United States v. Charles Daniel Maye ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 20, 2007
No. 06-14118 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00321-CR-T-30-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES DANIEL MAYE,
Defendant,
LEROY COLLINS,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(July 20, 2007)
Before TJOFLAT, HULL and FAY, Circuit Judges.
PER CURIAM:
Leroy Collins appeals his convictions for conspiracy to access a computer
without authorization, in violation of 18 U.S.C. § 371 (Count One); two counts of
accessing the National Crime Information Center (NCIC) 1 database without
authorization, in violation of 18 U.S.C. § 1030(a)(2)(B), (c)(2)(B)(i) and (ii), and 2
(Counts Two and Four); and making a false statement during an interview with a
special agent of the Federal Bureau of Investigation (FBI), specifically, Collins
“stated that he had never met James McLemore, when in truth and fact as [he] then
and there well knew he had previously met James McLemore,” in violation of 18
U.S.C. § 1001(a)(2) (Count Three). Collins raises two issues on appeal: (1) the
district court abused its discretion in denying his motion for mistrial after the jurors
expressed concern that, given that violent activity was associated with the crimes at
issue, they may suffer harm as a result of their verdict; and (2) there was
insufficient evidence to support his conviction for making a false statement to an
agent of the FBI. For the reasons set forth more fully below, we affirm.
I. Background
At Collins’s trial, Linda Bobo testified that she began a romantic
relationship with Collins in 1981. According to Bobo, Collins supported her
1
According to Collins’s indictment, “[t]he NCIC database collected and maintained
records relating to criminal histories of millions of people as well as persons and vehicles sought
by law enforcement agencies nationwide. Access to the NCIC database was restricted to law
enforcement officers authorized to access it for law enforcement purposes.”
2
financially, controlled all of her actions, and physically abused her. In 1995, Bobo
met James McLemore at the Touch of Class nightclub and began a secret
relationship with him, but she ultimately informed Collins of her relationship with
McLemore because she was afraid that Collins would harm her if he found out on
his own. Bobo told Collins that she wanted to leave him and have a relationship
with McLemore. Sometime later, McLemore was shot in Bobo’s driveway, but he
survived. After McLemore recovered, he and Bobo went to the nightclub, and as
they were leaving the nightclub, McLemore was shot again. McLemore died from
the shot. On cross-examination, Collins’s counsel asked Bobo whether she was
“ever anywhere where Mr. Collins and [McLemore] were face-to-face.” Bobo
answered in the negative.
Willie McCrary, a friend of Collins’s for more than 30 years, also testified at
trial. During McCrary’s direct testimony, the government played an audio tape of
a recorded conversation between McCrary and Collins. The transcript of the tape
recording is as follows:
McCrary: Well, you know, now, we’re talking about it. It’ll be all
right. We ain’t gonna talk about this no more. I’ve, I’ve been
thinking about it ‘cause I never cared about it. Why, you told me,
James slapped you and you know.
Collins: He did. He pushed me. He didn’t slap me. Down here at
Bubba’s, he did. Now, here’s how he slapped me. He didn’t push, he,
he slapped me. He pushed me. Down to Bubba. At the time, I didn’t
3
know who James was until uh, uh, uh Lucky told me. If he’d had told
me that was James, I would’ve taken care of ‘em.
McCrary: Well (UI) you kept that back. After you find out that with
James, that was what made the animosity come in your heart.
Collins: That’s, that’s what happened.
After the tape was played, McCrary testified that the “James” to whom he referred
on the tape was McLemore.
Mark Flint, a Florida Department of Law Enforcement officer, testified that
he and FBI Special Agent Leo Martinez interviewed Collins in January 2003.
With regard to anything that Collins had said during the interview concerning
McLemore, Officer Flint testified that:
[Collins] replied to Agent Martinez and I that Linda Bobo had
basically asked him who killed McLemore, and also if he had done it
or paid somebody else to do it. Collins told us that he had never met
McLemore and said, . . . ‘If I was going to be involved, I’d do it
myself’ or words to that effect.
After the government rested its case, Collins’s counsel moved for judgment
of acquittal as to Count Three of the superseding indictment, arguing that there was
insufficient evidence to prove that Collins made a false statement to an FBI agent.
Specifically, Collins’s counsel asserted that there was no evidence proving that
Collins’s statement, that he did not know McLemore, was false because none of
the government’s witnesses testified that Collins had ever met McLemore. The
4
district court denied Collins’s motion without explanation. Collins renewed his
motion for judgment of acquittal at the close of his evidence, and the court again
denied the motion without explanation.
Approximately 25 minutes after the jury retired to the jury room for its
deliberations, it sent the court the following question:
Because there is testimony of violent activity associated with these
crimes we have several jurors concerned about their safety after
returning a verdict one way or the other. What is the support system
in place to protect a juror after a trial? What [protocol] should we use
in the event of something odd happen[ing]?
The court allowed the parties an opportunity to present arguments regarding the
correct way for the court to respond to the jury’s letter. Thereafter, Collins’s
counsel joined his codefendant’s motion for a mistrial on the grounds that the
jury’s note indicated that the jurors’ concern for their safety influenced their ability
to be fair and impartial. Specifically, counsel argued that,
[i]t seems that some of these people are worried about their safety and
linking it to a guilty verdict and for reasons unrelated to the evidence
in this case, either the testimony or the exhibits; and because of the
fact that this extraneous concern now is such a powerful influence, it
appears, in the jury room, we would move for a mistrial.
The court denied the motion for mistrial, and the government suggested a response
to the jury’s note. The court asked whether the defendants agreed with the
government’s suggestion, and they responded that, “once the Court denied our
5
motion for mistrial, then our belief is this is really about the only alternative that
we have, and we agree with the language.” Thus, the court returned the following
response to the jury: “The Court and the parties agree that there is no reason for
any concern about the safety of any juror in this case. You should continue to
deliberate on the issues before you and should not let any such concerns be part of
your consideration in your further deliberations.”
The jury found Collins guilty on all four counts of his superseding
indictment. The court sentenced him to 60 months’ imprisonment on each count,
to be served consecutively, for a total term of 240 months’ imprisonment.
II. Discussion
A. Motion for Mistrial
Collins argues on appeal that, under the unique circumstances of his case,
the district court abused its discretion in denying his motion for mistrial. He
maintains that the court’s failure to investigate the specifics of the jurors’ concerns
for their safety resulted in a record devoid of evidence regarding what prejudice he
may have suffered, thus leaving an incomplete record for the district court’s and
this Court’s review.
We review a district court’s denial of a motion for mistrial for an abuse of
discretion. United States v. Trujillo, 146 F.3d 838, 845 (11th Cir. 1998).
6
Ordinarily, the district court’s decision whether to hold a hearing to investigate
alleged juror misconduct also is reviewed for abuse of discretion. United States v.
Watchmaker, 761 F.2d 1459, 1465 (11th Cir. 1985). “[T]he failure to hold a
hearing constitutes an abuse of discretion only where there is evidence that the jury
was subjected to influence by outside sources.” Id. However, we will review
Collins’s argument that the district court erred in failing to hold an investigatory
hearing for plain error because Collins did not object or request a hearing before
the district court. See United States v. Rodriguez, 398 F.3d 1291, 1297 (11th Cir.
2005) (explaining that this Court will not “correct an error the defendant failed to
raise in the district court unless there is: (1) error, (2) that is plain, and (3) that
affects substantial rights . . . but only if (4) the error seriously affects the fairness,
integrity, or public reputation of the judicial proceedings”) (citation and quotations
omitted).
Collins’s argument on appeal centers around the district court’s failure to
investigate the jurors’ concerns and determine whether those concerns would
prejudice his defense. Notably missing from Collins’s arguments on appeal, and in
the district court, however, is any assertion that there was extrinsic evidence to
which the jurors may have been exposed that would have caused them to raise
concerns for their safety. Collins merely blames the court for failing to investigate
7
the jurors’ concerns, but fails to demonstrate that there was any need to investigate
in the first instance. As we have held, the district court abuses its discretion, or
plainly errs, in failing to hold an investigatory hearing “only where there is
evidence that the jury was subjected to influence by outside sources.” See
Watchmaker, 761 F.2d at 1465. A careful review of the record in Collins’s case
does not reveal any possibility that the jurors may have been exposed to extrinsic
evidence, nor does Collins point to any such occurrence.
On the other hand, the record is replete with testimony from Bobo of
Collins’s violent nature and history of violent acts. Moreover, the jurors’ note to
the court supports the conclusion that their concerns arose from the evidence
produced at trial: “Because there is testimony of violent activity associated with
these crimes we have several jurors concerned about their safety after returning a
verdict one way or the other.” We have explained that “[d]iscussions among the
jurors as to their fear of the defendants are not inappropriate, so long as such
discussions do not lead them to form an opinion of the defendants’ guilt or
innocence of the offenses charged.” Watchmaker, 761 F.2d at 1466. There was no
evidence that the jurors’ fear lead them to form such an opinion, nor was there
evidence that the jurors had been influenced by outside evidence so as to warrant
an investigation into the jurors’ fear. In light of the trial testimony, the jurors’ note
8
to the court, and the lack of any suggestion in the record that the jury had received
extrinsic evidence, the district court did not abuse its discretion in failing to hold an
investigatory hearing or in denying Collins’s motion for mistrial.
B. Sufficiency of the Evidence
Collins argues that the government failed to present sufficient evidence at
trial to support his conviction for making a false statement to an FBI agent. He
first asserts that there was no evidence to establish that he made a false statement to
an FBI agent. He contends that the only testimony regarding the statement at issue
came from Officer Flint, who was a state law enforcement officer, and not from
Special Agent Martinez, who the government asserted was the FBI agent receiving
Collins’s false statement. He argues that it was insufficient for the government to
provide only third-party testimony concerning the alleged false statement. Collins
secondly argues that the government presented no evidence that his statement was
false. He notes that, contrary to the government’s charge, Bobo testified that, to
her knowledge, he and McLemore never had met face-to-face. In his reply brief,
Collins asserts that the conversation between himself and McCrary did not prove
that his statement to the FBI agent was false.
We review de novo the sufficiency of evidence to support convictions.
United States v. Eckhardt, 466 F.3d 938, 944 (11th Cir. 2006), cert. denied, 127
9
S.Ct. 1305 (2007). “In reviewing the denial of a motion for acquittal, the relevant
question is 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. (quotation omitted) (emphasis in original).
Count Three of Collins’s superseding indictment charged that, in violation
of § 1001(a)(2), Collins made a false statement during an interview with a special
agent of the FBI, specifically, that he “stated that he had never met James
McLemore, when in truth and fact as [he] then and there well knew he had
previously met James McLemore.” Pursuant to § 1001(a)(2), “whoever, in any
matter within the jurisdiction of the executive, legislative, or judicial branch of the
Government . . . knowingly and willfully . . . makes any materially false, fictitious,
or fraudulent statement or representation” shall be subject to a fine or
imprisonment. 18 U.S.C. § 1001(a)(2). In order to establish a violation of § 1001,
the government must prove: “(1) that the defendant made a false statement; (2) that
the statement was material; (3) that the defendant acted with specific intent to
mislead; and (4) that the matter was within the purview of a federal government
agency.” United States v. McCarrick, 294 F.3d 1286, 1290 (11th Cir. 2002).
As to Collins’s first assertion,2 the evidence in the record is sufficient to
2
In his initial brief, Collins limited his argument on this issue to two assertions: (1) there
was no evidence that he made the statement to a FBI agent; and (2) there was no evidence that
10
support a finding that he made the statement at issue to a FBI agent, as charged in
his superseding indictment. At trial, Officer Flint, a state law enforcement officer,
testified that he had held an interview between himself, Special Agent Martinez,
and Collins. Officer Flint testified that, during the interview, Collins stated that he
had never met McLemore. Officer Flint’s testimony indicates that Collins was
talking to both Officer Flint and Special Agent Martinez when he made the
statement at issue. The fact that Officer Flint, rather than Special Agent Martinez,
testified to the statement does not negate the evidence from Officer Flint’s
testimony that Collins stated to a FBI agent, namely Special Agent Martinez, that
he never had met McLemore. Given Officer Flint’s testimony, and the lack of
evidence that Collins did not make that statement during the interview with both a
state officer and a federal agent, a reasonable trier of fact could conclude that
Collins made the statement at issue to a FBI agent.
Collins’s second assertion, that the government failed to establish that his
statement was false, is similarly without merit. Review of the record and the
government’s appellate brief reveals that the only evidence that the government
the statement was false. However, in his reply brief, Collins expands his argument to include
challenges to the materiality of the statement and whether he had the specific intent to mislead.
We need not address those additional arguments, however, because Collins raised them for the
first time in his reply brief. See United States v. Levy, 416 F.3d 1273, 1276 n.3 (11th Cir.), cert.
denied, 126 S.Ct. 643 (2005) (explaining that we decline to consider issues raised for the first
time in a reply brief). As such, the scope of our review is limited to the first two arguments that
Collins raised in his initial brief.
11
introduced to establish that Collins had actually met McLemore before he made the
allegedly false statement was the testimony of McCrary and the transcript of the
conversation between McCrary and Collins. In that conversation, Collins detailed
an encounter that he had with an individual named “James,” in which James
pushed or slapped him. Collins additionally told McCrary that, at the time when he
was pushed, he did not know that the individual was “James,” but at a later date,
someone named “Lucky” told him that he had been pushed by “James.” After the
government played the tape of the conversation at trial, McCrary testified that the
“James” to whom he referred on the tape was McLemore. The government later
called Officer Flint to testify that, during the interview with Collins and Special
Agent Martinez, Collins stated that he had never met McLemore.
Viewing the evidence in the light most favorable to the government, a
rational trier of fact could have found that, based upon Collins’s own statements
during his conversation with McCrary, he actually had met McLemore during the
pushing incident, and, thus, made a false statement during his interview with
Officer Flint and Special Agent Martinez. See Eckhardt, 466 F.3d at 944
(explaining that, in reviewing the denial of a motion for judgment of acquittal, we
will view the evidence in the light most favorable to the government).
Accordingly, Collins has failed to demonstrate that there was insufficient evidence
12
to support his conviction for making a false statement to a special agent of the FBI.
III. Conclusion
In light of the foregoing, the district court did not abuse its discretion in
denying Collins’s motion for mistrial or in failing to question the jurors regarding
their safety concerns. Also, the district court did not err in denying Collins’s
motion for judgment of acquittal on Count Three because the government
presented sufficient evidence of Collins’s guilt. Accordingly, Collins’s convictions
are
AFFIRMED.3
3
This is the appeal of Leroy Collins. Collins and Charles Daniel Maye were co-
defendants before the district court, but Maye’s appeal was voluntarily dismissed on August 28,
2006.
13