United States v. Glenn K. Johnson , 192 F. App'x 935 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 14, 2006
No. 05-14728 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-80086-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GLENN K. JOHNSON,
TYRONE JOHNSON, JR.,
Defendants-Appellants,
TYRONE JOHNSON, SR.,
Defendant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(August 14, 2006)
Before DUBINA, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Appellants Glenn K. Johnson (“Glenn”) and Tyrone Johnson, Jr. (“Tyrone”)
appeal their convictions for attempted armed bank robbery in violation of 18
U.S.C. § 2113(a), (d). Glenn also appeals his convictions for brandishing a firearm
during and in relation to a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii) and conspiracy to commit armed bank robbery in violation of 18
U.S.C. § 371.
On appeal, Glenn argues that the district court erred in denying his motion
for severance and in admitting Tyrone’s jailhouse confession into evidence, in
violation of his Sixth Amendment right to confrontation. Glenn also argues that
the district court erred in denying his motion to suppress evidence, asserting that
the evidence underlying his conviction was obtained as the result of an illegal
traffic stop and search. As to Tyrone’s arguments on appeal, he contends that the
district court plainly erred in denying his motion to suppress evidence because his
detention following an investigatory traffic stop constituted a de facto arrest
without probable cause. Tyrone further argues that the district court erroneously
instructed the jury that escape is a part of the crime of armed bank robbery.1
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To the extent Tyrone also argues that the district court erred in denying his motion for a
judgment of acquittal, we reject that argument without further discussion.
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For the reasons that follow, we affirm.
I. Glenn’s argument concerning his motion for severance
We review a district court’s denial of a motion for severance for abuse of
discretion. United States v. Taylor, 186 F.3d 1332, 1335 (11th Cir. 1999). “To
justify severance, the defendant must demonstrate that a joint trial will result in
specific and compelling prejudice to the conduct of his defense.” United States v.
Cobb, 185 F.3d 1193, 1197 (11th Cir. 1999) (quotation omitted).
Because the record demonstrates that Tyrone’s confession did not inculpate
Glenn, and Glenn failed to otherwise establish that he was prejudiced by a joint
trial with his codefendants, we conclude that the district court did not abuse its
discretion in denying Glenn’s motion for severance.
II. Glenn’s argument concerning Tyrone’s jailhouse confession
We review questions of constitutional law de novo. United States v. Brown,
364 F.3d 1266, 1268 (11th Cir. 2004). Determinations of the admissibility of
evidence are reviewed for abuse of discretion. United States v. Miles, 290 F.3d
1341, 1351 (11th Cir. 2002). The Confrontation Clause of the Sixth Amendment
provides a defendant in a criminal trial the right “to be confronted with the
witnesses against him” and to cross-examine them. U.S. Const. amend. VI;
Richardson v. Marsh, 481 U.S. 200, 206, 107 S. Ct. 1702, 1706-07, 95 L. Ed. 2d
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176 (1987).
In Crawford v. Washington, the Supreme Court stated that the Confrontation
Clause applies not solely to in-court statements, but also to out-of-court hearsay
statements, noting, however, that not all hearsay statements implicated the Sixth
Amendment’s core concerns. Crawford, 541 U.S. 36, 50-51, 124 S. Ct. 1354,
1364, 158 L. Ed. 2d 177 (2004). The Court held that prior testimonial statements
may be admitted only if the declarant is unavailable and the defendant had an
opportunity to cross-examine the declarant. Id. at 68, 124 S. Ct. at 1374. Recently,
in Davis v. Washington, ___ U.S. ___, ___, 126 S. Ct. 2266, 2273-74 (2006), the
Supreme Court held generally that statements are testimonial where the “primary
purpose of the interrogation is to establish or prove past events potentially relevant
to later criminal prosecution.”
The record demonstrates that Tyrone voluntarily confessed his involvement
to a fellow inmate under circumstances that would not have led him to believe his
statement would be available for use at a future trial. There is no evidence in the
record that the inmate pressed Tyrone for information or otherwise compelled him
to confess. Thus, Tyrone’s confession was not testimonial in nature and we hold
that the district court did not violate Glenn’s rights under the Confrontation Clause
in admitting it into evidence.
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III. Glenn’s argument concerning his motion to suppress evidence
“A district court’s ruling on a motion to suppress presents a mixed question
of law and fact.” United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999).
We accept the district court’s findings of fact to be true, unless shown to be clearly
erroneous, and review the district court’s application of the law to those facts de
novo. Id. “[A]ll facts are construed in the light most favorable to the prevailing
party below.” United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000).
“The individual challenging the search bears the burdens of proof and persuasion.”
United States v. Cooper, 133 F.3d 1394, 1398 (11th Cir. 1998).
The Fourth Amendment protects individuals from “unreasonable searches
and seizures” by government officials, and its protections extend to “brief
investigatory stops of persons or vehicles.” United States v. Arvizu, 534 U.S. 266,
273, 122 S. Ct. 744, 750, 151 L. Ed. 2d 740 (2002). For brief investigatory stops,
the Fourth Amendment is satisfied if the police officer has “reasonable suspicion to
believe that criminal activity ‘may be afoot’”. Id. (citation omitted). When
determining whether reasonable suspicion exists, courts must consider the totality
of the circumstances to decide if the police officer had a “particularized and
objective basis” for suspecting legal wrongdoing. Arvizu, 534 U.S. at 273, 122 S.
Ct. at 750. In so doing, “a reviewing court must give due weight to the officer’s
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experience,” United States v. Briggman, 931 F.2d 705, 709 (11th Cir. 1991), and
must consider the “collective knowledge of [all of] the officers involved in the
stop,” United States v. Williams, 876 F.2d 1521, 1524 (11th Cir. 1989). “[A]n
individual’s proximity to illegal activity may be considered.” United States v.
Hunter, 291 F.3d 1302, 1306 (11th Cir. 2002).
The record demonstrates that, based on the totality of the circumstances and
the facts known to police at the time, there was reasonable suspicion to conduct an
investigatory stop of the car in which Glenn and Tyrone were driving. A “be on
the lookout” (“BOLO”) was issued for two black males in a white Malibu, and the
car, which matched that description, was stopped approximately 1.7 miles from the
bank where the robbery had occurred.
Furthermore, Glenn lacks standing to challenge the search of the car. A
passenger usually does not have a privacy interest in a car that the passenger
neither owns nor rents, regardless of whether the driver owns or rents it. United
States v. Cooper, 133 F.3d 1394, 1398 (11th Cir. 1998). To the extent that Glenn
challenges the traffic stop, his argument is also without merit. “A person who is
aggrieved by an illegal search and seizure only through the introduction of
damaging evidence secured by a search of a third person’s premises or property
has not had any of his Fourth Amendment rights infringed.” Rakas v. Illinois, 439
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U.S. 128, 134, 99 S. Ct. 421, 425, 58 L. Ed. 2d 387 (1978). The record indicates
that Tyrone was the registered owner and the driver of the Malibu, and that Glenn
was merely a passenger. Accordingly, we conclude that the district court did not
err in denying Glenn’s motion to suppress.
IV. Tyrone’s argument concerning the legality of the traffic stop
Because Tyrone did not argue that his detention was a de facto arrest in his
motion to suppress before the district court and now raises this argument for the
first time on appeal, we review his claim for plain error only. United States v.
Young, 350 F.3d 1302, 1305 (11th Cir. 2003). Under plain error review, we may
exercise our discretion to correct an error where (1) an error occurred, (2) the error
was plain, (3) the error affects substantial rights, and (4) “the error seriously affects
the fairness, integrity or public reputation of judicial proceedings.” United States
v. Olano, 507 U.S. 725, 732-36, 113 S. Ct. 1770, 1777-79, 123 L. Ed. 2d 508(1993) (quotations and citations omitted); Fed. R. Crim. P. 52(b).
“[I]f . . . an encounter [is] too intrusive to be classified as an investigative
detention, the encounter is a full-scale arrest, and the government must establish
that the arrest is supported by probable cause.” United States v. Hastamorir, 881
F.2d 1551, 1556 (11th Cir. 1989). We consider several factors to determine
whether a purported investigatory detention amounts to a de facto arrest requiring
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probable cause, including: (1) the purpose of the detention; (2) the diligence of the
officials in conducting the investigation; (3) the scope and instrusiveness of the
detention; and (4) the duration of the detention. United States v. Hardy, 855 F.2d
753, 759 (11th Cir. 1988). “Probable cause [to arrest] exists where the facts and
circumstances within the collective knowledge of the law enforcement officials, of
which they had reasonably trustworthy information, are sufficient to cause a person
of reasonable caution to believe an offense has been or is being committed.”
Hastamorir, 881 F.2d at 1557 (quotation omitted).
We conclude from the record that the district court did not plainly err in
failing to suppress evidence based on an improper detention that amounted to a de
facto arrest. The record demonstrates that the police had reasonable suspicion to
conduct an investigatory stop of Tyrone’s car. The police initiated the traffic stop
upon hearing a BOLO for two black males in a white Malibu and spotting Tyrone’s
car, which matched that description, in close proximity to the location of the
robbery. Moreover, the record indicates that the entire detention, from the initial
stop until the defendants were formally arrested, took approximately 40 minutes.
Thus, we conclude that Tyrone’s detention was lawful and did not amount to a de
facto arrest because it was reasonable in both scope and duration.
V. Tyrone’s argument concerning erroneous jury instructions
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Jury instructions properly challenged below are reviewed de novo to
determine whether they misstated the law or misled the jury to the prejudice of the
objecting party. United States v. Grigsby, 111 F.3d 806, 814 (11th Cir. 1997).
“Counsel’s objections to proposed instructions should be sufficient to give the
district court the chance to correct errors before the case goes to the jury.” Id.(quotation omitted). We will reverse the district court because of an erroneous jury
instruction only if we are “left with a substantial and ineradicable doubt as to
whether the jury was properly guided in its deliberations.” United States v.
Fulford, 267 F.3d 1241, 1245 (11th Cir. 2001) (quotation omitted).
After reviewing the record, including the district court’s instructions to the
jury, we conclude that the district court did not misstate the law or mislead the jury
to the prejudice of Tyrone.
VI. Conclusion
For the above-stated reasons, we affirm the convictions of Glenn and
Tyrone.
AFFIRMED.
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