United States v. Noel Young , 181 F. App'x 840 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 18, 2006
No. 05-11478 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-60179-CR-KAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NOEL YOUNG,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 18, 2006)
Before BARKETT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Noel Young appeals his convictions and sentence for (1) making, passing,
and selling counterfeit currency in violation of 18 U.S.C. §§ 2 and 471-73; (2)
possessing document-making implements with the intent that they be used to make
false identification documents in violation of 18 U.S.C. § 1028(a)(5); and (3) being
a felon in possession of a firearm and ammunition, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). On appeal, Young argues that the district court erred
by (1) denying his motion for judgment of acquittal; (2) denying his motion to
suppress evidence; (3) denying his motion for mistrial based on prosecutorial
misconduct; and (4) enhancing his sentence based on extra-verdict facts. We
address each issue in turn.
I. MOTION FOR JUDGMENT OF ACQUITTAL
We review de novo the district court’s denial of a defendant’s motion for
judgment of acquittal. United States v. Perez-Tosta, 36 F.3d 1552, 1556 (11th Cir.
1994). To uphold such a denial, “this Court need only determine that a reasonable
fact-finder could conclude that the evidence established the defendant’s guilt
beyond a reasonable doubt.” United States v. Pistone, 177 F.3d 957, 958 (11th Cir.
1999). We must view all reasonable inferences in favor of the government. Perez-
Tosta, 36 F.3d at 1556.
A. COUNTERFEITING CHARGES
We conclude, based upon the evidence in this record, taken in the light most
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favorable to the government, that a reasonable fact-finder could certainly have
found Young guilty of making, passing, and selling counterfeit currency, or at
least, of aiding and abetting such conduct. The evidence established more than one
witness’s account of Young’s involvement in the offense. First, United States
Secret Service Special Agent Kenneth Manderson testified at trial that he had made
a number of purchases of counterfeit money from Young and Lebert with Keino
Lewis (“Keino”), a confidential informant, and that Lebert had told Manderson that
he used Young’s machine to print the counterfeit bills. Second, Keino testified at
trial that he had observed Young making the counterfeit money, and both Young
and Lebert cutting the money, during a controlled purchase on July 7, 2003.
Specifically, Keino testified that he observed Young printing money from a printer
connected to a laptop and cutting the money with scissors. Keino also testified
that, during another purchase, Young got angry because Keino and Manderson
were counting the counterfeit money in public, and Young told Keino not to do
that again. Third, Lebert testified that he and Young had been making counterfeit
money and identification documents together, and that Young’s role was to help
cut the currency. Lebert also testified that the batch of currency they sold to Keino
on July 7 had been printed at his apartment on a printer he and Young had asked
Young’s girlfriend to buy for them. Lebert also testified that he and Young had
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made the counterfeit money involved in another transaction with Keino in Young’s
girlfriend’s apartment, where Young also lived.
Because the evidence sufficiently supports Young’s convictions, the district
court did not err in denying Young’s motion for judgment of acquittal on this
charge.
B. DOCUMENT-MAKING IMPLEMENTS CHARGE
Young also argues that the evidence was not sufficient to support his
conviction for a violation of 18 U.S.C. § 1028(a)(5) because he only possessed the
Eltron P310 Card Maker for the legitimate purpose of using it in his father’s
trucking business. Young also asserts that Lebert testified that Young did not
know that Lebert had made fraudulent identifications and social security cards.
The evidence does not support Young’s argument because Lebert testified
that, while Lebert and Young initially purchased the Card Maker for Young’s
father’s trucking business, they both used the device for illegal purposes. Young
did not present any evidence in contradiction of Lebert’s testimony. Even
assuming that Young possessed the Eltron P130 Card Maker purely for legitimate
purposes, Young fails to address the mountain of other document-making
implements that were found at his apartment, including: (1) software capable of
making counterfeit money; (2) images of personal signatures; (3) graphical files
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representing a Florida driver’s license strip; (4) photographs; (5) software capable
of making identification cards; (6) images of social security cards; and (7) a box of
blank white cards used to make driver’s licenses and ID’s. Based upon this
evidence, a reasonable fact-finder could have found Young guilty of possessing
“document-making implement[s] . . . with the intent such document-making
implement[s] . . . will be used in the production of a false identification document .
. . .” See 18 U.S.C. § 1028(a)(5). Accordingly, the district court did not err in
denying Young’s motion for judgment of acquittal on this basis.
C. FIREARM AND AMMUNITION CHARGES
Young next argues that, given the inconsistent statements that his girlfriend,
Jamiliah Brown, made to police concerning ownership of the firearm and
ammunition, no reasonable juror could have relied on her testimony as the basis for
Young’s convictions as to counts five and six. Young asserts that, because
Brown’s contradictory testimony is the only evidence tending to show that he was
the possessor of the firearm, the evidence is insufficient to establish his guilt.
Here, while Brown admittedly provided false statements to the police,
Young’s counsel cross-examined her on the topic of her false statements. After
Brown had testified on direct and Young’s counsel cross-examined her, the
ultimate determination with regard to her credibility was left to the jury. See
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Parrado, 911 F.2d 1567, 1571 (11th Cir. 1990) (“Credibility determinations are the
exclusive province of the jury”), citing United States v. Hewitt, 663 F.2d 1381,
1385 (11th Cir. 1981) (stating that the jury is entitled to believe the government's
witnesses even if they consist of “an array of scoundrels, liars and brigands”).
Finding that Brown made the false statements because of her feelings for Young
and the pressure she felt from Young to lie is not an unreasonable conclusion for a
juror to make. Moreover, the evidence that Young lived at the apartment, kept his
clothes in the closet, and had a key to the apartment demonstrates that Young had
“the power and intention to exercise dominion or control” over the firearm and
ammunition contained in the master bedroom closet. See United States v. Gunn,
369 F.3d 1229, 1235 (11th Cir. 2004). Therefore, because a reasonable fact-finder
could determine that the evidence established Young’s guilt beyond a reasonable
doubt, the district court did not err in denying Young’s motion for judgment of
acquittal.
II. MOTION TO SUPPRESS
Young also argues that the district court erred in denying his motion to
suppress because the warrant issued to search his apartment was not supported by
probable cause. Young contends that, at the time of the issuance of the warrant,
there was unsubstantiated evidence that Lebert had entered apartment #1805
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(Young’s apartment) while the police were surveilling Lebert. Young further
asserts that the police could not be sure that Lebert exited apartment #1805 on his
way to complete the fraudulent identification card transaction. Young thus
maintains that, based on the totality of the circumstances, the district court should
have granted his motion to suppress.1
In this case, the affidavit for the search warrant, which Special Agent Freund
prepared, indicated that the officers were aware of the following information at the
time of the affidavit: (1) Keino, the confidential informant in this case, had met
with Lebert and Young to exchange counterfeit currency; (2) Young was at
Lebert’s apartment when Lebert gave Keino the counterfeit currency; (3) Young
accepted the genuine currency in exchange for the counterfeit currency; (4) Keino
met with Young and Lebert on another occasion to again transfer counterfeit
currency; (5) officers witnessed Lebert entering Inverrary Gardens apartment
complex and Lebert later informed officers that he had been making false
identifications at an apartment within the complex; (6) after Lebert’s arrest, Lebert
told officers that Young’s apartment was located at 4200 Inverrary Gardens,
Apartment #1805, and that Lebert had made fraudulent identifications there; and
1
We review the district court’s denial of a motion to suppress under a mixed standard,
reviewing questions of fact for clear error and the district court’s application of law to those facts
de novo. United States v. Jiminez, 224 F.3d 1243, 1247 (11th Cir. 2000).
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(7) Lebert told officers that the identification-making equipment belonged to
Young and was located at Young’s apartment.
Considering all the information that Special Agent Freund submitted to the
court in the affidavit for the search warrant, and in light of the fact that Young only
challenges the surveillance issue on appeal, it is clear that “the totality of the
circumstances allow a conclusion that there [was] a fair probability of finding
contraband or evidence” at Young’s apartment. United States v. Brundidge, 170
F.3d 1350, 1352 (11th Cir. 1999). Thus, the district court did not err in
determining that probable cause supported the search warrant.
III. MOTION FOR MISTRIAL
Young argues on appeal that the district court abused its discretion in
denying Young’s motion for a mistrial. Young contends that the prosecutor’s act
of questioning Brown concerning Young’s custodial status warranted a mistrial.2
Young maintains that the prosecutor’s statement, that Young was in custody, “had
no relevance and was extremely prejudicial.”
2
Specifically, Young objects to the following redirect examination of Brown:
Q: Now, the fourth statement that you gave on January 13th, when you said that you
had no idea about the gun at the residence and you didn’t know who the gun
belonged to, those were lies, weren’t they?
A: Yes, correct.
Q: And again you were still trying to protect your boyfriend?
A: Yes.
Q: Because you still were seeing him at the jail, weren’t you?
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We review the district court’s denial of a motion for mistrial for abuse of
discretion. United States v. Knowles, 66 F.3d 1146, 1163 (11th Cir. 1995). We
will reverse a defendant’s conviction on the basis of prosecutorial misconduct only
where the prosecutor’s remarks were “(1) improper and (2) prejudiced the
defendant’s substantive rights.” United States v. Hernandez, 145 F.3d 1433, 1438
(11th Cir. 1998); see also United States v. Abraham, 386 F.3d 1033, 1036 (11th
Cir. 2004) (explaining that prosecutorial misconduct requires a reversal of a
defendant’s conviction only where the defendant’s substantial rights were
prejudiced “in the context of the entire trial in light of any curative instruction”).
“In order to assess the prejudicial impact of a prosecutor’s statements, we must
evaluate them in the context of the trial as a whole and assess their probable impact
on the jury.” Hernandez, 145 F.3d at 1438.
In this case, while Young maintains that the prosecutor’s comment was
prejudicial, he fails to indicate precisely how the comment prejudiced his
substantial rights as to warrant a mistrial. Given the overwhelming evidence of
Young’s guilt, mentioned above, it is unclear in what manner the prosecutor’s
comment that Young had been incarcerated could have impacted the jury so that it
would have been inclined to find Young guilty regardless of the other evidence. In
other words, Young has not established that, but for the prosecutor’s remark, the
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jury would have found him not guilty. No mention of Young’s custodial status
was again made by the prosecutor or any witness. Further, Young declined the
court’s offer to provide a curative instruction to the jury. Based on the foregoing,
the district court did not err in denying Young’s motion for a mistrial.
IV. SENTENCE ENHANCEMENTS
Young argues that the district court violated his Fifth and Sixth Amendment
rights by enhancing his sentence based on facts that were neither charged in his
indictment nor found by a jury. Young specifically argues that his sentence
enhancements based on (1) his obstruction of justice, (2) the face value of the
counterfeit currency involved in the crime totaling between $30,000 and $70,000,
and (3) the offense involving between 25 and 99 counterfeit documents, violated
the rules set forth in Blakely v. Washington, 542 U.S. 296 (2004), and United
States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005).
Young properly preserved his claim in the district court by objecting under
Blakely and Booker to the district court’s use of facts found by a preponderance of
the evidence to enhance his sentence. See United States v. Dowling, 403 F.3d
1242, 1245-46 (11th Cir.) (explaining the ways an appellant can preserve a Booker
claim). Since Young timely raised a Booker objection in the district court, we
review the claim on appeal de novo, but reverse only for harmful error. See United
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States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).
In Booker, the Supreme Court held that the Federal Sentencing Guidelines
violate the Sixth Amendment right to a trial by jury to the extent that they permit a
judge to increase a defendant's sentence based on facts that are neither found by the
jury nor admitted by the defendant. Booker, 543 U.S. at 244. To remedy this
violation, the Court excised two specific provisions of the Sentencing Reform Act
of 1984, thereby rendering the guidelines “effectively advisory.” Id. at 245-46. As
a result, a sentencing court must still “consider Guidelines ranges,” but it may
“tailor the sentence in light of other statutory concerns as well.” Id. at 245-46.
In Rodriguez, we clarified that Booker error “is not that there were
extra-verdict enhancements - enhancements based on facts found by the judge that
were not admitted by the defendant or established by the jury verdict - that led to
an increase in the defendant's sentence. The error is that there were extra-verdict
enhancements used in a mandatory guidelines system.” Rodriguez, 398 F.3d 1291,
1300 (2005) (emphasis added). We further explained that “the use of extra-verdict
enhancements in an advisory guidelines system is not unconstitutional.” Id. at
1301; see also United States v. Chau, 426 F.3d 1318, 1323-24 (11th Cir. 2005)
(holding that “[n]othing in Booker is to the contrary” of a district court decision to
base sentence enhancements, under an advisory guidelines scheme, on facts found
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by a preponderance of the evidence that were not charged in the indictment).
Young’s challenge to his sentence on appeal is that the district court violated
Booker and Young’s constitutional rights by enhancing his sentence based on facts
not charged in his indictment or found beyond a reasonable doubt by a jury. At
sentencing, the district court adopted the PSI’s applicable guidelines range
calculation. Nothing in Booker precluded the court from finding that the PSI’s
enhancements were supported by a preponderance of the evidence. See Chau, 426
F.3d at 1324. The court then explicitly recognized that the guidelines were
advisory and considered other sentencing factors, as mandated in 18 U.S.C.
§ 3553(a). Thus, the district court did not err in enhancing Young’s sentence based
on extra-verdict facts.
Upon review of the record, and consideration of the parties’ briefs, we
discern no reversible error. Accordingly, we affirm Young’s convictions and
sentence.
AFFIRMED.
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