United States v. Oliver Devaun O'Sullivan , 361 F. App'x 993 ( 2010 )


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  •                                                         [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________           FILED
    U.S. COURT OF APPEALS
    No. 08-16410         ELEVENTH CIRCUIT
    JANUARY 22, 2010
    Non-Argument Calendar
    JOHN LEY
    ________________________
    ACTING CLERK
    D. C. Docket No. 06-00033-CR-FTM-33-SPC
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    OLIVER DEVAUN O'SULLIVAN,
    a.k.a. Devin Smith,
    a.k.a. Devin Sullivan,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    _________________________
    (January 22, 2010)
    Before CARNES, MARCUS and ANDERSON, Circuit Judges.
    PER CURIAM:
    Oliver Devaun O’Sullivan appeals his conviction and 70-month sentence for
    possession, and aiding and abetting possession, of between 100 and 1,000
    kilograms of marijuana, with intent to distribute, in violation of 
    21 U.S.C. §§ 841
    (a), (b)(1)(B)(vii). O’Sullivan was found guilty after a jury trial and now
    challenges (1) the sufficiency of the evidence to support the conviction, (2) the jury
    instruction that included a deliberate ignorance charge, (3) the admission of alleged
    hearsay evidence, (4) the admission of evidence about a conspiracy, even though
    he was acquitted of the conspiracy charge in an earlier trial, (5) the denial of a
    minor role adjustment to his sentence, and (6) the denial of safety valve relief.
    After careful review, we affirm.
    I.
    O’Sullivan contends that the evidence was insufficient to support a
    conviction for knowing and willful possession and aiding and abetting possession
    with the intent to distribute the marijuana. Specifically, he asserts that he never
    saw or was told that his rental truck was being loaded with marijuana or that
    anything illegal was occurring. He argues that he customarily rents trucks “off the
    books,” that he was evasive after arrest only because his driver’s license had been
    suspended, and that his telephone calls with others involved in the crime were
    solely to get directions to the storage facility.
    2
    “We review the sufficiency of evidence to support a conviction de novo,
    viewing the evidence in the light most favorable to the government and drawing all
    reasonable inferences and credibility choices in favor of the jury’s verdict.” United
    States v. Taylor, 
    480 F.3d 1025
    , 1026 (11th Cir. 2007). “We will uphold a district
    court’s denial of a motion for a judgment of acquittal if a reasonable trier of fact
    could conclude the evidence established the defendant’s guilt beyond a reasonable
    doubt.” 
    Id.
    To convict someone for possession with intent to distribute marijuana, the
    government must prove beyond a reasonable doubt that the defendant knowingly
    possessed the marijuana, either actually or constructively, and that he intended to
    distribute it. United States v. Cruz-Valdez, 
    773 F.2d 1541
    , 1544 (11th Cir. 1985);
    
    21 U.S.C. § 841
    (a)(1). Under an aiding and abetting theory, the government must
    show that: (1) the substantive offense was committed by someone; (2) that the
    defendant committed an act which contributed to and furthered this offense, and
    (3) that the defendant intended to aid the commission of the offense. See United
    States v. Arias-Izquierdo, 
    449 F.3d 1168
    , 1176 (11th Cir. 2006). Mere presence is
    insufficient to convict a defendant under an aiding an abetting theory. United
    States v. Diaz-Boyzo, 
    432 F.3d 1264
    , 1269 (11th Cir. 2005). However, essential
    evidence of aiding and abetting a crime can be proved by circumstantial as well as
    3
    direct evidence. United States v. Smith, 
    700 F.2d 627
    , 632–33 (11th Cir. 1983).
    Because O’Sullivan does not dispute that he was in possession of the rental
    truck, which contained more than 100 kilograms of marijuana, his argument is
    limited to whether sufficient evidence established that he was a knowing or willful
    participant in the crime. Viewing the evidence in the light most favorable to the
    government, Taylor, 
    480 F.3d at 1026
    , there is ample evidence, direct and
    circumstantial, in support of a conviction for aiding and abetting possession with
    the intent to distribute marijuana. First, O’Sullivan arrived at the designated
    location with a truck that he rented “under the table,” backed up the truck to the
    correct storage unit, and handed Agent Paul Mangone a lock. Second, the jury
    reasonably could have believed that the other participants would not have entrusted
    O’Sullivan with the sole possession of $800,000 worth of marijuana without his
    knowledge. See United States v. Quilca-Carpio, 
    118 F.3d 719
    , 721–22 (11th Cir.
    1997) (“A reasonable jury could infer from the quantity of drugs seized that a
    ‘prudent smuggler’ is not likely to entrust such valuable cargo to an innocent
    person without that person's knowledge.”). Third, O’Sullivan’s post-arrest conduct
    of concealment and evasiveness, including his giving a false name and swallowing
    a piece of paper, shows that he knew of his guilt.
    O’Sullivan offers alternative explanations for his conduct, but the evidence
    4
    need not “exclude every reasonable hypothesis of innocence” as long as “a
    reasonable trier of fact could find that the evidence established guilt beyond a
    reasonable doubt.” United States v. McDowell, 
    250 F.3d 1354
    , 1365 (11th Cir.
    2001). A jury reasonably could infer from all of that evidence that O’Sullivan was
    a willful and knowing participant in the crime. Sufficient evidence established that
    O’Sullivan aided and abetted possession with intent to distribute marijuana
    because he intentionally provided a delivery service to those who were committing
    the substantive offense. See Arias-Izquierdo, 
    449 F.3d at 1176
    .
    II.
    O’Sullivan contends that the government’s deliberate ignorance argument
    and the court’s corresponding jury instruction impermissibly lowered the burden of
    proof to a negligence standard. He asserts that the instruction should not have been
    given because no evidence showed that he purposefully avoided learning that he
    was transporting marijuana.
    As we have held before, “We need not decide whether the evidence justified
    the deliberate ignorance instruction, because our decision in United States v. Stone,
    
    9 F.3d 934
     (11th Cir. 1993), says that it does not matter.” United States v.
    Kennard, 
    472 F.3d 851
    , 858 (11th Cir. 2006). It does not matter because the error
    of giving a deliberate ignorance instruction with no basis in the evidence will
    5
    always be harmless. Id.; Stone, 
    9 F.3d at
    937–38. We reject O’Sullivan’s
    argument that the instruction effectively allowed the jury to convict him for
    negligence. The instruction specifically cautioned the jury that it could not do so,
    that more than negligence was required.
    III.
    O’Sullivan contends that the district court abused its discretion by admitting
    into evidence certain statements by Valdoria Riddick, another participant in the
    marijuana distribution scheme, because they were inadmissible hearsay, and their
    admission violated the Confrontation Clause. Specifically, O’Sullivan challenges a
    recording from February 17, 2006 of Riddick asking Agent Paul Mangone the
    question, “Can I tell my buddy and get him to come?” and Agent Mangone’s
    testimony that Riddick stated that his “buddy” had arrived at the location for the
    marijuana transfer. O’Sullivan argues that these out-of-court statements refer to
    him and that their admission into evidence deprived him of his right to confront
    Riddick, in violation of the Sixth Amendment.1
    We review a district court’s evidentiary rulings only for abuse of discretion.
    1
    O’Sullivan also argues that admission of the evidence of Riddick’s statements
    constitutes Bruton error. See United States v. Bruton, 
    391 U.S. 123
    , 
    88 S. Ct. 1620
     (1968). In a
    joint trial, the admission of a codefendant’s extrajudicial confession that implicates the accused
    violates the accused’s right to cross-examination under the Confrontation Clause. 
    Id. at 126
    , 
    88 S.Ct. at 1622
    . However, O’Sullivan’s Bruton argument is misplaced because Riddick was not
    O’Sullivan’s codefendant in a joint trial. See Cargill v. Turpin, 
    120 F.3d 1366
    , 1374 n.16 (11th
    Cir. 1997) (distinguishing Bruton on those grounds).
    6
    United States v. Perez-Oliveros, 
    479 F.3d 779
    , 783 (11th Cir. 2007). However, we
    review de novo questions of constitutional law. United States v. Brown, 
    364 F.3d 1266
    , 1268 (11th Cir. 2004).
    The statements were not hearsay because they merely gave context to Agent
    Paul Mangone’s investigatory actions and were not offered to prove the truth of the
    matter asserted. See, e.g., Cargill v. Turpin, 
    120 F.3d 1366
    , 1373 (11th Cir. 1997)
    (statements not offered for their truth cannot be hearsay). The district court
    specifically instructed the jury that the statements were being offered only to help
    the jury understand the logical sequence of events. That instruction limited any
    prejudicial impact, and we presume that the jury followed it. Stone, 
    9 F.3d at 940
    .
    Further, “this Circuit has long recognized that statements by out of court witnesses
    to law enforcement officials may be admitted as non-hearsay if they are relevant to
    explain the course of the officials’ subsequent investigative actions and the
    probative value of the evidence’s non-hearsay purpose is not substantially
    outweighed by the danger of unfair prejudice caused by the impermissible hearsay
    use of the statement.” United States v. Jiminez, 
    564 F.3d 1280
    , 1288 (11th Cir.
    2009) (quotation marks, alteration, and citation omitted). Despite O’Sullivan
    arguments to the contrary, Agent Paul Mangone’s actions over the course of the
    entire day were “investigative” under Jiminez, because they were all part of his
    7
    undercover investigation leading to the arrest of O’Sullivan and the other
    participants. The district court was within its discretion to conclude that the
    evidence was admissible.
    Because the statements were not inadmissable hearsay, their introduction at
    trial did not violate O’Sullivan’s rights under the Confrontation Clause. “There
    can be no doubt that the Confrontation Clause prohibits only statements that
    constitute impermissible hearsay.” Jiminez, 
    564 F.3d at
    1288 (citing Crawford v.
    Washington, 
    541 U.S. 36
    , 59 n.9, 
    124 S. Ct. 1354
    , 1369 n.9 (2004)).
    IV.
    O’Sullivan contends that the district court abused its discretion by admitting
    evidence at trial of a conspiracy from which he had been acquitted, because such
    evidence was irrelevant and its prejudicial impact outweighed its probative value.
    We review evidentiary rulings only for abuse of discretion. United States v. Baker,
    
    432 F.3d 1189
    , 1202 (11th Cir. 2005). “Even if an abuse of discretion is shown,
    nonconstitutional evidentiary errors are not grounds for reversal absent a
    reasonable likelihood that the defendant’s substantial rights were affected.” United
    States v. Malol, 
    476 F.3d 1283
    , 1291 (11th Cir. 2007) (quotation marks and
    citation omitted).
    Federal Rule of Evidence 403 permits the exclusion of evidence if the
    8
    probative value of that evidence “is substantially outweighed by the danger of
    unfair prejudice.” Because it “permits a trial court to exclude concededly
    probative evidence, Rule 403 is an extraordinary remedy which should be used
    sparingly.” United States v. King, 
    713 F.2d 627
    , 631 (11th Cir. 1983). In a
    criminal trial relevant evidence is inherently prejudicial; therefore, Rule 403 only
    permits the exclusion of probative evidence when “unfair prejudice substantially
    outweighs probative value.” 
    Id.
    Although the trial evidence regarding a conspiracy not involving O’Sullivan
    was prejudicial, it was also probative because it was necessary to complete the
    story of the crime and give the jury a context for understanding O’Sullivan’s
    charged offense. Limiting the evidence to what happened on February 17, 2006
    would have left the jury to speculate why 800 pounds of marijuana were being
    transported in an isolated occurrence and how the investigation got to the point of
    the arrests made that day. The district court’s determination that the prejudicial
    impact of the evidence at issue did not substantially outweigh its probative value
    was not an abuse of discretion. See 
    id.
    V.
    O’Sullivan contends that, because he was “merely a transporter” of the
    marijuana, the district court erred by not granting him a minor role adjustment
    9
    pursuant to § 3B1.2(b) of the Sentencing Guidelines. A minor participant is any
    participant “who is less culpable than most other participants, but whose role could
    not be described as minimal.” U.S.S.G. § 3B1.2(b), comment. (n.5). We review a
    district court’s minor role determination only for clear error. United States v. De
    Varon, 
    175 F.3d 930
    , 937 (11th Cir. 1999) (en banc). O’Sullivan bears the burden
    of proving his minor role by the preponderance of the evidence. 
    Id. at 939
    .
    In De Varon, we outlined two principles that guide the determination of
    whether a minor role sentence reduction is warranted. De Varon, 
    175 F.3d at
    940–44. First, the district court should evaluate the defendant’s role in the relevant
    conduct for which he has been held accountable at sentencing. 
    Id. at 940
    . Second,
    the district court may compare the defendant’s culpability to that of other
    participants in the relevant conduct. 
    Id. at 944
    . The conduct of participants in any
    larger criminal conspiracy for which the defendant is not charged is irrelevant to
    that analysis. 
    Id.
     The pertinent issue is whether the defendant was substantially
    less culpable than his co-conspirators. United States v. Cacho, 
    951 F.2d 308
    ,
    309–10 (11th Cir. 1992). When considering the transportation of drugs, the
    amount of drugs in a courier’s possession is a material factor in assessing the
    courier’s level of participation. De Varon, 
    175 F.3d at 943
    .
    The record demonstrates that the district court did not commit clear error.
    10
    O’Sullivan might have been entitled to a minor role reduction if he had been
    convicted of participating in the larger drug smuggling conspiracy, but he was
    acquitted of that charge. The district court correctly limited its inquiry to
    O’Sullivan’s role in the possession and distribution of the 800 pounds of marijuana
    he possessed on February 17, 2006—the only crime he was held responsible for at
    sentencing. See 
    id. at 944
    . O’Sullivan was not a minor participant in that offense.
    He was active in communication with Riddick’s driver through phone calls on the
    day of the arrest, present when the drugs were being loaded into the truck, and was
    to bear the responsibility of sole possession of the marijuana during its transport.
    That active role, as well as the large drug amount involved, support the district
    court’s finding that he was not a minor participant. See 
    id. at 943
    .
    VI.
    Finally, O’Sullivan contends that the district court clearly erred by not
    granting him safety-valve relief. The safety-valve provision of U.S.S.G. §
    5C1.2(a) enables sentencing without regard to the statutory minimum for certain
    offenses if five requirements are met. See United States v. Milkintas, 
    470 F.3d 1339
    , 1344 (11th Cir. 2006). The burden is on the defendant to show that he meets
    all the criteria. United States v. Johnson, 
    375 F.3d 1300
    , 1302 (11th Cir. 2004).
    The fifth requirement, and the only one at issue here, is that the defendant “has
    11
    truthfully provided to the Government all information and evidence the defendant
    has concerning the offense or offenses that were part of the same course of conduct
    or of a common scheme or plan.” 
    18 U.S.C. § 3553
    (f)(5); U.S.S.G. § 5C1.2(a)(5).
    A district court cannot apply the safety valve if it determines the defendant
    “withheld or misrepresented information.” United States v. Figueroa, 
    199 F.3d 1281
    , 1282–83 (11th Cir. 2000).
    We review the district court’s factual determinations and subsequent denial
    of safety-valve relief only for clear error. United States v. Cruz, 
    106 F.3d 1553
    ,
    1557 (11th Cir. 1997). We cannot find clear error unless the record leaves us “with
    the definite and firm conviction that a mistake has been committed.” United States
    v. White, 
    335 F.3d 1314
    , 1319 (11th Cir. 2003).
    O’Sullivan argues that a defendant may qualify for safety-valve relief and
    maintain his innocence at the same time. We need not decide that issue because
    the district court did not clearly err in finding that O’Sullivan failed to qualify for
    relief. Agent Kathryn Mangone testified that when O’Sullivan met with her, he
    gave information inconsistent with the investigation, such as naming someone
    named “Mikey” as arranging the delivery and claiming that “Patrick” was a
    fictional person. She testified at sentencing that she did not believe that O’Sullivan
    was truthful during their meeting, and the district court was entitled to find Agent
    12
    Kathryn Mangone more credible than O’Sullivan. The district court did not clearly
    err by denying O’Sullivan safety valve relief. See Milkintas, 
    470 F.3d at 45
    .
    Upon review of the record and consideration of the parties’ briefs, we affirm
    the district court’s decision in all respects.
    AFFIRMED.
    13