United States v. Jermaine Charles Duffy ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
------------------------------------------- ELEVENTH CIRCUIT
No. 08-10241 FEBRUARY 3, 2009
Non-Argument Calendar THOMAS K. KAHN
-------------------------------------------- CLERK
D.C. Docket No. 06-00523-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERMAINE CHARLES DUFFY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(February 3, 2009)
Before EDMONDSON, Chief Judge, TJOFLAT and PRYOR, Circuit Judges.
PER CURIAM:
Jermaine Charles Duffy appeals his conviction and 300-month sentence for
possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1). No reversible
error has been shown; we affirm.
On appeal, Duffy argues that admission of uncharged burglary evidence was
prejudicial and irrelevant to his felon-in-possession charge. At trial, the
government introduced the following evidence about an attempted burglary of the
Broxterman home: (1) a 911 call made by Rockeya Wilson -- who was baby-
sitting the Broxtermans’ three children -- reporting that a black male wearing a
red-hooded sweatshirt was trying to break into her car and, later, into the
Broxtermans’ house; (2) 911 calls made by Mr. and Mrs. Broxterman also
reporting the break-in and giving their home address; (3) radio traffic between the
911 operator and the police about the burglar’s description; (4) testimony by the
Broxtermans about the layout of their neighborhood; (5) testimony by an officer
dispatched to the Broxterman residence about damage done to the front door by
the burglar; and (6) testimony by another officer who saw Duffy on a bicycle
wearing a red-hooded sweatshirt in the Broxtermans’ neighborhood and who
ordered his arrest.1
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When Duffy saw the officer, he looked shocked and took off his sweatshirt. Later, when
the officer retrieved the sweatshirt, a gun fell out of it.
2
We review a district court’s evidentiary rulings for an abuse of discretion.
United States v. Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006). Evidence of
uncharged criminal activities generally is considered inadmissible extrinsic
evidence under Fed.R.Evid. 404(b). But evidence of uncharged crimes is not
extrinsic under Rule 404(b) if it is (1) an uncharged offense that arose out of the
same transaction as the charged offense, (2) necessary to complete the story of the
crime, or (3) inextricably intertwined with the evidence about the charged offense.
United States v. Wright, 392 F.3d 1269, 1276 (11th Cir. 2004) (citation omitted).
And an uncharged crime about the chain of events explaining the context, motive
and set-up of the crime properly is admitted if linked in time and circumstances
with the charged crime, or forms an integral and natural part of an account of the
crime. United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998) (citation
and quotation omitted).
Here, the burglary evidence was necessary to complete the story of the
felon-in-possession crime and explain the sequence of events leading up to
Duffy’s arrest. The evidence explained why police were in the neighborhood and
why they stopped Duffy. See Wright, 392 F.3d at 1276 (concluding that evidence
of defendant’s resistance to arrest and battery on a law enforcement officer before
the discovery of the firearm giving rise to his felon-in-possession charge gave “the
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jury the body of the story, not just the ending”).
While parts of the burglary evidence may have prejudiced Duffy by showing
fear in Wilson and the Broxtermans, we conclude that the district court acted
within its proper discretion in concluding that the danger of unfair prejudice did
not substantially outweigh the probative value of the evidence. See Fed.R.Evid.
403; United States v. Jernigan, 341 F.3d 1273, 1285 (11th Cir. 2003) (in reviewing
Rule 403 issues, we will conclude that the district court abused its discretion only
if, in looking at the evidence in the light most favorable to its admission, the
decision to admit the evidence over a Rule 403 challenge is unsupportable).2
Duffy next argues that the district court abused its discretion in denying his
motion for a mistrial. Before trial, the district court granted Duffy’s motion in
limine to exclude evidence about his post-arrest attempted escape. At trial, Duffy
asked Officer Michael Giugliano on cross-examination whether there was a use of
force report prepared about Duffy being run over on his bicycle by officers on the
night of his arrest. Officer Giugliano responded that there was not, but that a use
of force report had been prepared about Duffy being pepper sprayed when he
2
Duffy contends that the government could have proven its case without certain
information about the uncharged conduct, including the ages of the Broxtermans’ children and
the damage done to the front door. But the government was not required to proffer only enough
evidence to allow the jury to convict. United States v. Fortenberry, 971 F.2d 717, 722 (11th Cir.
1992).
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attempted to escape from the precinct after his arrest. On redirect examination,
Giugliano again mentioned that Duffy had attempted to escape from the precinct.
Duffy moved for a mistrial based on these comments; but the district court
determined that Duffy had opened the door to this questioning, denied the motion,
and issued a limiting instruction to the jury.
We review the denial of a motion for a mistrial for an abuse of discretion.
United States v. Tampas, 493 F.3d 1291, 1303 (11th Cir. 2007). “Typically, a
defendant is entitled to a grant of mistrial only upon a showing of substantial
prejudice.” United States v. Ettinger, 344 F.3d 1149, 1161 (11th Cir. 2003).
We will assume that the district court incorrectly concluded that Duffy
opened the door to questioning about his attempted escape: his question to Officer
Giugliano was not about a use of force report on his attempted escape but was
about a separate incident. Still, we conclude that Duffy has not shown substantial
prejudice entitling him to a mistrial. Officer Giugliano mentioned Duffy’s
attempted escape from the precinct only twice briefly in his otherwise lengthy
testimony. And the district court issued an extensive curative instruction
admonishing the jurors to disregard the references to escape because it was not an
issue for them to decide and was irrelevant to their deliberations. See United
States v. Harriston, 329 F.3d 779, 787 n.4 (11th Cir. 2003) (explaining that
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“[w]hen a curative instruction has been given to address some improper and
prejudicial evidence, we will reverse only if the evidence is so highly prejudicial
as to be incurable by the trial court’s admonition”) (internal quotation omitted).
In his final argument, Duffy contends that the district court abused its
discretion in allowing Wilson and the Broxtermans to testify at his sentencing
hearing about how the burglary affected them because his felon in possession
offense was a victimless crime. “[A] judge may appropriately conduct an inquiry
broad in scope, largely unlimited either as to kind of information he may consider,
or the source from which it may come,” in determining an appropriate sentence.
Roberts v. United States, 100 S.Ct. 1358, 1362 (1980) (citation and quotation
omitted). And “[n]o limitation shall be placed on the information concerning the
background, character, and conduct of a person convicted of an offense which a
court of the United States may receive and consider for the purpose of imposing an
appropriate sentence.” 18 U.S.C. § 3661.
We conclude that the district court abused no discretion in allowing the
Wilson and Broxterman statements. The district court determined by a
preponderance of the evidence that Duffy had committed the burglary and did so
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while possessing a firearm.3 Because the district court determined that Duffy’s
conduct included burglary while possessing a firearm, it concluded that testimony
by Wilson and the Broxtermans about how the burglary impacted on them was
appropriate. Thus, the district court properly considered Duffy’s “background,
character, and conduct” in determining an appropriate sentence.4 18 U.S.C. §
3661.
AFFIRMED.
3
This determination subjected Duffy to a 4-level sentencing enhancement pursuant to
U.S.S.G. § 2K2.1(b)(6); on appeal, Duffy does not challenge this enhancement.
4
We decline to address Duffy’s argument that Wilson and the Broxtermans could not be
considered “crime victims” under 18 U.S.C. § 3771(e); the district court properly heard their
testimony under 18 U.S.C. § 3661.
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