United States v. Paul , 420 F. App'x 943 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-12218 APR 1, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 0:07-cr-60259-JAG-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEAN RICHARD G. PAUL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 1, 2011)
Before BARKETT, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Jean Richard G. Paul appeals his convictions for possession of 5 kilograms
or more of cocaine with intent to distribute and possession of 50 grams or more of
cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Paul
argues that the district court abused its discretion by instructing the jury
concerning his pre-trial flight because the Government presented insufficient
evidence to warrant the instruction. Further, Paul argues that the district court
abused its discretion by summarily denying Paul’s untimely motion for a new trial
as he believes the inclusion of the flight instruction necessitated a new, untainted
proceeding. After a review of the record and consideration of the parties’ briefs,
we affirm Paul’s convictions.
I.
“We review a district court’s jury instructions for an abuse of discretion.”
United States v. Williams, 541 F.3d 1087, 1089 (11th Cir. 2008) (per curiam). An
erroneous jury instruction constitutes grounds for reversal only if a reasonable
likelihood exists that the error affected the defendant’s substantial rights. Id.; see
Fed. R. Evid. 103(a).
“Evidence of flight is admissible to demonstrate consciousness of guilt and
thereby guilt.” Williams, 541 F.3d at 1089 (internal quotation marks omitted).
Analytically, flight is an admission by conduct. Its probative value as
circumstantial evidence of guilt depends upon the degree of confidence
with which four inferences can be drawn: (1) from the defendant’s
behavior to flight; (2) from flight to consciousness of guilt; (3) from
consciousness of guilt to consciousness of guilt concerning the crime
2
charged; and (4) from consciousness of guilt concerning the crime
charged to actual guilt of the crime charged.
United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977).1 Use of the flight
instruction is appropriate if the government “make[s] certain that each link in the
chain of inferences” is “sturdily supported.” See United States v. Wright, 392 F.3d
1269, 1278 (11th Cir. 2004). If sufficient evidence is presented so that the jury
could reasonably conclude that the defendant fled to avoid the charged crime, the
district court does not abuse its discretion by giving a flight instruction. Williams,
541 F.3d at 1089.
The district court did not abuse its discretion by giving the flight instruction.
In October 2007, Paul was arrested for the conduct at issue, arraigned, and
released pending trial. The Government presented uncontested testimony that,
prior to trial, Paul fled the jurisdiction to the Bahamas and was arrested there in
June 2008. Paul’s travel and failure to appear violated the terms of his bond. In
light of the charges pending against him and the timing of his departure, the
district court’s inclusion of a flight instruction was not an abuse of discretion.
II.
1
Pursuant to Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc), all former Fifth Circuit cases handed down before October 1, 1981 serve as binding
precedent.
3
Paul next argues that the district court abused its discretion by summarily
denying Paul’s motion for a new trial, which he filed on the eve of sentencing and
more than 11 months after the jury’s verdict.
We review a district court’s denial of a motion for a new trial under the
abuse-of-discretion standard. United States v. Sweat, 555 F.3d 1364, 1367 (11th
Cir. 2009) (per curiam). Federal Rule of Criminal Procedure 33 provides that a
“court may vacate any judgment and grant a new trial if the interest of justice so
requires.” “That is a broad standard. It is not limited to cases where the district
court concludes that its prior ruling, upon which it bases the new trial, was legally
erroneous.” United States v. Vicaria, 12 F.3d 195, 198 (11th Cir. 1994).
At the time of Paul’s conviction, motions for a new trial were required to be
filed within 7 days after the verdict or finding of guilty. Fed. R. Crim. P. 33(b)(2)
(2005) (amended 2009). The district court in this case granted Paul an extension,
allowing him to file such a motion within 90 days, i.e., by June 2009. Paul filed
his motion for a new trial in March 2010. Even if otherwise untimely, the district
court may, on a party’s motion, extend the time to file a motion for a new trial if
the defendant “failed to act because of excusable neglect.” See Fed. R. Crim. P.
45(b)(1)(B).
4
Here, the district court did not specify its reasons for denying Paul’s motion
for a new trial. Even assuming, arguendo, that excusable neglect led to the
extraordinarily late filing, the motion lacked merit because Paul failed to show that
the interest of justice required a new trial. As described above, the Government
presented sufficient, uncontested evidence to warrant the flight instruction.
Because Paul failed to show that the interest of justice required a new trial, the
district court did not abuse its discretion by summarily denying Paul’s motion.
AFFIRMED.
5