United States v. Kerry Ann Walters-Ricketts , 479 F. App'x 913 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-16109 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 25, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 0:10-cr-60170-JIC-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllllllllllllllllllll lPlaintiff-Appellee,
versus
KERRY ANN WALTERS-RICKETTS,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 25, 2012)
Before HULL, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Kerry Ann Walters-Ricketts (“Ricketts”) appeals her convictions and her
total 90-month sentence after being convicted by a jury of importing cocaine, in
violation of 21 U.S.C. § 952(a) (Count 1), and possessing with intent to distribute
cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count 2). Ricketts raises three
main arguments on appeal. First, she contends that the district court violated
Federal Rule of Evidence 404(b) by admitting evidence that she sat next to a
known drug dealer during two flights between the United States and Jamaica.
Second, she argues that the government presented insufficient evidence at trial to
prove that she knew about the cocaine concealed in her handbag. Finally, she
asserts that the district court erred by giving her a two-level guideline
enhancement for obstruction of justice. For the reasons set forth below, we affirm.
I. FACTS
At Ricketts’s trial, the government introduced the testimonies of several law
enforcement agents, revealing the following facts. Federal agents received
information from a confidential informant, Wendell Hamilton, that Ricketts might
be carrying drugs on a flight from Jamaica to the United States on April 29, 2010.
Upon Ricketts’s arrival at the airport, agents searched her luggage and discovered
approximately one kilogram of cocaine concealed inside the lining of her handbag.
Ricketts gave the agents differing versions of how she came to possess the
handbag. She first told them that, toward the end of her stay in Jamaica, she went
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to an outdoor craft market where a vendor expressed a desire to purchase her
imitation Louis Vuitton bag. Ricketts agreed to sell the bag, and the vendor gave
her a brown handbag for her personal belongings. Ricketts carried the handbag on
her trip to the Unites States, not knowing that anything was concealed inside. The
day after her initial detention, however, Ricketts told the agents that, while in
Jamaica, she met two individuals, Kenrick and Junior. She was at the craft market
with Kenrick and saw him and Junior discuss something with the vendor. Kenrick
then brought Ricketts to the vendor, and the vendor passed a handbag to Ricketts.
The bag felt heavy, and Ricketts asked Kenrick if everything was okay with it.
Kenrick assured her that there was nothing illegal about the bag, and Ricketts
thought there might have been something inside, like currency. Kenrick told her
that she would receive a phone call and instructions regarding the bag when she
returned to the United States.
The government further introduced the testimony of Hamilton, the
informant. Hamilton testified that he became friends with an individual named
Andre Holland, who offered him an opportunity to smuggle drugs. Hamilton
regularly visited Holland’s apartment on the weekends and saw Ricketts there on
several occasions. At one point, Hamilton, Holland, and Ricketts discussed
various ways in which Hamilton could smuggle drugs into the United States from
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Jamaica. Ricketts mentioned several contacts in Jamaica who would provide the
drugs, including her two cousins. When Hamilton went to Jamaica on a
smuggling trip, he met Ricketts’s cousins, and they gave him pellets of cocaine to
swallow. Hamilton stated that Ricketts would recruit people in Jamaica for the
drug smuggling operation and that Holland would sell the drugs.
As the last witness, the government called Jacqueline Gayle, a custodian of
records for Air Jamaica. Gayle testified that Ricketts made 28 flights (14 round
trips) to and from Jamaica between 2006 and April 2010. On April 3, 2010,
Ricketts purchased a ticket to travel to Jamaica between April 22nd and 29th.
Through Gayle’s testimony, the government introduced several flight manifests
that detailed the passengers’ names and seat assignments on flights taken by
Ricketts. Two of the flight manifests showed that Holland and Ricketts had
assigned seats close to each other on two Air Jamaica flights that occurred on
August 11, 2009, and January 8, 2010, respectively.
Ricketts objected to the flight manifests containing Holland’s name. She
argued that the government was attempting to “smear” her by associating her with
a major drug dealer and implying that she was involved in drug trafficking on
dates not charged in the indictment. The government responded that the evidence
corroborated Hamilton’s testimony by showing that Ricketts was involved in drug
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trafficking.
The district court overruled Ricketts’s objection, finding that the flight
manifests were probative because they corroborated Hamilton’s testimony by
showing a relationship or a potential relationship between Ricketts and Holland.
The court also found that the prejudicial effect of this evidence did not
substantially outweigh its probative value.
After the government rested, Ricketts herself took the stand. She testified
that she took many flights to Jamaica because she was from Jamaica and many of
her family members and friends lived in that country. Ricketts indicated that the
purpose of her latest visit to Jamaica was to attend her husband’s uncle’s funeral.
Her husband did not go to the funeral because his passport expired and he had
trouble renewing it due to an incorrect spelling on his birth certificate. Ricketts
stated that she did not bring any documentation to prove that her husband intended
to attend the funeral because she did not think this information was relevant to her
case.
Ricketts testified that, toward the end of her stay in Jamaica on April 29,
2010, she went to a craft market to meet Kenrick, her acquaintance. She did not
know that Kenrick was involved in drug activity, and he never asked her to carry
drugs. Kenrick had a friend who worked at the market, and the friend asked
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Ricketts for her imitation Louis Vuitton bag. Ricketts agreed to sell the bag, but
told the friend that she had nowhere to put her things. The friend told Ricketts not
to worry and gave her a brown handbag that was brand new with a tag still
attached. Ricketts did not notice anything suspicious about the bag and placed her
things in it.
Ricketts further testified that she met Holland in June 2009 and talked to
him occasionally. She and Holland never discussed drugs, drug smuggling, or
Hamilton, and she did not volunteer to smuggle drugs for Holland. Ricketts stated
that she did not know Holland was a drug dealer. After Ricketts’s testimony, the
defense rested and moved for acquittal, but the district court denied the motion.
The jury ultimately convicted her on both counts.
A probation officer prepared the presentence investigation report (“PSI”)
and calculated Ricketts’s guideline range. The officer set her base offense level at
26, pursuant to U.S.S.G. § 2D1.1(c), and did not add any enhancements or
reductions. Because Ricketts had no prior convictions, she was placed into
criminal history category I, which, combined with the offense level of 26,
generated a guideline range of 63 to 78 months’ imprisonment.
The government filed an objection to the PSI, arguing that Ricketts should
receive a two-level enhancement for obstruction of justice, pursuant to U.S.S.G.
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§ 3C1.1. At the sentencing hearing, the district court agreed with the government
and applied the two-level enhancement, finding that Ricketts willfully attempted
to obstruct justice by committing perjury. The court explained, among other
things, that Ricketts lied about the purpose of her latest trip to Jamaica and
provided an implausible explanation for why her husband did not accompany her
to his uncle’s funeral. The court noted that Ricketts purchased her plane ticket 19
days in advance of the funeral. The court also found that Ricketts lied when she
stated that she did not know that Holland was a drug dealer.
With the two-level enhancement, Ricketts’s offense level became 28, which,
combined with a criminal history category of I, yielded a guideline range of 78 to
97 months in prison. The court ultimately sentenced her to 90 months’
imprisonment on each count, to be served concurrently.
II. ANALYSIS
A. Evidentiary Ruling
We review the district court’s evidentiary rulings for abuse of discretion.
United States v. McGarity, 669 F.3d 1218, 1232 (11th Cir. 2012). Rule 404(b)
provides that evidence of “a crime, wrong, or other act is not admissible to prove a
person’s character in order to show that on a particular occasion the person acted
in accordance with the character,” although such evidence may be admissible “for
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another purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” Fed.R.Evid. 404(b).
Rule 404(b) does not apply to evidence that is “(1) an uncharged offense
which arose out of the same transaction or series of transactions as the charged
offense, (2) necessary to complete the story of the crime, or (3) inextricably
intertwined with the evidence regarding the charged offense.” United States v.
Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007) (quotation omitted). Moreover,
“[e]vidence, not part of the crime charged but pertaining to the chain of events
explaining the context, motive, and set-up of the crime, is properly admitted if
linked in time and circumstances with the charged crime, or forms an integral and
natural part of an account of the crime, or is necessary to complete the story of the
crime for the jury.” Id. (quotation and alteration omitted). Whether or not the
evidence of uncharged activity lies within the scope of Rule 404(b), it must satisfy
the requirements of Rule 403.1 Id.In this case, evidence that Ricketts sat near Holland on two flights between
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Rule 403 provides: “The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” Fed.R.Evid. 403.
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the United States and Jamaica fell outside the scope of Rule 404(b) because it
served to explain “the context, motive, and set-up of the crime,” and formed “an
integral and natural part” of the account of the crime. See id. The main contested
issue at trial was whether Ricketts knew about the cocaine hidden in her handbag.
The government’s primary evidence regarding this issue came through Hamilton,
who testified, essentially, that Ricketts and Holland were together involved in a
conspiracy to smuggle drugs from Jamaica into the United States. The seat-
assignment evidence corroborated Hamilton’s testimony by showing a connection
between Ricketts and Holland. Evidence of the pair’s drug-smuggling conspiracy
explained why Ricketts carried cocaine in her handbag on her latest flight from
Jamaica on April 29, 2010. In this light, the seat-assignment evidence did not
constitute inadmissible extrinsic evidence under Rule 404(b). See Edouard, 485
F.3d at 1344.
Furthermore, evidence of the seat assignments did not violate Rule 403.
The evidence was probative because it corroborated Hamilton’s testimony, which
formed an essential part of the government’s case. The prejudicial impact of the
evidence, however, was minimal, as it showed only that Ricketts sat near Holland
during two flights between the United States and Jamaica. Although Ricketts’s
seating next to a drug dealer may have cast her in a negative light, her association
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with Holland was already well established through Hamilton’s testimony, which
Ricketts does not challenge on appeal. Accordingly, any prejudicial impact of the
seat-assignment evidence did not outweigh its probative value, rendering it
admissible under Rule 403. See Fed.R.Evid. 403; United States v. Smith, 459 F.3d
1276, 1295 (11th Cir. 2006) (“[W]e look at the evidence in a light most favorable
to its admission, maximizing its probative value and minimizing its undue
prejudicial impact.” (quotation omitted)). In light of the foregoing, the district
court did not abuse its discretion in admitting the evidence of seat assignments.
See Edouard, 485 F.3d at 1344; Smith, 459 F.3d at 1295.
B. Sufficiency of the Evidence
We review de novo the sufficiency of the evidence to support a criminal
conviction. United States v. Frazier, 605 F.3d 1271, 1278 (11th Cir. 2010). In
making this determination, “we view the evidence in the light most favorable to
the government, with all reasonable inferences and credibility choices made in the
government’s favor.” Id. (quotation omitted). In a criminal trial, facts may be
proved by circumstantial evidence, “even if the jury might draw other reasonable
inferences from the circumstantial evidence.” United States v. Henry, 920 F.2d
875, 877 (11th Cir. 1991) (quotation omitted). To convict a defendant under 21
U.S.C. §§ 952(a) and 841(a), the government must prove that the defendant
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knowingly imported and possessed a controlled substance. United States v. Peart,
888 F.2d 101, 104 n.2 (11th Cir. 1989).
In this case, the government presented sufficient circumstantial evidence to
show, beyond a reasonable doubt, that Ricketts knew about the drugs hidden in her
handbag. Hamilton’s testimony established that Ricketts, along with Holland,
participated in a scheme to smuggle drugs from Jamaica to the United States,
thereby raising an inference that Ricketts knowingly smuggled cocaine from
Jamaica on April 29, 2010. Hamilton’s testimony was supported by evidence that
Ricketts took numerous flights to Jamaica within four years, that she sat near
Holland on two of the flights, and that her most recent flight with Holland
occurred less than four months prior to the instant offense. Moreover, after being
arrested at the airport, Ricketts gave differing statements regarding how she came
to possess the handbag. See United States v. Farris, 77 F.3d 391, 394-95 (11th
Cir. 1996) (holding that evidence of a defendant’s conflicting statements to law
enforcement agents supported his conviction). Finally, Ricketts took the stand and
gave a relatively innocent explanation of how she obtained the handbag, but her
testimony was not credible, as indicated by the jury’s verdict, and this served as
additional evidence of her guilt. See United States v. Jiminez, 564 F.3d 1280,
1285 (11th Cir. 2009) (holding that a defendant’s own testimony supported his
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convictions because the jury was permitted to reject that testimony and consider it
as substantive evidence of guilt). Thus, the evidence in Ricketts’s case was more
than sufficient to convict her of importation and possession of cocaine. See
United States v. Quilca-Carpio, 118 F.3d 719, 720-22 (11th Cir. 1997) (holding
that the evidence was sufficient to convict a defendant for importation and
possession, where the evidence showed only that the defendant’s bag contained
about 8.5 pounds of cocaine in a hidden compartment and was unusually heavy).
C. Enhancement for Obstruction of Justice
In reviewing the district court’s imposition of an obstruction-of-justice
enhancement, we review the court’s factual findings for clear error and its
application of those findings to the Guidelines de novo. United States v. Doe, 661
F.3d 550, 565 (11th Cir. 2011), cert. denied, 132 S.Ct. 1648 (2012). Section
3C1.1 of the Guidelines provides for a two-level enhancement for defendants who
have “willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation, prosecution, or
sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1. A defendant
may obstruct justice by committing perjury, which is defined as “false testimony
concerning a material matter with the willful intent to provide false testimony,
rather than as a result of confusion, mistake, or faulty memory.” United States v.
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Singh, 291 F.3d 756, 763 (11th Cir. 2002) (quotation omitted). In reviewing a
district court’s finding of perjury, we accord “great deference to the district court’s
credibility determinations.” Id. (quotation omitted).
The district court did not clearly err in finding that Ricketts obstructed
justice by committing perjury. With regard to the purpose of her latest trip to
Jamaica, which ended on April 29, 2010, Ricketts indicated that she went to attend
her husband’s uncle’s funeral. However, as the court noted, she had bought the
plane ticket on April 3, 2010, approximately 19 days before commencing the trip.
Common knowledge suggests that a funeral usually occurs less than 19 days after
a person dies, and, logically, Ricketts would not plan to attend the funeral while
the uncle was still alive. We do not deny the possibility that the uncle’s burial
occurred more than 19 days after his death, but Ricketts failed to produce any
evidence to support this version of events, such as a death certificate or affidavit.
Moreover, the court had broad discretion not to believe Ricketts’s testimony as to
why her husband did not attend the funeral. See Singh, 291 F.3d at 763. Thus, we
cannot say that the district court clearly erred in finding that Ricketts lied about
the purpose of her travel. See United States v. Ndiaye, 434 F.3d 1270, 1305 (11th
Cir. 2006) (stating that a district court’s choice between two permissible views of
the evidence cannot be clear error).
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The district court also did not clearly err in finding that Ricketts lied when
she attested to having no knowledge of Holland’s drug dealing. As described
above, Hamilton testified that Ricketts and Holland participated in a scheme to
import drugs from Jamaica and that Holland was the one who sold the drugs.
Certainly, the district court had broad discretion to believe Hamilton, especially in
light of the jury’s verdict. See Singh, 291 F.3d at 763; see also United States v.
Lawrence, 972 F.2d 1580, 1583 (11th Cir. 1992) (stating that a court’s finding of
perjury must be “informed but not dictated by the jury’s verdict”). Accordingly,
the district court did not clearly err in finding that Ricketts committed perjury, and
properly applied the two-level enhancement under § 3C1.1. See United States v.
Vallejo, 297 F.3d 1154, 1168-69 (11th Cir. 2002) (upholding the obstruction-of-
justice enhancement for perjury where the defendant’s statements at trial were
contradicted by government witnesses). In light of the foregoing, we affirm
Ricketts’s convictions and sentences.
AFFIRMED.
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