United States v. Leonardo Carson ( 2011 )


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  •                                                                   [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT           FILED
    ________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    No. 10-12818              NOVEMBER 28, 2011
    Non-Argument Calendar             JOHN LEY
    CLERK
    ________________________
    D.C. Docket No. 1:09-cr-00066-KD-C-1
    UNITED STATES OF AMERICA,
    lllllllllllllllllllll                                          Plaintiff - Appellee,
    versus
    LEONARDO TREMAYNE CARSON,
    a.k.a. Nardo,
    a.k.a. Leo,
    lllllllllllllllllllll                                          Defendant - Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Alabama
    ________________________
    (November 28, 2011)
    Before WILSON, PRYOR and KRAVITCH, Circuit Judges.
    PER CURIAM:
    Leonardo Carson appeals his convictions for conspiracy to possess with
    intent to distribute cocaine, cocaine base (crack), and marijuana in violation of 
    21 U.S.C. § 846
    , and possession with intent to distribute crack in violation of 
    21 U.S.C. § 841
    (a)(1). On appeal, Carson argues four claims: (1) the district court
    committed plain error and violated the Double Jeopardy Clause when it imposed a
    separate sentence for each of the three conspiracy charges;1 (2) the district court
    abused its discretion in admitting into evidence two exhibits concerning a
    marijuana conspiracy involving Kurt Vollers and John Newton because the
    evidence is hearsay, irrelevant, and unfairly prejudicial; (3) the district court
    abused its discretion in excluding evidence of Wilbert Carson’s (Wilbert) suicide
    attempts; and (4) the cumulative effect of the alleged errors denied him a fair trial.
    I.
    Where a defendant does not object to his multiple sentences below, we
    review only for plain error. United States v. Frank, 
    599 F.3d 1221
    , 1239 (11th
    Cir. 2010), cert. denied, 
    131 S. Ct. 186
     (2010). We “correct a plain error when (1)
    an error has occurred, (2) the error was plain, and (3) the error affected substantial
    rights.” United States v. Williams, 
    527 F.3d 1235
    , 1240 (11th Cir. 2008) (citations
    1
    Carson also challenges the indictment as multiplicitous. However he waived this issue
    on appeal under Federal Rule of Criminal Procedure 12(b)(3)(B) by failing to raise the issue
    before trial. He can still object to the imposition of multiple sentences. See United States v.
    Mastrangelo, 
    733 F.2d 793
    , 800 (11th Cir. 1984).
    2
    and quotation marks omitted).
    “An indictment is multiplicitous if it charges a single offense in more than
    one count.” Id. at 1241 (citation omitted). Thus, a multiplicitous indictment
    violates double jeopardy principles by giving the jury more than one opportunity
    to convict the defendant for the same offense. Id. If counts in the indictment are
    multiplicitous, separate sentences resulting from those counts are also
    multiplicitous. See United States v. Mastrangelo, 
    733 F.2d 793
    , 800 (11th Cir.
    1984).
    “We analyze issues of double jeopardy under the test set forth by the
    Supreme Court in Blockburger v. United States, 
    284 U.S. 299
    , 
    52 S. Ct. 180
    , 
    76 L.Ed. 306
     (1932).” Williams, 
    527 F.3d at 1240
     (citation omitted). “[T]the
    Blockburger test is one of statutory interpretation in which we examine the
    elements of each offense to determine whether Congress intended to authorize
    cumulative punishments.” 
    Id.
     (citation omitted). Therefore, we must analyze the
    statute that Carson was found guilty of violating to see if each offense “requires
    proof of an additional fact which the other does not.” Blockburger v. United
    States, 284 U.S. at 304, 52 S. Ct. at 182. Where the potentially multiplicitous
    violations are all charged under a single statute, the key question “is whether the
    legislature authorized separate punishments for separate offenses.” Ward v.
    3
    United States, 
    694 F.2d 654
    , 661 n.13 (11th Cir. 1983) (citation omitted). “When
    Congress has authorized punishment for specific types of conspiracies, a
    defendant may be prosecuted for each, regardless of whether the different
    prohibited objects were the subject of but one conspiratorial agreement.” 
    Id.
    (citing Albernaz v. United States, 
    450 U.S. 333
    , 337–41, 
    101 S. Ct. 1137
    , 1141–43
    (1981)).
    We therefore start by examining the statutory language to decide if the
    multiple sentences against Carson are valid. Drug conspiracies are prohibited by
    
    21 U.S.C. § 846
    , which states that “[a]ny person who attempts or conspires to
    commit any offense defined in this subchapter shall be subject to the same
    penalties as those prescribed for the offense, the commission of which was the
    object of the attempt or conspiracy.” A conspiracy to possess with intent to
    distribute violates 
    21 U.S.C. § 841
    , which prohibits any person from knowingly or
    intentionally possessing with an intent to distribute a controlled substance. The
    language of § 846 makes it clear that Congress authorized punishment for
    controlled substance conspiracies in the same manner as controlled substance
    possession under § 841. The penalties prescribed for § 841 offenses correspond to
    different quantities of different controlled substances, and list each drug in the
    disjunctive. Compare 
    21 U.S.C. § 841
    (b)(1)(A) (punishing equally the possession
    4
    of 1 kilogram or more of heroin, 5 kilograms or more of cocaine, 280 grams or
    more of crack, and 1000 kilograms or more of marijuana), with 
    21 U.S.C. § 841
    (b)(1)(B) (providing a different penalty from § 841(b)(1)(A) for 100 grams or
    more of heroin, 500 grams or more of cocaine, 28 grams or more of crack, and 100
    kilograms or more of marijuana). The statutory language indicates that Congress
    intended to impose multiple punishments for possession with intent to distribute of
    different controlled substances. See also United States v. Davis, 
    656 F.2d 153
    ,
    156–60 (5th Cir. Unit B 1981) (holding that multiple sentences may be imposed
    for “simultaneous possession” of different controlled substances under 
    21 U.S.C. § 841
    (a)). Because Congress also intended for conspiracies to possess with intent
    to distribute to be punished in the same manner as those prescribed in 
    21 U.S.C. § 841
    , the district court properly imposed multiple sentences against Carson for
    each conspiracy that the jury found him guilty of committing. See Albernaz, 
    450 U.S. at 344
    , 
    101 S. Ct. at 1145
    .
    II.
    We review evidentiary admissibility determinations for an abuse of
    discretion. United States v. Underwood, 
    446 F.3d 1340
    , 1345 (11th Cir. 2006).
    We review a district court’s factual finding that a statement was made in the
    furtherance of a conspiracy under the clearly erroneous standard. United States v.
    5
    Bazemore, 
    41 F.3d 1431
    , 1433 (11th Cir. 1994).
    Hearsay is a “statement, other than one made by the declarant while
    testifying at the trial or hearing, offered in evidence to prove the truth of the matter
    asserted,” and is generally not admissible. Fed. R. Evid. 801, 802. However,
    “inadmissible extrinsic evidence is admissible on redirect as rebuttal evidence,
    when defense counsel has opened the door to such evidence during cross-
    examination.” United States v. West, 
    898 F.2d 1493
    , 1500 (11th Cir. 1990)
    (citations omitted).
    An out-of-court statement of a co-conspirator, made during the course and
    in furtherance of the conspiracy, is not hearsay. Fed. R. Evid. 801(d)(2)(E).
    Before a co-conspirator’s statement may be admitted, however, the government
    must prove that: (1) a conspiracy existed; (2) the conspiracy included the declarant
    and the defendant against whom the statement is offered; and (3) the declarant
    made the statement during the course and in furtherance of the conspiracy. United
    States v. Santiago, 
    837 F.2d 1545
    , 1549 (11th Cir. 1988). When determining
    whether these conditions have been satisfied, the district court may rely on
    information provided by the co-conspirator’s proffered statement, as well as
    independent external evidence. United States v. Byrom, 
    910 F.2d 725
    , 735–36
    (11th Cir. 1990). Finally, we “appl[y] a liberal standard in determining whether a
    6
    statement is made in furtherance of a conspiracy.” Santiago, 
    837 F.2d at 1549
    (citation omitted).
    “Relevant evidence” is “evidence having any tendency to make the
    existence of any fact that is of consequence to the determination of the action more
    probable or less probable than it would be without the evidence.” Fed. R. Evid.
    401. Irrelevant evidence is inadmissible. Fed. R. Evid. 402. However, relevant
    evidence “may be excluded if its probative value is substantially outweighed by
    the danger of unfair prejudice, confusion of the issues, or misleading the jury.”
    Fed. R. Evid. 403. We have held that Rule 403 is an “extraordinary remedy”
    whose “major function” is to exclude “matter of scant or cumulative probative
    force, dragged in by the heels for the sake of its prejudicial effect.” United States
    v. Hands, 
    184 F.3d 1322
    , 1328 (11th Cir. 1999) (quotations omitted).
    The district court properly admitted government’s exhibit 22, the alleged
    drug ledger that Officer Carstarphen found in Newton’s apartment. Although the
    ledger was initially excluded, defense counsel asked Officer Carstarphen if he had
    seen “a car associated with [Carson] or anything” at Newton’s apartment. The
    court’s ruling that use of the word “anything” opened the door to admission of the
    drug ledger was not an abuse of the discretion, as the ledger was associated with
    Carson and found at the apartment.
    7
    The court properly admitted government’s exhibit 25, the text message
    between Vollers and Newton, under the co-conspirator exception to the hearsay
    rule. The district court’s ruling was supported by the content of the message itself;
    the frequent phone calls between Vollers, Newton, and Carson; and the fact that
    Vollers and Newton were dealing extremely large quantities of marijuana. Carson
    argues that the high volume of phone calls between Vollers, Newton, and Carson
    is due to the fact that the three men were teammates on the Dallas Cowboys.
    However, this bare allegation does not show that the district court abused its
    discretion in permitting government’s exhibit 25 into evidence.
    Furthermore, the exhibits were not irrelevant, as they made it more likely
    that Carson could obtain large quantities of marijuana to support the alleged
    conspiracy to possess with intent to distribute marijuana, and were not so
    prejudicial that they should have been excluded under Rule 403. Therefore, the
    exhibits were properly admitted by the district court.
    III.
    We review the district court’s restrictions on cross-examination for an abuse
    of discretion. United States v. Baptista-Rodriguez, 
    17 F.3d 1354
    , 1370–71 (11th
    Cir. 1994). The Confrontation Clause of the United States Constitution guarantees
    criminal defendants the right to cross-examine witnesses. Pointer v. Texas,
    8
    
    380 U.S. 400
    , 404, 
    85 S. Ct. 1065
    , 1068 (1965). The Confrontation Clause
    “guarantees only an opportunity for effective cross-examination, not cross-
    examination that is effective in whatever way, and to whatever extent, the defense
    might wish.” Kentucky v. Stincer, 
    482 U.S. 730
    , 739, 
    107 S. Ct. 2658
    , 2664 (1987)
    (citation and quotation marks omitted). The defendant’s rights under the
    Confrontation Clause are satisfied when the “cross-examination permitted exposes
    the jury to facts sufficient to evaluate the credibility of the witnesses and enables
    defense counsel to establish a record from which he can properly argue why the
    witness is less than reliable.” Mills v. Singletary, 
    161 F.3d 1273
    , 1288 (11th Cir.
    1998) (per curiam) (citation and quotation marks omitted). Once there is
    sufficient cross-examination to satisfy the Confrontation Clause, the district court
    may limit further cross-examination within its discretion. United States v. Diaz,
    
    26 F.3d 1533
    , 1539–40 (11th Cir. 1994) (finding that a defendant’s wish to
    explore bias on the part of a prosecution witness “does not automatically void the
    court’s ability to limit cross-examination”).
    The district court properly limited the cross-examination of Wilbert by
    excluding evidence of his suicide attempts, because the jury was able to evaluate
    Wibert’s credibility and bias through other facts: his past drug conviction, prior
    inconsistent statements about who was transporting how much marijuana from
    9
    Texas, his plea agreement, and the testimony from Rosemary Carson that Wilbert
    told her that the government was exerting pressure on him to testify. Therefore,
    the district court did not abuse its discretion when it disallowed evidence of
    Wilbert’s suicide attempts.
    IV.
    Under the cumulative error doctrine, even if individual judicial errors would
    not be sufficient to warrant reversal, the defendant may have been denied a fair
    trial when the effect of all the errors is evaluated cumulatively. United States v.
    Lopez, 
    590 F.3d 1238
    , 1258 (11th Cir. 2009). “In addressing a claim of
    cumulative error, we must examine the trial as a whole to determine whether the
    appellant was afforded a fundamentally fair trial.” 
    Id.
     (quotation omitted).
    Here, the district court did not err; therefore, there was no cumulative error.
    AFFIRMED.
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