United States v. Samuel Knowles ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 3, 2010
No. 08-13339 JOHN LEY
________________________ CLERK
D. C. Docket No. 00-00425-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAMUEL KNOWLES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 3, 2010)
Before BIRCH, MARCUS and BALDOCK,* Circuit Judges.
PER CURIAM:
*
Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting
by designation.
Samuel Knowles appeals his convictions and sentences for conspiracy to
import cocaine and conspiracy to possess with the intent to distribute cocaine.
After review of the record and consideration of the parties’ written submissions
and oral arguments, we AFFIRM.
I. BACKGROUND
Federal grand juries sitting in the Southern District of Florida returned two
separate indictments against Samuel Knowles, a citizen of the Commonwealth of
the Bahamas, charging him with multiple offenses arising out of a large-scale drug-
trafficking conspiracy. In May 2000, the grand jury returned the indictment in this
case (“Case 425”), which charged Knowles and eight other individuals with
conspiring to import cocaine from June 1995 to April 1996, in violation of 21
U.S.C. §§ 952(a), 960(a)(i), and 960(b)(1)(B)(ii), all in violation of 21 U.S.C.
§ 963 (Count 1), and conspiring to possess with intent to distribute cocaine from
June 1995 to April 1996, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A)(ii), all in violation of 21 U.S.C. § 846 (Count 2).1 The second
indictment was returned in December 2000. The indictment in that case (“Case
1091”), charged Knowles and ten other individuals with drug-trafficking offenses
that occurred between 1997 and 2000. Knowles filed an application for writ of
1
Although the indictment charged Knowles on four other counts, those counts were
dismissed upon the government’s motion following his conviction.
2
habeas corpus in Case 1091, which was ultimately successful, barring extradition
on the charges in the December 2000 indictment.
On 6 February 2002, almost immediately after the grant of Knowles’ habeas
application in Case 1091, a provisional warrant for Knowles’ arrest was issued in
Case 425. The United States government formally requested Knowles’ extradition
in Case 425 by Diplomatic Note on 18 March 2002.2 In response thereto, a
magistrate judge entered an Order of Committal on 16 December 2002, committing
Knowles to custody to await extradition in Case 425. Knowles appealed the
magistrate judge’s committal order and filed an application for writ of habeas
corpus with the Supreme Court of the Bahamas3 on the grounds that the Bahamian
Attorney General’s extradition request was an abuse of discretion. The Supreme
Court dismissed Knowles’ application in May 2003 and ordered him extradited.
On 21 May 2004, while Knowles’ appeal from the dismissal of his habeas
application was pending, the Supreme Court issued an order upon the consent of
Knowles’ counsel, counsel for the Minister of Foreign Affairs, and the Attorney
2
On 31 May 2002, former president George W. Bush designated Knowles as a “foreign
narcotics kingpin” under the Foreign Narcotics Kingpin Designation Act, 21 U.S.C. § 1901 et
seq. (“Kingpin Act”).
3
The Supreme Court is the lowest level court in the Bahamian court system. The Court
of Appeal is the intermediate court, and the Privy Council is the highest level appellate court.
3
General of the Bahamas, prohibiting Knowles’ extradition “until all legal processes
are complete in respect of both extradition applications against him.” R1-84-2 at 2.
The Court of Appeal subsequently dismissed Knowles’ appeal, and the Privy
Council affirmed on 24 July 2006. In its order, the Privy Council noted that
Knowles had filed a second application for habeas corpus on the grounds that he
could not receive a fair trial in the United States due to his “kingpin” designation
under the Kingpin Act, and that this application was still pending before the
Supreme Court. The Supreme Court set Knowles’ “kingpin” habeas application
for argument on 18 August 2006.
On 28 August 2006, the Minister of Foreign Affairs signed a Warrant of
Surrender authorizing Knowles’ extradition to the United States, pursuant to
section 12(1) of the Bahamas’ Extradition Act. A Schedule of Charges attached to
the warrant specified that the Bahamas was surrendering Knowles to the United
States on the charges set forth in Case 425, that is, conspiracy to possess with
intent to supply cocaine and conspiracy to import cocaine. A 4 September 2006
diplomatic note further clarified that Knowles “was surrendered pursuant to the
Warrant of Committal, dated 16th December 2002, issued by Magistrate Carolita
Bethell,” and that “[t]he said Warrant was issued pursuant to the Order of
4
Committal also dated 16th December 2002 and also made by the said Magistrate.”
R1-86-2 at 4.
On 28 September 2006, the Supreme Court of the Bahamas dismissed
Knowles’ request that he be returned to the Bahamas pending resolution of his
kingpin application. Citing the Privy Council’s 2005 decision in Noel Heath,
Glenroy Matthew v. United States, 2005 WL 3299098 (Privy Council), in which
the Privy Council had held that a habeas petition on “kingpin” grounds was
“impossible,”4 the Supreme Court determined that Knowles’ habeas petition was
complete because, given the Privy Council’s precedent, “all legitimate avenues [for
pursuing his kingpin application] [had been] shut off.” R1-84-2 at 53. Inasmuch
as Knowles’ kingpin application was “positively doomed to fail,” bringing him
back to the Bahamas to complete the legal process on his application would be
futile. Id. at 55-57. The court concluded that “Knowles ha[d] reached the end of
the road. He, and his counsel . . . have fought a long hard fight, and with
considerable credibility. But it is over. No extra time is allowed.” Id. at 59.
4
In Matthew, the Privy Council rejected the appellants’ argument that their “kingpin”
designations under the Kingpin Act would preclude them from receiving a fair trial in the United
States on charges of conspiracy to import cocaine. The Privy Council found that this argument
was “impossible” because “[t]he proper forum for a complaint about publicity is the trial court,”
and, moreover, “[a]ttempts to pre-empt decisions on such matters, whether arising through delay
or otherwise, would directly conflict with the principles of comity on which extradition is
based.” Matthew, 2005 WL 3299098 (quotation marks and citations omitted).
5
In January 2007, Knowles moved to dismiss the indictment, arguing that he
was extradited in violation of the 21 May 2004 Consent Order, the Bahamian
Extradition Act of 1994,5 and the Extradition Treaty between the Bahamas and the
United States.6 Specifically, he argued that because the Extradition Act prohibits a
person in custody from being extradited if proceedings on a habeas corpus
application are still pending, his extradition during the pendency of his kingpin
application was unlawful. Because his extradition was contrary to the Extradition
Act and Consent order, he argued, it violated the Extradition Treaty, which permits
extradition only where the “executive authority of the Requested State in
5
Section 11(2)(b) of the Extradition Act of 1994 provides that “[a] person committed to
custody under section 10(5) shall not be extradited under this Act . . . if an application for habeas
corpus is made in his case, so long as proceedings on the application are pending.” R1-84-2 at
77.
6
The U.S.-Bahamas Extradition Treaty provides, inter alia:
(1) A person extradited under this Treaty may only be detained,
tried, or punished in the Requesting State for the offenses for
which extradition was granted, or –
(a) any offense committed after the extradition;
(b) any offense in respect of which the executive authority of the
Requested State, in accordance with its laws, has consented to the
person’s detention, trial, or punishment; and for the purposes of
this subparagraph the Requested State shall require compliance
with the extradition procedures specified in Article 8 and the
submission of the documents specified in that Article.
R1-84-2 at 104-05.
6
accordance with its laws, has consented” to extradition. R1-84 at 4 (citing Article
14 of the Extradition Treaty, see R1-84-2 at 105.).
The district court denied the motion on 1 March 2007. The court agreed that
both the Extradition Act and the Consent Order prohibited extradition during the
pendency of a habeas application, but concluded, as had the Bahamian Supreme
Court in its 28 September 2006 order, that the arguments raised in Knowles’
kingpin application were “undisputedly . . . moot” in light of Matthew. R1-94 at 5.
Inasmuch as Knowles’ “legitimate habeas proceedings ha[d] been completed,”
extradition did not violate the Extradition Act or the Consent Order. Id. at 6. The
district court further rejected Knowles’ argument that his extradition violated the
Extradition Treaty, concluding that it was “undisputed that [the Minister of Foreign
Affairs’ 28 August 2006 Warrant of Surrender ] was issued pursuant to the
extradition requests made by the United States for the crimes charged in [Case
425],” and therefore, that “extradition was granted for prosecution of the offenses
charged in [Case 425].” Id. at 7.
Prior to the district court’s resolution of Knowles’ motion to dismiss, the
government filed a notice indicating its intent to introduce evidence related to
Knowles’ drug trafficking activities from the mid-1980’s through 2001.
Specifically, the government sought to introduce, inter alia, evidence that:
7
(f) In or about June 2000, at the direction of Knowles,
Hanna and others attempted to deliver 1164 kilograms of cocaine
and 879 pounds of marijuana to co-conspirator Jesus Alonso in
Miami. United States Customs agents, however, seized the
narcotics in the area of Dinner Key off the coast of Florida;
(g) On or about July 24, 2000, DEA agents seized
$2,563,260 of Knowles’ drug proceeds from co-conspirator
Frank Cartwright in Miami, Florida. [Royal Canadian Mounted
Police] wire intercepts revealed that Knowles communicated
with Frank Cartwright after the DEA seized the drug proceeds;
(h) In or about August 2000, an airplane carrying
$400,000 in Knowles’ drug proceeds departed from Opa Locka,
Florida and landed in Freeport, Bahamas. When the Royal
Bahamian Police Department attempted to stop co-conspirator
Brian Bethel, a shootout ensued and Bethel escaped. RCMP
wire intercepts captured Knowles and Bethel discuss the fact that
the money had not been seized; and
(i) In or about early 2001, co-conspirator Brian Bethel
forfeited $2,422,325 of Knowles’ drug proceeds to the Royal
Bahamian Police Force.
R1-91 at 5 (footnotes omitted).
The government asserted that this evidence of Knowles’ post-indictment
drug-trafficking activities was relevant to show Knowles’ knowledge and intent as
to the charged offenses and to demonstrate “how Knowles’ long history in the drug
trafficking community shaped his participation in the charged conspiracy.” Id. at
5. This evidence, the government argued, was thus admissible both under Federal
8
Rule of Evidence 404(b)7 of the Federal Rules of Evidence and as “inextricably
intertwined” evidence. Id.Knowles objected, arguing that the wire intercepts from July 2000 that the
government sought to introduce as part of its case were inadmissible because the
recorded conversations concerned conduct that occurred four years after the
conspiracy charged in the indictment had ended. He argued additionally that
evidence of conduct that occurred in June 2000, August 2000, and early 2001, that
the government sought to introduce was likewise “so far removed in time as to
have no bearing on 404(b) criteria such as [Knowles’] state of mind, motive, plan,
identity, or absence of mistake, in June 1995 – April 1996.” R1-95 at 2. Knowles
further maintained that this evidence related to the charges in the indictment in
Case 1091 and thus violated the extradition treaty between the Bahamas and the
United States as well as the principle of specialty.
7
Rule 404(b) of the Federal Rules of Evidence provides:
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident,
provided that upon request by the accused, the prosecution in a
criminal case shall provide reasonable notice in advance of trial, or
during trial if the court excuses pretrial notice on good cause
shown, of the general nature of any such evidence it intends to
introduce at trial.
Fed. R. Evid. 404(b) (2010).
9
The district court issued an order finding that evidence of the general
relationship between Knowles and his co-conspirators that predated the conspiracy
charged was admissible, but that any evidence of specific drug trafficking activities
involving Knowles and his co-defendants that occurred after the conspiracy alleged
in the indictment was inadmissible because it was neither inextricably intertwined
with the offenses charged in the indictment nor relevant to any issue other than
Knowles’ character.8
The government filed a motion for reconsideration, arguing that evidence of
Knowles’ post-indictment drug trafficking activities was “inseparable from and
continuous to the charged drug conspiracies.” R1-112 at 1-2. The government
also asserted that the wiretap evidence, including dozens of recorded telephone
calls in which Knowles “g[a]ve orders to his subordinates about transporting drugs,
explain[ed] how to ship drug proceeds, discusse[d] procedures for maintaining
drug stash houses and avoiding police scrutiny, and . . . threaten[ed] to shoot and
kill estranged Colombia drug trafficking associates,” was necessary “to corroborate
the testimony of cooperating witnesses, . . . whose credibility necessarily w[ould]
8
In rendering its decision, the court first noted that the doctrine of specialty, which
provides that a criminal defendant who has been extradited pursuant to an extradition treaty may
be tried only for those offenses for which the transferring nation granted extradition, see United
States v. Puentes, 50 F.3d 1567, 1572 (11th Cir. 1995), limited only the charges that may be
brought in an indictment and not the scope of evidence admissible against an extradited
defendant.
10
be attacked by the defense.” Id. at 3. The government further urged that evidence
of Knowles’ post-indictment activities was admissible under Rule 404(b) because
“the continuous, uninterrupted series of drug transactions that Knowles engaged in
with his co-conspirators [was] highly probative of Knowles’ motive, opportunity,
intent, preparation, plan, and knowledge to commit the drug trafficking crimes
alleged in the instant indictment.” Id. at 7.
Upon reconsideration, the district court agreed with the government that the
intercepted conversations from 2000 were admissible under Rule 404(b) because
they showed Knowles’ intent, knowledge, plan, identity, preparation, and
signature. Further, since the source of this evidence was Knowles himself, the
probative value of the recorded conversations was not substantially outweighed by
the danger of unfair prejudice. The court concluded that while the wiretap
evidence could be presented to the jury, the other evidence remained inadmissible.
Knowles proceeded to trial in November 2007.9 After the jury failed to
reach a unanimous verdict, the district court declared a mistrial, and Knowles was
tried again in 2008. At Knowles’ 2008 trial, the government presented the
testimony of several cooperating witnesses.
9
The day before his first trial was set to begin, Knowles filed a motion to dismiss the
indictment on the grounds that his Sixth Amendment right to a speedy trial had been violated,
which the district court denied ore tenus.
11
A. Newton’s Testimony
Knowles’ nephew, Nehru Newton, testified that he was living in Nassau in
the spring of 1995 when he starting working for Knowles running drugs from
Jamaica to the Bahamas on “go-fast” boats.10 R12 at 250, 259-63. In April 1995,
Knowles called Newton and told Newton to go to Freeport, Bahamas, to pick up a
boat from Kyle Weech (“Weech”). Newton was to navigate the boat, a white and
blue 37 Midnight equipped with four engines, to Jamaica in order to transport
drugs back to the Bahamas. Biswick Musgrove (“Musgrove”) and an individual
named “Bart” went with Newton to help drive the boat to Jamaica, which was a
twenty-four hour trip. Marvin Weech (“Marvin”), Kyle Weech’s brother, met
Newton with the boat at a dock in Freeport. Per Knowles’ instructions, Newton
and his crew headed for Ochos Rios, on the north side of Jamaica. Newton drove
the first twelve hours and Bart drove the remaining distance. Once they arrived in
Ochos Rios, they went to meet Knowles at the Gentle Winds Hotel in Saint Mary,
Jamaica, about a mile or two outside of Ochos Rios. Herbert Beneby (“Beneby”),
a Bahamian police officer, Eric Gardiner (“Gardiner”), Weech, and Brian Bethel
(“Bethel”) all were with Knowles at the Gentle Winds. A few nights after Newton
10
Newton explained that “go-fast” boats are speed boats custom-fitted with multiple
engines and modified fuel tanks which enable them to travel long distances at high speeds in
order to evade law enforcement vessels.
12
had arrived in Jamaica, Knowles told him to take the boat back to the Bahamas.
When Newton, accompanied by Weech, Bethel, Musgrove, and an individual
named “Gustavo,” who worked for Gardiner, were about one mile off the Jamaican
coast, two small fishing boats pulled alongside the 37 Midnight. Two Jamaican
fishermen began handing cocoa bags filled with a total of 600 kilograms of cocaine
to Weech and Bethel, who put the bags in the hatch in the bow of the boat. After
the drugs were loaded onto the boat, they tried to leave the area, but by that time
the weather had turned bad, causing the boat to take on water and sinking the
engines. They were able to bail out the water using buckets and a hand pump, but
the engines were no longer any good. Musgrove removed the cocoa sacks from the
hatch and passed them to Weech, while Bethel jumped overboard and swam to
land to get help. When a fishing boat came to their aid, they transferred the drugs
onto the boat and offloaded them on shore. Newton, who had stayed with the 37
Midnight, flagged down another fishing boat, which pulled him to the marina.
Newton called Knowles from the marina, and Knowles instructed them to return to
the hotel. Newton and the rest of his crew returned to the hotel, where they met
with Gardiner. Gardiner said he would hire a mechanic to fix the 37 Midnight and
a captain to run the drugs because he did not believe Newton was experienced
enough to run 600 kilograms to the Bahamas.
13
Once Weech’s boat had been repaired, Weech, Bethel, Gustavo, Musgrove,
the mechanic, and the new captain set out for the Bahamas, leaving at nightfall to
avoid detection by the U.S. Coast Guard. As had happened previously, two small
fishing boats met the 37 Midnight offshore and loaded cocaine onto the 37
Midnight. They traveled along the northern coast of Cuba, where they remained
until the following night. They then began to make their way to an agreed upon
location off Andros Island in the Bahamas where they were supposed to meet
Marvin to refuel. Marvin was not at the prearranged location when they arrived, so
they continued on to Andros, where they offloaded the drugs on a small,
uninhabited island with thick vegetation. Newton, Weech, Bethel, Musgrove, and
Gustavo stayed with the drugs while the mechanic and the captain took the boat to
Andros. The captain and the mechanic returned after about an hour and a half and
told the rest of the crew that they “got to move fast” because people on the island
knew that they had drugs. They put the drugs back on the boat and headed for
Bimini, Bahamas, where they delivered the cocaine to Marvin. Newton,
Musgrove, the mechanic, and the captain returned to Freeport with Weech’s boat,
and from Freeport, Newton took a plane back to Nassau. In total, the trip took
approximately thirty-six hours. Newton testified that Knowles paid him $60,000 in
U.S. currency for his role in the transaction.
14
A few months later, in October or November 1995, Knowles asked Newton
to navigate Paul Beneby’s (“Paul”) boat, a 32 Midnight with two engines, down to
Ochos Rios, Jamaica, to pick up 200 kilograms of cocaine. Newton took the same
route, but this time, Musgrove, Myron Mortimer, “MI,” and “Chino” were on
board with him. When they arrived in Jamaica, Newton went to the Gentle Winds
Hotel to meet with Knowles, Gardiner, and Beneby. After about a week’s stay,
Newton, MI, Chino, Musgrove and Mortimer departed Jamaica under cover of
night. Once again, two fishing boats approached them offshore as they were
leaving Jamaica and transferred the cocaine, along with 500 pounds of marijuana,
to their boat. About four hours into their return trip, the propeller on one of the
engines malfunctioned. As they were fixing the propeller the following morning, a
U.S. Coast Guard helicopter spotted the boat and hovered overhead. MI hurried to
finish repairing the propeller and when the helicopter flew away, they sped into
Cuban waters where the Coast Guard could not follow. Newton navigated the boat
past Guantanamo Bay to Ragged Island, about twenty to thirty miles off the north
end of Cuba. They remained there until nightfall and then left for the Bahamas.
As they were leaving Cuban waters, they observed a U.S. surveillance plane and
two more helicopters. Newton sped back into Cuban waters and drove the boat
inside a cove. Newton held the wheel while the others stashed the drugs in the
15
bush. They then washed out the inside of the boat where the drugs had been stored
with water and dish soap, and returned to Ragged Island. From Ragged Island,
Newton drove back to Nassau, where he met with Knowles and told Knowles what
had happened. The following day, Knowles instructed them to return to the cove
and look for the drugs. Paul, who was a pilot, flew the crew in his plane to the
cove where they had stashed the drugs and dropped the plane down to about 600-
800 feet. At that point, they saw what appeared to be soldiers putting the drugs
into the back of an army truck. Back in Nassau, Newton told Knowles and
Gardiner what they had seen in Cuba. To “correct” the problem of the lost 200
kilograms of cocaine and 500 pounds of marijuana, Knowles told Newton to run a
37 Midnight belonging to an individual named “Casey” from Freeport to Jamaica.
Casey drove the boat halfway to Acklins Island, Bahamas, in order to show
Newton how to operate it. Also on board were Mortimer, Musgrove, “Unc,” and
“Powers.” Once they arrived in Acklins, Casey took a plane back to Freeport and
the rest of the crew went on to Ochos Rios, Jamaica, where they met with
Knowles, Gardiner, and Beneby at the Gentle Winds Hotel.
A week after arriving in Jamaica, Newton left for the Bahamas in the speed
boat, carrying 3,000 pounds of marijuana. Newton navigated to Acklins Island,
where another boat was supposed to retrieve the drugs. Per Knowles’ orders,
16
Newton gave the marijuana to a man in Acklins and then headed back to Jamaica, a
twelve-hour trip, to pick up another 3,000 pounds of marijuana. After receiving
the drugs in Ochos Rios, Newton navigated to Island of Key Santo Domingo,
between Ragged Island and Cuba, where he ran out of fuel. As the boat drifted in
the water, Newton spotted a Cuban Coast Guard boat in the distance and dumped
the 3,000 pounds of marijuana overboard. Knowles informed Newton he was fired
after Newton told Knowles that he had destroyed the load of drugs.
The following spring, in April or May 1996, Knowles contacted Newton
about a new job doing “air drops.” Id. at 357. Knowles explained that he and Gary
McDonald had “a little arrangement” regarding air drops, and gave McDonald’s
telephone number to Newton. Id. at 358-59. Newton called McDonald, who was
living in Colombia, and coordinated an air drop off the northern coast of Cuba.
Pursuant to their arrangement, Newton, “Rod,” and Lester Beneby each drove a
boat to a predetermined location at sea where they waited for an airplane to drop
forty-eight bags of cocaine. Newton and the others retrieved the bags from the
water, loaded them onto their boats, and delivered them to Bethel in Freeport.
Knowles paid Newton $70,000 for his participation in the air drop.
Newton then testified that he worked for Knowles in July and August 2000
rescuing boats that were running drugs from Jamaica to the Bahamas when they
17
broke down.11 Newton also testified regarding various recorded conversations
from July 2000, which were published to the jury, between Knowles and members
of Knowles’ drug organization. In one call, Knowles was overheard talking to
Berkley Hepburn (“Hepburn”) about the discovery of Knowles’ stash house in
Kingston by Jamaican police. After Hepburn informed Knowles that the narcotics
squad had confiscated four bags of cocaine during a raid of the stash house,
Knowles instructed Hepburn to pack the remainder of the drugs “in the big white
van.” Id. at 385-86. Knowles was overheard in another conversation telling
Beneby, who referred to Knowles as the “General,” that he, Knowles, had to pay
the Jamaican police $200,000 and lost 100 kilograms of cocaine because Beneby
11
Prior to Newton’s testimony regarding his relationship with Knowles in 2000, the court
issued the following cautionary instruction to the jury:
[E]vidence of acts of the defendant which may be similar to those charged in the
indictment but which were committed on other occasions . . . must not be
considered in deciding if the defendant committed the acts charged in the
indictment. However, you may consider this evidence for other very limited
purposes . . . .
. . . . [I]f you find beyond a reasonable doubt from other evidence in this case that
the defendant did commit the acts charged in the indictment, then you may
consider evidence of the similar acts allegedly committed on other occasions to
determine whether the defendant had the state of mind or the intent to commit the
crime charged, whether he had the motive or opportunity, whether he had the plan
or preparation, whether it established identity or whether it was a result of
accident or mistake.
R12 at 373-75.
18
failed to follow his orders to blindfold a Colombian who had been sent to verify
that the drugs were still at the stash house. In other conversations, Knowles was
overheard advising Hepburn and an individual named Julian Russell that Frank
Cartwright (“Cartwright”), who smuggled drug profits back from the United States
into the Bahamas for Knowles in 2000, had been caught by U.S. federal agents
with $3 million in drug proceeds. In a 30 July 2000 call with “Rafael,” a
Colombian national who was living in Jamaica, Knowles asked Rafael whether his
“people” had been seen delivering drugs to the stash house in Kingston, and in a
call with Bethel, Knowles was overheard getting telephone numbers to give to
Derrick Blake (“Blake”) so Blake could deliver the cocaine to Colombians in
Miami.
B. Gardiner’s Testimony
The government then called Gardiner, who testified that he and Knowles
arranged to smuggle 1,000 kilograms of cocaine from Jamaica into the United
States in the spring of 1995. According to Gardiner, after Colombians delivered
the drugs to him and Knowles in Jamaica, Knowles was responsible for securing,
storing, and transporting the drugs through the Bahamas into Miami. Once in
Miami, the drugs were delivered to the Colombians to distribute and sell. Gardiner
testified that the Colombians hired Knowles to secure the cocaine because
19
Knowles “had a lot of power and strength in Jamaica . . . everyone would like go to
use him or go through him because of all the influence and strength that he had in
Jamaica.” R13 at 512-13. Gardiner also noted that while Knowles did not actually
own the Gentle Winds Hotel, “Knowles had basically full control over [it].” Id. at
533.
C. McDonald’s Testimony
Gary McDonald (“McDonald”), a pilot from Freeport who had moved to
Bogota, Colombia in 1989, next testified that he was contacted in April or May of
1996 by an individual named Nelson Urrego about transporting 1100 kilograms of
cocaine from Jamaica into the United States. When Urrego asked McDonald if
McDonald knew anyone who could get the drugs from Jamaica into the United
States, McDonald recommended Knowles because “at that time . . . [Knowles] was
the one who was pretty much controlling Jamaica.” Id. at 551-54. According to
McDonald, it was “common knowledge” among drug traffickers that Knowles
could smuggle the drugs into the U.S. from Jamaica. Id. at 554. McDonald called
Knowles and told him that he had access to 1100 kilograms of cocaine in Jamaica.
Knowles agreed to help McDonald transport the cocaine to the U.S., in exchange
for which Knowles would receive thirty percent of the drugs. The remaining
seventy percent of the load would be delivered to the Colombians. The cocaine
20
arrived in the United States about three weeks after McDonald talked to Knowles,
and McDonald was paid $500,000 for his part in the transaction. McDonald
further testified that he and Knowles smuggled 2500 kilograms of cocaine into the
United States in 2000.12
D. Blake’s Testimony
Derrick Blake (“Blake”) next testified that he met Knowles in the Bahamas
in 1994 and 1995 through his friend, Herbert Hannah (“Hannah”). Knowles asked
Blake how much marijuana Blake could handle, and told Blake that he could keep
Blake supplied with “whatever [he] needed.” R14 at 632. Shortly after returning
to Miami, Blake retrieved “a couple hundred pounds of marijuana” from an
individual named “Nick,” whose telephone number he had received from Knowles,
in Broward County and then returned to Miami, where he distributed the
marijuana. Id. at 632-35. Blake thereafter contacted Knowles about giving
Knowles his portion of the proceeds from the sale of the marijuana.
In 1995 and 1996, Blake and Knowles, whom Blake referred to as “the
boss,” had an arrangement whereby Blake, after selling the drugs, would call
Knowles, who would put Blake in touch with either Cartwright or an individual
named “Vivian.” Blake would then deliver the money to Cartwright or Vivian,
12
The court repeated its cautionary Rule 404(b) instruction to the jury before admitting
this testimony.
21
who were responsible for delivering the money to Knowles in the Bahamas. Blake
also started handling cocaine with Knowles in the spring of 1995. Blake received
kilograms of cocaine from Vivian or an individual named “Marvin” during this
time period.13 Blake sold the drugs and then gave the proceeds to Vivian or
Marvin. During this time, Blake was in contact with Knowles over the telephone
and saw him in person in the Bahamas.
Blake further testified that he was still working for Knowles’ drug
organization in 2000.14 During this time, Knowles sent loads of up to 500
kilograms of cocaine and 800 to 1,000 pounds of marijuana from the Bahamas to
Miami by boat. Pursuant to Knowles’ instructions, Blake would retrieve the drugs,
usually around 500 kilograms of cocaine. Blake would keep 100 kilograms on
Knowles’ behalf and deliver the remaining kilograms to the people who had
arranged with Knowles to purchase the drugs. During this time, Blake also worked
with Cartwright and an individual named Glenroy Riley (“Riley”), who was sent
from the Bahamas to Miami to help secure the drugs. In addition to guarding the
cocaine at the stash house, Riley was responsible for counting the money once
Blake sold the cocaine and then preparing it to give to Cartwright. Knowles
13
It is unclear whether this “Marvin” was Marvin Weech.
14
Before the jury heard this testimony, the court once again reminded the jury that
evidence related to Knowles’ drug-trafficking activities in 2000 were not to be considered in
deciding whether Knowles was guilty of committing the acts charged in the indictment.
22
specifically requested that the drug proceeds be vacuum sealed so they would not
get wet when being smuggled by boat back to the Bahamas.
Blake testified that in June 2000, Hannah was arrested attempting to
smuggle cocaine into the United States by boat. In a recorded call on 15 July 2000,
Hannah’s daugher, Khristi Yates (“Yates”), told Knowles that the authorities had
pictures of Hannah and Knowles together. Yates then told Blake, who was present
during this phone call, that she needed $40,000 in U.S. currency to pay her father’s
attorneys fees. Knowles and Blake agreed that Blake would sell some of the
kilograms he had set aside for Knowles in order to give Yates the $40,000 she
needed. Blake testified that he had already given Yates $100,000 out of Knowles’
drug proceeds for Hannah’s defense. In a 21 July 2000 phone call between Blake
and Knowles, Knowles expressed concern that the authorities would start
investigating the source of the money. In other recorded conversations, Blake told
Knowles that, per Knowles’ instructions, he had delivered a Samsonite suitcase
containing $600,000 in drug proceeds to Riley and Cartwright at a hotel in Miami.
In another call on 24 July 2000, Knowles told Blake, “just be cool and watch,
watch around you now, stay clean,” which meant that Blake was to be alert and
avoid carrying any contraband. R14 at 664-65. In a 29 July 2000 call, Blake told
Knowles that he was waiting at a scheduled meeting place to deliver drugs to the
23
Colombians, who were late. Knowles told Blake, “you got to handle them and
they got to play,” which meant that Blake was to make sure the Colombians knew
that Knowles was in control of the drug transaction and that it had to be done
according to Knowles’ rules.15 Later that day, Blake was overheard in a recorded
telephone call telling Knowles that he had completed the drug transaction, during
which he sold “[s]ome kilos of cocaine” to the Colombians, and that he would call
Knowles after he dropped off another 200 kilograms of cocaine to the Colombians.
Id. at 673-75.
E. Riley’s Testimony
Riley then testified that in July and August 2000, he worked for Knowles
collecting drug money from Blake and transporting it back to the Bahamas. Riley
testified that he moved between $400,000 and $1 million to the Bahamas for
Knowles either by private charter plane or boat. In recorded calls, Knowles
instructed Riley to package a large sum of drug money in U-Haul boxes to ship by
boat to the Bahamas. Knowles told Riley to wrap and seal the boxes tightly in
plastic so that they would not get wet on the boat. In another call on 17 August
2000, Knowles instructed Riley to “fix up a nice box with $400.” Id. at 753.
15
During one conversation, Knowles referred to himself as “The General” and told Blake
that “[t]he General runs everything.” Id. at 669. Blake confirmed that Knowles was “the boss”
and that other people also referred to Knowles as “the General.” Id.
24
According to Riley, this meant that Riley was to prepare a box, vacuum sealed in
plastic, containing $400,000 in large denominations, preferably fifty and one
hundred dollar bills.
F. Cartwright’s Testimony
Cartwright testified that on more than ten occasions from June 1995 to April
1996, he transported between $400,000 and $1 million in drug proceeds to the
Bahamas for Knowles via private chartered airplane or boat.
In a recorded conversation that took place 24 July 2000, Knowles instructed
Cartwright to see Riley, who gave Cartwright a black duffle bag containing
money.16 Cartwright dropped the money off at his home and then left in his car.
Drug Enforcement Administration (“DEA”) agents stopped Cartwright and
questioned him. Cartwright subsequently consented to a search of his vehicle and
his home, resulting in the agents’ discovery of the drug money, which Cartwright
had stored in boxes in his living room. Agents also confiscated the black duffle
bag, which was located on the back porch area of Cartwright’s home. In total,
agents seized over $2.5 million. In a series of recorded conversations, Knowles
16
Prior to Cartwright’s testimony regarding his 2000 drug-trafficking activities and
publication of the recorded telephone calls from 2000 to the jury, the court stated on the record
its finding that the probative value of this Rule 404(b) evidence outweighed any prejudicial
effect it might have on Knowles’ defense.
25
was overheard telling Cartwright to file a lawsuit to recover the money and to
misrepresent that the sums seized were legitimate business profits.
At the conclusion of the government’s case-in-chief, Knowles moved for a
judgment of acquittal, which the court denied. Knowles did not present any
witnesses, but merely read to the jury a stipulation that none of the government’s
witnesses had appeared before a grand jury in Case 425. On 5 March 2008, the
jury returned guilty verdicts on both counts of the indictment. The jury also
returned a special forfeiture verdict against Knowles in the amount $13.9 million.
Prior to sentencing, the probation office prepared a presentence investigation
report (“PSI”), in which the probation officer assigned Knowles a base offense
level of 38, pursuant to U.S.S.G. § 2D1.1(c)(1) (Nov. 1, 2007).17 The probation
officer applied a four-level increase after determining that Knowles “was an
organizer or leader of a criminal activity that involved five or more participants or
was otherwise extensive.” U.S.S.G. § 3B1.1(a). With a total offense level of 42
and a criminal history category of I, Knowles’ advisory guidelines range was 360
months to life imprisonment.18
17
The probation officer converted the amounts of cocaine and marijuana involved in the
offenses into their combined marijuana equivalent, which was 709,248 kilograms of marijuana.
See U.S.S.G. § 2D1.1(c)(1) (providing for a base offense level of 38 where defendant is
convicted of an offense involving 30,000 kilograms or more of marijuana).
18
Both counts carried with them a minimum term of ten years’ imprisonment and a
maximum term of life imprisonment. See 21 U.S.C. §§ 960(b)(1)(B) and 841(b)(1)(A).
26
The district court overruled Knowles’ objection to the § 3B1.1(a)
enhancement, finding that Knowles was an organizer or leader of a criminal
conspiracy involving five or more participants. Knowles then requested that the
court impose a 360-month sentence, arguing that a life sentence was too extreme
given the lack of evidence that violence was involved in the offenses for which he
was convicted. He argued additionally that his advanced age and poor health
rendered a 360-month sentence, rather than life imprisonment, appropriate.
After stating that it had considered the parties’ arguments, the advisory
guidelines, and the 18 U.S.C. § 3553(a)(1) factors, the district court found “that a
sentence at the lower end of the advisory guideline range [was] sufficient to
adequately punish the defendant for his crimes and de[t]er future criminal
conduct.” R18 at 22-23. The court then sentenced Knowles to concurrent terms of
420 months’ imprisonment for Counts One and Two, to be followed by concurrent
terms of five years of supervised release. Knowles stated that he had no objections
regarding the court’s “finding of fact” or “the manner in which sentence was
pronounced,” other than those which he had already stated. This appeal followed.
II. DISCUSSION
On appeal, Knowles argues that: (1) the district court erred in denying his
motion to dismiss the indictment for lack of personal jurisdiction; (2) his Sixth
27
Amendment right to a speedy trial was violated, warranting dismissal of the
indictment; (3) the district court abused its discretion in allowing the government
to introduce wiretap evidence from 2000; (4) the district court clearly erred in
applying a four-level enhancement based on his role in the offense; (5) the district
court erred in sentencing him to 420 months’ imprisonment after stating that it was
going to impose a sentence at the low-end of the United States Sentencing
Guidelines (“the guidelines”); and (6) the forfeiture verdict violated the doctrine of
specialty. We address each argument in turn.
A. Personal Jurisdiction
A district court’s denial of a motion to dismiss an indictment is generally
reviewed for abuse of discretion only. United States v. Noriega, 117 F.3d 1206,
1211 (11th Cir. 1997). “To the extent [the appellant’s] assignments of
error . . . implicate the district court’s resolution of questions of law, however, our
review is de novo.” Id. A district court’s determinations regarding personal
jurisdiction are subject to de novo review, and its findings of fact are reviewed for
clear error. See Nippon Credit Bank, Ltd. v. Matthews, 291 F.3d 738, 746 (11th
Cir. 2002) (per curiam), abrogated on other grounds by Diamond Crystal Brands,
Inc. v. Food Movers Intern., Inc., 593 F.3d 1249 (11th Cir. 2010). We also review
28
de novo a district court’s conclusions of foreign law. Belize Telecom, Ltd. v.
Government of Belize, 528 F.3d 1298, 1303 (11th Cir. 2008).
Knowles reasserts the arguments he raised in his motion to dismiss,
maintaining on appeal that the district court lacked personal jurisdiction to try him
on the charges in the May 2000 indictment because his extradition during the
pendency of his kingpin habeas application violated both the Extradition Act and
the Bahamian Supreme Court’s May 2004 Consent Order. Insofar as his
extradition was contrary to the Extradition Act and the Consent Order, the
Bahamian executive authority’s consent thereto was not “in accordance with [the]
laws” of the Bahamas, and thus violated the Extradition Treaty. Knowles’ Initial
Brief at 37-38.
As an initial matter, we find no error in the district court’s determination in
its decision denying Knowles’ motion to dismiss that Knowles’ kingpin habeas
application was foreclosed by the Privy Council’s decision in Matthew, and thus
was not “pending” at the time of his extradition. For purposes of this appeal,
however, we conclude that the Ministry of Foreign Affairs’ consent to Knowles’
extradition in Case 425 was an “official act of a foreign sovereign,” the validity of
which we must abstain from questioning under the dictates of the act of state
29
doctrine. W.S. Kirkpatrick & Co., Inc. v. Envtl. Tectonics Corp., Int’l, 493 U.S.
400, 405, 110 S. Ct. 701, 704 (1990).
The act of state doctrine, which “rests at last upon the highest considerations
of international comity and expediency,” “precludes the courts of this country from
inquiring into the validity of the public acts a recognized foreign sovereign power
committed within its own territory.” Banco Nacional de Cuba v. Sabbatino, 376
U.S. 398, 401, 417-18, 84 S. Ct. 923, 926, 935 (1964) (quotation marks and
citation omitted). Under the doctrine, an official act of a foreign sovereign
performed within its own territory thus “must be accepted by our courts as a rule
for their decision.” Ricaud v. Amer. Metal Co., 246 U.S. 304, 309, 38 S. Ct. 312,
314 (1918). Because holding that Bahamian authorities violated Bahamian law in
authorizing Knowles’ extradition “would . . . require a court in the United States to
declare invalid the official act of a foreign sovereign performed within its own
territory,” the act of state doctrine applies and prohibits us from evaluating the
legitimacy of Knowles’ extradition. W.S. Kirkpatrick, 493 U.S. at 405, 110 S. Ct.
at 706 (declining to apply the act of state doctrine where “[n]othing in the . . . suit
require[d] the Court to declare invalid, and thus ineffective as a rule of decision for
the courts of this country, the official act of a foreign sovereign” (citation
omitted)). Accordingly, Knowles’ challenge to his extradition must fail.
30
B. Sixth Amendment Right to a Speedy Trial
Knowles argues that the government deliberately and in bad faith waited 21
months after his 2000 indictment to file an extradition request with the Bahamian
government. He alleges that this nearly two year delay violated his Sixth
Amendment right to a speedy trial and warranted dismissal of the indictment. We
disagree.
“We review de novo the denial of a motion to dismiss for a violation of the
right to a speedy trial under the Sixth Amendment.” United States v. Knight, 562
F.3d 1314, 1321 (11th Cir. 2009). The Sixth Amendment guarantees individuals a
speedy trial in the state and district in which the crime was committed. See United
States v. Merrill, 513 F.3d 1293, 1304 (11th Cir. 2008). The right to a speedy trial
under the Sixth Amendment attaches at the time of arrest or indictment, whichever
comes first. Knight, 562 F.3d at 1323.
When determining whether the government has violated a defendant’s
speedy trial right, we consider four factors: (1) the length of the delay; (2) the
reason for the delay; (3) whether and how the defendant asserted his speedy trial
right; and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92
S. Ct. 2182, 2192 (1972). No factor, standing alone, is sufficient to establish that
the defendant’s Sixth Amendment right has been violated. United States v. Schlei,
31
122 F.3d 944, 987 (11th Cir. 1997). “[U]nless the first three Barker factors all
weigh heavily against the government, the defendants must demonstrate actual
prejudice.” United States v. Mitchell, 769 F.2d 1544, 1547 (11th Cir. 1985).
“The first factor serves a triggering function; unless some ‘presumptively
prejudicial’ period of delay occurred, we need not conduct the remainder of the
analysis.” United States v. Register, 182 F.3d 820, 827 (11th Cir. 1999). “A delay
becomes ‘presumptively prejudicial’ as it approaches one year.” Knight, 562 F.3d
at 1323. We will assume without deciding that the 21-month delay between
Knowles’ indictment and the government’s extradition request was presumptively
prejudicial, warranting inquiry into the remaining three factors. See Schlei, 122
F.3d at 987.
With respect to the second factor, we find that although the post-indictment
delay in Case 425 was arguably attributable to the government, Knowles has
presented no compelling evidence of bad faith on the part of the government. This
factor therefore does not weigh heavily against the government. See United States
v. Davenport, 935 F.2d 1223, 1239-40 (11th Cir. 1991).19 The third factor –
19
In Davenport, we addressed whether the appellant’s twenty-one month pretrial
detention violated his right to a speedy trial. In analyzing the second Barker factor, we found
that “[w]hile the government arguably [was] responsible under Barker for the delay in this
case, . . . [t]here [wa]s absolutely no evidence of bad faith by the government.” 935 F.2d at
1240. We noted that “[t]he reasons for delay . . . were, at worst, neutral reasons,” and, moreover,
that “the government’s actions were taken in pursuit of a valid and important judicial policy
favoring joint trials.” Id. In light of these findings, we held that, notwithstanding the
32
whether and how the defendant asserted his speedy trial right – clearly cuts against
Knowles. The record reflects that, following his indictment in Case 425, Knowles
“made no attempt to demand a trial, to waive extradition, or to otherwise seek to
return to the United States for trial.” United States v. Mitchell, 957 F.2d 465, 469
(7th Cir. 1992); see also United States v. Manning, 56 F.3d 1188, 1195 (9th Cir.
1995) (stating that defendant “cannot avoid a speedy trial by forcing the
government to run the gauntlet of obtaining formal extradition and then complain
about the delay that he has caused by refusing to return voluntarily to the United
States,” and holding that defendant’s “affirmative resistance of the government’s
efforts to secure his presence in the United States constitute[d] an intentional
relinquishment of his right to a constitutional speedy trial,” precluding him from
“now complain[ing] of the delay that he himself caused”). In fact, Knowles did not
assert his right to a speedy trial until 12 November 2007, the day before his trial
was to begin. Schlei, 122 F.3d at 988 (“A defendant’s failure to assert his Sixth
Amendment right to a speedy trial before the day of trial weighs heavily against the
defendant.”).
Because the third factor weighs heavily in favor of the government, Knowles
must establish actual prejudice. See id.; Mitchell, 769 F.2d at 1547 (defendants
government’s ultimate responsibility for the delay, “the reasons for delay d[id] not weigh heavily
against the government and d[id] not excuse a showing of actual prejudice.” Id.33
were required to show actual prejudice where only two of the first three Barker
factors weighed heavily against the government). We assess prejudice to the
defendant in light of the interests the right to a speedy trial was designed to protect,
which are: (1) “prevent[ing] oppressive pretrial incarceration”; (2) “minimiz[ing]
anxiety and concern of the accused”; and (3) “limit[ing] the possibility that the
defense will be impaired.” Barker, 407 U.S. at 532, 92 S. Ct. at 2193. “[B]ecause
the inability of a defendant adequately to prepare his case skews the fairness of the
entire system,” protection of the third interest is paramount. Id.Knowles does not claim that he suffered oppressive pretrial incarceration or
experienced undue anxiety or concern, but argues that he was prejudiced because
the government’s extradition request would have been denied had the government
requested extradition in Case 425 at the same time it requested extradition in Case
1091. The test for prejudice, however, is not whether the defendant’s ability to
defend himself during the extradition proceedings was impaired, but whether the
defendant was impaired in his ability to defend himself at trial against the charges
in the indictment. See, e.g., Doggett v. United States, 505 U.S. 647, 655, 112 S.
Ct. 2686, 2693 (1992) (noting that, in addressing the fourth Barker criterion, courts
must “recognize that excessive delay presumptively compromises the reliability of
a trial in ways that neither party can prove or, for that matter, identify”) (emphasis
34
added); Barker, 407 U.S. at 534, 92 S. Ct. at 2194 (holding that prejudice was
minimal because “there [wa]s no claim that any of Barker’s witnesses died or
otherwise became unavailable owing to the delay. The trial transcript indicate[d]
only two very minor lapses of memory – one on the part of a prosecution witness –
which were in no way significant to the outcome”); United States v. Dunn, 345
F.3d 1285, 1297 (11th Cir. 2003) (finding that appellant “ha[d] not shown – and
could not show – that the delay prejudiced his defense at all because he had no
defense, as he had stipulated to each element of the § 922(g) offense”); see also
Martin v. Warden, Atlanta Pen, 993 F.2d 824, 829 (11th Cir. 1993) (stating that
because “Constitutional procedural protections which by their terms are applicable
only in criminal cases . . . are unavailable in extradition proceedings, . . . . there is
no Sixth Amendment right to a speedy trial in extradition cases”).20
20
We point out that, to the extent Knowles is attempting to assert a right to a “speedy
extradition,” that argument must fail, as no such right exists. See Martin, 993 F.2d at 829.
Martin involved an American citizen who had been charged by Canadian authorities in
December 1974 with criminally negligent homicide arising out of a car accident wherein he
struck and killed a young boy. Id. at 826-27. Although Martin fled to the United States in
January 1975, Canadian authorities did not request his extradition to answer the charges until
1992. Id. at 827. After a magistrate judge found that Martin was extraditable, Martin filed a
petition for habeas corpus, which the district court denied. On appeal, Martin argued that
Canada’s seventeen year delay in seeking his extradition violated his due process right to a
“speedy extradition.” Id. In order to resolve the issue of whether Martin had a constitutional
right under the Due Process Clause of the Fifth Amendment to a “speedy extradition,” we first
analyzed whether he would have a right to a speedy trial under the Sixth Amendment in his
extradition proceedings. See id. at 829. We concluded that he would not, because
“[c]onstitutional procedural protections which by their terms are applicable only in criminal
cases . . . are unavailable in extradition proceedings.” Id. For purposes of resolving this appeal,
however, we assume that Knowles has properly alleged a violation of his Sixth Amendment
35
Knowles does not argue, and there is no evidence to suggest, that his ability
to prepare his case and defend himself at trial against the conspiracy charges in the
indictment was impaired by the 21-month delay between his indictment and the
government’s formal extradition request. Inasmuch as Knowles has not
demonstrated actual prejudice under Barker, his constitutional speedy trial claim
must fail.
C. Evidentiary Issues
Knowles argues that the district court erred in allowing the government to
introduce evidence of acts that were committed in 2000 because the admission of
such evidence, which he asserts related exclusively to the charges in Case 1091,
violated the doctrine of specialty. He argues additionally that the court abused its
discretion in admitting this evidence under Federal Rule of Evidence 404(b)
because it was not relevant to prove either intent or modus operandi, and its
probative value was substantially outweighed by the danger of undue prejudice.
1. Doctrine of Specialty
speedy trial right based on the delay between his indictment and the extradition request. See,
e.g., Manning, 56 F.3d at 1194 (stating that, for purposes of appellant’s Sixth Amendment
speedy trial claim, “[t]he only delay relevant to the question of whether [appellant] was deprived
of his Sixth Amendment right to a speedy trial [wa]s the 30 month delay between [hi]s
indictment and the government’s formal extradition request”).
36
The doctrine of specialty prohibits a nation that receives a criminal
defendant pursuant to an extradition treaty from trying the defendant for any
offenses other than those for which the surrendering nation granted extradition.
United States v. Bowe, 221 F.3d 1183, 1191 (11th Cir. 2000). “It is well settled in
this circuit that the doctrine of specialty limits only the charges on which an
extradited defendant can be tried; it does not affect the scope of proof admissible at
trial for the charges for which extradition was granted, and it does not alter the
forum country’s evidentiary rules.” Id. (quotation marks and citations omitted).
Knowles was tried for and convicted of conspiracy to possess with intent to
supply cocaine and conspiracy to import cocaine, both charges for which the
Bahamian government expressly authorized extradition. See id. (“Because Bowe
was charged with and convicted of only the conspiracy to import cocaine, for
which the Bahamian government approved his extradition, the prosecution’s
sweeping evidentiary case did not violate the doctrine of specialty.”); United States
v. Lehder-Rivas, 955 F.2d 1510, 1520 (11th Cir. 1992) (“We also find meritless
Lehder’s assertion that the admission of ‘extrinsic’ evidence at trial permitted his
prosecution on charges unauthorized by the extradition treaty. The rule of
specialty is not violated when evidence is properly admitted under the inextricably
intertwined doctrine to reflect the scope of the conspiracies, to prove intent, and to
37
aid the jury in determining the nature of the offenses charged.” (quotation marks
and citation omitted)). In light of the foregoing, Knowles’ assertion that the
admission of evidence related to his 2000 drug-trafficking activities resulted in his
prosecution for crimes for which he was not extradited pursuant to the extradition
treaty is without merit.
2. Rule 404(b) Evidence
“We review the court’s resolution of . . . evidentiary issues for abuse of
discretion, and if such an abuse occurred, we ask whether the error was harmless.”
Bowe, 221 F.3d at 1192. “When the record contains sufficient independent
evidence of guilt, any error is harmless.” United States v. Duran, 596 F.3d 1283,
1299 (11th Cir. 2010) (quotation marks and citations omitted); United States v.
Jones, 28 F.3d 1574, 1582 (11th Cir. 1984), modified on other grounds by United
States v. Jones, 74 F.3d 275 (11th Cir. 1996) (“[A]n error in the application of Rule
404(b) is harmless when there is overwhelming evidence of the defendant’s
guilt.”).
At trial, the government presented substantial evidence, to wit, the testimony
of Newton, Gardiner, McDonald, Blake, and Cartwright, that Knowles conspired
with them, beginning in the spring of 1995 and continuing through 1996, to
transport large quantities of marijuana and cocaine from Jamaica to the Bahamas
38
and then into the United States; to distribute and sell those drugs in Miami; and to
transport the proceeds from the sale of those drugs back to the Bahamas. This
evidence was alone sufficient to find Knowles guilty on both counts of the
indictment. In sum, we need not determine whether the wiretap evidence from
2000 was properly admitted under Rule 404(b) because we find that, even if
admission of that evidence was error, it was harmless given the overwhelming
evidence of Knowles’ guilt presented at trial. See United States v. Hersh, 297 F.3d
1233, 1254 n.31 (11th Cir. 2002) (any error in admitting Rule 404(b) was
“harmless in light of the overwhelming evidence establishing Hersh’s guilt”);
Puentes, 50 F.3d at 1578 (finding that while district court abused its discretion in
admitting evidence of Puentes’ participation in a prior drug smuggling conspiracy,
the district court’s error was harmless in light of the overwhelming evidence of
Puentes’ participation in the charged conspiracy); United States v. Hosford, 782
F.2d 936, 939-40 (11th Cir. 1986) (per curiam) (declining to address merits of
appellant’s claim that district court erred in admitting prior bad acts evidence under
Rule 404(b) “because even assuming that the district court abused its discretion in
admitting this evidence, it was at most harmless error” in light of overwhelming
evidence of guilt (quotation marks and citation omitted)); cf. United States v.
Carrasco, 381 F.3d 1237, 1241 (11th Cir. 2004) (per curiam) (admission of Rule
39
404(b) evidence was not harmless error where “the [g]overnment did not have
overwhelming evidence of Carrasco’s intent to commit his charged offense”
(quotation marks omitted)).
D. Knowles’ Sentence
1. U.S.S.G. § 3B1.1(a) Enhancement
A district court’s determination of a defendant’s role in the offense is a
finding of fact subject to review for clear error only. United States v. De Varon,
175 F.3d 930, 937 (11th Cir. 1999) (en banc). So long as the district court’s
decision is supported by the record and applies the law correctly, it will not be
clearly erroneous. Id. at 945.
Section 3B1.1(a) of the Sentencing Guidelines provides for a four-level
increase in a defendant’s base offense level “[i]f the defendant was an organizer or
leader of a criminal activity that involved five or more participants or was
otherwise extensive.” U.S.S.G. § 3B1.1(a) (Nov. 1, 2007). A two-level increase is
applied if the defendant “was an organizer, leader, manager, or supervisor in any
criminal activity other than described in [U.S.S.G. § 3B1.1](a) or (b).” U.S.S.G.
§ 3B1.1(c). “In distinguishing a leadership and organizational role from one of
mere management or supervision, titles such as ‘kingpin’ or ‘boss’ are not
controlling.” U.S.S.G. § 3B1.1, comment. (n.4). Instead, the district court should
40
consider factors such as: (1) the defendant’s exercise of decision making
authority; (2) the nature of the defendant’s participation in the commission of the
offense; (3) whether the defendant recruited accomplices; (4) the defendant’s
claimed right to a larger share of the fruits of the crime; (5) the extent to which the
defendant participated in planning or organizing the offense; (6) the nature and
scope of the illegal activity; and (7) the degree of control and authority the
defendant exercised over others. Id.
The testimony at trial established, inter alia, that: (1) Newton worked for
Knowles transporting cocaine and marijuana from Jamaica to the Bahamas in 1995
and 1996; (2) Blake received marijuana and cocaine in Miami per Knowles’
instructions and then sold the drugs on Knowles’ behalf in 1995 and 1996; (3) both
Cartwright and Blake shipped drug proceeds ranging from $400,000 to $1,000,000,
from the United States to Knowles in the Bahamas in 1995 and 1996; and
(4) Gardiner and McDonald both planned drug deals with Knowles during the
relevant time period. This testimony establishes that Knowles’ drug conspiracy
involved at least five people.
The evidence also demonstrates that Knowles was a leader and not a mere
manager or supervisor. The testimony at trial reflected that Knowles had decision
making authority and a high “degree of participation in planning or organizing the
41
offense,” U.S.S.G. § 3B1.1, comment. (n.4), that Knowles arranged drug deals
involving multiple-ton quantities of cocaine and marijuana, and that Knowles was
responsible for securing the drugs and transporting them to the United States for
distribution and sale. Given this evidence, the district court did not clearly err in
finding that Knowles was a leader or organizer of the conspiracy for purposes of
applying a four-level enhancement under § 3B1.1(a)
2. Reasonableness
Knowles further challenges his sentence on the grounds that it is
procedurally and substantively unreasonable because the district court, after stating
that it would impose a sentence at the low end of his guideline range, sentenced
him to 420, rather than 360, months of imprisonment.
We review a sentence, whether inside or outside the guidelines range, for
reasonableness, using an abuse-of-discretion standard.21 Gall v. United States, 552
U.S. 38, 51, 128 S. Ct. 586, 597 (2007). We first look to see whether the district
court committed a “significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
21
Knowles failed to object to the reasonableness of his sentence during the sentencing
hearing. Although issues raised for the first time on appeal are generally subject to plain error
review, see United States v. Jones, 289 F.3d 1260, 1265 (11th Cir. 2002) (per curiam), we have
not squarely decided in a published opinion whether plain error is the appropriate standard of
review where, as here, a defendant challenges the reasonableness of his sentence for the first
time on appeal. Nevertheless, we need not resolve this issue in the present case, because
Knowles’ sentence is due to be affirmed under either standard.
42
failing to consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence – including an
explanation for any deviation from the Guidelines range.” Id.
If we are satisfied that there has been no procedural error, we then consider
whether the sentence imposed is substantively reasonable. Id. When making this
determination, we must consider the factors outlined in § 3553(a) and the district
court’s reasons for imposing the particular sentence. United States v. Williams,
435 F.3d 1350, 1355 (11th Cir. 2006) (per curiam). Those factors include, inter
alia: (1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need for the sentence imposed to (a) reflect
the seriousness of the offense, promote respect for the law, and provide just
punishment for the offense; (b) afford adequate deterrence to criminal conduct; and
(c) protect the public from further crimes of the defendant; (3) the kinds of
sentences available; and (4) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of similar
conduct. See 18 U.S.C. § 3553(a). When applying these factors to a particular
sentence, “[t]he weight to be accorded any given § 3553(a) factor is a matter
committed to the sound discretion of the district court, and we will not substitute
43
our judgment in weighing the relevant factors.” United States v. Amedeo, 487
F.3d 823, 832 (11th Cir. 2007) (quotation marks, alterations, and citation omitted).
While the district court must consider the § 3553(a) factors, it is not required
to discuss each factor. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005)
(per curiam). Rather, “an acknowledgment by the district court that it has
considered the defendant’s arguments and the factors in section 3553(a) is
sufficient.” Id. Where the court imposes a within-guidelines sentence, the district
court need only “set forth enough to satisfy the appellate court that he has
considered the parties’ arguments and has a reasoned basis for exercising his own
legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.
Ct. 2456, 2468 (2007). In determining if the district court has adequately
considered the defendant’s arguments and the § 3553(a) factors, we may look to
the district court’s statements over the course of the sentencing hearing. See
Williams, 435 F.3d at 1355; see also Rita, 551 U.S. at 358-59, 127 S. Ct. at 2469(holding that while the district court did not explicitly state that it had considered
each argument and the supporting evidence, the context and the record made clear
the reasoning underlying the court’s conclusion). We have also compared the
sentence actually imposed to the statutory maximum when conducting a
44
reasonableness review. See United States v. Dorman, 488 F.3d 936, 945 (11th Cir.
2007).
Although we do not presume reasonable a sentence that is within the
guidelines range, United States v. Campbell, 491 F.3d 1306, 1313 (11th Cir. 2007),
we have held that the use of the guidelines remains central to the sentencing
process, Talley, 431 F.3d at 787. Accordingly, “when the district court imposes a
sentence within the advisory Guidelines range, we ordinarily will expect that
choice to be a reasonable one.” Id. at 788.
Knowles has not carried his burden of establishing that the sentence imposed
was unreasonable. In fashioning Knowles’ sentence, the district court explicitly
stated that it had “considered the statements of all parties, the presentence report
which contains the advisory guidelines as well as those statutory factors set forth in
[18 U.S.C. § 3553(a)],” and then found that a 420-month sentence, at the low-end
of the guidelines range, was “sufficient to adequately punish the defendant for his
crimes and de[t]er future criminal conduct.” R18 at 22-23. Although Knowles
contends that his 420-month total sentence is tantamount to a life sentence because
of his age, he has not provided any compelling argument that the court abused its
discretion when weighing the sentencing factors in his case. Moreover, Knowles’
420-month total sentence, which is only 60 months greater than the low end of his
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guideline range, is significantly less than the statutory maximum of life
imprisonment. See, e.g., United States v. Valnor, 451 F.3d 744, 751-52 (11th Cir.
2007) (affirming as reasonable a 28-month sentence, which was “appreciably
below the length of the [180-month] statutory maximum.”).
F. Forfeiture Verdict
In his final allegation of error, Knowles argues that the forfeiture verdict
violated the doctrine of specialty because the Warrant of Surrender, which was
issued only for the first two counts of the indictment, did not contain the forfeiture
count. He further argues that the Ministry of Foreign Affairs’ 4 September 2006
Diplomatic Note provided that the U.S. government was required to submit a
formal application if it wished to waive the specialty rule but failed to do so.
Knowles’ argument is without merit.
It is well-settled that “criminal forfeiture [i]s an aspect of punishment
imposed following conviction of a substantive criminal offense.” Libretti v.
United States, 516 U.S. 29, 39, 116 S. Ct. 356, 363 (1995) (emphasis added).22 See
22
In Libretti, the Court acknowledged its prior statement in Caplin & Drysdale,
Chartered v. United States, 491 U.S. 617, 628 n.5, 109 S. Ct. 2646, 2654 n.5 (1989), cited by
Knowles in his brief, that “forfeiture is a substantive charge in the indictment against a
defendant,” but explained that Caplin was not controlling because
[t]hat statement responded to the defendant’s claim that his Sixth
Amendment right to counsel ‘for his defense’ could be
transformed into a defense to a forfeiture count in the indictment.
We intended only to suggest that a defendant cannot escape an
46
also United States v. Saccoccia, 58 F.3d 754 (1st Cir. 1995) (“[C]riminal forfeiture
is a punishment, not a separate criminal offense.”); United States v. Elgersma, 971
F.2d 690, 694 (11th Cir. 1992) (“[C]riminal forfeiture is part of the sentencing
process and not an element of the crime itself.”); United States v.
Hernandez-Escarsega, 886 F.2d 1560, 1576-77 (9th Cir.1989) (“[F]orfeiture of
property is not an element of the continuing criminal enterprise offense; it is an
additional penalty prescribed for that offense.”); United States v. Sandini, 816 F.2d
869, 875 (3d Cir. 1987) (same). Because criminal forfeiture is not a substantive
charge against the defendant, the doctrine of specialty is not violated where, as
here, a defendant is subjected to criminal forfeiture charges with respect to which
he was not formally extradited. See Saccoccia, 58 F.3d at 784 (holding that
appellant was properly subjected to a forfeiture order, even though extradition was
otherwise appropriate forfeiture sanction by pointing to his need
for counsel to represent him on the underlying charges. Elsewhere
in [Caplin] we recognized that forfeiture is a ‘criminal sanction,’
and is imposed as a sentence under [21 U.S.C.] § 853.
Libretti, 516 U.S. at 40, 116 S. Ct. at 363 (citations omitted). The Libretti court also expressed
its disapproval of “[t]he Advisory Committee’s ‘assumption’ that ‘the amount of the interest or
property subject to criminal forfeiture is an element of the offense to be alleged and proved.’”
Id. at 41, 116 S. Ct. at 364 (citing Advisory Committee’s Notes on Fed. R. Crim. P. 31).
According to the Court, “[t]he fact that the Rules attach heightened procedural protections to
imposition of criminal forfeiture as punishment for certain types of criminal conduct cannot alter
the simple fact that forfeiture is precisely that: punishment.” Id. The Court further noted that
“[t]he Committee’s assumption runs counter to the weighty authority discussed above, all of
which indicates that criminal forfeiture is an element of the sentence imposed for a violation of
certain drug and racketeering laws.” Id.47
not specifically granted with respect to the forfeiture charges, because “forfeiture is
neither a free-standing criminal offense nor an element of a racketeering offense
under RICO, but is simply an incremental punishment for that proscribed
conduct”).
III. CONCLUSION
For the foregoing reasons, Knowles’ convictions and sentences are
AFFIRMED.
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