
    as to be incurable by the trial court’s admonition”). In United States v. Phillips, 
    664 F.2d 971
    (5th Cir. Unit B 1981), aff’g United States v. Meinster, 
    484 F.Supp. 442
     (S.D.Fla. 1980),
    however, we held that the prejudice, if any, caused by the initial participation in deliberations of
    a regular juror who was excused for cause before the jury delivered its final verdict was curable.
    See also United States v. Kopituk, 
    690 F.2d 1289
     (11th Cir. 1982) (adopting Phillips
    wholecloth). We believe that Phillips controls our decision here.
    quotations and citation omitted)), with United States v. Ottersburg, 
    76 F.3d 137
    , 140 (7th Cir.
    1996) (reversing a district court’s judgment of guilty under a plain error analysis because “[t]he
    criminal conviction before us is based on the verdict of a jury composed of more than the [12
    jurors] permitted by Rule 24(c)”).
    7
    In Phillips, as in Acevedo’s case, the district court violated the letter of Rule 24(c) by
    failing to discharge an alternate juror when the jury retired to deliberate. The court in Phillips,
    however, did not simply neglect to dismiss the alternate, but purposefully held that alternate “in
    reserve” against the possibility that the court would have to excuse a juror for cause during
    deliberations. See Phillips, 
    664 F.2d at 990
    .7 When a regular juror suffered a heart attack
    7
    When Phillips was decided, Rule 23(b) of the Federal Rules of Criminal Procedure did
    not authorize a verdict by a jury of fewer than twelve, absent stipulation by the parties. See
    United States v. Taylor, 
    507 F.2d 166
    , 168 (5th Cir. 1975). Thus, if a juror was excused during
    deliberations, a district court was forced to declare a mistrial because fewer than twelve jurors
    could not return a valid verdict. See 
    id. at 169
    . In Phillips, defense counsel had refused to
    stipulate to a verdict of fewer than twelve, and the possibility that a juror would be excused for
    cause during deliberations was not remote. See United States v. Meinster, 
    484 F.Supp. 442
    , 443
    (S.D.Fla. 1980) (noting that three jurors had already been excused for cause during the four-
    month long trial). The district court in Phillips, therefore, was faced with a Hobson’s choice:
    risk warranting a mistrial by purposefully violating Rule 24(c) and keeping an alternate “in
    reserve” during trial, or risk being forced to grant a mistrial if a juror was excused before the jury
    returned its verdict. The Phillips court’s holding on appeal – that a violation of Rule 24(c) is
    curable – eliminated this Hobson’s choice by allowing a district court to hold an alternate in
    reserve without fear of automatic mistrial.
    In 1983, however, Rule 23(b) was amended to read: “if the court finds it necessary to
    excuse a juror for just cause after the jury has retired to consider its verdict, in the discretion of
    the court a valid verdict may be returned by the remaining 11 jurors.” This amendment
    eliminated the need for a district court to violate Rule 24(c) if it wished to avoid a mistrial – the
    practice authorized by Phillips. Thus, at least one circuit has declared Phillips a dead letter. See
    United States v. Huntress, 
    956 F.2d 1309
    , 1315 (5th Cir. 1992) (“We read the [amended] Rule
    23(b), in conjunction with . . . Rule 24(c), as requiring that district judges allow an 11-member
    jury to proceed to verdict or grant a mistrial. . . . The intent of the 1983 amendment to Rule
    23(b) . . . was to obviate the need for the Phillips procedure.”). In this circuit, however, we
    continue to recognize that Phillips allows a district court to violate Rule 24(c) by substituting an
    alternate after deliberations have begun, as long as the court cures any prejudice resulting from
    the substitution. See United States v. Guevara, 
    823 F.2d 446
    , 448 (11th Cir. 1987); cf. United
    States v. Geffrard, 
    87 F.3d 448
    , 452 (11th Cir.), cert. denied, -- U.S. --, 
    117 S.Ct. 442
    , 
    136 L.Ed.2d 339
     and sub nom Landry v. United States, -- U.S. --, 
    117 S.Ct. 443
    , -- L.Ed.2d -- (1996)
    (stating in a multi-defendant case in which the jury had already reached a verdict regarding two
    defendants that substitution of an alternate for a juror dismissed for cause was a permissible but
    not “favored” option for the district court). Thus, Phillips retains its precedential value for this
    case.
    8
    during deliberations, the court excused that juror and recalled the alternate. 
    Id.
     Before adding
    the alternate to the jury, the court questioned the alternate concerning her exposure to outside
    influences after the case was submitted to the jury (a precaution obviously not necessary in this
    case). 
    Id.
     The court then substituted the “reserve” alternate for the excused juror and instructed
    the jury (now composed of the eleven remaining regular jurors and the alternate) to begin
    deliberations again. 
    Id.
     The jury eventually delivered a verdict of guilty. On appeal, the
    convicted defendant argued that the court’s failure to dismiss the alternate in violation of Rule
    24(c) was reversible error. 
    Id. at 991-92
    . The court of appeals disagreed, holding that the
    district court had cured any prejudice caused by the late substitution. 
    Id. at 996
    .
    Although the Rule 24(c) violation in Phillips resulted in a fact pattern different from that
    in Acevedo’s case, Phillips is identical to Acevedo’s case in the only respect relevant to this
    appeal. In both cases, the threat of prejudice to the defendant arose at least in part because the
    excused juror (or in Acevedo’s case, the two dismissed alternates) had an opportunity to
    influence the jury before he was excused. Thus, the excused juror may have convinced the jury
    to convict when it otherwise would have acquitted. Put a different way, in both Phillips and
    Acevedo’s case there is a possibility that the final verdict did not reflect the independent
    judgment of the jurors rendering the verdict, but instead reflected an amalgamation of the
    judgments of every juror who participated at some point during the jury’s deliberations.8
    8
    Because the Phillips jury not only lost one of its original members, but also was forced
    to absorb a new member (the substituted alternate), the threat of prejudice to the defendant in
    Phillips also manifested in ways that are not relevant in Acevedo’s case. The Phillips court was
    concerned that the remaining eleven regular jurors, having invested substantial time and effort in
    the deliberations, would coerce the alternate into voting for a particular verdict. See Phillips,
    
    664 F.2d at 995-96
    . In Acevedo’s case, this concern is obviously not present – there is no added
    juror to be coerced. The Phillips court was also concerned that the substituted alternate may
    9
    In Phillips, however, we held that the district court’s curative procedures were sufficient
    to eliminate the threat of prejudice to the defendant resulting from the court’s violation of Rule
    24(c); thus, the violation was not incurable as a matter of law. We see no reason to hold
    differently here; the district court was within its discretion to deny Acevedo’s motion for
    mistrial and to attempt to cure the prejudice caused by the alternates’ participation by lesser
    means. Acevedo’s argument – that he was entitled to a mistrial once the alternates participated
    in deliberations – fails.
    C.
    The only remaining question, therefore, is whether the district court’s clean-slate
    instruction eliminated the threat of prejudice to Acevedo posed by the alternates’ initial
    participation; if so, the Rule 24(c) violation was harmless error.9 Because Acevedo did not
    have been exposed to outside influences while he was separated from the jury, and that the
    alternate would inject biases formed from exposure to those influences into the jury’s
    deliberations. See 
    id. at 990
     (noting with approval that the district court had questioned the
    alternate concerning his exposure to outside influences). This threat also is not present in this
    case; Acevedo’s alternates were never separated from the regular jurors and therefore had no
    opportunity to encounter outside influences. The defendant in Phillips, therefore, arguably
    suffered much more prejudice than did Acevedo – prejudice that was still, as explained infra,
    curable.
    9
    We note that it is impossible, after a final verdict has been rendered, to ascertain the
    actual extent of the alternates’ prejudicial influence. To determine the degree to which the
    alternates swayed the regular jurors during deliberations, we would need to delve into the
    substance of the jury’s deliberations both while the alternates were present and after they were
    dismissed. Rule 606(b) of the Federal Rules of Evidence, however, prevents us from doing so.
    Rule 606(b) states:
    Upon an inquiry into the validity of a verdict . . . a juror may not testify as to any
    matter or statement occurring during the course of the jury’s deliberations or to
    the effect of anything upon that or any other juror’s mind or emotions as
    influencing the juror to assent to or dissent from the verdict . . . or concerning the
    juror’s mental processes in connection therewith, except that a juror may testify
    10
    challenge the language of the instruction at trial, we review it only for plain error. We find no
    error here; the instruction was sufficient to direct the twelve regular jurors to re-deliberate
    without regard to their initial decision.
    We assume that jurors follow their instructions. See Francis v. Franklin, 
    471 U.S. 307
    ,
    324 n.9, 
    105 S.Ct. 1965
    , 1976 n.9, 
    85 L.Ed.2d 344
     (1984). Thus, because Acevedo presents no
    evidence to the contrary, we may assume that the twelve regular jurors began their deliberations
    anew as instructed, without influence from the now-absent alternates. The regular jurors were
    therefore able to deliver their final verdict free of prejudicial taint.
    III.
    on the question whether extraneous prejudicial information was improperly
    brought to the jury’s attention or whether any outside influence was improperly
    brought to bear upon any juror.
    The exception for an inquiry into “extraneous prejudicial information” or “outside influence”
    does not apply in this case because the alternate jurors brought no extraneous information into
    the jury room. Thus, Rule 606(b) prevents any inquiry of the twelve regular jurors regarding
    “any matter or statement” made by a juror as well as the jurors’ “mental processes.” With these
    constraints, it is impossible for any court to determine the extent of the alternates’ influence on
    the regular jurors once a final verdict has been rendered.
    In United States v. Watson, 
    669 F.2d 1374
     (11th Cir. 1982), we were confronted with a
    fact pattern similar to the one in this case. In Watson, we suggested in dicta that we could
    remand the case to the district court for an evidentiary hearing to determine whether there was a
    reasonable possibility that an alternate present during deliberations in violation of Rule 24(c) had
    “in any manner affected the verdict.” 
    Id. at 1392
    . In light of Rule 606(b), however, we interpret
    Watson as suggesting a hearing only for the limited purpose of determining whether an alternate
    participated in deliberations or remained a silent observer – an inquiry that the district court may
    be able to conduct within the confines of Rule 606(b). See Allison, 
    481 F.2d at 472
     (remanding
    for such an inquiry). In Acevedo’s case, it is clear that the alternates did in fact participate; thus,
    there is no need for an evidentiary hearing here.
    11
    In light of the district court’s clean slate instruction, we hold that there is no reasonable
    possibility that the participation of the alternates in the jury’s initial deliberations prejudiced
    Acevedo at trial, and that the court’s oversight of Rule 24(c) is therefore harmless error. The
    district court’s judgment is
    AFFIRMED.
    12
    

Document Info

Docket Number: 95-4729

Citation Numbers: 141 F.3d 1421

Filed Date: 5/22/1998

Precedential Status: Precedential

Modified Date: 3/3/2020

Authorities (19)

United States v. Yves Geffrard and Shannon Landry , 87 F.3d 448 ( 1996 )

united-states-v-raymond-watson-herbert-l-williams-walter-arthur-parker , 669 F.2d 1374 ( 1982 )

United States v. Virginia Erection Corporation and John P. ... , 335 F.2d 868 ( 1964 )

United States v. Robert Fulton Beasley, Jr. , 464 F.2d 468 ( 1972 )

United States v. Logan P. Huntress , 956 F.2d 1309 ( 1992 )

United States v. Meinster , 484 F. Supp. 442 ( 1980 )

United States v. Gerardo Jorge Guevara A/K/A "Tino" , 823 F.2d 446 ( 1987 )

United States v. Bryan Wilson Taylor , 27 A.L.R. Fed. 636 ( 1975 )

United States v. Dodd , 111 F.3d 867 ( 1997 )

United States v. Carlton Ellis Allison , 487 F.2d 339 ( 1973 )

United States v. Thomas D. Ottersburg , 76 F.3d 137 ( 1996 )

United States v. Ramon Puentes , 50 F.3d 1567 ( 1995 )

United States v. Carlton Ellis Allison , 481 F.2d 468 ( 1973 )

United States v. Michael Prince, Edward A. Taylor , 883 F.2d 953 ( 1989 )

united-states-v-mark-steven-phillips-and-richard-elliott-grant-jr , 664 F.2d 971 ( 1981 )

Larry Bonner v. City of Prichard, Alabama , 661 F.2d 1206 ( 1981 )

Murray Stein v. Reynolds Securities, Inc. , 667 F.2d 33 ( 1982 )

united-states-v-dorothy-o-kopituk-raymond-c-kopituk-oscar-morales , 690 F.2d 1289 ( 1982 )

United States v. Olano , 113 S. Ct. 1770 ( 1993 )

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