United States v. Roger Carruthers ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-14261 FEB 14, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 3:08-cr-00005-JTC-LTW-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
ROGER CARRUTHERS,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(February 14, 2012)
Before CARNES, PRYOR, and RIPPLE,* Circuit Judges.
PER CURIAM:
Roger Carruthers appeals his convictions for knowingly receiving and
distributing child pornography. 18 U.S.C. § 2252A(a)(2)(A). Carruthers contends
that his prosecution violated the Speedy Trial Act, his Sixth Amendment rights to
a speedy trial and the assistance of counsel, his right to due process, and Federal
Rule of Criminal Procedure 5. Carruthers also argues that the government
exercised its peremptory challenges based on gender discrimination. Because all
of Carruthers’s arguments fail, we affirm.
I. BACKGROUND
To explain the context of this appeal, we address three matters. We first
discuss the conduct that led to Carruthers’s first indictment. We then discuss the
first indictment and the delays that led the trial court to dismiss the indictment for
a violation of the Speedy Trial Act. 18 U.S.C. §§ 3161, 3162. Finally, we discuss
Carruthers’s second indictment and his trial.
A. Facts Leading to Carruthers’s Indictment for Possessing and Distributing
Child Pornography.
In 2005, FBI Special Agent Steven Forrest was investigating the
*
Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit, sitting
by designation.
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distribution of child pornography on the internet. While in an online chat room,
Forrest communicated with someone using the screen name “LIL1FORFAM”. On
November 17, 2005; February 13, 2006; March 28, 2006; and May 16, 2006,
Forrest had online conversations with a person using the screen name
“LIL1FORFAM” during which the person using that screen name e-mailed Forrest
videos and still images of child pornography.
Forrest obtained information from America Online that the screen name and
user account transmitting the child pornography were held by Roger Carruthers of
314 Laurel Lane, LaGrange, Georgia. Based on this information, FBI agents
obtained a search warrant for Carruthers’s home and executed that warrant on July
28, 2006. During the search, the agents interviewed Carruthers in his home.
Agent Joanna Southerland testified that Agent Mike Yoder read Carruthers his
rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
Carruthers’s girlfriend testified that during his interview with the agents, she heard
Carruthers ask, “Do I need an attorney?” and heard Yoder reply that Carruthers
did not need an attorney. Both agents testified that Carruthers never asked for or
mentioned an attorney.
During the interview, Carruthers initially denied that he possessed or
distributed child pornography. Carruthers later retracted this statement and told
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the agents that he used the screen name “LIL1FORFAM” and that he had traded
child pornography with individuals he met in chat rooms. After the interview, the
agents left the premises with computer evidence they had seized but did not arrest
Carruthers. The FBI determined that the computer contained over 4,000 images of
child pornography and over 100 videos of child pornography.
B. Carruthers’s First Indictment
On August 9, 2006, Carruthers was arrested for knowingly receiving and
distributing child pornography. 18 U.S.C. § 2252. Carruthers was indicted for
this offense on September 6, 2006, and was arraigned on September 25, 2006. On
October 10, 2006, Carruthers filed pre-trial motions to suppress the evidence
seized at his house and his statements to FBI agents. The magistrate judge held a
hearing on the motions, issued a report and recommendation that the suppression
motions be denied, and certified the case ready for trial on May 3, 2007. On May
14, 2007, Carruthers filed objections to the magistrate judge’s report and
recommendation, and those matters were submitted to the district court on May 24,
2007. In early September, the district court set the case for trial on September 24,
2007. The government filed an unopposed motion to continue the trial, which the
district court granted without setting a new trial date.
On February 21, 2008, Carruthers moved to dismiss the indictment based on
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pretrial delay in violation of the Sixth Amendment and the Speedy Trial Act, 18
U.S.C. §§ 3161, 3162. On April 15, 2008, the district court granted Carruthers’s
motion to dismiss the indictment for violations of the Speedy Trial Act and
dismissed the indictment without prejudice. The court found that both the
government and Carruthers were partly responsible for the pretrial delay because
they had filed pretrial motions. The court also found that the court, not the parties,
was responsible for the lengthy delay that occurred between the date when the
case was certified ready for trial and the date of the dismissal. In total, 312 non-
excludable days, including the 70 days allowed by statute, passed between the
indictment and dismissal without prejudice.
C. Carruthers’s Second Indictment and Trial
Carruthers was released from custody on April 16, 2008, and was arrested
again on April 17, 2008, based on a criminal complaint charging him with
distributing and receiving child pornography. Carruthers was brought before a
magistrate judge for his initial appearance on April 22, 2008. Between his arrest
and presentment, no interrogation occurred, no statements were taken from
Carruthers, and no evidence was gathered. On May 13, 2008, Carruthers was
again indicted for distributing and receiving child pornography. Prior to trial,
Carruthers filed a motion seeking to dismiss the indictment for a violation of
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Federal Rule of Criminal Procedure 5(a). He argued that the six-day delay
between his arrest and presentment before a magistrate judge required the court to
dismiss his case. On October 8, 2008, the magistrate judge recommended the
denial of Carruthers’s motion to dismiss, and the district court adopted the report
and recommendation.
On October 9, 2008, the district court set the case for trial on November 3,
2008. Following a continuance and resetting of the trial date, Carruthers moved to
incorporate by reference his motion to suppress from the earlier proceeding. The
district court granted the motion and overruled Carruthers’s objections to the
magistrate judge’s report and recommendation, which had the effect of denying
Carruthers’s motion to suppress his statements during his interview with FBI
agents on July 28, 2006.
1. Jury Selection
The court and the parties questioned 37 members of the venire during voir
dire. A jury was selected from the first 31 potential jurors. Of these 31, 19 or 61
percent, were male. Of the 12 jurors selected, 5 or 42 percent, were male.
Carruthers objected to the prosecutor’s peremptory challenges of four
“white men,” identified as numbers 8, 9, 22, and 28. Without determining whether
Carruthers had established a prima facie case of discrimination, the district court
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asked the prosecutor to provide the basis for the challenge of each of the four men.
The prosecutor asserted that she struck potential juror number 8 because he had a
prior conviction for driving under the influence of alcohol, no children, was
unemployed, and did not appear to be a “stake-holder” in the community; potential
juror number 9 because he was unemployed, had no children, and appeared to
have either a mental handicap or difficulty understanding the proceedings;
potential juror number 22 because he had no children and had a “technical
engineering degree as a background,” which made the prosecutor concerned he
might “expect perfect evidence”; and potential juror number 28 because he was an
engineer and stated that he considered himself a computer expert.
In response, Carruthers’s attorney argued that the prosecutor’s reasons were
pretextual. Defense counsel stated that “female juror no. 6 also has no children,
and I think some of the same reasons the Government has given for striking jurors
that they struck also would apply to some of the jurors that have not been struck.”
Carruthers offered no other response. The district court found that the government
had articulated “valid nondiscriminatory reasons for exercising . . . the peremptory
strike of those particular jurors” and denied Carruthers’s challenge to the jury.
2. Cross-examination
At trial, Carruthers testified and denied that he had distributed or received
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child pornography. He testified that, when initially confronted by agents at his
home and asked whether he had distributed or received child pornography, he
“didn’t know it was serious.” He stated that he lied to the agents and confessed to
trading child pornography to protect his live-in girlfriend, Renee Matula, whom
Carruthers stated may have been responsible for the child pornography trading.
On cross-examination, the prosecutor attempted to show that Carruthers had
waited a long time before he changed his story to assert that he falsely confessed
to protect his girlfriend:
Q. Mr. Carruthers, once you got arrested and knew it was serious, did
you make any attempts to contact law enforcement or me and let us
know that it was Renee who had in fact committed this crime and not
you?
A. I didn’t know that for sure it was Renee. No, I didn't let anybody
know.
Q. You’ve been in jail for quite some time; correct?
A. Correct.
Q. And in all that time –
Carruthers’s attorney objected to the question about Carruthers’s time in jail and
moved for a mistrial. The prosecutor rephrased her question, and Carruthers
confirmed that, other than talking to his attorney, he never let anyone know that
someone else had put child pornography on his computer before he testified at
trial. The court later denied Carruthers’s motion for a mistrial.
II. STANDARD OF REVIEW
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We review the dismissal of an indictment without prejudice for a violation
of the Speedy Trial Act for abuse of discretion. United States v. Knight, 562 F.3d
1314, 1321 (11th Cir. 2009). The determination of whether a defendant’s
constitutional right to a speedy trial has been violated is a mixed question of law
and fact. We review determinations of law de novo and findings of fact under the
clearly erroneous standard. United States v. Clark, 83 F.3d 1350, 1352 (11th Cir.
1996). We review the denial of a motion to dismiss an indictment on
non-constitutional grounds for abuse of discretion. United States v. Pielago, 135
F.3d 703, 707 (11th Cir. 1998). “We will not reverse a district court’s refusal to
grant a mistrial unless an abuse of discretion has occurred.” United States v.
Perez, 30 F.3d 1407, 1410 (11th Cir. 1994). We review findings about
discrimination in the exercise of peremptory challenges for clear error. Cent. Ala.
Fair Hous. Ctr. v. Lowder Realty, 236 F.3d 629, 635 (11th Cir. 2000). We review
a denial of a motion to suppress de novo. We view the evidence in the light most
favorable to the party that prevailed in the district court. United States v. Carter,
566 F.3d 970, 973 (11th Cir. 2009).
III. DISCUSSION
Carruthers raises six arguments on appeal. First, he argues that the district
court abused its discretion when it declined to dismiss his indictment with
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prejudice after a violation of the Speedy Trial Act. Second, he argues that the
district court erred when it held that his Sixth Amendment right to a speedy trial
had not been violated. Third, he contends that the district court erred when it
declined to dismiss his indictment after the government waited six days to bring
him before a magistrate judge. Fourth, Carruthers argues that a statement the
prosecutor made during her cross-examination of Carruthers deprived him of due
process. Fifth, he contends that the prosecutor exercised peremptory challenges
based on gender. Finally, Carruthers argues that the district court erred when it
denied his motion to suppress his statements to FBI agents. We address each
argument in turn.
A. The District Court Did Not Abuse Its Discretion When It Dismissed
Carruthers’s First Indictment Without Prejudice for a Violation of the Speedy
Trial Act.
A district court has the discretion to dismiss an indictment with or without
prejudice under the Speedy Trial Act. 18 U.S.C. § 3162(a)(2). The court must
consider three factors when determining the method of relief: (1) “the seriousness
of the offense”; (2) “the facts and circumstances of the case which led to the
dismissal”; and (3) “the impact of a reprosecution on the administration of this
chapter and on the administration of justice.” Id. “[T]he proper dismissal sanction
to be imposed in each case is a matter left to the exercise of the sound discretion of
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the trial judge after consideration of the factors enumerated in the statute,” Knight,
562 F.3d at 1322, and “the judgment of the district court ‘should not lightly be
disturbed’ if the district court has considered all of the statutory factors and if the
underlying factual findings are not clearly erroneous.” Id. (quoting United States
v. Taylor, 487 U.S. 326, 337, 108 S. Ct. 2413, 2420 (1988)). The district court
dismissed Carruthers’s first indictment without prejudice under the Speedy Trial
Act, 18 U.S.C. § 3161(c), because more than 70 days had passed since he first
appeared before the court.
The district court did not abuse its discretion when it weighed the three
factors and dismissed Carruthers’s indictment without prejudice. The court
correctly determined that the statutory minimum sentence of 20 years of
imprisonment reflects the seriousness of Carruthers’s offense. See Knight, 562
F.3d at 1323. The district court did not clearly err when it found that neither party
was responsible for the expiration of the trial clock. The court found that both
parties were responsible for parts of the delay and that the court itself was at fault
for a large part of the delay. The court also noted that Carruthers did not object to
the government’s motion to continue and waited months to file his motion to
dismiss for a speedy trial violation. Finally, the district court did not clearly err
when it found that Carruthers offered no evidence of any prejudice caused by the
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delayed trial date.
B. The District Court Did Not Err When It Denied Carruthers’s Motion To
Dismiss for a Violation of His Sixth Amendment Right to a Speedy Trial.
To determine whether the government has violated the right to a speedy trial
under the Sixth Amendment, a district court considers four factors: (1) “length of
delay”; (2) “the reason for the delay”; (3) “the defendant’s assertion of his right”;
and (4) “prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530, 92 S.
Ct. 2182, 2192 (1972)). Unless the period of delay is “presumptively prejudicial”
under the first factor, a district court need not consider the final three factors. A
delay becomes “presumptively prejudicial” as it approaches one year. Knight, 562
F.3d at 1323. “The Sixth Amendment right to a speedy trial attaches at the time of
arrest or indictment, whichever comes first, and continues until the date of trial.”
Id. More than two years elapsed between Carruthers’s first arrest and his trial.
The district court did not err when it weighed the four Barker factors and
determined that the government did not violate Carruthers’s Sixth Amendment
right to a speedy trial. The first factor, the length of the delay, weighed in
Carruthers’s favor. At more than two years, the length of the delay was
presumptively prejudicial. The second factor, the reason for the delay, did not
weigh heavily against the government. The government had filed several motions
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for extensions of time and a continuance of trial, but Carruthers does not contend
that any of these motions were in bad faith so as to weigh heavily against the
government. See United States v. Schlei, 122 F.3d 944, 987 (11th Cir. 1997).
Carruthers caused part of the delay when he appealed a detention order and filed
motions for continuances and extensions of time. And the court was responsible
for a large part of the delay because it waited to set a trial date then failed to reset
a new trial date. The third factor, Carruthers’s delay in asserting his right,
weighed against Carruthers. “[A] defendant has some responsibility to assert a
speedy trial claim,” Barker, 407 U.S. at 529, 92 S. Ct. at 2191, and “[t]he failure to
assert the constitutional right to speedy trial is weighed heavily against the
defendant,” United States v. Twitty, 107 F.3d 1482, 1490 (11th Cir. 1997). The
statutory speedy trial clock expired on August 17, 2007, but Carruthers did not
assert his right to a speedy trial until February 21, 2008. As to the final factor,
Carruthers argued that his incarceration made it difficult for him to find witnesses
and documents that would help with his defense, but he did not allege that the
delay caused him any prejudice. He made only conclusory allegations that his
incarceration caused him anxiety and concern. Carruthers’s Sixth Amendment
right to a speedy trial was not violated.
C. The District Court Did Not Abuse Its Discretion When It Denied
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Carruthers’s Motion To Dismiss the Second Indictment for a
Violation of Federal Rule of Criminal Procedure 5(a).
Carruthers contends that a six-day delay between his arrest and presentment
before a federal magistrate judge was “unnecessary” and that the district court
abused its discretion when it denied his motion to dismiss his indictment. Federal
Rule of Criminal Procedure 5 mandates that “[a] person making an arrest within
the United States must take the defendant without unnecessary delay before a
magistrate judge.” Fed. R. Crim. Pro. 5(a)(1)(A). After the district court
dismissed Carruthers’s initial indictment without prejudice, Carruthers was
released and then rearrested on a criminal complaint on April 17, 2008. On April
23, 2008, Carruthers was brought before a federal magistrate judge. The purpose
of Rule 5 “is to have a judicial officer advise the defendant of his constitutional
rights and thereby to prevent administrative dete[n]tion without probable cause
and to reduce the opportunity for third-degree practices.” United States v.
Mendoza, 473 F.2d 697, 702 (5th Cir. 1973).
The district court did not abuse its discretion when it denied Carruthers’s
motion to dismiss his indictment. During the six days between Carruthers’s arrest
and presentment no interrogation occurred, no statements were taken from
Carruthers, and no evidence was gathered. The only remedy we have recognized
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for a violation of Rule 5 is the suppression of evidence obtained as a result of the
violation. Mendoza, 473 F.2d at 702.
D. The District Court Did Not Abuse Its Discretion When It Denied
Carruthers’s Motion for a Mistrial.
Carruthers argues that the district court should have granted his motion for a
mistrial after the prosecutor asked him on cross-examination whether he had been
in jail for some time, but this argument fails. “The decision of whether to grant a
mistrial lies within the sound discretion of a trial judge as he or she is in the best
position to evaluate the prejudicial effect of improper testimony,” Perez, 30 F.3d at
1410, and “[w]e will not reverse a district court’s refusal to grant a mistrial unless
an abuse of discretion has occurred,” id. We have made clear that “the mere
utterance of the word jail, prison, or arrest does not, without regard to context or
circumstances, constitute reversible error per se.” United States v.
Villabona-Garnica, 63 F.3d 1051, 1058 (11th Cir. 1995). In the light of the
substantial evidence against Carruthers and the brief nature of the reference to
Carruthers’s time in jail, the district court did not abuse its discretion in denying
Carruthers’s motion for a mistrial.
E. The District Court Did Not Clearly Err When It Found that the Prosecutor
Exercised Peremptory Challenges in a Gender-Neutral Manner.
Carruthers argues that the district court clearly erred when it found that the
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prosecutor exercised her peremptory challenges in a gender-neutral manner, but
we disagree. A prosecutor cannot use peremptory challenges to remove a juror
based on the juror’s race or gender. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.
Ct. 1712, 1719 (1986); J.E.B. v. Alabama, 511 U.S. 127, 129, 114 S. Ct. 1419,
1421 (1994). “[T]he ultimate burden of persuasion regarding racial [or gender]
motivation rests with, and never shifts from, the opponent of the strike.” Purkett
v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 1771 (1995). The prosecutor gave
gender-neutral reasons for each of her four non-mutual peremptory challenges.
The prosecutor stated that she challenged three of the four men, in part, because
they had no children. Carruthers responded that one female juror also had no
children and had not been challenged, but he offered nothing else to establish
gender motivation. Based on the evidence before it, the district court did not
clearly err when it found that Carruthers did not meet his burden of establishing
gender motivation for the strikes.
F. The District Court Did Not Err When It Denied Carruthers’s Motion To
Suppress His Statements to FBI Agents.
Carruthers challenges the denial of his motion to suppress statements he
made to Agent Yoder on the ground that he invoked his right to speak to an
attorney when he asked “do I need an attorney?”, but the magistrate judge found
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that Carruthers did not ask this question. Additionally, even if Carruthers had
asked this question, he did not clearly invoke his right to an attorney. See Davis v.
United States, 512 U.S. 452, 462–63, 114 S. Ct. 2350, 2356 (1994). The district
court did not err when it denied Carruthers’s motion to suppress.
IV. CONCLUSION
We affirm Carruthers’s convictions.
AFFIRMED.
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