United States v. Dwight Carter ( 2012 )

Case: 10-15413 Date Filed: 07/24/2012 Page: 1 of 29
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-15413
________________________
D.C. Docket No. 1:09-cr-20470-JEM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DWIGHT CARTER
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 24, 2012)
Before MARCUS and BLACK, Circuit Judges, and HODGES,* District Judge.
HODGES, District Judge:
*Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of
Florida, sitting by designation.
Case: 10-15413 Date Filed: 07/24/2012 Page: 2 of 29
Dwight Carter appeals from his convictions and sentences for violations of
the Hobbs Act, 18 U.S.C. § 1951(a), and other drug and firearms offenses arising
out of the robbery and murder of an armored vehicle security guard. After oral
argument and careful review of the record, we affirm in all respects..
I
Carlos Alvarado was employed in Miami-Dade County, Florida, as a
security guard stationed aboard a Dunbar armored truck transporting cash
collections made from various retail establishments. A few minutes before 11:00
a.m. on Monday morning, December 1, 2008, Alvarado’s armored truck entered
the parking lot of the Dadeland Mall and parked near a store called The Express.
Alvarado exited the truck and entered the mall. He was carrying a holstered
firearm, a cell phone and a fabric bag marked “Dunbar.” He then made several
collections from stores in the mall and accumulated over $ 60,000.00 in his bag.
A few minutes before Alvarado entered the mall, witnesses observed two
men moving around within and just outside the premises of The Express store.
One was described as a large man, the other was described as smaller and thin in
stature.1 Both men were wearing all black attire, and both were using cell phones,
1
These general descriptions were compatible with the two persons ultimately identified as
the perpetrators. Carter is less than six feet tall and thin. His accomplice, Emmanuel Maxime, is
taller and heavier.
2
Case: 10-15413 Date Filed: 07/24/2012 Page: 3 of 29
apparently talking to each other. Images captured on surveillance cameras
corroborated these observations.
As Carlos Alvarado approached the exit of The Express after making his
collections, Carter and Emmanuel Maxime rushed into the store with firearms in
their hands, yelling at Alvarado to drop his bag and get on the ground. Instead,
Alvarado reached for his holstered weapon and Carter responded by shooting at
him at least eight or nine times. Four of the shots found their mark, the last three
having been fired after Alvarado had fallen to the floor. Carter then grabbed
Alvarado’s Dunbar bag and he and Maxime fled the scene making a successful
getaway. An hour later, Carlos Alvarado was pronounced dead at the hospital.
Subsequent investigation focused attention on Carter and Maxime as
suspects. Investigating officers obtained driver’s license photographs of both men
and created six-person photographic arrays that were shown to four of the eye
witnesses who had been at the mall. Two of the witnesses identified Carter and
two others identified Maxime as the perpetrators of the crime. In addition, based
upon an examination of cellular telephone records, it was determined that at the
time of the robbery, Maxime was using a cell phone registered in his name, and
Carter was using a cell phone registered in the name of his mother. During the
twenty minute period immediately before the robbery, Carter and Maxime
3
Case: 10-15413 Date Filed: 07/24/2012 Page: 4 of 29
participated in six separate telephone calls using cellular telephone towers
covering the area of the Dadeland Mall.
On May 18, 2009, investigating officers filed a criminal complaint in the
district court supported by a probable cause affidavit of one of the investigators.
The complaint alleged that Carter and Maxime had violated the Hobbs Act, 18
U.S.C. § 1951(a) – interference with interstate commerce by robbery – and had
also violated 18 U.S.C. § 924 (c)(1)(A) by possessing a firearm in furtherance of a
crime of violence resulting in the death of another person. After reviewing the
complaint and supporting affidavit, a United States Magistrate Judge issued arrest
warrants for Carter and Maxime.
At 6:00 a.m. on the morning of May 20, 2009, law enforcement officers
arrived at the home of Carter’s parents to effect Carter’s arrest. Carter was living
with his parents at that time together with his girlfriend, Erskaneshia Ritchie.2
Carter was arrested at approximately 6:20 a.m. and gave his consent to a search of
the house and his car.3
2
It was determined during the investigation that Ritchie and her friend, Nikkia Thomas,
had participated in the crime by serving as lookouts. See note 6, infra.
3
The search resulted in the discovery of two firearms in the house, a firearm magazine in
Carter’s car, several types of ammunition, various items commonly used in the manufacture and
sale of crack cocaine, and two baggies containing crack cocaine.
4
Case: 10-15413 Date Filed: 07/24/2012 Page: 5 of 29
Carter was then transported to a county police building and placed in an
interview room at 7:47 a.m. for initial processing. At 8:25 a.m. two investigating
officers entered the room, removed Carter’s handcuffs, and advised him of his
Miranda rights. Carter voluntarily signed a Miranda waiver of rights form, and the
officers began questioning him.4 The interview was interrupted twice during the
morning for breaks requested by Carter. At 11:40 a.m., after one of the breaks,
Carter was shown a voluminous chart depicting all of the cellular telephone calls
that had been made during December 1, 2008, by the four participants including
their respective geographic locations at the time of the calls. At that point Carter
began to cry and orally confessed to his guilt as the person who had shot and
killed Alvarado. At 12:15 p.m. after his oral confession, the interrogating officers
began reviewing with Carter the details of the crime and his participation in it. At
1:17 p.m. Carter asked for a break to eat,5 and the interview was interrupted until
1:54 p.m. Carter then agreed to give a formal audio and videotaped statement
under oath, and that was done after he was informed about, and once again
waived, his Miranda rights. Later in the afternoon, the investigating officers took
4
Initially, the officers’ questions centered on Carter’s history and background. During
this phase of his interrogation Carter admitted that he supplemented his income by dealing
narcotics.
5
Food had been brought in and offered to Carter at noon, but he declined to eat at that
time saying that he was not hungry.
5
Case: 10-15413 Date Filed: 07/24/2012 Page: 6 of 29
Carter to the location he had described as the place he had disassembled and
disposed of the murder weapon, and another location where he had burned the
Dunbar fabric bag. Corroborating evidence was found at both locations. Carter
was then taken before a United States Magistrate Judge for an initial appearance
the next day.
A superseding indictment was later returned against Carter and Maxime
containing six counts. Count One charged a conspiracy, and Count Two charged a
substantive offense, to obstruct, delay and affect commerce by robbery in violation
of the Hobbs Act, 18 U.S.C. § 1951. Count Three charged a violation of 18
U.S.C. §§ 924(c)(1)(A) and 924(j)(1) by using and carrying a firearm during and
in relation to a crime of violence, and by murdering another person in the course
of committing such offense. Those three counts were included in, and constituted
the entirety of, the original indictment.6 Counts Four, Five and Six were added by
the superseding indictment and charged Carter alone with a conspiracy and a
substantive offense, respectively, involving possession with intent to distribute
6
The original indictment named Carter’s girlfriend, Erskaneshia Ritchie and her friend
Nikkia Thomas as codefendants with Carter and Maxime. Thomas pled guilty to one count of
that indictment. Ritchie pled guilty to a superseding information. Both were then named as
unindicted coconspirators in the superseding indictment against Carter and Maxime, and both
Ritchie and Thomas testified for the government at Carter’s trial. They described the planning of
the robbery and their participation in the crime by providing vehicles and by acting as lookouts in
the mall parking lot.
6
Case: 10-15413 Date Filed: 07/24/2012 Page: 7 of 29
cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846, and possession of a
firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §
924(c)(1)(A).7
At jury trial, Carter was convicted of all six counts of the superseding
indictment. At sentencing, the district court imposed maximum, consecutive
sentences as to all counts resulting in an aggregate commitment term of life plus
105 years.
II
A. Denial of Motion to Suppress. Carter moved to suppress his
confession and the physical evidence seized following his arrest. Acting on a
report and recommendation of a Magistrate Judge, the district court denied the
motion and Carter’s confession, including the videotaped statement made during
the afternoon of the day of his arrest, was admitted during the trial. Carter claims
that this was error and he presents on appeal the same issues he argued in support
7
The district court granted a motion for severance of the Defendants and Carter and
Maxime received separate trials. This appeal involves only the Defendant Carter. Carter also
moved to sever the Hobbs Act counts (Counts One, Two and Three) from the drug counts
(Counts Four, Five and Six), but that motion was denied. See infra, Part II B.
7
Case: 10-15413 Date Filed: 07/24/2012 Page: 8 of 29
of the motion to suppress in the district court,8 only one of which requires
discussion.9
Carter asserts that there was unreasonable delay in producing him before a
judicial officer in violation of Federal Rule of Criminal Procedure 5(a) and 18
U.S.C. § 3501(c), and that his confessions should have been suppressed because
they were made during a period of illegal detention resulting from that
unreasonable delay. In the context of the facts of this case, this argument has two
aspects. The first involves the admissibility of Carter’s oral confession made
before noon, within six hours after his arrest; and the second involves the
admissibility of the audio-video, transcribed repetition of his confession given
during the afternoon, more than six hours following his arrest.
The current state of the law governing these issues has evolved from the
Supreme Court’s decision in McNabb v. United States, 318 U. S. 332, 63 S. Ct.
8Carter contends that there was no probable cause for his arrest; that his waiver of his
Miranda rights was involuntary; that the district court erred in striking his objections to the report
and recommendation of the Magistrate Judge; and that the district court erred in denying a Franks
hearing (Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978)). We find no merit in any of
these claims.
9
A determination of probable cause is reviewed de novo on appeal. United States v.
Butler, 102 F.3d 1191, 1199 (11th Cir. 1997). In reviewing the denial of a motion to suppress we
apply a “clearly erroneous” standard to fact findings and review de novo the district court’s
conclusions of law. United States v. Lyons, 403 F.3d 1248, 1250 (11th Cir. 2005)
8
Case: 10-15413 Date Filed: 07/24/2012 Page: 9 of 29
608 (1943). The McNabb defendants were arrested by federal officers between
one and two o’clock on a Thursday morning. They were then subject to intense
interrogation, off and on, for 48 hours until they had made complete confessions
about two o’clock Saturday morning. Only then were they placed on track for an
appearance before a judicial officer. Exercising its supervisory authority over
federal courts without establishing a constitutional requirement or any general rule
of thumb concerning the permissible length of post arrest interrogations, the
Supreme Court held that the confessions in the case before it should have been
suppressed, saying only “that a decent regard for the duty of courts as agencies of
justice and custodians of liberty forbids that men should be convicted upon
evidence secured under the circumstances revealed here.” 318 U.S. at 347, 63 S.
Ct. at 616.
Less than a year after McNabb the Supreme Court decided United States v.
Mitchell, 322 U.S. 65, 64 S. Ct. 896 (1944). The court of appeals in Mitchell,
relying upon McNabb, had excluded a confession made immediately after the
defendant’s arrest because the defendant was then detained for another eight days
before being presented to a magistrate. The Supreme Court reversed, explaining
that McNabb had been mis-applied. Mitchell’s confession, otherwise voluntary,
was not made during a period of unreasonable delay and illegal detention as in
9
Case: 10-15413 Date Filed: 07/24/2012 Page: 10 of 29
McNabb, and his confession was held to have been properly admitted at his trial.
The extended detention after his confession was simply not relevant to the
admission of the confession given before the detention became tainted. 322 U.S.
at 69-71, 64 S. Ct. at 897-98.
In the wake of McNabb and Mitchell, Rule 5(a) of the Federal Rules of
Criminal Procedure was promulgated in 1946 requiring, as it still does today, that
anyone making a federal arrest must take the arrested person before a judicial
officer “without unnecessary delay.”
Two years later the Supreme Court decided Upshaw v. United States, 335
U.S. 410, 69 S. Ct. 170 (1948). The trial court had admitted a confession made by
the defendant during a detention of thirty hours preceding his appearance before a
judicial officer. The trial judge found the delay to be reasonable because of the
absence of overt coercion and the resulting voluntariness of the confession. The
Supreme Court reversed, applied McNabb and Rule 5(a), and held that prolonged
delay in producing an arrestee before a judge renders the detention illegal so that
any resulting confession is inadmissible even though it was otherwise voluntarily
made. 335 U.S. at 412-14, 69 S. Ct. at 171-72.
The Supreme Court next decided Mallory v. United States, 354 U.S. 449, 77
S. Ct. 1356 (1957). The defendant had been arrested between 2:00 and 2:30 in the
10
Case: 10-15413 Date Filed: 07/24/2012 Page: 11 of 29
afternoon. He was taken to police headquarters and was subject to intermittent
interrogation over a period of eight hours before confessing at 10:00 p.m. He was
then produced before a judicial officer the following morning. The trial court
admitted the confession at trial and the court of appeals affirmed, finding the delay
to be reasonable because Mallory was not being questioned during the entire eight
hour period. Rather, during portions of that time the officers were questioning two
other suspects in order to sort out the individual involvement of the three persons,
including Mallory, who were the subjects of the investigation. See Mallory v.
United States, 236 F.2d 701, 703 (D. C. Cir. 1956). The Supreme Court again
applied McNabb and reversed, finding that the delay in presentment was
unreasonable under Rule 5(a) and that the confession should have been excluded.
354 U.S. at 453-456, 77 S. Ct. at 1359-60.
In 1968 Congress enacted 18 U.S.C. § 3501(c) as a legislative response to
the McNabb - Mallory, rule and the imprecise “without unnecessary delay”
standard of Rule 5(a). The statute – § 3501(c) – provides that a post arrest
confession “. . . shall not be inadmissible solely because of delay in bringing such
person before a magistrate . . . [1] if such confession is found by the trial judge to
have been made voluntarily and [2] if the weight to be given the confession is left
11
Case: 10-15413 Date Filed: 07/24/2012 Page: 12 of 29
to the jury and [3] if such confession was made . . . within six hours immediately
following his arrest. . .”
The six hour rule-of-measure in § 3501(c) is, obviously, a two edged sword.
It provides, on the one hand, a safe harbor period for non-coercive questioning
during the first six hours of detention; but, on the other hand, it also establishes a
precise limitation on the permissible length of post arrest interrogation before an
initial appearance. With respect to the latter effect, Congress appended a proviso
to the statute that “the time limitation [of six hours] shall not apply in any case in
which the delay . . . beyond such six hour period is found by the trial judge to be
reasonable considering the means of transportation and the distance to be traveled
to the nearest available [magistrate].”
The Supreme Court most recently considered the effect of § 3501(c) upon
the McNabb-Mallory rule in Corley v. United States, 556 U.S. 303, 129 S. Ct.
12Case: 10-15413 Date Filed: 07/24/2012 Page: 13 of 29
1558 (2009).10 The Court summarized its holding and succinctly stated the present
state of the law this way:
We hold that § 3501 modified McNabb-Mallory without
supplanting it. Under the rule as revised by § 3501(c), a
district court with a suppression claim must find whether
the defendant confessed within six hours of arrest (unless
a longer delay was “reasonable considering the means of
transportation and the distance to be traveled to the
nearest available [magistrate judge]”). If the confession
came within that period, it is admissible, subject to the
other Rules of Evidence, so long as it was “made
voluntarily and . . . the weight to be given [it] is left to
the jury.” Ibid. If the confession occurred before
presentment and beyond six hours, however, the court
must decide whether delaying that long was
unreasonable or unnecessary under the McNabb-Mallory
cases, and if it was, the confession is to be suppressed.
556 U.S. at 322, 129 S. Ct. at 1571.
10
The salient facts of Corley were these. Corley was arrested at 8:00 a.m. From the time
of arrest to 11:45 a.m. he was kept in the police station while investigators questioned other
witnesses. At 11:45 he was taken to a hospital for treatment of a minor cut on his hand sustained
during a chase at the time of his arrest. At 3:30 p.m. he was returned to the FBI office and was
questioned. He began confessing at 5:27 p.m., some 9 ½ hours after his arrest. An hour later,
when asked to put it in writing, Corley requested a break. He was then kept overnight and
finished his written confession the next morning before being taken before a Magistrate Judge at
1:30 p.m., 29 ½ hours after his arrest. See 556 U.S. at 311-312, 129 S. Ct. at 1565. The district
court excluded the time spent at the hospital in applying the six-hour safe harbor rule and
admitted the confession as having been made within six hours following arrest. The court of
appeals affirmed but on the basis that § 3501 had abrogated McNabb-Mallory. Ultimately, the
Supreme Court vacated and remanded for reconsideration of the case by the court of appeals
(including consideration of the district court’s rationale) in light of the Court’s holding quoted in
the text. 556 U.S. at 323, 129 S. Ct. at 1571.
13
Case: 10-15413 Date Filed: 07/24/2012 Page: 14 of 29
Applying the holding in Corley – which embraces both Rule 5(a) and §
3501(c) – the conclusion is inescapable that Carter’s oral confession made before
12:15 p.m. on the day of his arrest at 6:20 a.m. was within the six hour safe harbor
provision of the statute. The record also supports the finding of the district court
that the confession was voluntary in every respect and was accompanied by full
compliance with Miranda. There was no error in admitting evidence of that
confession. United States v. Mitchell, 322 U.S. 65, 64 S. Ct. 896 (1944).
That conclusion reduces the scope of the motion to suppress to the
admissibility of the audio/video recording and printed transcript that was made
during the afternoon, more than six hours after Carter’s arrest. The Magistrate
Judge and the district court found that evidence of the confession in that form11
was admissible because the delay in presenting Carter before a judicial officer was
not unreasonable or unnecessary. Two factors were mentioned in support of that
conclusion. First, the Magistrate Judge found that by the time of the Defendant’s
11
The Magistrate Judge and the district court found that “[t]he audio and videotaped
statements were not based on new questioning, but were a memorialization of the Defendant’s
prior confession.” One might well conclude that this finding alone brings the analysis under
Rule 5(a) and § 3501(c) to an end. It is the confession that constitutes the evidence. The form in
which it is admitted – through the oral testimony of the interrogator, or a writing made or signed
by the defendant, or an audio or video recording, or a printed transcript – is wholly immaterial
absent something else (not including the tactical preference of counsel) that would warrant
exclusion of one form and not the other under Fed. R. Evid. 403. However, in the apparent
absence of any prior authority recognizing this point as a matter of law, we find it unnecessary to
decide this case on that basis.
14
Case: 10-15413 Date Filed: 07/24/2012 Page: 15 of 29
confession at noon, it was already too late to deliver the defendant to the Marshal
for production at the Magistrate Judges’ 1:30 p.m. duty calendar on that day.
Also, as part of his confession, Carter described two geographic locations, one
where he had discarded the murder weapon, and another where he had burned the
Dunbar bag and other tangible evidence. The district court thought it was
reasonable – and we agree – for the officer to attempt with Carter’s assistance to
locate the weapon, in particular, not only to collect and preserve evidence, but to
eliminate a potential danger to the public.
We conclude that there was no error under McNabb-Mallory, Rule 5(a) or §
3501(c), in the admission of Carter’s confession in the form in which it was given
during the afternoon of the day of his arrest. Furthermore, on the facts of this
case, if there was error, we have no hesitancy in declaring it to be harmless beyond
a reasonable doubt. See United States v. Ragland, 434 Fed. Appx. 863, 869 (11th
Cir. 2011). All of the evidence in this case, fortified by Carter’s clearly admissible
forenoon confession, was more than overwhelming, it was conclusive.
B. Denial of Motion to Sever Counts. Carter moved to sever Counts
Four, Five, and Six of the superseding indictment – the cocaine offenses and the
firearms charge associated with those offenses – so that he would be tried first
15
Case: 10-15413 Date Filed: 07/24/2012 Page: 16 of 29
with respect to the Hobbs Act and firearms offenses alleged in Counts One
through Three, standing alone.
His argument in the district court, repeated here on appeal, is that the two
groups of counts were not sufficiently “connected” as required for joinder under
Federal Rule of Criminal Procedure 8(a), and that he was prejudiced because he
would have testified at a separate trial with respect to the drug charges. We are
not persuaded.12
The two groups of counts were connected in this case by evidence including
Carter’s own admissions, supported by Ritchie’s testimony, that he used a portion
of the proceeds of the robbery to purchase cocaine which he converted to “crack”
for sale on the street. There was, therefore, not only a transactional relationship
between the two groups of offenses, that relationship also served as relevant
evidence of Carter’s motive for planning and carrying out the robbery. With
respect to the firearm count associated with the two drug counts, the search
incident to Carter’s arrest led to the discovery of firearms in the area of a quantity
of cocaine and cocaine paraphernalia; and Ritchie testified that Carter kept a
12
Whether the district court was justified in denying a motion to sever counts of an
indictment is reviewed for abuse of discretion. United States v. Walser, 3 F.3d 380, 385 (11th
Cir. 1993).
16
Case: 10-15413 Date Filed: 07/24/2012 Page: 17 of 29
firearm between the front seats of his car whenever he drove to the area of his drug
dealing.13
We conclude that the district court did not abuse its discretion in finding
that all of the counts of the superseding indictment were sufficiently “connected”
for purposes of joinder under Rule 8(a).
Furthermore, a severance is not required simply because a defendant
declares that he wishes to testify concerning some counts but not others. United
States v. Hersh, 297 F.3d 1233, 1243 n. 15 (11th Cir. 2002). “[T]o establish that
the joinder of charges kept him from testifying, [a defendant] must show that the
charges were distinct in time, place, and evidence, that there was ‘important’
evidence that he might have offered on one set of charges but could not, and that
he had a ‘strong need’ not to testify on the other counts.” Id. (citing United States
v. Gardiner, 955 F.2d 1492, 1497 (11th Cir. 1992)). That showing has not been
made in this case.
III
A. Asserted Errors During Trial. Carter claims that the district court
committed several errors during trial.
13
This testimony and evidence also requires rejection of Carter’s claim on appeal that
there was insufficient evidence to support his conviction (of Count Six) for knowingly
possessing a firearm in furtherance of a drug transaction in violation of 18 U.S.C. § 924(c)(1)(A).
17
Case: 10-15413 Date Filed: 07/24/2012 Page: 18 of 29
1. During voir dire of the jury panel, while the judge was explaining the
presumption of innocence and the burden of proof in criminal cases, a prospective
juror raised his hand. This is the colloquy that followed:
The Court: Yes, sir. What’s the problem? Wait. Let
me get [a microphone] - - - tell us your
name?
****
Prospective Juror: [states his name]
The Court: All right Mr. [name of prospective juror].
What’s the problem?
Prospective Juror: I work in an office building that is like a
stone’s throw from this. I remember this
vividly the day it happened.
The Court: Okay. And you feel that your experiences at
that time would make it impossible for you
to be fair and impartial?
Prospective Juror: Well, when you asked if I knew anything of
the people, no, but I do recognize - -
The Court: Okay. You know I don’t want you to say
more because I don’t want to, you know,
taint any of the other people.
Prospective Juror: Of course.
The Court: You are excused. Any objection from either
side?
18
Case: 10-15413 Date Filed: 07/24/2012 Page: 19 of 29
No objection was stated concerning the excusal of the prospective juror, but
Carter’s counsel subsequently moved out of the presence of the venire to strike the
jury panel in its entirety stating that the prospective juror had gestured toward
Carter at the time the court interrupted and cut off the prospective juror’s
statement. The Judge denied the motion saying that “I don’t think his gesture was
that clear or that unequivocal,” and the prosecutor added that “I think he was
waving in general.”
“We review the district court’s determination whether to strike an entire jury
panel for manifest abuse of discretion.” United States v. Trujillo, 146 F.3d 838,
842 (11th Cir. 1998) (citing United States v. Simmons, 961 F.2d 183, 184 (11th
Cir. 1992) and United States v. Muller, 698 F.2d 442, 444 (11th Cir. 1983)). We
have also said that “it is generally proper for a reviewing court, which must rely on
a cold record, to defer to the conclusions reached by the trial judge on this issue
[involving assessment of bias during jury selection].” Depree v. Thomas, 946
F.2d 784, 790 n. 12 (11th Cir. 1991). We do not perceive any abuse of discretion
in this case. It would be entirely speculative to conclude on this record that
anyone on the jury panel either was, or might have been, impelled to bias against
the defendant by the prospective juror’s statement accompanied by an indefinite
gesture.
19
Case: 10-15413 Date Filed: 07/24/2012 Page: 20 of 29
2. The case agent was called as a witness by the United States to
facilitate publication to the jury of the videotapes taken from the Dadeland Mall’s
surveillance cameras depicting scenes in the area of The Express store on
December 1, 2008. During the course of his direct examination he was asked who
the person was in the video then being displayed to the jury. He responded
“Emmanuel Maxime.” Defense counsel objected on grounds of improper
predicate, and the judge himself asked the witness how he identified the subject as
Maxime. The witness answered: “He confessed to being that person.” Carter’s
counsel moved for a mistrial which the district court denied.14 The answer of the
witness was probably not excludable hearsay,15 but that does not matter because it
was an infringement of Carter’s Sixth Amendment right of confrontation under
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). Nevertheless, it
was also an entirely innocuous event. There is no suggestion of improper motive
or wrongful conduct by the prosecution or by the witness. The infringing answer
14
The district court offered to give a limiting instruction to the jury but defense counsel
elected not to request it “because the bell has already rung. . . .”
15
Federal Rule of Evidence 804(b)(3) creates an exception to the exclusion of a hearsay
declaration that constitutes a statement against interest (by an unavailable witness) defined as a
statement that “a reasonable person in the declarant’s position would have made only if the
person believed it to be true because, when made, it . . . had so great a tendency to . . . expose the
declarant to civil or criminal liability; and is supported by corroborating circumstances that
clearly indicate its trustworthiness. . . .”
20
Case: 10-15413 Date Filed: 07/24/2012 Page: 21 of 29
was entirely responsive to a question from the court itself, not the prosecution; and
the court’s question, in turn, was a reasonable and natural consequence of the
objection made by defense counsel – no proper predicate, i.e., a challenge to the
basis of the knowledge of the witness concerning his answer to the previous
question. Additionally, the reference to an admission by Maxime that he was the
person shown in the surveillance film was not directly inculpatory of Carter, and
the six word answer in an extended trial given under the circumstances just
described, was not a noteworthy incident. Carter’s own confession identified
Maxime as his accomplice, corroborated by the testimony of Ritchie and Thomas,
and by the evidence of the cell phone records.
We have previously found an infringement of the confrontation clause to be
subject to harmless error analysis, see United States v. Mills, 138 F.3d 928, 939-
941 (11th Cir. 1998), and we reach the same conclusion in this case. No
reasonable jury would have found Carter not guilty absent this incident, and the
negligible Sixth Amendment injury was harmless beyond a reasonable doubt.
3. Carter complains that an error in the district court’s final instructions
to the jury concerning Count Six of the superseding indictment requires reversal.
There was, however no contemporaneous objection to the challenged portion of
the court’s jury charge as required by Federal Rule of Criminal Procedure 30(d),
21
Case: 10-15413 Date Filed: 07/24/2012 Page: 22 of 29
and no resulting opportunity for the district court to note and correct the error.
Under those circumstances, we conduct a plain error review under Federal Rule of
Criminal Procedure 52(b) and United States v. Olano, 507 U.S. 725, 113 S. Ct.
1770 (1993).
Count Six alleged that the defendant knowingly possessed a firearm in
furtherance of a drug trafficking crime “as set forth in Count 4 and Count 5 of this
Superseding Indictment” in violation of 18 U.S.C. § 924(c)(1)(A). In its charge to
the jury, a printed copy of which was given to the jury, the district court
mistakenly said at one point that Count Six required proof that “the defendant
committed the crime of violence charged in Count I or Count II of the indictment,”
rather than saying, correctly, that Count Six required proof of the drug trafficking
offenses charged in Count Four and Count Five. That error was arguably
corrected shortly thereafter, however, when the court said to the Jury:
The indictment charges the defendant knowingly carried
a firearm during and in relation to a drug trafficking
crime and that the defendant possessed the firearm in
furtherance of a drug trafficking crime. In other words,
the defendant is charged with violating the law in Count
6 in two separate ways. The government has to prove
only one of those ways, not both. But to find the
defendant guilty, you must all agree on which of the two
ways the defendant violated the law. (Emphasis
supplied)
22
Case: 10-15413 Date Filed: 07/24/2012 Page: 23 of 29
Additionally, the superseding indictment itself, a copy of which was given to the
jury for reference during deliberations, clearly stated that Count Six was tied to
Counts Four and Five, not Counts One and Two; and the prosecutor in his closing
argument made it clear that the firearms charge in Count Six was dependent upon
Counts Four and Five, not Counts One and Two. His argument to the jury was:
So I’ve talked about the first three counts of the
indictment. I want to spend a little time talking about
count IV, V and VI, the drug trafficking. And the
evidence in this case also establishes beyond a
reasonable doubt that Dwight Carter was trafficking
narcotics.
****
In addition to those counts, Dwight Carter is also charge
[sic] with possessing a firearm in furtherance of a drug
trafficking crime. And you can find that he did that by
finding first, that he committed the drug trafficking
crimes charged in Count IV and V of the indictment.
But in addition to that, you must find that Carter
possessed that firearm in furtherance of the drug
trafficking.
Our cases in this circuit are clear and consistent regarding plain error review
under Rule 52(b) and Olano, supra. To correct a forfeited but reversible error,
there must first be error; the error must be plain; and the plain error must affect
substantial rights. E.g., United States v. Hansley, 54 F.3d 709 (11th Cir. 1995);
United States v. Thayer, 204 F.3d 1352 (11th Cir. 2000); United States v. Bendek,
23
Case: 10-15413 Date Filed: 07/24/2012 Page: 24 of 29
146 F.3d 1326 (11th Cir. 1998). Here, there was clearly an error in the district
court’s jury instructions, and we will assume that it was plain in the sense that the
mistake was palpably contrary to clearly established law requiring legally accurate
jury instructions concerning the essential elements of the offense. We will further
assume that the error affected a substantial right, namely, the same principle of law
that the accused has a fundamental right to have the jury accurately instructed
about the essential elements of the offense. United States v. Miller, 22 F.3d 1075,
1079 (11th Cir. 1994) (citing United States v. Fitzpatrick, 581 F.2d 1221, 1223
(5th Cir. 1978) and Bearden v. United States, 320 F.2d 99, 103 (5th Cir. 1963)).
But that does not end the inquiry. As we noted in United States v. Bendek, supra:The rule permits an appellate court to correct a forfeited-
but-reversible error. There are several limitations placed
on appellate authority under such circumstances. There
must be error; the error must be plain; and the plain error
must affect substantial rights. Olano, 507 U. S. at 732-
34, 113 S. Ct. at 1777-78. There is a further limitation,
however. A court of appeals may correct a plain,
forfeited error affecting substantial rights only ‘if the
error ‘seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.”’ Id. at 736, 113 S. Ct
at 1779 (quoting United States v. Atkinson, 297 U. S.
157, 160, 56 S. Ct. 391, 392, 80 L.Ed. 555 (1936)).
Accordingly, a plain error affecting substantial rights
does not, without more, satisfy this standard. Id. at 737,
113 S.Ct at 1779.
146 F.3d at 1328 - 1329.
24
Case: 10-15413 Date Filed: 07/24/2012 Page: 25 of 29
We conclude in this instance that the plain error complained of did not
seriously affect the fairness, integrity or public reputation of the judicial
proceedings. There is nothing to suggest that the jury was in fact confused or
misled in its consideration of Count Six of the superseding indictment, and the
evidence was abundant in support of the jury’s verdict. No manifest injustice will
result from honoring that verdict, and we decline to upset it.16
IV
A. Asserted Errors in Sentencing.
1. Carter claims that error was committed in the district court’s oral
pronouncement of sentence. The record reflects that there was, indeed, some
initial confusion during the sentencing hearing concerning the court’s intended
sentence as orally announced. The record also reflects, however, that the district
court promptly clarified and restated the sentence, and that the written judgment
16
Carter also assigned as trial errors a failure to dismiss the Hobbs Act counts due to
insufficiency of the evidence of an affect on interstate commerce; an incident involving
interaction of Court personnel with the jury during the deliberations; the lack of limiting
instructions with respect to the admission of certain testimony; and a limitation of the cross
examination of Ritchie as a witness. We find no abuse of discretion by the district court and no
merit in any of these claims of error when considered singularly or cumulatively, and none
require further discussion.
25
Case: 10-15413 Date Filed: 07/24/2012 Page: 26 of 29
entered after the sentencing hearing corresponds precisely to the clarified oral
sentence.17 There was no error in these events.
2. Carter claims that error was committed during the sentencing hearing
because the judge did not address him personally for the purpose of inviting
individual allocution as required by Federal Rule of Criminal Procedure
32(i)(4)(A)(ii).18 See United Sates v.Prouty, 303 F.3d 1249 (11th Cir. 2002).
In Prouty we held that a failure by the district court to personally address the
defendant at sentencing constituted plain error affecting a substantial right, and
that, where the defendant could have received a lesser sentence, the violation
impacted the fairness of the proceeding resulting in a manifest injustice requiring
reversal. 303 F.3d at 1251-53.
Unlike Prouty, in which there was no dispute that the sentencing judge
utterly failed to address any remark to the defendant, the record in this case depicts
a different series of events.
17
The sentences the district court orally imposed and subsequently stated in the judgment
were the maximum sentences permitted by the governing statutes: consecutive terms of 20 years
as to each of Counts One, Two, Four and Five (aggregating 80 years); a consecutive term of life
imprisonment as to Count Three; and a consecutive term of 25 years as to Count Six, aggregating
in all a term of life plus 105 years.
18
The rule provides that, before imposing sentence, the court must “address the defendant
personally in order to permit the defendant to speak or present any information to mitigate the
sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii).
26
Case: 10-15413 Date Filed: 07/24/2012 Page: 27 of 29
At the sentencing hearing (a joint hearing at which the court sentenced both
Carter and Maxime), the judge first recognized the lawyers and heard from both
the prosecutor and defense counsel at length with respect to the sentencing of each
of the defendants. When counsel for Carter finished his remarks, the following
occurred:
The Court: Anything further from you and or the
defendant?
Defense Counsel: No, sir.
At that point the prosecutor asked to reply and addressed the court for several
minutes. At the end of his remarks this occurred:
The Court: Anything further from either defendant
and/or counsel?
Defense Counsel: Just briefly, Your Honor. And I do
apologize.
At the end of counsel’s statement the judge orally announced Carter’s sentence
after which the judge said:
The Court: Now that sentence has been imposed, does
the defendant or his counsel object to the
Court’s finding of fact as to the manner in
which sentence was pronounced?
Defense Counsel: The objections I previously raised.
27
Case: 10-15413 Date Filed: 07/24/2012 Page: 28 of 29
This is an instance, once again, in which we are somewhat hampered by a
cold record. We cannot see the judge at the moment he made his remarks that
were ostensibly addressed to the defendant as well as counsel. We cannot see
what gestures the judge may have made or whether eye contact was established
with the defendant. Obviously, explicit reference to the defendant by name in
inviting allocution would be a far better practice, but the rule does not require that,
and we construe the statements made by the sentencing judge to have been
addressed to the defendant personally in compliance with what the rule does
require. This conclusion is supported by at least three things. First, the words
used by the judge – three separate times – referring to the defendant or his counsel
can only be interpreted as a communication directed to both, not just to counsel
alone. Secondly, the words themselves suggest an awareness on the part of the
judge of the need to address the defendant personally, and they reflect his effort to
do so; and third, the record shows that no less than five lawyers were present
participating in the hearing as officers of the court. It seems reasonable to infer
that the well known requirement of the rule was met because not one of those
lawyers alerted the court to the contrary despite being invited by the judge to
speak up if there was more that needed to be done. We find no violation of Rule
32(i)(4)(A)(ii).
28
Case: 10-15413 Date Filed: 07/24/2012 Page: 29 of 29
Having found no reversible error in the defendant’s convictions or sentences
the judgment of commitment is AFFIRMED in all respects.
29