United States v. Marc Jacques ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 21, 2008
No. 06-15852 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-14023-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARC JACQUES,
a.k.a.Riggins Elan,
a.k.a. Jason Adams,
a.k.a. Walter King,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 21, 2008)
Before ANDERSON, HULL and WILSON, Circuit Judges.
PER CURIAM:
Marc Jacques appeals his conviction by a jury for possession with intent to
distribute five or more grams of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1), and the life sentence imposed as a result. On appeal, Jacques argues
that (1) the evidence at trial was insufficient to support his conviction, (2) the
district court abused its discretion in admitting hearsay that violated Jacques’s right
to confrontation, (3) the district court abused its discretion in denying Jacques’s
requested jury instruction on reasonable doubt and lack of evidence, (4) the district
court abused its discretion in denying Jacques’s motion for a new trial on the basis
that a juror considered extrinsic evidence, and (5) the district court violated
Jacques’s Fifth and Sixth Amendment rights when it increased his sentencing
range based on his status as a career offender, where his prior convictions were not
alleged in the indictment or decided by a jury. For the reasons set forth below, we
affirm.
DISCUSSION
On April 4, 2006, Jacques was arrested in a room at the Harbor Inn Motel in
Stuart, Florida. Investigating officers testified that as Jacques walked from his
vehicle to the motel room, he carried an object with a protruding handle covered by
a white towel. A few seconds after Jacques entered the room, officers who had
been waiting in the bathroom detained Jacques. When Jacques was arrested he was
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standing within inches of a cooking pot that, according to the investigating
officers’ testimony, had not been in the room before Jacques’s arrival and
contained 31.6 grams of crack cocaine. Jacques testified as the sole witness in his
defense at trial.
1. Sufficiency of the Evidence
“[W]e review de novo whether there is sufficient evidence to support the
jury’s verdict.” United States v. Ortiz, 318 F.3d 1030, 1036 (11th Cir. 2003) (per
curiam). We will affirm the jury’s verdict “if a reasonable trier of fact could
conclude that the evidence establishes guilt beyond a reasonable doubt.” Id.
(internal quotation marks omitted). On review, we view the evidence “in the light
most favorable to the government, with all reasonable inferences and credibility
choices made in the government’s favor . . . .” Id. (internal quotation marks
omitted). We review a district court’s denial of a motion for judgment of acquittal
according to the same standard. United States v. Descent, 292 F.3d 703, 706 (11th
Cir. 2002) (per curiam).
The elements that must be proved beyond a reasonable doubt by the
government in order to establish a violation of 21 U.S.C. § 841(a) are that the
defendant: (1) knowingly and intentionally (2) possessed a controlled substance
(3) with intent to distribute it. See 21 U.S.C. § 841(a)(1); see also United States v.
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Poole, 878 F.2d 1389, 1391 (11th Cir. 1989) (per curiam). All three elements can
be proven by direct or circumstantial evidence. Poole, 878 F.2d at 1391–92.
Viewing the evidence presented at trial in the light most favorable to the
government, a jury could conclude beyond a reasonable doubt that Jacques
knowingly possessed cocaine base with the intent to distribute it. Accordingly, we
hold that the district court did not err in denying Jacques’s motion for judgment of
acquittal.
2. Hearsay and the Confrontation Clause
“We review a district court’s hearsay ruling for abuse of discretion.” United
States v. Brown, 441 F.3d 1330, 1359 (11th Cir. 2006), cert. denied, — U.S. —,
127 S. Ct. 1149, 166 L. Ed. 2d 998 (2007). “An erroneous evidentiary ruling will
result in reversal only if the resulting error was not harmless.” United States v.
Hands, 184 F.3d 1322, 1329 (11th Cir. 1999) (citing Fed. R. Crim. P. 52(a)). “An
error is harmless unless there is a reasonable likelihood that [it] affected the
defendant’s substantial rights.” Id. (internal quotation marks omitted). We review
de novo whether a defendant’s Sixth Amendment right to confrontation was
violated. United States v. Yates, 438 F.3d 1307, 1311 (11th Cir. 2006) (en banc).
Under the Federal Rules of Evidence, “a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove
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the truth of the matter asserted” is inadmissible hearsay. Fed. R. Evid. 801(c), 802.
Statements to officers generally, however, may be admitted as non-hearsay for the
limited purpose of explaining the background of the officers’ actions if the
admission of such statements is not overly prejudicial. United States v. Baker, 432
F.3d 1189, 1209 n.17 (11th Cir. 2005).
The Sixth Amendment provides, “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses against him.” U.S.
Const. amend. VI. “[I]f hearsay is ‘testimonial,’ . . . the Confrontation Clause
prohibits its admission at trial unless (1) the declarant is unavailable, and (2) and
the defendant has had a prior opportunity to cross-examine the declarant. Baker,
432 F.3d at 1203 (citation and footnote omitted). Non-hearsay aspects of out-of-
court statements do not raise Confrontation Clause concerns. See Tennessee v.
Street, 471 U.S. 409, 414, 105 S. Ct. 2078, 2081–82, 85 L. Ed. 2d 425 (1985)
(holding that admission of non-hearsay aspects of a confession, to prove what
happened when an individual confessed, did not raise Confrontation Clause
concerns); United States v. Peaden, 727 F.2d 1493, 1500 n.11 (11th Cir. 1984)
(noting that the principles underlying the Confrontation Clause are not implicated
by statements admitted for their non-hearsay value). In Peaden, we further noted
that “[t]he value of a statement offered for nonhearsay purposes lies in its being
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said rather than in its content. The only person the defendant needs to cross-
examine, therefore, is the person who heard it, and is testifying to its utterance
from personal knowledge.” Peaden, 727 F.2d at 1500 n.11.
Jacques challenges testimony at trial by government agents concerning what
they learned from a cooperating source who was not available to testify. The
testimony was non-hearsay because it was not offered for the truth of the matter
asserted. Furthermore, because the testimony was offered for a non-hearsay
purpose, the Confrontation Clause was not implicated. Accordingly, we conclude
that the district court did not abuse its discretion in admitting the challenged
testimony, and that such testimony did not violate the Confrontation Clause.
3. Requested Jury Instruction
We review the district court’s refusal to use a proposed jury instruction for
abuse of discretion. United States v. Dean, 487 F.3d 840, 847 (11th Cir.) (per
curiam), pet. for cert. filed, (U.S. Oct. 25, 2007) (No. 07-553). For the denial of a
requested jury instruction to be reversible error a defendant must show that:
(1) the requested instruction was a correct statement of the law, (2) its
subject matter was not substantially covered by other instructions, and
(3) its subject matter dealt with an issue in the trial court that was so
important that failure to give it seriously impaired the defendant’s
ability to defend himself.
Id. (internal quotation marks omitted). In deciding whether a defendant’s
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requested instruction was substantially covered by the actual charge delivered to
the jury, we “need only ascertain whether the charge, when viewed as a whole,
fairly and correctly states the issues and the law.” United States v. Gonzalez, 975
F.2d 1514, 1517 (11th Cir. 1992).
The record shows that the subject matter of Jacques’s requested instruction
was substantially covered by the court’s instruction on reasonable doubt and by the
court’s instruction that the jury consider all of the evidence in the case.
Furthermore, the failure to give the requested instruction did not seriously impair
Jacques’s ability to defend himself because the court allowed Jacques to argue the
lack of evidence to the jury. Accordingly, the district court did not abuse its
discretion by declining to give Jacques’s requested jury instruction.
4. Motion for New Trial and Extrinsic Evidence
We review a district court’s denial of a motion for new trial based on the
jury’s exposure to extrinsic evidence for abuse of discretion. United States v.
Ronda, 455 F.3d 1273, 1296 n.33 (11th Cir. 2006), cert. denied, — U.S. —, 127 S.
Ct. 1327, 167 L. Ed. 2d 86 (2007).
The government has the burden of establishing a defendant’s guilt “solely on
the basis of evidence produced in the courtroom and under circumstances assuring
the accused all the safeguards of a fair trial.” Farese v. United States, 428 F.2d
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178, 179 (5th Cir. 1970). This theory “goes to the fundamental integrity of all that
is embraced in the constitutional concept of trial by jury.” United States v. Rowe,
906 F.2d 654, 656 (11th Cir. 1990) (internal quotation marks omitted). Jurors
“have no right to investigate or acquire information relating to the case outside of
that which is presented to them in the course of the trial in accordance with
established trial procedure.” Farese, 428 F.2d at 179. Nevertheless, “due process
does not require a new trial every time a juror has been placed in a potentially
compromising situation.” Rowe, 906 F.2d at 656 (internal quotation marks
omitted). A new trial is required if the jury’s consideration of extrinsic evidence
resulted in a reasonable possibility of prejudice to the defendant. Id.
An apparent conflict exists among our prior decisions regarding whether
prejudice is presumed when a juror receives extrinsic information about the case.
We have so far declined to resolve the conflict because it has had no bearing on the
result in later cases, and as discussed below, we need not do so in the present case.
See Ronda, 455 F.3d at 1299 n.36.
We addressed a trial court’s duty to investigate juror misconduct in United
States v. Cousins, 842 F.2d 1245 (11th Cir. 1988), stating that:
[W]hen a defendant makes a “colorable showing” that jurors have
been exposed to extrinsic influences, the district court, in the exercise
of its discretion, must make sufficient inquiries or conduct a hearing
to determine whether the influence was prejudicial. However, there is
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no per se rule requiring an inquiry in every instance. The duty to
investigate arises only when the party alleging misconduct makes an
adequate showing of extrinsic influence to overcome the presumption
of jury impartiality. In other words, there must be something more
than mere speculation.
Id. at 1247. If a defendant establishes prejudice, the burden shifts to the
government to establish that the consideration of extrinsic evidence was harmless.
See Ronda, 455 F.3d at 1299. To determine whether the government has met its
burden, we consider the totality of the circumstances, including “(1) the nature of
the extrinsic evidence; (2) the manner in which the information reached the jury;
(3) the factual findings in the district court and the manner of the court’s inquiry
into the juror issues; and (4) the strength of the government’s case.” Id. at
1299–1300.
Jacques complains about a juror who allegedly drove past the motel where
the offense took place. Under the totality of the circumstances, including the
limited nature of the extrinsic evidence, the way in which it reached the juror, and
the strength of the government’s case, we conclude that any exposure to extrinsic
evidence by the juror was harmless. Therefore, the district court did not abuse its
discretion in denying Jacques’s motion for new trial.
5. Prior Convictions
We review properly preserved constitutional claims de novo, but reverse
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only for harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005)
(per curiam). A district court does not err by relying on prior convictions to
enhance a defendant’s sentence. United States v. Shelton, 400 F.3d 1325, 1329
(11th Cir. 2005). In Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct.
1219, 140 L. Ed. 350 (1998), the Supreme Court held that a district court may
consider prior convictions and use them to enhance a defendant’s sentence even if
those convictions were not alleged in the indictment or proved beyond a reasonable
doubt. Id. at 244–46, 118 S. Ct. at 1231–32. Subsequent Supreme Court
decisions, namely Apprendi,1 Blakely,2 and Booker,3 have not disturbed that
holding. Shelton, 400 F.3d at 1329. Accordingly, we must follow
Almendarez-Torres.
The government made an adequate showing of the necessary convictions for
the sentence enhancement under 21 U.S.C. § 841. Thus, the district court did not
violate Jacques’s Fifth and Sixth Amendment rights when it enhanced his sentence
based on his prior convictions.
CONCLUSION
Based on our review of the record and the parties’ briefs, we affirm
1
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
2
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
3
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
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Jacques’s conviction and sentence as to the sufficiency of the evidence, the
admission of out-of-court statements concerning the background of the
investigation, the refusal to give Jacques’s requested jury instruction, the denial of
Jacques’s motion for new trial, and the use of prior convictions to enhance
Jacques’s sentence.
AFFIRMED.
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