United States v. Gerald Smith , 157 F. App'x 215 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DECEMBER 6, 2005
No. 05-11836 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00088-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERALD SMITH,
a.k.a. Jason Thomas,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 6, 2005)
Before DUBINA, CARNES and HULL, Circuit Judges.
PER CURIAM:
Early one morning in October of 2002, Gerald Smith was one of four
passengers riding in a car driven by Zonquil Bailey. Police officers stopped the car
for a traffic violation. During a search of the car and its occupants, the officers
found marijuana on Bailey’s person and twenty-six small plastic bags of marijuana
and $3,305 in cash on Smith’s person. The officers also found a gun but the
location of the find is in dispute. The officers arrested Smith and Bailey.
On February 12, 2003, Smith was indicted on three counts stemming from
these events: (1) unlawful possession of a firearm by a convicted felon in violation
of 18 U.S.C. § 922(g); (2) possession with intent to distribute marijuana in
violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(D); and (3) possession of a
firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c). He
pleaded not guilty to all counts, and the case was tried to a jury in November of
2004.
During the trial, Smith called Bailey as a witness. Bailey testified that
before the arrests, he met with Smith, drove him to a pool hall, and observed him
shoot pool and win a substantial sum of money gambling. He testified that he and
Smith bought bags of marijuana from a man at the pool hall. He testified that later,
during the traffic stop, the officers asked for the occupants’ identification and then
asked them to step out of the car. Finally, Bailey testified that, after he, Smith, and
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the other passengers were handcuffed and sitting on the side of the road, an officer
found a gun in the car.
During direct examination, the Government objected and approached the
district court with concerns about Bailey’s Fifth Amendment privilege against self-
incrimination and his right to counsel. The district court informed Bailey of his
self-incrimination privilege and his right to appointed counsel. Bailey responded
that the State had dismissed the case stemming from his arrest on October 20,
2002. The Government noted that Bailey had two unrelated drug cases pending in
state court. The district court informed Bailey that his testimony in Smith’s federal
case could be used against him in his own cases in state court. Bailey then
requested a lawyer.
During a court recess, the district court considered the nature of Bailey’s
testimony and referred to persuasive authority from other circuits for direction on
how it should be used. The court stated that while it could strike the entire
testimony, it should consider parsing the testimony and just striking the questions
and answers on the subject of marijuana. The Government moved to strike the
entire testimony because striking specific items could be confusing and misleading
to the jury and would limit the Government’s cross examination and impeachment
of Bailey.
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After a court recess and meeting in chambers, Bailey’s newly appointed
counsel advised the district court that Bailey was invoking his self-incrimination
privilege “as to anything.” The Government again moved to strike Bailey’s entire
testimony, and Smith countered that the privilege did not apply to the entire
testimony. Smith argued that Bailey did not have a privilege as to his testimony
regarding the following subjects: his meeting with Smith, the drive to the pool
hall, his observation of Smith shooting pool and gambling, and his observation of
the officer finding a gun.
The district court stated that the crime as to which Bailey was asserting his
Fifth Amendment privilege was the marijuana possession. The court stated that
any testimony from Bailey would put him in the presence of Smith, who was found
to possess marijuana, thereby suggesting that Bailey also was in possession of the
drug. Before the jury entered, Smith stated that Bailey would have testified about
Smith’s gambling and his purchase and use of marijuana at the pool hall. Smith
objected to the court’s complete exclusion of his testimony based on Fifth and
Sixth Amendment grounds.
After the jury returned, the district court struck all of Bailey’s testimony and
the defense rested. The jury found Smith guilty of all three counts. On March 9,
2005, the district court sentenced Smith to sixty months imprisonment on each of
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the first two counts, to be served concurrently, and sixty months on the third count,
to be served following the sentences imposed on the first two counts.
On appeal, Smith first contends that the district court erred in allowing
Bailey to invoke his privilege against self-incrimination and in striking his entire
testimony. We review de novo a district court’s ruling on an invocation of the self-
incrimination privilege. United States v. Hernandez, 141 F.3d 1042, 1049 (11th
Cir. 1998). Nonetheless, a district court enjoys wide discretion in resolving a self-
incrimination claim. United States v. Melchor Moreno, 536 F.2d 1042, 1050 (5th
Cir. 1976). If we find that the district court has erred and that the defendant has
properly preserved an objection, the error is subject to the harmless error standard
of Fed. R. Crim. P. 52(a). United States v. Candelario, 240 F.3d 1300, 1307 (11th
Cir. 2001). This rule places the burden on the Government to demonstrate that the
error does not affect the defendant’s substantial rights. Id. at 1307 n.9.
The Fifth Amendment’s self-incrimination clause provides that no person
“shall be compelled in any criminal case to be a witness against himself.” U.S.
Const. amend. V. This prohibition permits a person to refuse to answer official
questions at any proceeding where his answers might incriminate him in future
criminal proceedings. Minnesota v. Murphy, 465 U.S. 420, 426, 104 S. Ct. 1136,
1141 (1984).
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In deciding whether or how much testimony to exclude under a Fifth
Amendment privilege claim, the district court examines: (1) whether the witness’s
fear of self-incrimination is well-founded; (2) the parameters of the witness’s Fifth
Amendment rights in context of the testimony sought; and (3) the materiality and
relevancy of the potentially excluded testimony. See Melchor Moreno, 536 F.2d
1049–50. The privilege applies only in “instances where the witness has
reasonable cause to apprehend danger” of criminal liability. Hoffman v. United
States, 341 U.S. 479, 486, 71 S. Ct. 814, 818 (1951).
A district court must make a particularized inquiry, evaluating whether the
privilege applies with respect to each specific area that the questioning party
wishes to explore. Melchor Moreno, 536 F.2d at 1049. The witness may be totally
excused from testifying only if the court finds that he could legitimately refuse to
answer essentially all relevant questions. United States v. Goodwin, 625 F.2d 693,
701 (5th Cir. 1980). Where parts of the testimony would not be incriminating, the
witness may be called to give that testimony and should be allowed to be silent
“[o]nly as to genuinely threatening questions.” Melchor Moreno, 536 F.2d at
1049. Any conflict between a defendant’s Sixth Amendment cross-examination
right and a witness’s Fifth Amendment self-incrimination privilege should be
resolved in favor of the witness’s right to silence. United States v. Cuthel, 903
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F.2d 1381, 1384 (11th Cir. 1990). It is not reversible error to exclude testimony
that is cumulative. See Hernandez, 141 F.3d at 1050.
Because Bailey had reasonable cause to apprehend danger of criminal
liability based on the state charges pending against him at the time of trial and the
possibility of future state and federal charges stemming from his testimony, the
district court did not err in allowing him to invoke his Fifth Amendment privilege
against self-incrimination. The district court followed proper procedure, holding
inquiry in chambers as to Bailey’s claim and determining that it could not parse out
the non-privileged testimony. Because any non-privileged testimony that was
excluded was cumulative, the district court did not err in striking Bailey’s entire
testimony.
Smith next argues that the district court erred in denying his motion for
judgment of acquittal on the third count because the evidence was insufficient to
convict Smith of using and carrying a firearm during and in relation to a drug-
trafficking crime. We review de novo whether the record contains sufficient
evidence to support a jury’s verdict. United States v. Byrd, 403 F.3d 1278, 1288
(11th Cir. 2005), cert. denied, 126 S. Ct. 243 (2005). The evidence is viewed in
the light most favorable to the Government, with all reasonable inferences and
credibility choices drawn in the Government’s favor. Id. A conviction must be
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upheld unless the jury could not have found the defendant guilty under any
reasonable construction of the evidence. Id.A violation of 18 U.S.C. § 924(c) occurs when a person who “during and in
relation to any . . . drug trafficking crime . . . uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm.” 18 U.S.C. § 924(c). The term
“carrying” has been construed to include carrying a weapon on the person or in a
car. See United States v. Timmons, 283 F.3d 1246, 1250 (11th Cir. 2002).
Smith does not contest the conviction for the drug-trafficking offense, so we
must only consider the role of the gun and Smith’s relation to it. The Government
presented testimony from an officer that she saw a loaded gun in Smith’s right
hand and that she found bags of marijuana and cash in his right pocket. Smith
countered that the gun was found in the car only after all the occupants were
handcuffed and seated on the side of the road. Because the evidence showed that
the gun was either found on Smith’s person or in the car in which Smith was a
passenger, sufficient evidence exists for the jury to find that Smith was carrying a
firearm during a drug-trafficking crime. Furthermore, because guns are inherent in
the drug-trafficking business, it was reasonable for the jury to conclude that the
gun found during the search was being carried or used in relation to a drug-
trafficking crime. See United States v. Thomas, 242 F.3d 1028, 1032 n.5 (11th
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Cir. 2001). Accordingly, the jury found Smith guilty of violating section 924(c)
under a reasonable construction of the evidence.
AFFIRMED.
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