United States v. Tyree Renard Wilson , 238 F. App'x 571 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 30, 2007
No. 06-14859 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00158-CR-ORL-19-DAB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TYREE RENARD WILSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 30, 2007)
Before ANDERSON, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Tyree Wilson, through counsel, appeals his conviction for conspiracy to
possess with intent to distribute crack cocaine in violation of 21 U.S.C. §§
841(a)(1) and 846.
I.
On appeal, Wilson challenges the district court’s jurisdiction, arguing that
the application of the Controlled Substances Act (“CSA”) is unconstitutional
because he was the victim of outrageous government conduct. He argues that the
government fabricated the drug conspiracy and engaged in criminal activity in
implementing the investigation, primarily via the use of confidential informants.
“We review the constitutionality of a [challenged] statute de novo.” United
States v. Ballinger, 395 F.3d 1218, 1225 (11th Cir. 2005) (en banc). We review
issues not raised before the district court for plain error. United States v.
Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). An unpreserved error will be
corrected only if it is “(1) error, (2) that is plain, and (3) that affects substantial
rights.” Id. (internal quotation marks omitted).
Wilson’s argument calls into question Congress’s authority under the
Commerce Clause to prohibit the conduct with which he was charged. The
Commerce Clause gives Congress the power to regulate three types of activity: (1)
“the channels of interstate commerce;” (2) “the instrumentalities of interstate
commerce, and persons or things in interstate commerce;” and (3) “activities that
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substantially affect interstate commerce.” Gonzales v. Raich, 545 U.S. 1, 16-17,
125 S. Ct. 2195, 2205, 162 L .Ed. 2d 1 (2005). The Supreme Court has upheld the
CSA as a valid exercise of Congressional power. Id. at 9, 125 S. Ct. at 2201.
Accordingly, the district court had jurisdiction in this case and Wilson’s argument
is without merit.
Wilson also argues that that the government’s conduct in this case violated
his due process rights. We have recognized that government conduct, in rare and
outrageous circumstances, might violate the Fifth Amendment. United States v.
Edenfield, 995 F.2d 197, 200 (11th Cir. 1993). Government infiltration of criminal
activity and the furnishing of something of value to the criminal is a recognized
and permissible means of investigation. United States v. Sanchez, 138 F.3d 1410,
1413 (11th Cir. 1998). “[A]lthough a government agent may provide something of
value to a criminal enterprise, he may not instigate the criminal activity, provide
the place, equipment, supplies, and know-how, and run the entire operation with
only meager assistance from the defendants.” Kett v. United States, 722 F.2d 687,
689 (11th Cir. 1984) (per curiam) (internal quotation marks omitted).
Wilson’s argument is without merit. It is an acceptable and constitutional
investigatory technique to utilize confidential informants to purchase drugs from
suspected drug dealers. The government’s conduct in this case was not outrageous,
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and Wilson’s argument conflating government conduct and jurisdiction is no basis
for overturning the conviction.
II.
Next, Wilson argues that the evidence was insufficient to convict him. He
relies heavily on public policy arguments, characterizing government drug
investigations as reliant on “liar’s evidence.” He defines “liar’s evidence” as
evidence that is conducive to fabrication. In the instant case, he objects to the
government’s reliance on and use of confidential informants. He argues that the
testimony of co-defendants Shaun Dawkins and Anthony Sutton contradicted each
other. He further asserts that the evidence was circumstantial and unreliable, and
the jury could only have found him guilty via “guesswork” and “conjecture.”
“Sufficiency of the evidence is a question of law that we review de novo.”
United States v. Gupta, 463 F.3d 1182, 1193 (11th Cir. 2006), cert. denied, __ S.
Ct. __, No. 06-1388, (May 21, 2007) (mem.). In reviewing the sufficiency of the
evidence, we ask “whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Id. at 1193-94 (internal quotation marks
omitted). Furthermore, we will resolve all reasonable inferences in favor of the
jury’s verdict. Id. at 1194. We keep in mind that credibility determinations are the
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sole province of the jury. United States v. Chastain, 198 F.3d 1338, 1351 (11th
Cir. 1999).
In order to support a conspiracy conviction under 21 U.S.C. § 846, the
government must establish that (1) a conspiracy existed, (2) the defendant had
knowledge of it, and (3) he voluntarily became a part of it. United States v.
Thompson, 422 F.3d 1285, 1290 (11th Cir. 2005). The “existence of an agreement
in a conspiracy case is rarely proven by direct evidence that the conspirators
formally entered or reached an agreement . . . . The more common method of
proving an agreement is through circumstantial evidence.” United States v.
Glinton, 154 F.3d 1245, 1258 (11th Cir. 1998) (internal quotation marks omitted).
“[T]he very nature of a conspiracy frequently requires that the existence of an
agreement be proved by inferences from the conduct of the alleged principals or
from circumstantial evidence of a scheme.” United States v. Gold, 743 F.2d 800,
824 (11th Cir. 1984) (internal quotation marks omitted). Uncorroborated
testimony of a co-conspirator may be enough to support a conviction if the
testimony is not incredible on its face or otherwise insubstantial. United States v.
Garcia, 405 F.3d 1260, 1270 (11th Cir. 2005) (per curiam).
Sufficient evidence supports the jury’s guilty verdict. Sutton stated that he
received drugs from Wilson and shared the profits of drug sales with Wilson.
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Dawkins stated that he received drugs from Wilson and provided drugs to Wilson.
Co-conspirators’ testimony can be enough to support a conviction, and in this case
the offered testimony was not so incredible that the jury could not have credited it.
Moreover, the testimony from law enforcement agents placing Wilson and Sutton
together before and after the monitored drug deals supports Sutton’s testimony. In
light of the trial testimony, the jury could have concluded beyond a reasonable
doubt that Wilson conspired to possess with intent to distribute crack cocaine.
Therefore, the district court did nor err in denying Wilson’s motion for a judgment
of acquittal.
III.
Wilson next contends that certain evidentiary rulings by the district court
were erroneous. Wilson argues that the admission of taped recordings between
Dawkins and a confidential informant was erroneous because the recordings (1)
contained statements from a non-testifying confidential informant and (2) were
incomplete and misrepresentative. He also argues that the record supports his
objections regarding the admission of statements he made during the booking
process about his nickname and place of residence. Finally, he argues that the
DEA has an unofficial policy of ensuring that incriminating statements are kept
from defendants before trial.
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We review evidentiary rulings for an abuse of discretion. United States v.
Brown, 415 F.3d 1257, 1264-65 (11th Cir. 2005), cert. denied, 126 S.Ct. 1570(2006). We review constitutional questions de novo. United States v. Brown, 364
F.3d 1266, 1268 (11th Cir. 2004).
Wilson contends that the confidential informant’s recorded statements
should not have been admitted because they are hearsay. Hearsay is an out-of-
court statement “offered in evidence to prove the truth of the matter asserted.”
Fed. R. Evid. 801(c). A confidential informant’s statement made during a taped
conversation with the defendant can be admitted to provide context, so long as the
informant’s statements are not admitted for the truth asserted. See United States v.
Byrom, 910 F.2d 725, 737 (11th Cir. 1990). The Confrontation Clause “does not
bar the use of testimonial statements for purposes other than establishing the truth
of the matter asserted.” Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S. Ct.
1354, 1369 n.9, 158 L. Ed. 2d 177 (2004).
The admission of the recordings was proper because the confidential
informant’s statements were not admitted for the truth of what he said, but rather
for context. The court instructed the jury not to credit the confidential informant’s
statements as truth, because they were only being provided as context for
Dawkins’s statements. Accordingly, the recording was not hearsay, nor did it
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violate Wilson’s constitutional right to confrontation because the confidential
informant’s statements were not offered for the truth of the matter asserted.
Wilson’s argument that the recording was incomplete and misrepresentative of the
conversation is not developed beyond mere allegation, and it was not an abuse of
discretion for the court to admit the recording into evidence.
Wilson also argues that the government committed a discovery violation by
failing to inform him that it intended to introduce at trial statements he made
during booking. The government must disclose the substance of any oral statement
made by the defendant in response to interrogation by a person the defendant knew
to be a government agent if the government intends to use the statement at trial.
Fed. R. Crim. P. 16(a)(1)(A). We will not reverse a conviction based on a
discovery violation unless the appellant can demonstrate that the violation
prejudiced his substantial rights. United States v. Quinn, 123 F.3d 1415, 1423
(11th Cir. 1997). “Substantial prejudice is established when the defendant shows
that he was unduly surprised and did not have an adequate opportunity to prepare a
defense or that the mistake had a substantial influence on the jury.” United States
v. Rivera, 944 F.2d 1563, 1566 (11th Cir. 1991).
A law enforcement officer’s request for routine information during booking
is not an interrogation, and, therefore, is not subject to Miranda v. Arizona, 384
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U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). United States v. Sweeting, 933
F.2d 962, 965 (11th Cir. 1991).
The district court’s decision to admit Wilson’s booking statements does not
require reversal. As an initial matter, routine questioning during the booking
process does not constitute interrogation, and, therefore, the statements did not
violate Wilson’s Miranda rights. The government contends that it did not commit
a discovery violation because Wilson’s comment about living in Georgia to avoid
arrest was discussed during the detention hearing, and the “Blacknet” nickname
was on Wilson’s fingerprint card, which was available to the defendant. Even
assuming that the detention hearing discussion and fingerprint card did not satisfy
the government’s obligation, the court did not abuse its discretion by allowing the
statements to be heard by the jury because the evidence did not violate Wilson’s
substantial rights. Wilson’s conviction principally relied upon the testimony of
Sutton and Dawkins, two co-conspirators who directly implicated Wilson in the
provision and sale of illegal drugs. Accordingly, Wilson has failed to establish that
any possible discovery violation affected his substantial rights.
AFFIRMED.
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