United States v. Noel Roberts , 215 F. App'x 842 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-12835 JANUARY 25, 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-20483-CR-MGC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NOEL ROBERTS,
a.k.a. Casper,
a.k.a. Caspa,
a.k.a. Mark,
CAREY LEE WILLIAMS,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(January 25, 2007)
Before BIRCH, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Noel Roberts and Carey Lee Williams appeal their convictions and sentences
for conspiracy to import and conspiracy to possess with intent to distribute cocaine,
in violation of 21 U.S.C. §§ 846 and 963, and aiding and abetting the importation
and the possession with intent to distribute cocaine, in violation of 21 U.S.C.
§§ 841(a) and 952(a). On appeal, Williams challenges the district court’s denial of
his Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)
challenges to the government’s peremptory strikes of the petit jury, argues that the
content of the prosecutor’s objections constituted prosecutorial misconduct, and
asserts that the district court abused its discretion by advising the jury to disregard
portions of his closing argument.1 Roberts likewise raises a Batson claim and
further argues that the district court clearly erred in enhancing his Guideline range
for a supervisory or managerial role in the offense. For the reasons set forth more
fully below, we affirm.
1
Stating that the following issues are raised pursuant to his duty under Anders v.
California, 386 U.S. 738 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) to inform the Court of any
potentially appealable issues, Williams summarily argues that: (1) the waiver of his rights under
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), was not voluntary;
(2) the district court erred in allowing the government to raise his prior convictions in its opening
statement; and (3) the admission of a statement by a codefendant, phone records, and a list of
telephone numbers transcribed from a cell phone, violated Crawford v. Washington, 541 U.S.
36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We discern no error in the denial of Williams’s
motion to suppress his statements to law enforcement, no abuse of discretion by the district court
in permitting the government to discuss prior convictions in its opening statement, and no plain
error under Crawford. We note that Williams’s counsel has not filed a formal motion to
withdraw under Anders.
2
I. Standard of review
We review the district court’s resolution of a Batson challenge for clear
error, giving great deference to the district court’s finding as to the existence of a
prima facie case. Central Ala. Fair Housing Ctr., Inc. v. Lowder Realty Co., Inc.,
236 F.3d 629, 635 (11th Cir. 2000). We review “a prosecutorial misconduct claim
de novo because it is a mixed question of law and fact.” United States v. Eckhardt,
466 F.3d 938, 947 (11th Cir. 2006). We review the district court’s limitation of a
closing argument for abuse of discretion. See United States v. Hall, 77 F.3d 398,
400-01 (11th Cir. 1996). We review for clear error a district court’s determination
of a defendant’s role in the offense. United States v. De Varon, 175 F.3d 930, 937
(11th Cir. 1999) (en banc).
II. Batson
Roberts argues that the striking of five black jurors was, in and of itself,
sufficient to establish a prima facie case under Batson and Williams similarly
argues that he made a prima facie showing of a pattern of strikes against black
jurors. They make further arguments regarding the court’s failure to require the
prosecutor to state a race-neutral explanation for each strike and the adequacy of
the reasons proffered by the prosecution. The government responds that
defendants never made a prima facie showing before the district court.
3
The district court conducts a three-part inquiry into whether a peremptory
strike was motivated by racial or ethnic discrimination. United States v.
Ochoa-Vasquez, 428 F.3d 1015, 1038 (11th Cir. 2005), cert. denied, 127 S.Ct. 380(2006). “First, the district court must determine whether the party challenging the
peremptory strikes has established a prima facie case of discrimination by
establishing facts sufficient to support an inference of racial discrimination.” Id.(citation and quotation marks omitted). The district court reaches the next part of
the inquiry only if a prima facie case is established. See id. In the second part of
the inquiry, the burden shifts to the party making the strike to provide a race-
neutral explanation for the strike. Id. Regardless of the frivolity of the
justification, the inquiry proceeds to step three, where “the district court determines
the persuasiveness of the justification offered by the striker and decides whether
the objector has carried its burden of proving purposeful discrimination.” Id. at
1038-39.
The district court should determine whether a prima facie case is established
based on the totality of relevant facts about the prosecutor’s conduct. Atwater v.
Crosby, 451 F.3d 799, 805 (11th Cir. 2006), pet. for cert. filed, (U.S. Oct. 25,
2006) (No. 06-7287). Engaging in a pattern of strikes against venire members of
one race may support a prima facie case of racial discrimination. Ochoa-Vasquez,
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428 F.3d at 1039. However, “a showing that a party used its authorized
peremptory strikes against jurors of one race does not, standing alone, establish a
prima facie case of discrimination.” Lowder, 236 F.3d at 637. The factors we
have considered to provide context to the use of peremptory strikes against jurors
of one race include whether jurors of the same race served unchallenged on the
jury, whether the striking party struck all people, or as many people as the striker
had strikes, of the same race from the venire, and the existence of a substantial
disparity between the percentage of jurors of that race struck and their
representation on both the venire and the jury. Ochoa-Vasquez, 428 F.3d at 1044-
45.
The defendants raised Batson challenges to three individual peremptory
strikes by the government. They also raised a challenge to the entire panel, arguing
that all five of the government’s strikes were for black jurors. All four challenges
were summarily denied by the district court. Given the context of the court’s
denials, we conclude that these denials were based on the defendants’ failure to
establish a prima facie case. We hold that the district court did not clearly err in
this finding. Both before the district court and on appeal, the defendants have
based their prima facie case on evidence that the government used all five of its
peremptory strikes on the initial 12 jurors to strike black venire members. At
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neither stage in the proceedings have they attempted to place this fact in context.
As a result, their argument is insufficient to establish a prima facie case. See
Lowder, 236 F.3d at 637. Moreover, to the extent that the record does provide
context, it does not support a finding that the district court clearly erred. Based on
the government’s representations, which were not disputed before the district
court, the government accepted two black jurors, who were subsequently struck by
the defendants, and three black jurors served on the jury. In addition, the
government used only five of its six peremptory challenges to the petit jury and,
therefore, could have struck an additional black juror from the venire. See
Fed.R.Crim.P. 24(b)(2).
III. Prosecutorial misconduct
Williams next argues that the government made disparaging remarks to the
effect that his counsel was “twisting testimony and transcripts.”
To establish prosecutorial misconduct, (1) the remarks must be
improper, and (2) the remarks must prejudicially affect the substantial
rights of the defendant. A defendant’s substantial rights are
prejudicially affected when a reasonable probability arises that, but for
the remarks, the outcome of the trial would have been different. When
the record contains sufficient independent evidence of guilt, any error
is harmless.
Eckhardt, 466 F.3d at 947 (citations and quotation marks omitted). If the remarks
are improper, “reversal is only warranted if the entire trial is so replete with errors
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that [the defendant] was denied a fair trial.” Id.
In McLain,2 we held that prosecutorial misconduct occurred where, in the
jury’s presence, the prosecutor repeatedly accused defense counsel of intentionally
misleading jurors and witnesses and of lying in court. McLain, 823 F.2d at 1462.
In another case, we rejected a claim of prosecutorial misconduct based on five
comments during a rebuttal argument where the prosecutor stated, inter alia, that
the lawyers misstated the evidence, called witnesses liars with no basis in fact, and
that, “one day there is going to be a great book of fiction entitled lawyers [sic]
closing arguments.” United States v. Calderon, 127 F.3d 1314, 1336 (11th Cir.
1997) (alteration in original).
Williams’s claim of prosecutorial misconduct is based on one objection by
the prosecutor to questioning concerning a witness’s explanation of her testimony
in a prior trial during which the prosecutor stated, “I don’t think it’s a proper twist
of the transcript[,]” and four sustained objections to questions asked by Williams’s
counsel to one of the government’s witnesses on cross-examination in which the
prosecutor asserted that the testimony was misstated. We hold that the challenged
remarks are more like those in Calderon than those in McLain and, therefore, there
2
United States v. McLain, 823 F.2d 1457, 1462 (11th Cir. 1987), overruled on other
grounds by United States v. Lane, 474 U.S. 438, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986), as
recognized in United States v. Watson, 866 F.2d 381 (11th Cir. 1989).
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was no prosecutorial misconduct in this case.
Even if the prosecutor’s statements rose to the level of prosecutorial
misconduct, they did not deprive Williams of a fair trial. In McLain, the
prosecutor’s repeated accusations that defense counsel intentionally misled jurors
and witnesses and lied in court was insufficient, standing alone, to warrant
reversal. McLain, 823 F.2d at 1462. It therefore follows that the prosecutor’s
objections here are also insufficient to warrant reversal.
IV. Limitation of closing argument
Reasoning that providing awareness of a sentence to the jury is proper,
Williams next argues that the district court erred by informing the jury not to
consider his counsel’s arguments regarding punishment, as it effectively diluted his
closing argument and undermined counsel’s credibility. During his closing
arguments, Williams’s counsel argued:
I submit to you the government has fallen short with respect to
producing evidence from which they will ask the judge to sentence my
client to eternal imprisonment, the statutory maximum that can be
imposed would be life in prison.
Ladies and gentlemen, do not throw Mr. Williams any kind of
bone here. If you are going to convict him, just knock him out with
all four counts. Do not split the baby in half. Because any one count–
At this point, the prosecution objected and was overruled. Counsel then continued:
There are four Counts, convicting him of one is the same as
convicting him of four. I am asking you to not split the baby. It
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makes no difference at all. This is an all or nothing proposition. He is
either guilty as charged or not guilty as charged. All or nothing.
“The district court has broad discretion over closing argument and will be
reversed only if counsel is prevented from making all legal arguments supported
by the facts.” Hall, 77 F.3d at 400. “In arguing the law to the jury, counsel is
confined to principles that will later be incorporated and charged to the jury.”
United States v. Trujillo, 714 F.2d 102, 106 (11th Cir. 1983). Counsel cannot
argue incorrect or inapplicable theories of law. United States v. Valdes-Guerra,
758 F.2d 1411, 1416 (11th Cir. 1985). We do not permit defense counsel to make
a nullification argument to the jury, recognizing “that [while] a jury may render a
verdict at odds with the evidence or the law, neither the court nor counsel should
encourage jurors to violate their oath.” Trujillo, 714 F.2d at 106 (footnote
omitted). Moreover, the Supreme Court has recognized that “providing jurors
sentencing information invites them to ponder matters that are not within their
province, distracts them from their factfinding responsibilities, and creates a strong
possibility of confusion.” Shannon v. United States, 512 U.S. 573, 579, 114 S.Ct.
2419, 2424, 129 L.Ed.2d 459 (1994).
The jury was instructed that it should never consider the question of
punishment in deciding the case. Williams requested that the jury convict him of
either all counts or no counts immediately after informing the jury that the
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government would ask the judge to sentence him to “eternal imprisonment.”
Based on the context in which Williams made the “splitting the baby” argument,
the district court did not abuse its discretion in concluding that it was intertwined
with the comments regarding punishment. Therefore, by seeking to provide
information on punishment to the jury, Williams’s argument contravened the
instruction regarding punishment and implicitly encouraged jurors to violate their
oath. Accordingly, the district court did not abuse its discretion by instructing the
jury to disregard portions of Williams’s closing argument.
V. Role enhancement
The conspiracy at issue in this case involved the smuggling of cocaine on
and off of cruise ships. As to the April 2003 cruise, Roberts argues that his
actions, arranging hotel accommodations, providing spending money and money to
change an airplane ticket, and providing a ride to the flea market, were insufficient
to warrant a role adjustment. He contends that the four couriers on the cruise were
repeat couriers who needed no instruction from him and there was no evidence that
he provided them with contact information or telephone numbers to complete their
roles on the cruise.
Section 3B1.1(b) of the U.S. Sentencing Guidelines provides for a
three-level enhancement if a “defendant was a manager or supervisor (but not an
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organizer or leader) and the criminal activity involved five or more participants or
was otherwise extensive . . . .” U.S.S.G. § 3B1.1(b). Among other factors, the
court should consider the nature of participation in the commission of the offense,
the nature and scope of the illegal activity, the degree of participation in planning
or organizing the offense, and the degree of control and authority exercised over
others. U.S.S.G. § 3B1.1, comment. (n.4). “In a drug distribution case such as this
one, the management enhancement is appropriate for a defendant who arranges
drug transactions, negotiates sales with others, and hires others to work for the
conspiracy.” United States v. Matthews, 168 F.3d 1234, 1249-50 (11th Cir. 1999)
(affirming role enhancement where the defendant sold cocaine to “runners” who, in
turn, sold cocaine to buyers).
The district court did not clearly err in finding that Roberts’s responsibilities
regarding the couriers was managerial activity that warranted a three-level
increase. The testimony of Christopher Brown, one of the couriers on the April
2003 cruise, established that Roberts did more than simply provide transportation
and accommodation to the four drug couriers. Roberts told the couriers what to
buy at the flea market, how to act on the cruise, and where to obtain the cruise
tickets. He also told them that they would pick up the drugs in Curacao and that
someone working on the ship would take the drugs. In addition, Roberts provided
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the couriers with money to meet their needs both before and on the cruise,
including $6,000 to spend on the cruise and a few hundred dollars to allow Brown
to change his plane ticket. Additional evidence of Roberts’s role regarding this
cruise comes from Roberts’s statement to Oraine Selvin, a cooperating witness for
the government, that Roberts was taking care of the cruise. There is also evidence
of communications between Roberts and phone numbers in Aruba, Curacao, and
the cell phone of one of the couriers shortly before and during the cruise, and
evidence of multiple phone calls Roberts placed to a number associated with
codefendant Andre Dougan the day the cruise members were arrested.
In light of the foregoing, Roberts and Williams’s convictions and sentences
are
AFFIRMED.
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