United States v. Christopher M. Dees , 131 F. App'x 170 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-15107
April 29, 2005
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00127-CR-3-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER M. DEES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(April 29, 2005)
Before HULL, WILSON and FAY, Circuit Judges.
PER CURIAM:
Christopher M. Dees appeals his jury conviction and sentence for conspiracy
to possess with intent to distribute 5 or more kilograms of cocaine and 50 or more
grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii)-(iii),
and 846. He argues that (1) the evidence was insufficient to support the jury’s
verdict; (2) the district court erred by admitting evidence of his prior drug
convictions under Fed.R.Evid. 404(b); and (3) the district court erred by failing to
rule on and delete a two-level firearm enhancement when calculating his sentence.
Dees also purports to adopt all arguments, points, and authorities cited by other
appellants on “common issues,” including any plain errors, while failing to state in
any detail what those arguments might be. For the reasons stated more fully
below, we affirm Dees’s conviction and sentence.
Dees was indicted, along with eight co-conspirators, on one count of
conspiracy to possess with intent to distribute five or more kilograms of cocaine
and 50 or more grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A)(ii), (iii), 846. Dees proceeded to trial where a jury convicted him for the
offense as charged in the indictment.
Prior to trial, the government filed two notices of enhancement pursuant to
21 U.S.C. § 851, indicating that Dees would be subject to an enhanced penalty
under 21 U.S.C. §§ 841(b)(1)(A)(ii)-(iii) because Dees’s criminal record included
2
two Florida state convictions for possession of a controlled substance, both of
which were felonies under Florida law. The government also filed a notice of its
intent to introduce at trial, pursuant to Fed.R.Evid. 404(b), the circumstances
surrounding three of Dees’s previous arrests, two of which led to the convictions
outlined in the government’s notice of penalty enhancement.
Dees, after the jury had been empaneled, but before trial had begun, objected
to the government’s use of 404(b) evidence, arguing that the use of such evidence
was inappropriate and prejudicial unless Dees took the stand and testified that he
had never heard of cocaine and did not know what it was. The government
responded that the use of 404(b) evidence helped prove intent and identification,
regardless of whether Dees testified, and that it intended to reserve using the
evidence of Dees’s prior drug-related arrests until other evidence had been
presented to connect the arrests to the facts of the case. The court reserved ruling
on the issue until trial.
At trial, the government relied principally on the testimony of convicted co-
conspirators. First, it called Jafari Williams, serving a 250-month sentence for
conspiracy to distribute cocaine and crack cocaine. In addition, Williams had
several other state felony convictions on his record. Williams’s testimony
established that he (1) knew Dees since childhood; (2) began dealing cocaine in
3
2001; (3) first received cocaine from Dees in the latter part of 2002, and continued
to receive cocaine from him in quantities of 14 to 18 ounces, at a price of $14,000
for 18 ounces; (4) met with Dees regularly in the Warrington Village Apartments
in Pensacola; (5) personally saw Dees engaged in selling and pushing cocaine and
crack cocaine, and even shared customers with Dees; (6) occasionally would
supply Dees’s customers and Dees would supply Williams’s customers if either
one ran out of cocaine; (7) rode in automobiles with Dees while Dees was selling
cocaine and supplied Dees with cocaine; (8) witnessed Dees “cook” cocaine
powder into cocaine base; (9) taught Dees how to “cut” his cocaine with baking
soda in order to sell more; (10) shared a motel room with Dees, and had been in
Dees’s house when Dees would package his cocaine for distribution; and (11) saw
Dees with more than one kilogram of cocaine at least nine times.
Williams admitted that he lied to the police about a hotel room key found in
his pocket at the time of his arrest, and went on to testify that the largest purchase
that he and Dees discussed making together was a 30-kilogram buy for $150,000,
which was never consummated. Instead, Dees sold Williams three kilograms of
cocaine for $66,000. Furthermore, both Williams and Dees paid another co-
conspirator, Joseph Grimsley, to “cook” the cocaine into cocaine base because
Grimsley was an “expert.” Williams was also able to identify bags that Dees used
4
to wrap and package his cocaine. Williams further testified that Dees, on several
occasions, left powder cocaine for Williams to sell on his behalf. Ultimately,
Williams testified that, over the course of the conspiracy, Dees sold him about 12
kilograms of cocaine, some of which was seized at the time Williams was arrested.
Dees conducted a thorough cross-examination of Williams, pointing out to
the jury that Williams’s statements to law enforcement regarding his drug dealings
came only after he faced a life sentence, and Williams admitted that his testimony
was offered in order to reduce his sentence. Dees further insinuated that Williams
might have had a “falling out” with him, providing a motive for incriminating
Dees.
The government also called Earl Hudgins, who was arrested the same day as
Williams, and who is serving a 250-month sentence for federal drug charges.
Hudgins testified that he bought crack cocaine from Dees and Williams and
eventually purchased powder cocaine from Dees in order to “cook” it himself and
make a better profit upon resale. He further testified that he only bought powder
cocaine from Dees when Williams had run out, but that he probably bought a total
of 60 cookies of cocaine base directly from Dees. Hudgins also indicated that the
most cocaine powder he ever saw Dees handle was three kilograms involved in a
sale to Williams. Like Williams, Hudgins also used Grimsley as his “cook,” and
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testified that he saw Dees at Grimsley’s house, and that Dees was there to “cook”
cocaine.
As he did with Williams, Dees cross-examined Hudgins thoroughly,
exposing his criminal record, pointing out possible inconsistencies in testimony,
implying that Hudgins’s testimony was offered solely to avoid a sentence of life
imprisonment, and averring that there may have been a “falling out” between
Hudgins and Dees, which Hudgins denied.
To further prove its case, the government called eight more of Dees’s co-
conspirators, all of whom had been convicted of the same charge as the one facing
Dees, and all of whom had either received or were awaiting sentencing. Each co-
conspirator testified that he either bought or sold cocaine or cocaine base from
Dees, and each co-conspirator was subject to the same type of cross-examination
as were Williams and Hudgins, i.e, each had a criminal record, a drug conviction,
and the possibility of a reduced sentence or a reduced sentence for testifying.
Therefore, the backbone of the government’s case against Dees was formed
through the testimony of Dees’s convicted co-conspirators.
Mid-trial, the government again indicated to the court that it wished to
present 404(b) evidence. It argued that the introduction of the evidence, showing
two incidents where Dees was found in possession of cocaine base and packaging
6
suitable for distribution, would help prove intent and negate any mistake. Dees
argued that the evidence was being offered to prove Dees’s propensity, not intent,
and that the government had already proffered the testimony of ten witnesses,
giving it a strong case and making the introduction of the prior acts highly
prejudicial and unnecessary. He reiterated his earlier argument that Dees would
have to specifically refute any connection to, or knowledge of, cocaine before the
government’s evidence would be admissible. The court again reserved ruling, and
eventually found that the 404(b) evidence would “be permitted for the purpose of
determining state of mind or intent and whether [Dees] acted in accordance with a
plan and not by mistake, and I’ll so inform the jury.”
Dees then stipulated to two prior felony convictions for possession of
cocaine base, one on March 2, 1999, the other on July 31, 2000. The jury was
informed that it could not consider the prior convictions when determining whether
Dees committed the crimes with which he was presently charged.
After both sides had closed their cases, Dees moved for a judgment of
acquittal, arguing that, if the government’s evidence proved a conspiracy, it proved
that the conspiracy was for the government’s witnesses to receive lesser sentences
by implicating Dees instead of some unknown third person in the conspiracy. He
argued that the government’s witnesses had a clear motive to get out of their
7
sentences, had the opportunity to speak with one another about the case, and were
continuing to protect someone at the expense of Dees. The court denied Dees’s
motion, finding that it was the jury’s duty to determine the credibility of the
witnesses, and the evidence needed to be viewed in a light most favorable to the
government.
In its instructions to the jury, the court stated that the jury could believe or
disbelieve any witness, suggesting to the jury that it consider, among other things,
whether there was any evidence to suggest a witness testified falsely, whether the
witness had been convicted of a felony, and it specifically instructed the jury that
witnesses seeking to gain favorable treatment by testifying or by plea bargaining
might have reasons to make a false statement, and, therefore, their testimony
should be viewed with more caution. The jury was further instructed that, to prove
Dees conspired, the government had to show (1) two or more persons in some way
or manner, came to a mutual understanding to try and accomplish a common and
unlawful plan as charged in the indictment, and (2) that the defendant, knowing the
unlawful purpose of the plan, wilfully joined it. The jury found Dees guilty as
charged.
A pre-sentence investigation report (“PSI”) calculated Dees’s base offense
level at 38, pursuant to U.S.S.G. § 2D1.1(c)(1), based on a drug quantity
8
calculation of well in excess of 30,000 kilograms of marijuana. A two-level
enhancement was added pursuant to U.S.S.G. § 2D1.1(b)(1) based on the
possession of a weapon by two of Dees’s co-conspirators, which the PSI found to
be reasonably foreseeable given the large sums of cash and cocaine involved. No
other enhancements or reductions were made, giving Dees a total offense level of
40. Dees had eight criminal history points, placing him at criminal history
category IV, providing for a guidelines range of 360 months’ imprisonment to life.
However, because Dees was subject to two prior felony drug convictions, he faced
a minimum mandatory term of life imprisonment pursuant to 21 U.S.C.
§§ 841(b)(1)(A)(ii)-(iii).
Dees filed several objections to the PSI, the only one relevant to his present
appeal being a challenge to the two-level enhancement for use of a firearm during
the conspiracy. At the sentencing hearing, however, the district court asked Dees if
any of his objections, including his objection to the firearm enhancement, were not
trumped by the statutorily enhanced sentence. Dees replied that his objections
were indeed mooted by the statutory enhancement, and sought only to preserve
those objections made to the PSI for the purposes of appeal. Thus, the district
court heard no argument regarding Dees’s objections, nor did it make any rulings
as to the findings of the PSI, proceeding directly to whether the government had
9
met is burden of proof regarding the statutory enhancement.
Dees neither confirmed nor denied that he had two prior felony drug
convictions, and the government put witnesses on the stand, ultimately linking the
convictions of record to Dees through his fingerprints. Based on Dees’s two prior
felony drug convictions, and his federal conviction in the instant case under 21
U.S.C. §§ 841(a)(1), 846, the district court sentenced Dees, as it was required, to
life imprisonment.
I. Sufficiency of the Evidence
On appeal, Dees first argues that there was insufficient proof to convict him
for conspiracy to possess with intent to distribute cocaine and cocaine base because
the only evidence presented by the government linking Dees to a conspiracy was
the tenuous testimony of co-conspirators. He argues that there was no direct
evidence incriminating him, and that the witnesses who testified against him spoke
about the case amongst themselves and had motives to provide false statements in
return for reduced sentences. Because no independent evidence corroborated the
testimony of the witnesses, and because there was no discrepancy in the overall
testimony of each witness, their testimony was likely fabricated, and Dees argues
that the evidence was insufficient to convict him. Thus, he argues that his motion
for judgment of acquittal should have been granted.
10
We review de novo whether the evidence was sufficient to support a
conviction. United States v. Majors, 196 F.3d 1206, 1210 (11th Cir. 1999)
(citation omitted). “In reviewing the sufficiency of the evidence to support the jury
verdict, we view the evidence in the light most favorable to the government . . . all
reasonable inferences and credibility choices are made in the government's favor.”
Id. “Accepting all reasonable inferences from the evidence which support the
verdict, we will affirm the convictions if a reasonable fact-finder could have
reached a conclusion of guilt beyond a reasonable doubt.” Id.Moreover, we review de novo the denial of a motion for judgment of
acquittal, and the denial will be upheld if a reasonable fact-finder could conclude
that the evidence established the defendant's guilt beyond a reasonable doubt,
drawing all inferences in favor of the government. See United States v. Hansen,
262 F.3d 1217, 1236 (11th Cir. 2001).
“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.” United States v. McDowell, 250 F.3d 1354,
1365 (11th Cir. 2001). “It is not necessary to prove a defendant's participation in a
criminal conspiracy by direct evidence.” Id. “Instead, a common purpose and plan
11
may be inferred from a development and collocation of circumstances.” Id.(quotation and citation omitted). “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.At trial, Jafari Williams testified that he (1) knew Dees since childhood; (2)
began dealing cocaine in 2001; (3) first received cocaine from Dees in the latter
part of 2002, and continued to receive cocaine from him in quantities of 14 to 18
ounces, at a price of $14,000 for 18 ounces; (4) personally saw Dees engaged in
selling and pushing cocaine and crack cocaine, and even shared customers with
Dees; (5) occasionally would supply Dees’s customers and Dees would supply
Williams’s customers if either one ran out of cocaine; (6) rode in automobiles with
Dees while Dees was selling cocaine and supplied Dees with cocaine; (7)
witnessed Dees “cook” cocaine powder into cocaine base; (8) taught Dees how to
“cut” his cocaine with baking soda in order to sell more; (9) shared a motel room
with Dees, and had been in Dees’s house when Dees would package his cocaine for
distribution; and (10) saw Dees with more than one kilogram of cocaine at least
nine times.
Williams further testified that the largest purchase that he and Dees
12
discussed making together was a 30-kilogram buy for $150,000, which was never
consummated. Instead, Dees sold Williams three kilograms of cocaine for
$66,000. Furthermore, both Williams and Dees paid another co-conspirator,
Joseph Grimsley, to “cook” the cocaine into cocaine base because Grimsley was an
“expert.” Williams was also able to identify bags that Dees used to wrap and
package his cocaine. Williams further testified that Dees, on several occasions, left
powder cocaine for Williams to sell on his behalf. Ultimately, Williams testified
that, over the course of the conspiracy, Dees sold him about 12 kilograms of
cocaine, some of which was seized at the time Williams was arrested.
The government also called Earl Hudgins, who was arrested the same day as
Williams, and who is serving a 250-month sentence for federal drug charges.
Hudgins testified that he bought crack cocaine from Dees and Williams and
eventually purchased powder cocaine from Dees in order to “cook” it himself and
make a better profit upon resale. He further testified that he only bought powder
cocaine from Dees when Williams had run out, but that he probably bought a total
of 60 cookies of cocaine base directly from Dees. Hudgins also indicated that the
most cocaine powder he ever saw Dees handle was three kilograms involved in a
sale to Williams. Like Williams, Hudgins also used Grimsley as his “cook,” and
testified that he saw Dees at Grimsley’s house, and that Dees was there to “cook”
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cocaine.
As to both Williams and Hudgins, Dees conducted vigorous cross-
examination, exposing their criminal records, pointing out possible inconsistencies
in testimony, implying that their testimony was offered solely to avoid a sentence
of life imprisonment, and averring that there may have been a “falling out”
between Hudgins, Williams, and Dees, which the parties denied. Similar
testimony regarding buying and selling cocaine and cocaine base and similar
cross-examination was elicited from no less than eight other co-conspirators and
government witnesses.
While Dees attacks the credibility and truthfulness of the government’s
witnesses, attributing to them high motives to lie, “[c]redibility determinations are
the exclusive province of the jury.” United States v. Calderon, 127 F.3d 1314,
1325 (11th Cir. 1997). Indeed, as we have held, “judgment of acquittal . . . is not
required because the government's case includes testimony by an array of
scoundrels, liars and brigands.” United States v. Hewitt, 663 F.2d 1381, 1385
(11th Cir. 1981). “The jury [is] free to disbelieve the . . . government witnesses
whose faults were exhaustively catalogued by the attorneys . . . . Furthermore, the
trial judge fully instructed the jury on the degree of suspicion they should entertain
when considering the testimony. . . .” Id. (citations omitted).
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As in Hewitt, by bringing back a verdict of guilty, the jury found the
government’s witnesses credible. Id. at 1385. Moreover, the court at Dees’s trial
specifically instructed the jury that it was free to disbelieve witnesses, and that it
should take with caution the testimony of those who were testifying in hope of
sentence reductions. (See R1-150 unnumbered). Instead, the jury believed the
testimony establishing that Dees bought cocaine, “cooked” cocaine base, sold
cocaine powder and cocaine base to others, shared customers with several different
drug dealers, learned how to “cut” his cocaine from another co-conspirator
(Williams), and consummated sales as high as three kilograms of cocaine for
$66,000, and as many as 60 cookies of cocaine base to one buyer alone. We
conclude that this was sufficient evidence for a reasonable juror to conclude,
beyond a reasonable doubt, that Dees was a participant in a conspiracy to possess
with intent to distribute cocaine and cocaine base, as charged in the indictment.
Therefore, we conclude that the district court did not err by denying Dees’s motion
for judgment of acquittal, and the evidence, taken in a light most favorable to the
government, was sufficient to support Dees’s conviction.
II. Admission of 404(b) Prior Convictions
Dees next argues that the district court abused its discretion by admitting
into evidence two separate state felony convictions for possession of controlled
15
substances, both of which were outside the time scope of the charged conspiracy.
He argues that the evidence was highly prejudicial and offered only to paint him as
a drug user, not for motive, intent, or any other permissible purpose.
We review the district court’s rulings on admission of evidence for an abuse
of discretion. United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000).
“The abuse of discretion standard has been described as allowing a range of choice
for the district court, so long as that choice does not constitute a clear error of
judgment.” United States v. Kelly, 888 F.2d 732, 745 (11th Cir. 1989).
Rule 404(b) provides that evidence of “other crimes, wrongs, or acts, is not
admissible to prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” Fed.R.Evid. 404(b). Thus, extrinsic evidence of uncharged,
criminal activities generally is considered inadmissible for proving that the
defendant acted the same way in the charged offense, but is admissible if used for
another purpose, such as to establish intent. Fed.R.Evid. 404(b). Even then, “[t]o
be admissible, 404(b) evidence must (1) be relevant to one of the enumerated
issues and not to the defendant’s character; (2) the prior act must be proved
sufficiently to permit a jury determination that the defendant committed the act;
16
and (3) the evidence’s probative value cannot be substantially outweighed by its
undue prejudice, and the evidence must satisfy Rule 403.”1 United States v.
Chavez, 204 F.3d 1305, 1317 (11th Cir. 2000).
“‘Evidence of prior drug dealings is highly probative of intent to distribute a
controlled substance . . . .’” United States v. Cardenas, 895 F.2d 1338, 1344 (11th
Cir. 1990) (quoting United States v. Hitsman, 604 F.2d 443, 448 (5th Cir. 1979)).
This is true even if the prior offense involved a different type of drug than the drug
in the charged offense. See United States v. Calderon, 127 F.3d 1314, 1331 (11th
Cir. 1997) (holding a prior conviction for trafficking large quantities of marijuana
relevant to the question of intent in charge of cocaine importation and distribution).
Here, it was not an abuse of discretion to permit the 404(b) evidence at trial.
As to the first prong of the Chavez test, Dees pled not guilty, placing intent directly
at issue. Under Calderon, a plea of not guilty in a drug conspiracy case alone
arguably satisfies the government’s 404(b) relevancy requirement. Calderon, 127
F.3d at 1332. Under the second prong (sufficient proof), Dees stipulated to the
record convictions and the underlying arrests and reports; therefore, the acts were
sufficiently proven. The jury, thus, was able to determine that the defendant
3
“Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
Fed.R.Evid. 403.
17
committed the prior acts. See Huddleston v. United States, 485 U.S. 681, 689, 108
S.Ct. 1496, 1501, 99 L.Ed.2d 771 (1988).
Finally, as to the question of prejudice, this Court has held that “a not guilty
plea in a drug conspiracy case, such as we have here, makes intent a material issue
and opens the door to admission of prior drug-related offenses as highly probative,
and not overly prejudicial, evidence of a defendant’s intent.” Calderon, 127 F.3d
at 1332. Furthermore, where, as Dees argues here, the credibility of the
government’s witnesses is suspect, the need for 404(b) evidence is heightened. Id.Additionally, as the government argues, any prejudicial effect to Dees was
mitigated by the district court’s instruction to the jury regarding the limited
purpose and use of the 404(b) evidence.
Therefore, we conclude that the district court did not abuse its discretion by
admitting into evidence Dees’s prior arrests and convictions for possession of
controlled substances.
III. Dees’s Two-Level Firearm Enhancement
Lastly, Dees argues that the district court erred by not ruling on and
removing a two-level enhancement for possession of a firearm by a co-conspirator
used to calculate his guidelines sentence, U.S.S.G. § 2D1.1(b)(1). Dees concedes
that the court thought the issue was trumped by the statutorily enhanced mandatory
18
life sentence, but argues that because Dees was not present during the possession
of the firearm, and could not have reasonably foreseen its possession, this Court
should remand for resentencing because the mention of firearms affects, inter alia,
the determination of Dees’s incarceration facility.
Pursuant to U.S.S.G. § 2D1.1(b)(1), a defendant’s sentence is enhanced two
levels if a dangerous weapon, including a firearm, is possessed. U.S.S.G.
§ 2D1.1(b)(1). “The adjustment should be applied if the weapon was present,
unless it is clearly improbable that the weapon was connected with the offense.”
Id., (comment., n.3.).
We will assume, without deciding, that the district court should have heard
argument from the parties concerning the application of § 2D1.1(b)(1) to Dees’s
sentence because any error in failing to make specific findings regarding or
erroneously applying that section had no impact whatsoever on the sentence
imposed. “[O]nce the court of appeals has decided that the district court
misapplied the Guidelines, remand is appropriate unless the reviewing court
concludes, on the record as a whole, that the error was harmless, [i.e.], that the
error did not affect the district court’s selection of the sentence imposed. Williams
v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 1120-21, 117 L.Ed.2d 341(1992).
19
Here, the court was required, under 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii)-
(iii), to impose a life sentence because Dees had two prior felony drug convictions.
See 21 U.S.C. § 841(b)(1)(A)(ii)-(iii) (“[i]f any person commits a violation of this
subparagraph . . . after two or more prior convictions for a felony drug offense
have become final, such person shall be sentenced to a mandatory term of life
imprisonment without release.). Therefore, regardless of whether Dees should or
should not have been subject to a weapon enhancement under the guidelines was
irrelevant, as his sentence would have been life imprisonment either way.
Therefore, we conclude that any error committed by the district court in failing to
rule on the enhancement or ruling in favor of applying the enhancement was
harmless.2
IV. Dees’s Adopted Arguments
2
Dees argues in brief that resentencing is required because the mention of firearms has
greater ramifications than just the two-level enhancement, i.e., that it is a factor in the
determination of the incarceration facility. Dees offers no authority or citation for this novel
proposition, and in any event, he did not argue this to the district court, and any review would be
subject to plain error analysis. Under plain error review, Dees would have to demonstrate that
the district court committed an error, obvious or plain under current law, that violated his
substantial rights. See United States v. Cotton, 535 U.S. 625, 631. 122 S.Ct. 1781, 1785, 152
L.Ed.2d 860 (2002). However, Dees cannot make such a showing because “inmates usually
possess no constitutional right to be housed at one prison over another.” Barfield v. Brierton,
883 F.2d 923, 936 (11th Cir. 1989). Moreover, there is no precedent even suggesting that the
district court was required to resolve the firearm-enhancement question where a mandatory term
of life imprisonment was required, even if the facility of incarceration may have been altered.
Finally, it is the Bureau of Prisons, acting at the direction of the United States Attorney General,
not the Judiciary, that controls the placement of persons convicted of crimes against the United
States. See 18 U.S.C. § 4042(a).
20
In his brief, Dees states that he adopts “all arguments, points, and authorities
cited by other appellants on the common issues they share including any plain
errors which occurred.” Dees does not, however, indicate which appellants (or,
indeed, that there are any others), nor does he direct us to which issues, if any, may
be shared in common with his codefendants.
A party seeking to adopt the arguments set forth in the brief of a codefendant
pursuant to F.R.A.P Rule 28 is required, at the very least, to include “a statement
describing in detail which briefs and which portions of those briefs are
adopted.” F.R.A.P. 11th Cir. 28-1(f) (emphasis supplied). Dees’s statement of
adoption fails to state in any detail which briefs and which portions he seeks to
adopt, and thus, fails to comply with our procedural rules.
Upon our own, independent review, it appears that the only brief of an
appellant related to Dees is that of Robert Pettway, who submitted a brief in his
appeal of United States v. Pettway, No. 04-14658-AA. We have, on occasion,
allowed a party to adopt an argument of a co-appellant, despite a failure to
technically conform with the appellate rules of adoption, where it would be
anomalous to reverse some convictions on an error (raised in the argument to be
adopted) that affected all of the defendants involved. See, e.g., United States v.
Gray, 626 F.2d 494, 497 (5th Cir. 1980). We, however, have reviewed the
21
arguments raised in Pettway’s brief, along with the record on appeal, and conclude
that the arguments adopted by Dees from Pettway’s brief lack merit as to Dees.
Therefore, we decline to further address any potentially adopted arguments from
Dees’s perspective in this opinion.
In sum, we conclude that (1) the evidence was sufficient for a reasonable
juror to convict Dees; (2) the district court did not abuse its discretion by admitting
the government’s 404(b) evidence; and (3) any error committed by failing to
address Dees’s two-level enhancement under the guidelines was harmless because
it did not and would not have affected his sentence. We, therefore, affirm Dees’s
conviction and sentence.
AFFIRMED.
22