United States v. Jeffrey Tobin , 227 F. App'x 878 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 8, 2007
No. 06-12889 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-20529-CR-JAG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFREY TOBIN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 8, 2007)
Before ANDERSON, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Jeffrey Tobin appeals his conviction and sentence for possession of child
pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Tobin asserts his due
process rights were violated by the four-year delay between the execution of the
search warrant and his indictment. Tobin also contends the district court erred by
excluding the testimony of Gregorio Diaz, to whom Jorge Garcia had purportedly
spoken about images of child pornography. Tobin also asserts the district court
erred in imposing his sentence because: (1) the district court applied the
Guidelines in a mandatory fashion; and (2) the sentence imposed was procedurally
unreasonable because the district court gave undue weight to the Guidelines range
without considering the other 18 U.S.C. § 3553(a) factors.1 We affirm Tobin’s
conviction and sentence.
I. DISCUSSION
A. Pre-indictment delay
A district court’s refusal to dismiss an indictment is normally subject to
review for an abuse of discretion. United States v. Foxman, 87 F.3d 1220, 1222
(11th Cir. 1996). However, where, as here, a defendant fails to object to an
indictment in the district court, we review only for plain error. United States v.
1
In his reply brief, Tobin also argues the district court failed to author an 18 U.S.C.
§ 3553(c)(1) statement of reasons. However, Tobin abandoned this issue by failing to raise it in his
initial brief. See United States v. Thomas, 242 F.3d 1028, 1033 (11th Cir. 2001).
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Vallejo, 297 F.3d 1154, 1164 (11th Cir. 2002). “Under this standard, there must be
an error that is plain and that affects substantial rights. When these three factors
are met, the courts of appeal may then exercise their discretion and correct the error
if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 1165.
“The limit on pre-indictment delay is usually set by the statute of limitations.
But, the Due Process Clause can bar an indictment even when the indictment is
brought within the limitation period.” Foxman, 87 F.3d at 1222. For dismissal to
be proper, a defendant must show “that pre-indictment delay caused him actual
substantial prejudice and that the delay was the product of a deliberate act by the
government designed to gain a tactical advantage.” Id.The district court did not plainly err by not dismissing the indictment against
Tobin. As Tobin acknowledges, the delay in the indictment against him was
occasioned by a redirection of FBI resources as a result of the terrorist attacks of
September 11, 2001. This was not “a deliberate act by the government designed to
gain a tactical advantage,” and, therefore, Tobin would not have been entitled to a
dismissal of his indictment even if he could show “substantial actual prejudice.”
See id.3
B. Hearsay
We review the district court’s ruling on the admissibility of hearsay
testimony for an abuse of discretion. United States v. Walker, 59 F.3d 1196, 1198
(11th Cir. 1995). A statement that would otherwise be inadmissible as hearsay
may be admitted into evidence if the declarant is unavailable and the statement “so
far tended to subject the declarant to . . . criminal liability . . . that a reasonable
person in the declarant’s position would not have made the statement unless
believing it to be true.” Fed. R. Evid. 804(b)(3). However, if a criminal defendant
seeks to offer such a statement in order to exculpate himself, then the statement is
still inadmissible hearsay “unless corroborating circumstances clearly indicate the
trustworthiness of the statement.” Id. The parties agree the declarant, Garcia, was
unavailable because he was deceased at the time of trial.
The district court did not abuse its discretion in finding Garcia’s statements
to be inadmissible hearsay.2 In Garcia’s purported statement, he admitted only to
once clicking on some pictures in a chat room by mistake. Garcia did not mention
what kind of pictures they were. Further, Garcia had no fear that Diaz, the person
2
To the extent Tobin makes more than a passing reference to a compulsory process
violation, see Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004)
(holding an issue is abandoned on appeal where no argument is presented), there was no
constitutional violation because a defendant does not have the right to compel the introduction of
inadmissible hearsay, see United States v. Deaton, 468 F.2d 541, 544 (5th Cir. 1972).
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to whom he made the statements and his best friend since 1988, would turn him in.
Therefore, Garcia’s statement was not against his penal interest. See United States
v. Funt, 896 F.2d 1288, 1298 (11th Cir. 1990) (holding the against-penal-interest
requirement was not met where the declarant did not expect the statement to be
used against him, even where the statement was “somewhat facially inculpatory”);
United States v. Martino, 648 F.2d 367, 391 (11th Cir. 1981) (stating “the
statement against interest must be almost a direct, outright statement that the
person was legally at fault”).
In addition, there were no corroborating circumstances clearly indicating the
trustworthiness of Garcia’s purported statement. Tobin argues the fact Garcia had
access to the computer is a corroborating circumstance, but evidence presented at
trial showed images of child pornography were saved to the computer’s hard drive
at times when Garcia could not possibly have been using the computer. The
circumstances, therefore, undermine Garcia’s statement, rather than clearly
indicating its trustworthiness. See United States v. Jernigan, 341 F.3d 1273, 1288
(11th Cir. 2003) (concluding the trustworthiness prong of Rule 804(b)(3)
admissibility was not met where the statement contradicted the government’s
evidence of guilt).
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C. Mandatory application of the Guidelines
A district court commits statutory Booker error where it applies the now-
advisory Guidelines system as mandatory. United States v. Shelton, 400 F.3d
1325, 1330-31 (11th Cir. 2005). Tobin did not preserve his statutory Booker
argument below and, therefore, we review that argument only for plain error. See
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, 125 S.
Ct. 2935 (2005).
The district court did not apply the Guidelines as mandatory and, therefore,
did not commit statutory Booker error. The district court stated it had considered
Tobin’s arguments–which discussed consideration of the § 3553(a) factors under
Booker, and the presentence investigation report–which repeatedly referenced the
advisory nature of the Guidelines in general and the possibility of a post-Booker
variance for Tobin’s medical condition. The district court’s statement that
“respect” for the Guidelines “under the facts and circumstances of this case” did
not permit a sentence below the Guidelines range merely reflects the district court,
as required, weighed the Guidelines range, Tobin’s history and characteristics
(including his medical condition), and the other § 3553(a) factors, and ultimately
concluded that, under the particular facts of Tobin’s case, the considerations
embodied in the Guidelines range outweighed the arguments Tobin advanced as to
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the other § 3553(a) factors. See United States v. Hunt, 459 F.3d 1180, 1186 (11th
Cir. 2006) (holding although “the district court made some statements that could be
interpreted as presumptions in favor of the Guidelines . . . [t]he court’s decision to
defer to the Guidelines was ultimately a case-specific one and was based on
consideration of the § 3553(a) factors.”).
D. Reasonableness
After the district court has correctly calculated the Guidelines range, we
review the final sentence for reasonableness. United States v. Williams, 456 F.3d
1353, 1360 (11th Cir.), petition for cert. filed, No. 06-7352 (October 19, 2006). A
sentence can be reviewed for procedural or substantive reasonableness. Hunt, 459
F.3d at 1182 n.3 (11th Cir. 2006). A sentence may be procedurally unreasonable,
regardless of the actual sentence, if it is the result of an improper sentencing
procedure, such as when the district court fails to consider relevant factors under
18 U.S.C. § 3553(a) or considers an impermissible factor. Id. “When reviewing a
sentence for reasonableness, we must evaluate whether the sentence achieves the
purposes of sentencing as stated in 18 U.S.C. § 3553(a).” Williams, 456 F.3d at
1360.
Tobin’s sentence was procedurally reasonable. The record reflects that, in
addition to arguments relating to the Guidelines range, the district court heard
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arguments (1) about the length of Tobin’s sentence in comparison to state sex
offenders, (2) that Tobin had never sought out children, (3) that Tobin had ceased
involvement with child pornography after 2001, (4) that Tobin had been diagnosed
with two different types of cancer, (5) about the probability of Tobin endangering
children in the future, (6) that a sentence of house arrest was available, (7) about
whether Tobin had previously committed a child pornography offense, (8) that
Tobin could be further educated about the harms of possessing child pornography
without being imprisoned, and (9) that all of these considerations indicated that
Tobin was adequately deterred and the community protected even without
imprisonment. As such, the district considered: (1) the nature and circumstances
of Tobin’s offense and Tobin’s history and characteristics; (2) the seriousness of
the offense; (3) deterrence; (4) protection of the public; (4) the need for education
and medical treatment; (5) the kinds of sentences available; (6) the Guidelines
range; and (7) avoidance of unwarranted sentencing disparities. That is, the district
court considered every single § 3553(a) factor except for the need to provide
restitution, which was not applicable in this case. See 18 U.S.C. § 3553(a)(1)-(7).
Further, the district court’s explicit statement that it had “struggled mightily” with
sentencing in this case before concluding that a Guidelines sentence was
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appropriate belies Tobin’s assertion the district court simply deferred to the
Guidelines range without proper consideration of the other § 3553(a) factors.
II. CONCLUSION
The district court did not plainly err by not dismissing the indictment as
violating Tobin’s due process rights. Moreover, the district court did not abuse its
discretion in excluding Diaz’s testimony. Finally, the district court did not
sentence Tobin under a mandatory Guidelines scheme, and his sentence was
procedurally reasonable. Thus, we affirm Tobin’s conviction and sentence.
AFFIRMED.
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