United States v. Dorita Clay ( 2021 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-12279
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DORITA CLAY,
a.k.a. Dorita West,
a.k.a. Dorita Browning,
a.k.a. Dorita Mial,
a.k.a. Dorita Moultrie,
a.k.a. Dorita Mobley,
a.k.a. Dorita Brooks,
Defendant-Appellant.
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2 Opinion of the Court 19-12279
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 4:17-cr-00035-CDL-MSH-2
____________________
Before WILSON, ROSENBAUM, and GRANT, Circuit Judges.
PER CURIAM:
Dorita Clay appeals her convictions for 21 counts of wire
fraud, in violation of 18 U.S.C. § 1343, and a single count of con-
spiracy to commit wire fraud, in violation of 18 U.S.C. § 1349. She
also appeals her 96-months’ imprisonment sentence.
Clay argues three issues on appeal: (1) whether the district
court abused its discretion by improperly entering an unredacted
copy of Darlene Corbett’s, a testifying co-defendant, plea agree-
ment into evidence; (2) whether the government made improper
comments during its closing argument that substantially preju-
diced Clay; and (3) whether the district court’s application of an
upward variance to Clay’s sentence based on its finding that she
lacked remorse was procedurally and substantively unreasonable.
Because we find no error, we affirm.
We will address each issue in turn. Because the facts of this
case are well known to the parties, we do not recount them except
as necessary to our disposition of each issue.
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19-12279 Opinion of the Court 3
I.
First, Clay argues that the district court abused its discretion
by entering an unredacted copy of Corbett’s plea agreement into
evidence.
We review the district court’s rulings on the admissibility of
evidence for an abuse of discretion. United States v. Jiminez, 224
F.3d 1243, 1249 (11th Cir. 2000).
At the start of Corbett’s testimony, the government ques-
tioned her about her plea agreement. Corbett confirmed that she
pleaded guilty to conspiring with Clay to commit fraud, acknowl-
edging that she faced a possible 20-year prison sentence. The gov-
ernment then introduced the plea agreement into evidence.
Though noting that she did not “really have a problem with using
the plea agreement,” Clay objected to the plea agreement being
admitted as an exhibit because she argued that it contained hearsay
and a factual stipulation that restated the government’s case. The
district court overruled the objection but gave a cautionary instruc-
tion to the jury. The government then showed portions of the plea
agreement to the jury. Corbett confirmed that she agreed to testify
truthfully in exchange for the government’s promise to ask the dis-
trict court to credit her cooperation at her sentencing. On cross-
examination, Clay used the plea agreement to impeach Corbett’s
testimony.
On appeal, Clay contends that the district court’s instruction
to the jury was insufficient because the district court did not
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specifically state that the jury could not use the plea agreement for
substantive purposes. Therefore, Clay asserts that the jury was
able to use the entire plea agreement as substantive evidence
against her, creating reversible error.
In general, “[o]ne person’s guilty plea or conviction may not
be used as substantive evidence of the guilt of another.” United
States v. King, 505 F.2d 602, 607 (5th Cir. 1974). 1 However, a co-
defendant’s guilty plea is admissible at trial provided that “the evi-
dence serves a legitimate purpose” and “the jury is properly in-
structed about the limited use they may make of it.” United States
v. DeLoach, 34 F.3d 1001, 1003 (11th Cir. 1994) (per curiam). Two
examples of proper evidentiary use of such plea agreements in-
clude (1) to impeach trial testimony and (2) to reflect on a witness’s
credibility. Id. at 1004.
We find that the district court did not abuse its discretion by
admitting Corbett’s plea agreement into evidence. The govern-
ment introduced the plea agreement not for the facts it recited but
to bolster Corbett’s credibility by showing that she was obligated
to testify truthfully. Though generally, the government should not
do that before the witness’s credibility is attacked, United States v.
Hilton, 772 F.2d 783, 787 (11th Cir. 1985); see also Fed. R. Evid.
608(a), Clay did not object during trial on that basis, so she forfeited
1All decisions of the former Fifth Circuit handed down prior to the close of
business on September 30, 1981, are binding precedent in the Eleventh Circuit.
Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
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19-12279 Opinion of the Court 5
that opportunity. See id. Nor does Clay argue on appeal that the
government improperly bolstered Corbett’s credibility. Moreover,
the district court instructed the jury that the plea agreement was
“strictly an agreement between [Corbett] and the government
[and] not proof of anything that Ms. Clay may have done.” This
cautionary instruction directed the jury not to consider Corbett’s
plea agreement as substantive evidence of Clay’s guilt. Absent any
showing from Clay of the existence of aggravated circumstances,
the instruction cured the potential for prejudice. United States v.
Carrazana, 921 F.2d 1557, 1568 (11th Cir. 1991) (“[A] cautionary in-
struction directing the jury not to consider a guilty plea as substan-
tive evidence of guilt will sufficiently cure any potential for preju-
dice to the defendant on trial.”).
Finally, because the evidence independent of the plea agree-
ment was itself sufficient to support the verdict, any error that
might have resulted was harmless. United States v. Hawkins, 905
F.2d 1489, 1493 (11th Cir. 1990). The information contained in the
factual stipulation mirrored the testimony at trial. Thus, admission
of the plea agreement did not substantially impact the outcome of
the trial and hence did not affect Clay’s substantial rights. Id. Ac-
cordingly, we find that the district court did not err in entering an
unredacted copy of Corbett’s plea agreement into evidence.
II.
Second, Clay argues that the government’s statements in its
closing arguments substantially prejudiced her such that she is en-
titled to a new trial.
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We generally apply de novo review to allegations of prose-
cutorial misconduct because they raise a mixed question of law and
fact. United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006).
But “[w]hen a defendant fails to object to the prosecutor’s closing
argument, relief is available to rectify only plain error that is so ob-
vious that failure to correct it would jeopardize the fairness and in-
tegrity of the trial.” United States v. Bailey, 123 F.3d 1381, 1400
(11th Cir. 1997).
Prior to closing arguments, the district court told the jury
members that the lawyers’ respective arguments were not evi-
dence and that the government had the burden of proof in the case.
During its closing argument, the government argued, inter alia,
that Clay had attempted to defraud the jury during her testimony.
In so doing, the government described Clay as a “pill junkie” and a
“flimflam artist” who “flimflammed probably a billion people.”
The government also noted the speed of the trial, attributing it to
Clay’s failure to “challenge any of [the government’s] evidence . . .
[or] impeach any of [its] witnesses.”
At the start of its rebuttal, the government stated that it
“ha[d] the burden . . . [a]nd the burden is beyond a reasonable
doubt.” It described Clay as “a mean-spirited client with a bad
story” and commented that “[t]his is the most empty courtroom
I’ve ever seen for a defendant.” After the government’s rebuttal,
the district court reminded the jury that “[t]he defendant does not
have to prove her innocence or produce any evidence at all,” but
that “[t]he government must prove guilt beyond a reasonable
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19-12279 Opinion of the Court 7
doubt.” Defense counsel did not object to the government’s clos-
ing argument or rebuttal.
To assess the prejudicial impact of the government’s state-
ments, we evaluate them in the context of the trial as a whole and
assess their probable impact on the jury. United States v. Hernan-
dez, 145 F.3d 1433, 1438 (11th Cir. 1998). Nonetheless, prosecuto-
rial misconduct requires a new trial only where the remarks were
improper and prejudiced the defendant’s substantial rights. United
States v. Paul, 175 F.3d 906, 912 (11th Cir. 1999). Further, gener-
ally, prejudice resulting from the government’s improper state-
ments during closing can be cured by instructions from the district
court that the government’s arguments are not evidence, and the
jury must base its decision solely on the evidence presented at trial.
Bailey, 123 F.3d at 1402. And the jury is presumed to follow the
curative instructions that it receives from the district court. United
States v. Almanzar, 634 F.3d 1214, 1223 (11th Cir. 2011).
There “is no prohibition on colorful and perhaps flamboyant
remarks if they relate to the evidence adduced at trial.” Bailey, 123
F.3d at 1400 (internal quotation marks omitted). And an “unflat-
tering characterization[] of a defendant will not provoke a reversal
when such descriptions are supported by the evidence.” United
States v. Tisdale, 817 F.2d 1552, 1555 (11th Cir. 1987) (per curiam).
But during its closing argument, the government “must observe
the distinction between the permissible practice of arguing evi-
dence and suggesting inferences which the jury might draw from
it and the impermissible practice of arguing suggestions beyond the
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8 Opinion of the Court 19-12279
evidence.” United States v. Simon, 964 F.2d 1082, 1086 (11th Cir.
1992).
On appeal, Clay argues that the government’s statement
that the trial moved quickly because she did not challenge its evi-
dence improperly shifted the burden of proof to her from the gov-
ernment. She also claims that the government’s statement that she
“flimflammed probably a billion people” constituted improper
speculation about bad acts not in the record or charged in the in-
dictment. Clay further contends that the government made multi-
ple improper statements, including referring to her as a “pill
junkie” and speculating about the lack of individuals present in the
courtroom to support her. She finally argues that the govern-
ment’s improper statements, which were “calculated to mislead
the jury,” cumulatively resulted in substantial prejudice even if
they did not on an individual basis. We disagree.
Because defense counsel did not object to any of the above
statements, we apply plain error review. Bailey, 123 F.3d at 1400.
Under this level of review, a prosecutor’s comments may only be
the basis of reversal “if they result in prejudice affecting the sub-
stantial rights of the defendant.” Id. Here, Clay fails to establish
that the contested statements constitute plain error because she
does not show that she was so prejudiced.
Clay first argues that the government’s comment that Clay
“flimflammed probably a billion people” had the prejudicial effect
of “rais[ing] speculation that was passed on the jury . . . that [Clay]
had committed one billion bad acts that were not in the
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record . . . .” Although the government cannot argue suggestions
beyond the evidence, Simon, 964 F.2d at 1086, and this remark was
improper, it would have been clear to anyone listening that this
was a hyperbolic remark, not a factual or inferential one. And Clay
does not provide support for her improbable allegation that the
“billion people” remark had misled the jury into believing that she
had actually committed a billion other bad acts. To justify reversal,
the challenged statement must be not only improper, but must also
prejudicially affect a substantial right of the defendant. United
States v. Obregon, 893 F.2d 1307, 1310 (11th Cir. 1990) (citations
omitted). Clay does not make any factual allegations on appeal that
would tend to produce the necessary showing that, but for the ut-
terance, the outcome of the trial would have been different. United
States v. Wilson, 149 F.3d 1298, 1301 (11th Cir. 1998).
We similarly dispense with Clay’s allegations concerning a
litany of other statements made by the government at closing. The
government’s statements that Clay was a “pill junkie” and a “flim-
flam artist” were also not improper because the government “was
merely drawing these conclusions from the record.” United States
v. Azmat, 805 F.3d 1018, 1045 (11th Cir. 2015). Likewise, the gov-
ernment’s description of Clay as a “mean-spirited client,” while un-
flattering, is supported by the evidence and thus was not improper.
United States v. Windom, 510 F.2d 989, 994 (5th Cir. 1975). And
we have held more inflammatory statements insufficient to war-
rant reversal. See, e.g., Tisdale, 817 F.2d at 1555 (affirming a con-
viction where the prosecutor described the defendant as a “dirty,
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10 Opinion of the Court 19-12279
low-life criminal”). The government’s comment regarding the fact
that “[t]he only family that appeared for [Clay] testified against her”
was not improper because the record reflects that both her ex-hus-
band and her sister-in-law indeed testified against her at trial. See
Windom, 510 F.2d at 994. As for its remark about the “empty
courtroom,” that was improper. There can be many reasons why
a defendant does not have supporters in the gallery during a trial,
from financial reasons to personal reasons, and the fact that the
courtroom was empty was not relevant to anything the govern-
ment had to prove. Nevertheless, Clay has not shown that the re-
mark substantially influenced the outcome.
Clay makes another argument here: even if the allegedly
problematic statements were not prejudicial in isolation, “when
taken together as a whole, [they] resulted in substantial prejudice.”
Indeed, we may consider the cumulative impact of multiple in-
stances of prosecutorial misconduct to determine whether reversal
is warranted even where individual instances are themselves insuf-
ficient. United States v. Lopez, 590 F.3d 1238, 1258 (11th Cir. 2009).
But here, the challenged remarks could not have affected
Clay’s substantial rights for two reasons: (1) she does not show that
the alleged errors substantially influenced the outcome and (2) suf-
ficient evidence not infected by errors supported Clay’s guilty ver-
dict. Hawkins, 905 F.2d at 1493. On the first point (and the sec-
ond), the record contains more than sufficient independent evi-
dence of Clay’s guilt, which counteracts any potential prejudice
caused by the government’s remarks. See United States v. Frank,
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599 F.3d 1221, 1238–39 (11th Cir. 2010). And beyond that, on this
record, the district court’s instructions to the jury cured any poten-
tial prejudice from the government’s comments to the extent they
could have otherwise impacted the outcome. 2 Bailey, 123 F.3d at
1402; Almanzar, 634 F.3d at 1223.
Accordingly, we find that certain statements during the gov-
ernment’s closing argument did not substantially prejudice Clay.
III.
Last, Clay argues that her 96-month sentence was procedur-
ally and substantively unreasonable because the record does not
support the district court’s reasoning that Clay’s lack of remorse
justified its application of an upward variance to her sentence.
We review the reasonableness of a sentence, whether inside
or outside the Federal Sentencing Guidelines range, under a defer-
ential abuse of discretion standard. Gall v. United States, 552 U.S.
38, 41 (2007). This standard is applied to the review of both the
procedural and substantive reasonableness of sentences imposed
by the district court. Id. at 51.
The jury found Clay guilty of 22 of the 23 total charges for
which she was indicted. With a total offense level of 23 and a crim-
inal history category of IV, the resulting Guidelines range in Clay’s
2“[A]ny potential prejudice regarding burden-shifting was diminished by the
prosecution’s statement in their closing argument that the burden of proof
was theirs to carry and by the trial court’s explicit instruction after closing ar-
guments to that same effect.” Hernandez, 145 F.3d at 1439.
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presentence investigation report (PSI) was 70 to 87 months’ incar-
ceration, with a statutory maximum term of imprisonment for
each count of conviction of 20 years. The PSI also determined that,
under 18 U.S.C. § 3663A, Clay was required to pay restitution to-
taling $947,718.50.
In discussing Clay’s total sentence, the district court stated
that it considered the Guidelines range and each of the 18 U.S.C.
§ 3553(a) factors. It found that an upward variance was appropriate
because of Clay’s lack of remorse because despite the “overwhelm-
ing” evidence presented against her at trial, she “continue[d] to de-
flect responsibility,” making her a “dangerous person.” Conse-
quently, the district court varied upward from the Guidelines range
of 70 to 87 months and sentenced Clay to a total of 96-months’ im-
prisonment, followed by three years’ supervised release. The dis-
trict court then asked Clay if she had any additional objections, but
she declined.
Whether the sentence is procedurally reasonable is an anal-
ysis to ensure that the district court committed no “significant pro-
cedural error,” such as, but not limited to, improperly calculating
the Guidelines range, treating the Guidelines as mandatory, basing
a sentence on “clearly erroneous facts,” or failing to explain the sen-
tence as chosen. Gall, 552 U.S. at 51. Where a defendant did not
object to the procedural reasonableness of the sentence imposed,
we review for plain error. United States v. Vandergrift, 754 F.3d
1303, 1307 (11th Cir. 2014).
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In review of the substantive reasonableness of a sentence,
we find that the district court has abused its discretion and imposed
a substantively unreasonable sentence in only the instance that it
“(1) fails to afford consideration to relevant factors that were due
significant weight, (2) gives significant weight to an improper or
irrelevant factor, or (3) commits a clear error of judgment in con-
sidering the proper factors.” United States v. Irey, 612 F.3d 1160,
1189 (11th Cir. 2010). The proper factors include, but are not lim-
ited to, the history and characteristics of the defendant, the serious-
ness of the offense, and adequate deterrence. 18 U.S.C.
§ 3553(a)(1)–(2).
The party challenging the sentence bears the burden of es-
tablishing that it is unreasonable based on the record and the §
3553(a) factors. United States v. Delva, 922 F.3d 1228, 1256 (11th
Cir. 2019). The district court has broad discretion to decide
whether the § 3553(a) factors justify a variance. United States v.
Rodriguez, 628 F.3d 1258, 1264 (11th Cir. 2010), abrogated on other
grounds by Van Buren v. United States, 141 S. Ct. 1648 (2021). The
district court also has the discretion to determine how much
weight to give each factor and “is permitted to attach great weight
to one factor over others.” United States v. Riley, 995 F.3d 1272,
1279 (11th Cir. 2021) (internal quotation marks omitted). Addition-
ally, “[a] district court is permitted to consider lack of remorse in
its § 3553(a) analysis as to several factors, such as the characteristics
of a defendant, the need to promote respect for the law, and the
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need to protect society.” United States v. McNair, 605 F.3d 1152,
1231 (11th Cir. 2010).
When the sentence imposed by the district court is outside
the Guidelines range, “the justification for the variance must be suf-
ficiently compelling to support the degree of the variance.” Irey,
612 F.3d at 1186 (internal quotation marks omitted). This explana-
tion need only be adequate “to satisfy the appellate court that [the
sentencing court] has considered the parties’ arguments and has a
reasoned basis for exercising [its] own legal decisionmaking author-
ity.” Rita v. United States, 551 U.S. 338, 356 (2007). We may not
presume that a sentence outside of the Guidelines range is unrea-
sonable, but rather must give deference to the district court’s deci-
sion that the § 3553(a) factors support its chosen sentence. Irey,
612 F.3d at 1187.
On appeal, Clay argues that the upward variance was proce-
durally and substantively unreasonable. She argues that the district
court’s finding of a lack of remorse, upon which it justified the var-
iance, was not supported by the record. She further asserts that the
district court did not offer any facts or specific reasoning in support
of its finding of a lack of remorse. We find that Clay’s sentence was
not procedurally or substantively unreasonable because the district
court was entitled to consider her lack of remorse when imposing
an upward variance, and it sufficiently explained its reasoning.
The record supports the district court’s finding that Clay
lacked remorse because, at trial, she repeatedly claimed evidence
produced by the government at trial was fabricated and refused to
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acknowledge her culpability even at sentencing. Further, the dis-
trict court was permitted to consider her lack of remorse in its §
3553(a) analysis, McNair, 605 F.3d at 1231, and had the discretion
to weigh it more heavily than other factors, Riley, 995 F.3d at 1280.
Additionally, while the district court did not discuss each of the
§ 3553(a) factors in detail, it stated that it considered each factor,
which we have previously held is sufficient to establish that the dis-
trict court considered them. United States v. Isaac, 987 F.3d 980,
994–95 (11th Cir. 2021). And the district court’s explanation of its
reasoning was sufficient to establish it had a reasoned basis for its
decision. Rita, 551 U.S. at 356. Finally, the fact that Clay’s 96-
months’ total sentence is well below the statutory maximum of 20
years is further evidence of its reasonableness. United States v.
Dougherty, 754 F.3d 1353, 1362 (11th Cir. 2014).
Thus, we find that the district court did not abuse its discre-
tion in applying an upward variance to Clay’s sentence.
AFFIRMED.