United States v. John Thomas Bolen , 285 F. App'x 655 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 18, 2008
No. 07-11270 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-14046-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN THOMAS BOLEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 18, 2008)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
John Thomas Bolen appeals his convictions and life sentence for conspiracy
and attempt to import cocaine, 21 U.S.C. §§ 952(a), 960(b)(1)(B), conspiracy with
intent to distribute cocaine, 21 U.S.C. § 846, and possession with intent to
distribute cocaine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A). Bolen argues that the
district court erred in admitting the hearsay testimony of a cooperating witness,
failing to give two jury instructions Bolen requested, denying Bolen’s motion for a
new trial, and imposing Bolen’s sentence. We affirm.
I. TESTIMONY OF COOPERATING WITNESS
Bolen contends that the district court erred when it denied his hearsay
objection to the testimony of a cooperating witness. The witness testified that the
prosecutor told the witness to tell the truth. Bolen also contends that the purpose
of this hearsay was to vouch impermissibly for the witness’s credibility.
Bolen’s argument that the district court erroneously admitted hearsay fails.
When a defendant objects in the district court to the admission of evidence, we
review the ruling for abuse of discretion. United States v. Jiminez, 224 F.3d 1243,
1249 (11th Cir. 2000) (citation omitted). Hearsay is defined as a “statement, other
than one made by the declarant while testifying at the trial of hearing, offered in
evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). The
problem with Bolen’s objection is that the testimony that the prosecutor instructed
the cooperating witness to tell the truth was not hearsay because it was not offered
to prove the truth of the matter asserted. The district court did not abuse its
2
discretion when it admitted the testimony.
Because Bolen did not object to the testimony as improper vouching by the
government at trial, we review his other argument about the testimony for plain
error. See United States v. Deverso, 518 F.3d 1250, 1255 (11th Cir. 2008). That
standard is deferential. To establish plain error, a defendant must establish that the
district court committed “(1) error, (2) that is plain, (3) that affects substantial
rights, and (4) that seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. (citation and quotation omitted).
Bolen’s argument fails. The government improperly vouches for the
credibility of a witness when it makes statements that a reasonable jury could
believe suggest a “personal belief in the witness’s credibility” by the prosecutor.
United States v. Cano, 289 F.3d 1354, 1365 (11th Cir. 2002). We have explained
that “it is perfectly proper for a prosecutor to elicit testimony regarding the truth
telling portion of a plea agreement on redirect once the credibility of the witness is
attacked on cross-examination.” United States v. Diaz, 190 F.3d 1247, 1254 (11th
Cir. 1999).
The questions by the prosecutor, on redirect examination, did not amount to
improper bolstering. Bolen attacked the credibility of the witness and his
incentives to testify falsely on cross examination. The questions of the prosecutor
3
did not make personal reassurances of the credibility of the witness nor imply that
evidence not before the jury supported the testimony of the witness. See Cano,
289 F.3d at 1365. Any possible prejudice was dispelled by the jury instruction to
consider the testimony of a cooperating witness with extra caution. See Diaz, 190
F.3d at 1254. The district court did not plainly err when it allowed the prosecutor
to question the witness about his obligation to tell the truth.
II. JURY INSTRUCTIONS
Bolen contends that the district court erred when it failed to give two
requested instructions to the jury. First, Bolen asked the court to instruct the jury
about the plea agreements of his co-defendants that the government “may file a
motion for a downward departure or . . . sentence reduction” and “without such a
motion . . . a higher sentence is guaranteed.” The district court denied the request
and instructed the jury that some witnesses had entered into plea bargains, which
provided for “the possibility of a lesser sentence than the witness would otherwise
be exposed to,” and a cooperating witness “may have a reason to make a false
statement because the witness wants to strike a good bargain with the
government.” The court further instructed that the jury should “consider [the]
testimony [of cooperating witnesses] with more caution than the testimony of
other witnesses.” Second, Bolen asked the court to instruct the jury regarding his
4
defense that he “was performing a lawful business activity” and lacked knowledge
that his boat was being used to transport drugs. The district court denied the
requested instruction because it was “not a legal defense.” The court instead
instructed the jury that, if it found Bolen “lacked the requisite mental state” to
commit the offense, the jury should acquit him.
We review for abuse of discretion the denial of a requested jury instruction.
United States v. Klopf, 423 F.3d 1228, 1241 (11th Cir. 2005). The refusal to give
a requested instruction warrants a new trial “only if (1) the requested instruction
was substantively correct, (2) the court’s charge to the jury did not cover the gist
of the instruction, and (3) the failure to give the instruction substantially impaired
the defendant's ability to present an effective defense.” Id. (quoting United States
v. Roberts, 308 F.3d 1147, 1153 (11th Cir. 2002)). In our determination whether a
requested instruction was substantially covered by the actual charge delivered to
the jury, we “need only ascertain whether the charge, when viewed as a whole,
fairly and correctly states the issues and the law.” Id. (citation and quotation
omitted).
Bolen’s argument regarding the jury instruction about cooperating witnesses
fails. The requested instruction was erroneous because, under the advisory
guideline regime, a higher sentence was not “guaranteed” absent a motion for a
5
downward departure. See United States v. Booker, 543 U.S. 220, 244, 125 S. Ct.
738, 756 (2005). The instruction given by the district court fairly and accurately
stated the governing law. See id. at 1241. The district court did not abuse its
discretion.
Bolen’s argument regarding the jury instruction for his theory of defense
also fails. The instruction given by the district court covered the gist of Bolen’s
proposed instruction, that if Bolen lacked the knowledge that his boat was being
used for smuggling, the jury must acquit him. See id. The instruction did not
deprive Bolen of the ability to advance the defense that he was unaware of the
smuggling. See United States v. Gonzales, 975 F.2d 1514, 1517–18 (11th Cir.
1992). The district court did not abuse its discretion.
III. MOTION FOR NEW TRIAL
Bolen argues that the district court abused its discretion when it denied,
without an evidentiary hearing, his motion for a new trial. Bolen based his motion
on a document purportedly about the Bahamian criminal record of a co-defendant
who testified against Bolen. This argument fails.
The law governing our review of this issue is settled. We review a denial of
a motion for a new trial based on newly discovered evidence or an alleged
violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), for abuse of
6
discretion. United States v. Vallejo, 297 F.3d 1154, 1163 (11th Cir. 2002). We
review the decision whether to hold an evidentiary hearing for abuse of discretion.
United States v. Massey, 89 F.3d 1433, 1443 (11th Cir. 1996). “[S]uppression by
the prosecution of evidence favorable to an accused upon request violates due
process when the evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S. Ct.
at 1196–97. Evidence favorable to the accused includes impeachment evidence.
United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3384 (1985). To
obtain a new trial because of a Brady violation, a defendant must establish
(1) that the government possessed evidence favorable to the
defendant (including impeachment evidence); (2) that the defendant
did not possess the evidence nor could he have obtained it himself
with any reasonable diligence; (3) that the prosecution suppressed the
favorable evidence; and (4) that had the evidence been revealed to the
defense, there is a reasonable probability that the outcome of the
proceedings would have been different.
United States v. Spagnoulo, 960 F.2d 990, 994 (11th Cir. 1992). A defendant may
establish possession by the government if the evidence was “in the possession of
the prosecutor or anyone over whom the prosecutor had authority.” Id.Bolen failed to establish sufficient facts from which the district court could
conclude that the prosecutor possessed or suppressed impeachment evidence
before trial. At the time of trial, the document was in the possession of a foreign
7
government, over whom the federal prosecutor had no authority. See id. The
prosecutor could not have readily obtained the criminal history of the co-defendant
because these convictions were in the Bahamas. Cf. United States v. Auten, 632
F.2d 478, 480-81 (5th Cir. Unit A 1980). The district court did not abuse its
discretion.
IV. SENTENCING
Bolen raises two sentencing issues on appeal. First, Bolen contends that his
sentence is unreasonable. Second, Bolen argues that the district court violated the
Fifth and Sixth Amendments when it applied the Sentencing Guidelines. The
reasonableness of a sentence is reviewed for an abuse of discretion. Gall v.
United States, 128 S. Ct. 586, 597 (2007). Our review involves an examination of
the totality of the circumstances, including whether the statutory factors for
sentencing, 18 U.S.C. § 3553(a), support the challenged sentence. Id. at 597–600.
We defer to the judgment of the district court in the weight given to the factors in
section 3553(a) unless the district court has made “a clear error of judgment” and
has imposed “a sentence that lies outside the range of reasonable sentences
dictated by the facts of the case.” United States v. McBride, 511 F.3d 1293,
1297–98 (11th Cir. 2007) (citations omitted).
Bolen has failed to establish that his sentence is unreasonable. The
8
guideline range was life imprisonment. The district court heard from Bolen, who
stated that he was innocent of the offenses, and his counsel argued that a life
sentence was overly severe because of his lack of criminal history and the
comparatively light sentences of his co-defendants. The district court weighed the
factors in section 3553(a) and did not make any clear error of judgment. The
disparity between Bolen’s sentence and those of his co-defendants is “not an
appropriate basis for relief on appeal,” United States v. Regueiro, 240 F.3d 1321,
1325-26 (11th Cir. 2001) (citation omitted), especially because Bolen is not
similarly situated to those co-defendants who cooperated with authorities shortly
after their arrest, pleaded guilty, and testified for the government at Bolen’s trial.
The district court reasonably determined that this sentence was not greater than
necessary to achieve the statutory purposes of sentencing.
Bolen concedes that his constitutional challenge to the application of the
sentencing guidelines is foreclosed by precedent. A district court “may still
impose fact-based sentencing enhancements under an advisory guidelines system
without violating the Sixth Amendment.” United States v. Dudley, 463 F.3d 1221,
1228 (11th Cir. 2006).
V. CONCLUSION
Bolen’s convictions and sentence are AFFIRMED.
9