United States v. Dwayne Eric Thompson ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14863 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 19, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 3:09-cr-00117-TJC-TEM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
DWAYNE ERIC THOMPSON,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 19, 2011)
Before PRYOR, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Dwayne Thompson appeals his conviction for possession of a firearm by a
convicted felon. 18 U.S.C. § 922(g)(1). Thompson challenges the sufficiency of
the evidence and the denial of his motion to exclude letters that he wrote to his
girlfriend. We affirm.
Thompson argues that the United States failed to prove that he knowingly
possessed a firearm, but we disagree. Terrika Kemp, Thompson’s girlfriend,
testified that Thompson had been carrying a handgun in the waistband of his pants
for ten days before officers discovered a loaded Glock .40 caliber pistol concealed
under the driver’s seat of a vehicle Thompson had been driving. Kemp’s
testimony established that Thompson was in constructive possession of the gun.
See United States v. Wright, 392 F.3d 1269, 1273–74 (11th Cir. 2004). Thompson
argues that Kemp’s testimony is not credible because she gave earlier inconsistent
statements about Thompson’s guilt, but the jury credited Kemp’s testimony.
“Assessing the credibility of one witness is within the jury’s exclusive province,”
id. at 1274, and Kemp’s testimony was not so fantastic or incredible as to “be
‘unbelievable on its face,’” United States v. Calderon, 127 F.3d 1314, 1325 (11th
Cir. 1997) (quoting United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir.
1985)). The United States also introduced recordings of admissions by Thompson
about Kemp’s knowledge of his guilt and letters in which Thompson sought to
dissuade Kemp from testifying against him. Thompson’s “attempts to influence a
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witness” evidenced a “consciousness of guilt” on his part. United States v.
Hammond, 781 F.2d 1536, 1540 (11th Cir. 1986).
Thompson also argues that the letters he wrote to Kemp were not disclosed
in compliance with Federal Rule of Criminal Procedure 16, but we disagree. That
rule requires that the United States disclose a written statement that is “within [its]
possession, custody, or control.” Fed. R. Crim. P. 16(a)(1)(B)(i). When the
prosecutor learned about the letters on the eve of trial, he immediately forwarded
the evidence to defense counsel. See United States v. Cannington, 729 F.2d 702,
712 (11th Cir. 1984).
Even if we assume that the prosecutor violated Rule 16, the admission of the
letters was not an abuse of discretion. The exclusion of relevant evidence is an
“extreme sanction,” United States v. Turner, 871 F.2d 1574, 1580 (11th Cir.
1989), reserved for an egregious violation of Rule 16, see United States v.
Euceda-Hernandez, 768 F.2d 1307 (11th Cir. 1985), which did not occur here.
The late disclosure did not affect Thompson’s substantial rights. Turner, 871 F.2d
at 1580. Thompson could not have been surprised by the content of the letters that
he had written to Kemp, and the district court offered Thompson several options
short of excluding the evidence to eliminate any possible prejudice caused by the
late disclosure. The district court offered to grant Thompson a mistrial, to
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continue the trial, and to allow him to plead guilty and receive a reduced sentence
for accepting responsibility, but Thompson rejected those alternatives. The
district court did not abuse its discretion by denying Thompson’s motion to
exclude.
We AFFIRM Thompson’s conviction.
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