United States v. Quartavious Davis ( 2014 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12928
________________________
D.C. Docket No. 1:10-cr-20896-JAL-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
QUARTAVIOUS DAVIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 11, 2014)
Before MARTIN, DUBINA, and SENTELLE,* Circuit Judges.
____________
*Honorable David Bryan Sentelle, United States Circuit Judge for the District of
Columbia, sitting by designation.
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SENTELLE, Circuit Judge:
Appellant Quartavius Davis 1 was convicted by a jury on several counts of
Hobbs Act robbery, 18 U.S.C. § 1951(b)(1), (3), conspiracy, 18 U.S.C. § 1951(a),
and knowing possession of a firearm in furtherance of a crime of violence, 18
U.S.C. §§ 924(c)(1)(A)(ii) and 2. The district court entered judgment on the
verdict, sentencing Davis to consecutive terms of imprisonment totaling 1,941
months. Davis appeals, assigning several grounds for reversal. His principal
argument is that the court admitted location evidence based on stored cell site
information obtained by the prosecution without a warrant, in violation of his
Fourth Amendment rights. He assigns other grounds of error going to
prosecutorial misconduct, evidentiary sufficiency, and sentencing. For the reasons
set forth below, we hold that there is no reversible error, although we do find merit
in one argument that the sentence was improperly enhanced. We therefore affirm
the judgment below in large part, but vacate a sentencing enhancement regarding
“brandishing” a firearm.
BACKGROUND
On February 18, 2011, a grand jury for the Southern District of Florida
returned a seventeen-count indictment against Davis and five co-defendants. Davis
was named as a defendant in sixteen of the seventeen counts. Generally, the
1
The Presentence Investigation Report notes that “Quartavius” is the correct spelling of
appellant’s first name, despite the spelling in the caption. PSR at 5.
2
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indictment charged violations of the Anti-Racketeering Act, 18 U.S.C. § 1951(Hobbs Act), and conspiracy to violate the Hobbs Act. More specifically, the
indictment charged Davis with conspiracy to engage in Hobbs Act robbery, in
violation of 18 U.S.C. § 1951(a) (Counts 1, 15); Hobbs Act robbery, in violation of
18 U.S.C. §§ 1951(a) and 2 (Counts 2, 4, 6, 8, 10, 13, 16); and with knowingly
using, carrying, and possessing a firearm in furtherance of a crime of violence, in
violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Counts 3, 5, 7, 9, 11, 14, 17).
As part of the pretrial proceedings, Davis moved to suppress electronic
location evidence that the government had obtained “without a warrant,” claiming
that the obtaining of that evidence violated his Fourth Amendment rights. The
district court denied the motion. Davis renewed the motion during trial, and the
district court again denied it. These rulings give rise to Davis’s principal claim on
appeal, which we will discuss further below. The prosecution proceeded to offer
evidence of two conspiracies to commit Hobbs Act robbery and that Davis was
part of each conspiracy. The prosecution further presented evidence that the
conspirators committed such robberies.
During the trial, one member of each conspiracy testified for the United
States. Willie Smith (“Smith”) testified as to the first conspiracy, encompassing
six robberies at commercial establishments including a Little Caesar’s restaurant,
an Amerika Gas Station, a Walgreens drug store, an Advance Auto Parts store, a
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Universal Beauty Salon, and a Wendy’s restaurant. Michael Martin (“Martin”)
testified as to the second conspiracy, encompassing the robbery of a Mayor’s
Jewelry store. Smith and Martin testified that Davis was involved in each robbery,
where they wore masks, carried guns, and took items such as cigarettes and cash.
Additionally, an eyewitness, Edwin Negron, testified regarding Davis’s
conduct at Universal Beauty Salon and the adjacent Tae Kwon Do studio. He
testified that Davis pointed a gun at his head, pushed a 77 year-old woman and
Negron’s wife to the ground, and took several items from Negron and others.
Another eyewitness, Antonio Brooks, testified that he confronted Davis and his
accomplices outside the Wendy’s restaurant after that robbery and tried to write
down the license plate of their getaway car. Brooks testified that Davis fired his
gun at him, and that he returned fire towards the car.
Beyond the testimony, the government produced additional evidence.
Surveillance videos showed a man matching Davis’s description participating in
the robberies at Walgreens, Advance Auto Parts, Wendy’s, and Mayor’s Jewelry.
Smith and Martin identified Davis on the videos. DNA shown to be Davis’s was
recovered from the getaway car used to flee the scene of the Universal Beauty
Salon robbery and the Mayor’s Jewelry store robbery.
The prosecution also offered records obtained from cell phone service
providers evidencing that Davis and his co-defendants had placed and received cell
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phone calls in close proximity to the locations of each of the charged robberies
around the time that the robberies were committed, except for the Mayor’s Jewelry
store robbery. Davis preserved his objection to the cell phone location evidence
and his claim that the government’s obtaining such evidence without a warrant
issued upon a showing of probable cause violated his rights under the Fourth
Amendment.
The court submitted all counts to the jury. During jury arguments, the
prosecutor made several questionable statements, including some apparently
vouching for the credibility of the government’s witnesses. Upon objections by the
defense, the court instructed the jury to disregard the statements by the
prosecution. The jury returned a verdict of guilty on all counts.
Subsequently, the district court sentenced Davis on all counts, and
conducted a careful sentencing analysis on the record. Of particular note to the
issues in this appeal, in the sentence on Count 3, which charged the use and
carrying of a firearm during and in relation to a crime of violence, the court
imposed a seven-year statutory mandatory enhancement pursuant to 18 U.S.C.
§ 924(c)(1)(A)(ii), which provides for such enhancement where “the firearm is
brandished . . . .” On Counts 5, 7, 9, 11, 14, and 17, which also charged the
defendant with using and carrying a firearm during and in relation to a crime of
violence, the court imposed a “second or subsequent” enhancement required by 18
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U.S.C. § 924(c)(1)(C)(i), as each of these offenses was subsequent to the similar
violation charged in Count 3. Noting that 18 U.S.C. § 924(c)(1)(D)(ii) requires
consecutive sentences, the court imposed a total term of imprisonment of 1,941
months, approximately 162 years.
Davis raises several allegations of error on appeal. First, he argues that the
district court’s denial of his motion to suppress the cell site location information
and the admission of that evidence violated his constitutional rights under the
Fourth Amendment. Second, he argues that the prosecutor’s misconduct during
closing argument rendered his trial unfair, entitling him to a new trial. Third, he
raises sentencing arguments, contending that the district court’s applications of the
mandatory penalty for second or subsequent offenses and for brandishing a firearm
on Count 3 were in violation of his Sixth Amendment rights, and that the 162-year
sentence of imprisonment constituted a cruel and unusual punishment in violation
of his Eighth Amendment rights. Further, he raises an issue as to the sufficiency of
evidence on the aiding and abetting the use of a firearm charge in connection with
a crime of violence in Count 17. Finally, he makes a broad challenge that “the
cumulative effect and prejudice arising from multiple trial errors compels
reversal.” We consider each of the listed arguments in turn.
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I. Fourth Amendment Issue
Davis’s Fourth Amendment argument raises issues of first impression in this
circuit, and not definitively decided elsewhere in the country. The evidence at
issue consists of records obtained from cell phone service providers pursuant to the
Stored Communications Act (“SCA”), 18 U.S.C. §§ 2703(c) and (d). Under that
Act, the government can obtain from providers of electronic communication
service records of subscriber services when the government has obtained either a
warrant, § 2703(c)(A), or, as occurred in this case, a court order under subsection
(d), see § 2703(c)(B). The order under subsection (d) does not require the
government to show probable cause.
The evidence obtained under the order and presented against Davis in the
district court consisted of so-called “cell site location information.” That location
information includes a record of calls made by the providers’ customer, in this case
Davis, and reveals which cell tower carried the call to or from the customer. The
cell tower in use will normally be the cell tower closest to the customer. The cell
site location information will also reflect the direction of the user from the tower.
It is therefore possible to extrapolate the location of the cell phone user at the time
and date reflected in the call record. All parties agree that the location of the user
will not be determined with pinpoint precision, but the information is sufficiently
specific that the prosecutor expressly relied on it in summing up to the jury in
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arguing the strength of the government’s case for Davis’s presence at the crime
scenes. Indeed, it is not overstatement to say that the prosecutor stressed that
evidence and the fact that the information reflected Davis’s use of cell phone
towers proximate to six of the seven crime scenes at or about the time of the Hobbs
Act robberies.
Davis objected to the admission of the location information in the district
court and now argues to us that the obtaining of that evidence violated his
constitutional rights under the Fourth Amendment. That Amendment, of course,
provides that “no Warrants shall issue, but upon probable cause, supported by Oath
or Affirmation . . . .” U.S. CONST. AMEND. IV. It is a “basic principle of Fourth
Amendment law” that searches and seizures without a warrant “are presumptively
unreasonable.” See, e.g., Groh v. Ramirez, 540 U.S. 551, 559 (2004). The SCA
does provide for governmental entities requiring records from communication
service providers by warrant under subsection (c)(A). However, as noted above,
the prosecution obtained the evidence against Davis, not by warrant under
subsection (c)(A), but by order under subsection (d). As further noted above, that
section does not require probable cause, but only a showing “that there are
reasonable grounds to believe that the . . . records or other information sought, are
relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d)
(emphasis added). Davis contends that the obtaining of the evidence required a
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warrant upon probable cause. The government argues that the evidence is not
covered by the Fourth Amendment and was properly obtained under a court order.
As we suggested above, the question whether cell site location information
is protected by the Fourth Amendment guarantees against warrantless searches has
never been determined by this court or the Supreme Court. Two circuits have
considered the question, but not in the context of the use of the evidence in a
criminal proceeding. Also, one of those opinions issued before the Supreme
Court’s decision in United States v. Jones, ___ U.S. ___ , 132 S. Ct. 945 (2012),
the most relevant Supreme Court precedent.
The Third Circuit in In re Application of U.S. for an Order Directing a
Provider of Elec. Commc’n. Serv. to Disclose Records to Gov’t, 620 F.3d 304,
317–18 (3d Cir. 2010), heard the government’s appeal from an order of a
magistrate judge declining to direct a service provider to furnish information by
order under subsection (d) and requiring instead that the government pursue a
warrant upon probable cause under subsection (c)(A). Briefly put, that circuit did
vacate the magistrate judge’s denial, but opined that the magistrate judge in
appropriate circumstances might “require a warrant showing probable cause . . . .”
Id. at 319.
The Fifth Circuit, in In re Application of U.S. for Historical Cell Site Data,
724 F.3d 600, 612 (5th Cir. 2013), reviewed an application in a similar posture. In
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the Fifth Circuit case, the district court had denied orders for which the
government had applied under subsection (d). The Fifth Circuit clearly held that
compelling production of the records on the statutory “reasonable grounds” basis is
not “per se unconstitutional.” Id. at 602. We will not review at this point the
reasoning of either of our sibling circuits, given that the context of the cases is
different, and one of those circuits opined before issuance of Jones, the most
instructive Supreme Court decision in the field.
While Jones is distinguishable from the case before us, it concerned location
information obtained by a technology sufficiently similar to that furnished in the
cell site location information to make it clearly relevant to our analysis. The
present case, like Jones, brings to the fore the existence of two distinct views of the
interests protected by the Fourth Amendment’s prohibition of unreasonable
searches and seizures. The older of the two theories is the view that the Fourth
Amendment protects the property rights of the people. This view is sometimes
referred to as the “trespass” theory and “our Fourth Amendment jurisprudence was
tied to common-law trespass, at least until the latter half of the 20th century.”
Jones, 132 S. Ct. at 949 (collecting authorities). However, in the twentieth
century, a second view gradually developed: that is, that the Fourth Amendment
guarantee protects the privacy rights of the people without respect to whether the
alleged “search” constituted a trespass against property rights.
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The privacy theory began to emerge at least as early as Olmstead v. United
States, 277 U.S. 438 (1928). In Olmstead, the government had obtained
conversations of the defendants by warrantless wiretap. Because the wires that
were tapped were outside the premises of the defendants, the majority of the court,
relying on the trespass theory, held that the tapping did not constitute a search
within the meaning of the Fourth Amendment. Justice Brandeis, in dissent,
expressly viewed the provision against unlawful searches as protecting against
“invasion of ‘the sanctities of a man’s home and the privacies of life.’” Id. at 473(Brandeis, J., dissenting) (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)
(emphasis added)). Despite Justice Brandeis’s criticism, the trespass theory
continued to hold sway.
In Goldman v. United States, 316 U.S. 129 (1942), the petitioners
complained against the government’s electronically overhearing conversations in
petitioners’ offices by the warrantless placement of a listening device on an
exterior wall. Because the Court, in what might be described as an esoteric
discussion of the placement of the device, concluded that the interception of
petitioners’ conversation was not aided by trespass, there was no Fourth
Amendment violation. However, the privacy theory again advanced in dissent.
Chief Justice Stone and Justice Frankfurter, in a two-sentence separate opinion,
simply stated their agreement with the dissent in Olmstead, and lamented the
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unwillingness of the majority to overrule that case. Justice Murphy dissented
separately, expressly referencing the “right of personal privacy guaranteed by the
Fourth Amendment.” Id. at 136 (Murphy, J., dissenting).
The minutiae involved in the application of the trespass theory to the world
of electronic information stood out sharply in Silverman v. United States, 365 U.S.
505 (1961). In Silverman, police officers testified to the contents of conversations
upon which they eavesdropped. The Supreme Court noted the argument of the
defendants that the rationale of Olmstead should be reexamined, but concluded that
such a reexamination was unnecessary given that the conversations were overheard
by means of a “spike mike” driven into the wall of the defendant’s premises and
making contact with a heat duct therein so as to use the entire heating system as a
listening device. Because that penetration constituted a trespass, the Court did not
deem it necessary to reconsider its earlier rationale.
Finally, in Katz v. United States, 389 U.S. 347 (1967), the majority of the
Supreme Court accepted and relied upon the privacy theory to hold interception of
a conversation unconstitutional even in the absence of a physical trespass. In
Katz—on facts somewhat reminiscent of Goldman—the Court considered evidence
obtained by FBI agents through a device attached to the exterior of a telephone
booth but not penetrating the wall. As the government argued that there was no
Fourth Amendment violation because there was no trespass, the Court squarely
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considered the dichotomy between the property and privacy protection theories.
The Court held that such a warrantless interception did violate privacy interests
protected by the Fourth Amendment. Indeed, it did so construing language from
Silverman as already establishing “that the Fourth Amendment governs not only
the seizure of tangible items, but extends as well to the recording of oral statements
overheard without any ‘technical trespass under . . . local property law.’” Id. at
353 (quoting Silverman, at 511). Only one justice dissented in Katz and it became
indisputable in 1967 that the privacy protection theory was indeed viable.
Therefore, it cannot be denied that the Fourth Amendment protection against
unreasonable searches and seizures shields the people from the warrantless
interception of electronic data or sound waves carrying communications. The next
step of analysis, then, is to inquire whether that protection covers not only content,
but also the transmission itself when it reveals information about the personal
source of the transmission, specifically his location. The Supreme Court in Jones
dealt with such an electronic seizure by the government and reached a conclusion
instructive to us in the present controversy.
The Jones case involved not cell site location data, but the somewhat
similar location data generated by a Global-Positioning-System (GPS) tracking
device attached to the automobile of a suspected drug dealer by law enforcement
agents. Although the agents originally attached the device and gathered the
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information transmitted by it under the authority of a warrant, that warrant
authorized installation in the District of Columbia for a period of ten days. The
agents installed the device on the eleventh day outside the District of Columbia.
The government then tracked the vehicle’s movements for twenty-eight days. The
prosecution offered the resulting record of the defendant’s movements and
whereabouts over that period of time in evidence against him in his trial for drug
trafficking conspiracy.
The trial court in Jones suppressed the location evidence generated by the
device on Jones’s vehicle while it was parked in his own premises, but admitted
the data reflecting its movements on the streets and highways in the belief that
Jones would have no reasonable expectation of privacy when the vehicle was on
public streets. See United States v. Jones, 451 F. Supp. 2d 71, 87–89 (D.D.C.
2006). On conviction, Jones and a codefendant, Maynard, appealed. The Court of
Appeals for the District of Columbia Circuit reviewed the Fourth Amendment
issue and noted that the prosecution had employed the GPS device to track Jones’s
“movements continuously for a month.” United States v. Maynard, 615 F.3d 544,
549 (D.C. Cir. 2010). The court considered the government’s argument that each
of Jones’s movements over the month was exposed to the public, and that
therefore, he had no reasonable expectation of privacy in them. The court rejected
this argument, noting that “the whole of one’s movements over the course of a
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month . . . reveals far more than the individual movements that it comprises. The
difference is not one of degree but of kind, for no single journey reveals the habits
and patterns that mark the distinction between a day in the life and a way of life,
nor the departure from a routine that . . . may reveal even more.” Id. at 561–62.
By way of example, the court noted that “[r]epeated visits to a church, a
gym, a bar, or a bookie tell a story not told by a single visit . . . .” Id. at 562. The
court noted further that “the sequence of a person’s movements can reveal still
more; a single trip to a gynecologist’s office tells little about a woman, but that trip
followed a few weeks later by a visit to a baby supply store tells a different story.”
Id.The court recalled the “mosaic theory” often relied upon by the government
“in cases involving national security information.” Id. As the Supreme Court has
observed in that context, “what may seem trivial to the uninformed, may appear of
great moment to one who has a broad view of the scene and may put the
questioned item of information in its proper context.” CIA v. Simms, 471 U.S. 159,
170 (1985) (internal quotation marks and citations omitted). The circuit reasoned
that although each element of Jones’s movements throughout the month might
have been exposed to the public, the “aggregation of [those] movements over the
course of a month,” was not so exposed, and his expectation of privacy was
reasonable. Maynard, 615 F.3d at 563. The court reversed Jones’s conviction.
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The United States sought and obtained certiorari. The Supreme Court affirmed.
Like the Court of Appeals, the High Court concluded that the warrantless gathering
of the GPS location information had violated Jones’s Fourth Amendment rights.
While the Jones case does instruct our analysis of the controversy before us,
it does not conclude it. As discussed at length above, Fourth Amendment
jurisprudence has dual underpinnings with respect to the rights protected: the
trespass theory and the privacy theory. In Jones, Justice Scalia delivered the
decision of the Court in an opinion that analyzed the facts on the basis of the
trespass theory. Because the agents had committed a trespass against the effects of
Jones when they placed the GPS device on his car, the opinion of the Court did not
need to decide whether Jones’s reasonable expectation of privacy had been
violated because his rights against trespass certainly had.
As the United States rightly points out, in the controversy before us there
was no GPS device, no placement, and no physical trespass. Therefore, although
Jones clearly removes all doubt as to whether electronically transmitted location
information can be protected by the Fourth Amendment, it is not determinative as
to whether the information in this case is so protected. The answer to that question
is tied up with the emergence of the privacy theory of Fourth Amendment
jurisprudence. While Jones is not controlling, we reiterate that it is instructive.
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In Jones, Justice Scalia’s opinion for the Court speaks on behalf of the
author and three other Justices, Chief Justice Roberts, and Justices Kennedy and
Thomas. It is, however, a true majority opinion, as Justice Sotomayor, who wrote
separately, “join[ed] the majority’s opinion.” Jones, 132 S. Ct. at 957. However,
she did so in a separate concurrence that thoroughly discussed the possible
applicability of the privacy theory to the electronic data search. We note that she
fully joined the majority’s opinion, and was certainly part of the majority that held
that such a search is violative under the trespass theory.
Four other justices concurred in the result in an opinion authored by Justice
Alito, which relied altogether on the privacy theory. Justice Alito wrote, “I would
analyze the question presented in this case by asking whether respondent’s
reasonable expectations of privacy were violated by the long-term monitoring of
the movements of the vehicle he drove.” Id. at 958 (Alito, J., concurring in the
result). Justice Alito and the justices who joined him ultimately concurred in the
result because they did conclude that “the lengthy monitoring that occurred in this
case constituted a search under the Fourth Amendment.” Id. at 964. Justice
Sotomayor, in her separate concurrence, opined that it was not necessary to answer
difficult questions concerning the applicability of the reasonable-expectation-of-
privacy test to the Jones facts “because the government’s physical intrusion on
Jones’ jeep supplies a narrower basis for decision.” Id. at 957 (Sotomayor, J.,
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concurring). Conspicuously, she also noted that “in cases involving even short-
term monitoring, some unique attributes of GPS surveillance relevant to the Katz
analysis will require particular attention.” Id. at 955. She noted that electronic
“monitoring generates a precise, comprehensive record of a person’s public
movements that reflects a wealth of detail about her familial, political,
professional, religious, and sexual associations.” Id. (citing People v. Weaver, 909
N.E. 2d 1195, 1199 (NY 2009).
Even the opinion of the Court authored by Justice Scalia expressly did not
reject the applicability of the privacy test. While chiding the concurrence for
“mak[ing] Katz the exclusive test,” the opinion of the Court expressly noted that
“[s]ituations involving merely the transmission of electronic signals without
trespass would remain subject to [the] Katz [privacy] analysis.” Id. at 953. In light
of the confluence of the three opinions in the Supreme Court’s decision in Jones,
we accept the proposition that the privacy theory is not only alive and well, but
available to govern electronic information of search and seizure in the absence of
trespass.
Having determined that the privacy theory of Fourth Amendment protection
governs this controversy, we conclude that the appellant correctly asserts that the
government’s warrantless gathering of his cell site location information violated
his reasonable expectation of privacy. The government argues that the gathering of
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cell site location information is factually distinguishable from the GPS data at issue
in Jones. We agree that it is distinguishable; however, we believe the distinctions
operate against the government’s case rather than in favor of it.
Jones, as we noted, involved the movements of the defendant’s automobile
on the public streets and highways. Indeed, the district court allowed the
defendant’s motion to suppress information obtained when the automobile was not
in public places. The circuit opinion and the separate opinions in the Supreme
Court concluded that a reasonable expectation of privacy had been established by
the aggregation of the points of data, not by the obtaining of individual points.
Such a mosaic theory is not necessary to establish the invasion of privacy in the
case of cell site location data.
One’s car, when it is not garaged in a private place, is visible to the public,
and it is only the aggregation of many instances of the public seeing it that make it
particularly invasive of privacy to secure GPS evidence of its location. As the
circuit and some justices reasoned, the car owner can reasonably expect that
although his individual movements may be observed, there will not be a “tiny
constable” hiding in his vehicle to maintain a log of his movements. 132 S. Ct. at958 n.3 (Alito, J., concurring). In contrast, even on a person’s first visit to a
gynecologist, a psychiatrist, a bookie, or a priest, one may assume that the visit is
private if it was not conducted in a public way. One’s cell phone, unlike an
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automobile, can accompany its owner anywhere. Thus, the exposure of the cell
site location information can convert what would otherwise be a private event into
a public one. When one’s whereabouts are not public, then one may have a
reasonable expectation of privacy in those whereabouts. Therefore, while it may
be the case that even in light of the Jones opinion, GPS location information on an
automobile would be protected only in the case of aggregated data, even one point
of cell site location data can be within a reasonable expectation of privacy. In that
sense, cell site data is more like communications data than it is like GPS
information. That is, it is private in nature rather than being public data that
warrants privacy protection only when its collection creates a sufficient mosaic to
expose that which would otherwise be private.
The United States further argues that cell site location information is less
protected than GPS data because it is less precise. We are not sure why this should
be significant. We do not doubt that there may be a difference in precision, but
that is not to say that the difference in precision has constitutional significance.
While it is perhaps possible that information could be sufficiently vague as to
escape the zone of reasonable expectation of privacy, that does not appear to be the
case here. The prosecutor at trial stressed how the cell phone use of the defendant
established that he was near each of six crime scenes. While committing a crime is
certainly not within a legitimate expectation of privacy, if the cell site location data
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could place him near those scenes, it could place him near any other scene. There
is a reasonable privacy interest in being near the home of a lover, or a dispensary
of medication, or a place of worship, or a house of ill repute. Again, we do not see
the factual distinction as taking Davis’s location outside his expectation of privacy.
That information obtained by an invasion of privacy may not be entirely precise
does not change the calculus as to whether obtaining it was in fact an invasion of
privacy.
Finally, the government argues that Davis did not have a reasonable
expectation of privacy because he had theretofore surrendered that expectation by
exposing his cell site location to his service provider when he placed the call. The
government correctly notes that “the Fourth Amendment does not prohibit the
obtaining of information revealed to a third party and conveyed by him to
government authorities . . . .” United States v. Miller, 425 U.S. 435, 443 (1976).
In Smith v. Maryland, 442 U.S. 735 (1979), at the request of law enforcement
authorities, a telephone company installed a pen register to record numbers dialed
from the defendant’s telephone. The Smith Court held that telephone users had no
subjective expectation of privacy in dialed telephone numbers contained in
telephone companies’ records. Id. at 742–44. While the government’s position is
not without persuasive force, it does not ultimately prevail.
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The Third Circuit considered this argument in In re Electronic
Communications Service to Disclose, supra. As that circuit noted, the Supreme
Court in Smith reasoned that phone subscribers “assumed the risk that the company
would reveal to police the numbers [they] dialed.” 442 U.S. at 744. See also 620
F.3d at 304. The reasoning in Smith depended on the proposition that “a person
has no legitimate expectation of privacy in information he voluntarily turns over to
third parties,” 442 U.S. at 743–44. The Third Circuit went on to observe that “a
cell phone customer has not ‘voluntarily’ shared his location information with a
cellular provider in any meaningful way.” That circuit further noted that “it is
unlikely that cell phone customers are aware that their cell phone providers collect
and store historical location information.” 620 F.3d at 317 (emphasis added).
Therefore, as the Third Circuit concluded, “when a cell phone user makes a call,
the only information that is voluntarily and knowingly conveyed to the phone
company is the number that is dialed, and there is no indication to the user that
making that call will also locate the caller.” Id. Even more persuasively, “when a
cell phone user receives a call, he hasn’t voluntarily exposed anything at all.” Id.at 317–18.
Supportive of this proposition is the argument made by the United States to
the jury. The prosecutor stated to the jury “that obviously Willie Smith, like
[Davis], probably had no idea that by bringing their cell phones with them to these
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robberies, they were allowing [their cell service provider] and now all of you to
follow their movements on the days and at the times of the robberies . . . .” Just so.
Davis has not voluntarily disclosed his cell site location information to the provider
in such a fashion as to lose his reasonable expectation of privacy.
In short, we hold that cell site location information is within the subscriber’s
reasonable expectation of privacy. The obtaining of that data without a warrant is
a Fourth Amendment violation. Nonetheless, for reasons set forth in the next
section of this opinion, we do not conclude that the district court committed a
reversible error.
II. The Leon Exception
The United States contends that even if we conclude, as we have, that the
gathering of the cell site location data without a warrant violated the constitutional
rights of the defendant, we should nonetheless hold that the district court did not
commit reversible error in denying appellant’s motion to exclude the fruits of that
electronic search and seizure under the “good faith” exception to the exclusionary
rule recognized in United States v. Leon, 468 U.S. 897 (1984). We agree.
In Leon, the Court observed that “‘[i]f the purpose of the exclusionary rule is
to deter unlawful police conduct, then evidence obtained from a search should be
suppressed only if it can be said that the law enforcement officer had knowledge,
or may properly be charged with knowledge, that the search was unconstitutional
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under the Fourth Amendment.’” Id. at 919 (quoting United States v. Peltier, 422
U.S. 531, 542 (1975)). In Leon, the Supreme Court reviewed the exclusion of
evidence seized “by officers acting in reasonable reliance on a search warrant
issued by a detached and neutral magistrate but ultimately found to be unsupported
by probable cause.” 468 U.S. at 900. The High Court held that “when an officer
acting with objective good faith has obtained a search warrant from a judge . . . and
acted within its scope,” the exclusionary rule should not be employed to
“[p]enaliz[e] the officer for the magistrate’s error.” Id. at 920–21. As the Court
observed in Leon, such an application of the exclusionary rule “cannot logically
contribute to the deterrence of Fourth Amendment violations.” Id.The only differences between Leon and the present case are semantic ones.
The officers here acted in good faith reliance on an order rather than a warrant, but,
as in Leon, there was a “judicial mandate” to the officers to conduct such search
and seizure as was contemplated by the court order. See id. at 920 n.21. As in
Leon, the officers “had a sworn duty to carry out” the provisions of the order. Id.Therefore, even if there was a defect in the issuance of the mandate, there is no
foundation for the application of the exclusionary rule.
We further add that Leon speaks in terms of the “magistrate’s” error. Here,
the law enforcement officers, the prosecution, and the judicial officer issuing the
order, all acted in scrupulous obedience to a federal statute, the Stored
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Communications Act, 18 U.S.C. § 2703. At that time, there was no governing
authority affecting the constitutionality of this application of the Act. There is not
even allegation that any actor in the process evidenced anything other than good
faith. We therefore conclude that under the Leon exception, the trial court’s denial
of the motions to suppress did not constitute reversible error.
III. Prosecutorial Misconduct
Appellant argues that the trial prosecutor, in his summation to the jury,
engaged in improper behaviors that irreparably tainted Davis’s trial. While he
refers to several parts of the argument, the two that typify his argument were the
prosecutor’s reference to a substance, perhaps blood, being “all over” a getaway
car, when in fact there were only a few drops; and what appellant describes as
“long strings of bolstering witnesses’ testimony.” We have reviewed the trial
transcript of the closing argument and conclude that the prosecutor’s statements
warrant no relief on appeal.
As to the statements described by Davis as exaggeration of the evidence, we
see no more than rhetorical flourish. The prosecution could, without violating
Davis’s rights, characterize the evidence as could the defense counsel in presenting
Davis’s case. The bolstering is admittedly troubling.
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The problem of a prosecutor’s vouching for government witnesses is indeed
a very real one. In United States v. Young, 470 U.S. 1, 18–19 (1985), the Supreme
Court observed that prosecutorial vouching
can convey the impression that evidence not presented to the jury, but
known to the prosecutor, supports the charges against the defendant and can
thus jeopardize the defendant’s right to be tried solely on the basis of the
evidence presented to the jury; and the prosecutor’s opinion carries with it
the imprimatur of the Government and may induce the jury to trust the
Government’s judgment rather than its own view of the evidence.
The Supreme Court’s analysis of the prosecutor’s role draws a clean line. He may
comment on the evidence before the jury, but he may not augment that evidence by
implication that he or others on the prosecution team are aware of further evidence
not presented in court. While we recognize that in the heat of the courtroom, an
arguing lawyer may say things he would later regret, the record in this case
discloses that the prosecutor did cross that line. Specifically, he stated, with
respect to the government witness Martin, “he came clean and confessed [one
hundred] percent and told the police precisely the same story that he told all of
you, the story he has told me one hundred times since.”
The evidence before the jury certainly did not demonstrate that Martin had
told the prosecutor the same story one hundred times since his original confession.
The government argued to us that the phrase “one hundred times” is only a
colloquialism and that the argument “relied on facts in evidence.” Appellee’s Br.
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at 33. We cannot agree with this styling, but nonetheless conclude that there is no
ground for reversal here.
Prosecutorial misconduct will result in reversal only in those instances in
which the misbehavior is so pervasive as to “permeate the entire atmosphere of the
trial.” United States v. McLain, 823 F.2d 1457, 1462 (11th Cir. 1987). We
proceed under a two-part test. First, the comments at issue must actually be
improper, and second, any comments found to be improper must prejudicially
affect the substantial rights of the defendant. United States v. Schmitz, 634 F.3d
1247, 1267 (11th Cir. 2011).
We conclude that no such prejudicial effect is present. The improper remark
here is a small item following a dense record of evidence against the defendant,
and evidence which in fact included prior consistent statements by the witness
Martin.
Further, and of great importance, the district court removed the comments
from the jury’s consideration and properly instructed the jurors on the nature of
closing arguments. The court instructed that the prosecutor’s statements were “not
in evidence, and even if [they were], that doesn’t make [them] true or not true.”
We must presume that a jury follows its instructions. Richardson v. Marsh, 481
U.S. 200 (1987). In short, the prosecutor’s statements are not a basis for reversal.
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IV. The Sentencing Enhancements
Davis raises two constitutional objections to the computation of his sentence.
He contends that the enhancement for the second or subsequent offenses and for
brandishing a weapon were imposed in violation of his Sixth Amendment right to
trial by jury; the underlying facts, in the one case “subsequence,” and in the second
case “brandishing,” were not found by a jury beyond a reasonable doubt. Upon
review, we conclude that his claim warrants no relief as to the second or
subsequent enhancement, but is meritorious on the brandishing issue.
This sort of Sixth Amendment claim is governed by the Supreme Court
decision in United States v. Alleyne, ___ U.S. ___, 133 S. Ct. 2151 (2013). In
Alleyne, the Supreme Court overruled its prior opinion in Harris v. United States,
536 U.S. 545, 551–56 (2002), and held that the Sixth Amendment requires any fact
which increases a mandatory minimum sentence to be submitted to the jury.
Alleyne, 133 S. Ct. at 2162–63. However, the Alleyne decision does not warrant
relief on the “second or subsequent” mandate for consecutive sentences. Alleyne
relied heavily on United States v. Apprendi, in which the Court specifically
excluded the fact of a prior conviction from its general holding requiring a jury to
pass on those issues increasing the penalty beyond a statutory maximum. 530 U.S.
466, 490. In Alleyne, the Court declined to reconsider its holding in Almendarez-
Torrez v. United States, 523 U.S. 224 (1998), that the fact of a prior conviction
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need not be treated as an element of an offense. Alleyne, 133 S. Ct. at 2160 n.1. It
follows, then, that we may not revisit this holding either.
The jury did not make a specific finding that the convictions for Counts 5, 7,
9, 11, 14, and 17 were second or subsequent convictions under 18 U.S.C. § 924(c).
However, there is no Alleyne violation where the judicial finding is the fact of a
prior conviction, a finding the jury need not make. In any event, the superseding
indictment charged Davis separately as to each of the seven robberies that occurred
on separate days. By virtue of logic, each of Counts 5, 7, 9, 11, 14, and 17 was
second or subsequent when the jury found that they were committed as set forth in
the superseding indictment. We can offer no relief based on Davis’s contention
that a concurrently found conviction should be treated differently for Sixth
Amendment purposes from a conviction which predates the indictment in the
current case. He cites United States v. Shepard, 544 U.S. 13, 26 (2005), but
Shepard does not speak to the issue before us. It discusses only the types of
documents a sentencing court can consider. Accordingly, the district court did not
err in sentencing Davis to consecutive mandatory terms of imprisonment based on
its finding that his convictions were second or subsequent enhancements within the
meaning of 18 U.S.C. § 924(c).
The “brandishing” issue, however, does warrant relief. Although Davis did
not raise the issue below, an appellate court can review for errors not raised at trial
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under the “plain error” standard. Under that standard, we may correct the error
that the defendant did not raise only if there is “(1) error, (2) that is plain, and (3)
that affects substantial rights.” United States v. McKinley, 732 F.3d 1291, 1295
(11th Cir. 2013). If these three elements are met, we may then in our discretion
correct the error, only if “(4) the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. For example, the fourth prong of
plain error review would not be met “where the evidence of a statutory element of
an offense is overwhelming and essentially uncontroverted.” Id. at 1297.
A sentencing decision is in error when it violates a relevant Supreme Court
ruling. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). An
error is plain if it is “clear from the plain meaning of a statute or constitutional
provision, or from a holding of the Supreme Court or this Court.” United States v.
Pantle, 637 F.3d 1172, 1174–75 (11th Cir. 2011). An error affects substantial
rights if it affected the outcome of the district court proceedings. Rodriguez, 398
F.3d at 1299. The defendant bears the burden of persuasion to demonstrate such
prejudice. Id. Finally, we consider whether the error had such an effect on the
proceedings as to motivate use of our discretion to restore the equality and
reliability of judicial proceedings in the eyes of the public. United States v.
Shelton, 400 F.3d 1325, 1332–33 (11th Cir. 2005).
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On Count 3, the jury found that Davis “possessed a firearm in furtherance of
the robbery.” At the sentencing hearing, the district court heard from the probation
officer, who reported that “Count 3, which is possession of a firearm in furtherance
of a crime of violence . . . calls for a minimum imprisonment sentence of seven
years . . . .” The district court imposed then “84 months [seven years] as to Count
3 to be served consecutively to the terms imposed as to [the other counts].” The
text of 18 U.S.C. § 924(c)(1)(A)(ii) requires that “if the firearm is brandished, [the
defendant] be sentenced to a term of imprisonment of not less than 7 years.” For
possession, the applicable sentence is “a term of imprisonment of not less than 5
years.” § 924(c)(1)(A)(i). The district court’s finding vis á vis Count 3 is therefore
inconsistent with the superseding indictment’s charge, and the jury’s finding, of
possession rather than brandishing.
In reviewing the prejudicial effect of the deviation, we note that the district
judge candidly stated that if he were not constrained by statutory maxima, he
“would impose a sentence here that would not be a life sentence.” It therefore
appears that the extra length on this count would not have been imposed in the
absence of what we now view as a plain error. Additionally, we also find that this
error “affected the fairness, integrity, or public reputation of the judicial
proceedings.” McKinley, 732 F.3d at 1297. The evidence that Davis personally
brandished the firearm he possessed during the robbery of the Little Caesar’s
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restaurant is not “overwhelming and essentially uncontroverted.” Id. To the
contrary, only one witness testified that a gun was pointed at her, and there is no
evidence that Davis was the one who did it. Further, the jury had an opportunity to
convict Davis of either (1) possessing a firearm in furtherance of the robbery or (2)
using or carrying a firearm in furtherance of the robbery. Yet it only found that
Davis possessed a firearm. We therefore will be constrained to vacate the
extension of the sentence. In doing so, we observe on behalf of both the judge who
entered the sentence and the counsel who did not raise the error that the trial in this
case preceded the Supreme Court decision in Alleyne.
V. Eighth Amendment Claim
Davis argues that the 162-year sentence, which obviously amounts to a life
sentence, constitutes cruel and unusual punishment. In support of this proposition,
he stresses that he was eighteen and nineteen years old at the time of the
commission of the offenses, and suffered from bipolar disorder and a severe
learning disability, and had no prior convictions. While these are no doubt
significant factors, we can grant no relief on this issue.
Allegations of cruel and unusual punishment are legal questions subject to
our de novo review. United States v. Haile, 685 F.3d 1211, 1222 (11th Cir. 2012),
cert. denied, __ U.S. __, 133 S. Ct. 1723 (2013).
Davis argues that the mandatory consecutive nature of his sentence violated
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the Eighth Amendment’s prohibition on cruel and unusual punishment. He views
his sentence, totaling nearly 162 years, as grossly disproportionate when
considering his youth, intellectual disability, and emotional maturity, and as
especially harsh for a non-homicide offense. For its part, the Government relies on
the rarity of successful proportionality cases for adult offenders outside the capital
context.
As applied to noncapital offenses, the Eighth Amendment encompasses at
most only a narrow proportionality principle. United States v. Brant, 62 F.3d 367,
368 (11th Cir. 1995) (citing Harmelin v. Michigan, 501 U.S. 957 (1991)). We
accord substantial deference to Congress: “In general, a sentence within the limits
imposed by statute is neither excessive nor cruel and unusual under the Eighth
Amendment.” United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006)
(quotation omitted). We must first make the determination whether a total
sentence is grossly disproportionate to the offenses committed. Id. In United
States v. Farley, 607 F.3d 1294, 1339 (11th Cir. 2010), we held that the mandatory
nature of a noncapital penalty is irrelevant for proportionality purposes, and
observed that we have never found a term of imprisonment to violate the Eighth
Amendment. Id. at 1343. Nor do we do so now.
Here, Davis’s total sentence is unmistakably severe. However, a gross
proportionality analysis necessarily compares the severity of a sentence to the
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crimes of conviction, and Davis’s crimes were numerous and serious. Multiple
victims experienced being robbed and threatened with a handgun. Davis’s use of a
handgun entailed a risk or severe injury or death. Trial testimony established that
Davis shot at a dog, and actually exchanged fire with a witness following the
Wendy’s robbery. We cannot conclude that such repeated disregard for the law
and for victims should overcome Congress’s determination of what constitutes an
appropriate sentence, even when Eighth Amendment concerns are implicated.
VI. Sufficiency of the Evidence on Count 17
Davis contends that the district court erred by denying his motion for
judgment of acquittal on Count 17 because, in his view, the evidence failed to
establish that he facilitated a codefendant’s use of a firearm during the Mayor’s
Jewelry Store robbery. We disagree.
We review de novo the district court’s denial of a motion for a judgment of
acquittal on sufficiency of evidence grounds. United States v. Browne, 505 F.3d
1229, 1253 (11th Cir. 2007). We consider the evidence in the light most favorable
to the Government and draw all reasonable inferences and credibility choices in the
Government’s favor. United States v. Friske, 640 F.3d 1288, 1290–91 (11th Cir.
2011).
Davis argues that there is insufficient evidence to support his conviction on
Count 17 of the superseding indictment, which charges aiding and abetting a
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codefendant’s possession of a firearm during the jewelry store robbery. In his
estimation, the evidence does not show that he had prior knowledge of any gun
before the jewelry store robbery. In fact, he tells us, the evidence establishes that
he was not involved in the planning of the robbery, precluding his prior knowledge
of the firearm. At most, the jury intuited that Davis had prior knowledge of the
gun, which is an insufficient basis on which to sustain his conviction.
The Government argues that a reasonable construction of the evidence
demonstrates that Davis knew his codefendant would be carrying a gun during the
jewelry store robbery and that Davis enjoyed the protection of the firearm during
the commission of the robbery. According to the Government, its evidence
constitutes a showing sufficient to support a conviction for aiding and abetting a
codefendant’s possession of a firearm.
Recently, the Supreme Court decided Rosemond v. United States, __ U.S.
__, 134 S. Ct. 1240 (2014), in which it clarified the standard regarding the precise
question before us: What must the Government show when it seeks to establish
that a defendant is guilty of aiding or abetting the offense of using or carrying a
firearm during a crime of violence? In Rosemond, the Court held that the
Government must prove that the defendant “actively participated in the underlying
. . . violent crime with advance knowledge that a confederate would use or carry a
gun during the crime’s commission.” Rosemond, 134 S. Ct. at 1243.
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The Government, as part of its sufficiency argument, notes that Davis must
have seen the gun during the robbery, and thus the knowledge element is met. We
note that under Rosemond, such a scenario may constitute insufficient evidence if it
means that Davis “at that late point ha[d] no realistic opportunity to quit the
crime.” Rosemond, 134 S. Ct. at 1249. However, Davis does not argue his
inability to retreat, and regardless, this point is beyond the scope of our analysis.
We need only decide whether Davis had the requisite “advance knowledge”
described in Rosemond.
After Rosemond, and considering the evidence in the light most favorable to
the Government, a reasonable construction of the evidence supports conviction on
Count 17. The Government established that Davis drove from Miami-Dade
County to the robbery site in Broward County with his codefendant, Fisher, who
was the gunman. Both Davis and Fisher sat in the backseat, and the driver of the
car turned and handed Fisher the handgun that would be used during the robbery.
We agree with the Government and the district court that the jury could reasonably
infer Davis’s knowledge of the gun, based on its evaluation of the evidence as
tending to demonstrate that Davis saw the gun in the car. Likewise, the jury may
have inferred knowledge based on its finding that Davis participated in prior
robberies, or that he assisted in planning the jewelry store robbery. We leave the
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jury’s finding on aiding and abetting in Count 17 undisturbed, as it was based on
sufficient evidence.
VII. Accumulation of Trial Errors Claim
We need not linger long over Davis’s final claim. Davis contends that we
should grant relief where “a combination of trial errors and prosecutorial
misconduct [denies] a defendant a fair trial, regardless of whether the individual
errors require reversal on their own.” Appellant’s Br. at 42 (citing United States v.
Elkins, 885 F.2d 775 (11th Cir. 1989)). This is clearly correct as an abstract
proposition of law, but it does not apply to this case.
Our precedent counsels that a combination of trial errors and prosecutorial
misconduct can serve to render a trial unfair, despite no single error requiring
reversal. Id. at 787. However, such a combination is rare because “a conviction
should be reversed only if ‘a miscarriage of justice would otherwise result.’” Id.(quoting United States v. Young, 470 U.S. 1, 15 (1985)). This is not one of those
rare cases.
As we make clear in our discussion above, the limited misconduct by the
prosecutor was readily cured by the instruction of the trial court. The only
cognizable error by the trial court is the admission of the cell site location
information, which was at best understandable, given the uncertainty of the law on
the subject, and at worst harmless, given that the evidence was admissible against
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Davis, albeit on a different theory (the Leon exception) than that on which it was
propounded.
CONCLUSION
For the reasons set forth above, we affirm the judgment of conviction and
vacate only that portion of the sentence attributable to the enhancement for
brandishing.
38