United States v. Troy Cannon , 149 F. App'x 937 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-13009 September 19, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 02-20130-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TROY CANNON,
a.k.a. Uncle Troy,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 19, 2005)
Before BIRCH, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Troy Cannon appeals his conviction and life sentence for conspiracy to
possess with intent to deliver five kilograms or more of cocaine, in violation of 21
U.S.C. §§ 846 and 841(b)(1)(A)(ii).
On appeal, Cannon first argues that he is entitled to a new trial as a result of
the court reporter’s failure to transcribe audio excerpts played for the jury during
his trial. Next, Cannon contends that the district court erred by admitting
prejudicial testimony from officers and Cannon’s co-conspirators; lay opinion
testimony regarding code words used in intercepted conversations; and wiretap
evidence. Finally, Cannon claims that the district court erred under United States
v. Booker, 543 U.S. at ___, 125 S. Ct. 738 (2005), in sentencing Cannon to life
imprisonment.
A jury found Cannon guilty of conspiring to possess with intent to deliver
five kilograms or more of cocaine pursuant to 21 U.S.C. § 846 and 21 U.S.C. §
841(b)(1)(A)(ii). According to the presentence investigation report, after various
enhancements, Cannon had a total offense level of 38 and a criminal history
category of VI. This resulted in a guideline imprisonment range of 360 months to
life imprisonment. The government sought a mandatory life imprisonment
enhancement under 21 U.S.C. § 841(b) based on Cannon’s prior felony drug-
related convictions. The district court sentenced Cannon to life imprisonment, the
statutory minimum. Finding no error, we affirm Cannon’s conviction and life
sentence.
I.
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Cannon first argues that he should be granted a new trial because the district
court failed to record his entire trial proceedings and that the unrecorded portions
of the trial, intercepted calls played during his trial, were of great importance.
Cannon contends that these omissions were substantial and significant, and that
because the court reporter did not comply with the Court Reporter Act, 28 U.S.C.
§ 753(b), a new trial is warranted.
Section 753(b) of the Court Reporter Act requires that a reporter “record[]
verbatim by shorthand [or] by mechanical means . . . (1) all proceedings in
criminal cases had in open court . . . .” 28 U.S.C. § 753(b). “A criminal defendant
has a right to a record on appeal which includes a complete transcript of the
proceedings at trial.” United States v. Cashwell, 950 F.2d 699, 703 (11th Cir.
1992). Further, “if a new attorney represents the appellant on appeal, a new trial is
necessary if there is a substantial and significant omission from the trial
transcript.” United States v. Charles, 313 F.3d 1278, 1283 (11th Cir. 2002).
Thus, we review Cannon’s claim of entitlement to a new trial for whether there are
“substantial or significant” omissions from the record. United States v. Preciado-
Cordobas, 981 F.2d 1206, 1212 (11th Cir. 1993).
In determining whether omissions from the record meet the “substantial and
significant” requirement, we examine the extent of the missing portions of the
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transcripts as they relate to the remaining portions of the trial as well as the
likelihood that appealable error occurred during the omitted portions of the trial.
Id. at 1213-14. We have previously held that there can be no substantial and
significant omissions from a record if, taken as a whole, the record affords
effective appellate review. Cashwell, 950 F.2d at 704.
We find that, although the court reporter failed to comply with the Court
Reporter Act, Cannon has not illustrated that the record omissions are substantial
and significant. Thus Cannon is not entitled to a new trial. Cannon and the
government both played recordings during the trial, none of which were
transcribed by the court reporter. However, the audio and transcripts that the
government used at trial were provided to us in the supplemental record. Since we
have held that such evidence is an adequate alternative to a verbatim transcript, the
omissions of which Cannon complains cannot be said to be substantial. See
Charles, 313 F.3d at 1283.1 Thus, we find that Cannon has not successfully
shown that the record omissions were substantial or significant. The record,
including the supplements by the government, affords effective appellate review.
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The recordings played by Cannon remain missing from the record. However, other trial
testimony reveals that Cannon was not a speaker in these excerpts, nor was he mentioned in
them. Further, Cannon has not established in what way these omissions are significant and
substantial. Additionally, there is no real likelihood that any appealable error occurred in the
portions of this evidence, as it was evidence offered by Cannon.
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See Cashwell, 950 F.2d at 703. Accordingly, we deny Cannon’s request for a new
trial.
II.
Cannon next argues that his trial was replete with evidentiary errors.
Cannon claims the district court erred: by allowing lay opinion testimony by the
case agents on the meaning of intercepted conversation; by allowing an unfair
picture to be painted of him; and by allowing wiretap evidence.
We review a district court’s evidentiary rulings for a clear abuse of
discretion, and will reverse only if the district court committed clear error or
applied the wrong legal standard. United States v. Drury, 396 F.3d 1303, 1315
(11th Cir. 2005), cert. petition filed, No. 04-1438 (U.S. Apr. 15, 2005). We have
held that “[e]videntiary errors do not constitute grounds for reversal unless there is
a reasonable likelihood that they affected the defendant’s substantial rights.” Id.(internal quotations omitted). Further, reversal is not warranted “where an error
had no substantial influence on the outcome [of the case],” and the outcome is
supported by “sufficient evidence uninfected by error.” Id.When a defendant does not object to the district court’s evidentiary rulings
below, we review for plain error. United States v. Williford, 764 F.2d 1493, 1502
(11th Cir. 1985). We may not correct an error that the defendant failed to raise in
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district court unless there is (1) error (2) that is plain and (3) that affects
substantial rights and (4) seriously affects the fairness, integrity, or public
reputation of judicial proceedings. United States v. Rodriguez, 398 F.3d 1291,
1298 (11th Cir. 2005), cert denied, 125 S. Ct. 2935 (2005).
A. Prejudicial Testimony
Cannon asserts that the district court erred in admitting prejudicial
testimony of the officers that arrested Cannon as well as Cannon’s co-conspirators.
Cannon objected to this evidence at trial, so we review for abuse of discretion.
Drury, 396 F.3d at 1315.
“Federal Rule of Evidence 403 dictates that evidence should be excluded if
its probative value is substantially outweighed by the danger of unfair prejudice.”
United States v. Wright, 392 F.3d 1269, 1276 (11th Cir. 2004), cert denied, 125 S.
Ct. 1751 (2005). “Rule 403, however, is an extraordinary remedy . . . which
should be used sparingly since it permits the trial court to exclude concededly
probative evidence.” Id. (internal quotations omitted).
We conclude that the district court did not abuse its discretion in admitting
the testimony of the arresting officers as well as that of Cannon’s co-conspirators.
The evidence at issue was important in establishing the background and
experiences of the officers and was necessary in establishing the story of the
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conspiracy. The prejudicial effect of this testimony was slight and was
substantially outweighed by its probative value.
Additionally, the district court did not abuse its discretion by allowing
evidence of Cannon’s prior drug dealings. Evidence of past wrongdoing is
inadmissible to prove a person’s character in an effort to show conformity
therewith. Fed. R. Evid. 404(b). Further, evidence is not extrinsic under 404(b) if
it is inextricably intertwined with evidence regarding the charged offense. Wright,
392 F.3d at 1276. Morever, evidence that is not related to the crime charged but is
a part of the same chain of events and helps to explain the context of the crime at
issue is properly admitted. Id. However, such evidence must be “linked in time
and circumstances with the charged crime, or forms an integral and natural part of
an account of the crime to complete the story of the crime from the jury.” Id.(internal quotations omitted).
Here, the district court did not improperly admit the testimony of Cannon’s
co-conspirators. This evidence was admitted because the information was integral
in completing the story of the conspiracy. See id. The testimony established the
manner in which Cannon came to join the conspiracy and described the operations
of the conspiracy. The information gleaned from this testimony provided the
setting of the conspiracy and completed the story for the jury. We conclude that
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the testimony was properly admitted as it was inextricably intertwined with
evidence of the conspiracy. See id.B. Lay Opinion Testimony
Cannon next contends that the district court improperly permitted agents to
testify regarding the code words used for drugs and quantities because the
testimony constituted expert testimony without a proper foundation.
Cannon did not raise this objection below, so we review only for plain error.
Williford, 764 F.2d at 1502. We have long held that the nature of the law
enforcement testimony presented in this case is admissible. See United States v.
Novaton, 271 F.3d 968, 1008 (11th Cir. 2001). Further, our precedent establishes
that officers can testify as lay witnesses “based upon their particularized
knowledge garnered from years of experience within the field.” Tampa Bay
Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d 1213, 1223 (11th Cir.
2003). Thus, we conclude that the district court did not plainly err in allowing the
officers to testify regarding various code words for drugs and quantities based on
their field of expertise.
C. Wiretap Evidence
The final evidentiary argument raised by Cannon is that the district court
erred by admitting unreasonable wiretap evidence. Cannon claims that the
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government had not exhausted other investigatory tools prior to seeking wiretap
authorizations, and therefore, that the wiretap was unreasonable. This objection
was raised below, so we review for an abuse of discretion. Drury, 396 F.3d at
1315.
To establish the necessity for a wiretap, “a full and complete statement as to
whether or not other investigative procedures have been tried and failed or why
they reasonably appear to be unlikely to succeed if tried . . . .” must be provided.
18 U.S.C. § 2518(1)(c). The affidavit for the application or interception of a wire
communication “must simply explain the retroactive or prospective failure of
several investigative techniques . . . .” United States v. Van Horn, 789 F.2d 1492,
1496 (11th Cir. 1986).
After reviewing the record, we find that the district court did not abuse its
discretion in admitting the wiretap evidence. The affidavit presented was
sufficient in that it established: various detailed investigative tools and techniques
used during the course of the investigation; explained why previously tried
techniques were unsuccessful; and detailed techniques other than the use of a
wiretap that had not been used because they were either unlikely to succeed or too
dangerous to implement. Since the affidavit in this case sufficiently and
adequately illustrated the necessity of the wiretap, Cannon’s argument that the
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wiretap was unreasonable fails. Accordingly, the district court did not abuse its
discretion in admitting the wiretap evidence.
III.
Finally, Cannon argues that his life prison term must be reversed under
United States v. Booker, 543 U.S. at ___, 125 S. Ct. 738 (2005). Cannon contends
that the district court plainly erred in sentencing him to life imprisonment under a
mandatory guidelines scheme. Specifically, Cannon disputes the district court’s
use of his prior convictions in determining the mandatory minimum life sentence
pursuant to § 841(b). However, after reviewing the record and the parties’ briefs,
we conclude that there is no Booker error because the district court sentenced
Cannon to the mandatory minimum term as provided by statute. Section
841(b)(1)(A) provides the applicable penalty for possession with intent to
distribute five kilograms or more of a mixture or substance containing cocaine,
and indicates that a person committing this offense “after two or more prior
convictions for a felony drug offense have become final, . . . shall be sentenced to
a mandatory term of life imprisonment . . . .” 21 U.S.C. § 841(b)(1)(A).
Cannon did not raise his Booker claims below, therefore we review only for
plain error. United States v. Shelton, 400 F.3d 1325, 1328-29 (11th Cir. 2005).
We have stated that there are two types of Booker error: (1) Sixth Amendment, or
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constitutional, error based upon sentencing enhancements, imposed under a
mandatory Guidelines system, neither admitted by the defendant nor submitted to
a jury and proven beyond a reasonable doubt; and (2) statutory error based upon
sentencing under a mandatory Guidelines system. Shelton, 400 F.3d at 1329-30.
A. Constitutional Booker Error
In Booker, the Supreme Court extended it holding in Blakely v. Washington,
542 U.S. 296, 124 S. Ct. 2531 (2004) to the Federal Sentencing Guidelines. The
Supreme Court “left undisturbed its holding in [Almendarez-Torres v. United
States, 523 U.S. 224, 227, 118 S. Ct. 1219, 1233 (1998)], that recidivism is not a
separate element of an offense that the government is required to prove beyond a
reasonable doubt.” United States v. Orduno-Mireles, 405 F.3d 960, 962 (11th Cir.
2005) (emphasis in original). Moreover, the Court reaffirmed Apprendi’s holding
that “[a]ny fact (other than a prior conviction), which is necessary to support a
sentence exceeding the maximum authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.” Id. (emphasis in original).
Cannon contends that the district court plainly erred in sentencing him
because it “rigidly followed the guidelines in violation of the Sixth Amendment . .
. .” However, in applying plain error review, we find that Cannon has failed to
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show any error, much less, plain error, on the part of the district court. Cannon’s
sentence was not enhanced based on facts found by the district court or the
sentencing guidelines, but his sentence was mandated by statute in light of facts
found by the jury in addition to his prior criminal convictions. First, the jury
found that Cannon’s offense involved at least five kilograms of cocaine. Second,
although Cannon did not admit his prior convictions, the district court did not
violate the Sixth Amendment by using these prior convictions in sentencing
Cannon pursuant to § 841(b)(1)(A). So long as Almendarez-Torres remains good
law, prior convictions do not have to be proven beyond a reasonable doubt. Id. at
962. Given Cannon’s criminal history as well as the jury’s finding that his offense
involved at least five kilograms of cocaine, § 841(b)(1)(A) provides a mandatory
minimum sentence of life imprisonment. Thus, the district court did not plainly
err because it properly applied the sentence mandated by § 841(b)(1)(A).
B. Statutory Booker Error
Even in the absence of constitutional Booker error, the district court
commits statutory Booker error where it imposes a sentence under a mandatory
guidelines system. Shelton, 400 F.3d at 1331.
Here, the district court plainly erred in sentencing Cannon under the
mandatory guidelines scheme. However, Cannon has failed to demonstrate that
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the district court’s error affected his substantial rights. Because Cannon was
sentenced to the mandatory minimum as provided by statute, there is no
“reasonable probability of a different result if the guidelines had been applied in
an advisory instead of binding fashion by the sentencing judge in this case.”
Rodriguez, 398 F.3d at 1301. Thus, Cannon has failed to fulfill his burden under
the plain error test. Accordingly, Cannon’s Booker challenges, both constitutional
and statutory, fail.
For the foregoing reasons, we deny Cannon’s request for a new trial and
affirm Cannon’s conviction and sentence.
DENIED in part, AFFIRMED in part.
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