United States v. Cheddie Lamar Griffin , 380 F. App'x 840 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10542 ELEVENTH CIRCUIT
MAY 25, 2010
_______________________
JOHN LEY
CLERK
D. C. Docket No. 08-00027-CR-T-26-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHEDDIE LAMAR GRIFFIN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 25, 2010)
Before EDMONDSON, BARKETT and ROTH,* Circuit Judges.
PER CURIAM:
*
Honorable Jane R. Roth, United States Circuit Judge for the Third Circuit, sitting by
designation.
Cheddie Lamar Griffin appeals his convictions and sentences for carjacking,
in violation of 18 U.S.C. § 2119; four counts of brandishing a firearm in relation to
a crime of violence, in violation of 18 U.S.C. § 924(c); kidnapping, in violation of
18 U.S.C. § 1201; two counts of robbery, in violation of 18 U.S.C. § 1951; and
armed robbery, in violation of 18 U.S.C. § 2113(a), (d), and (e). He raises three
issues regarding his convictions and sentences on appeal, and, having reviewed the
record, considered the briefs of the parties and oral argument of counsel, we find
no reversible error. We will address each issue in turn.
I. Conviction
Griffin first argues that the district court abused its discretion in denying his
motion for a mistrial in which he contended that a government witness’s testimony
about Griffin’s alleged commission of a potentially criminal, yet uncharged act was
impermissible under Fed. R. Evid. 404(b). Griffin also asserts that the prosecutor’s
failure to disclose the information he knew about this statement was a discovery
violation and constituted prosecutorial misconduct.
We review a district court’s denial of a motion for a mistrial for an abuse of
discretion, United States v. Demarest, 570 F.3d 1232, 1239 (11th Cir. 2009), and
“review the evidentiary rulings of the trial court only for a clear abuse of
discretion,” United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009). In
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this case the witness’s testimony to which Griffin objected was not introduced by
the government but came out in response to defense counsel’s cross-examination
questions. Thus, the government did not seek to introduce, and the district court
did not admit, the objectionable statement under Rule 404(b). Rather, the
statement was made by the witness in response to defense counsel’s repeated
questioning on cross-examination regarding the witness’s penchant for lying.
Although the witness’s testimony on cross-examination involved potentially
inadmissible evidence, this circuit has held “that where the injection of allegedly
inadmissible evidence is attributable to the action of the defense, its introduction
does not constitute reversible error.” United States v. Jernigan, 341 F.3d 1273,
1289 (11th Cir. 2003) (quotation marks and citation omitted). Moreover,
immediately after the questionable statement was uttered, the court held a sidebar
conference, and after denying Griffin’s motion for mistrial, expressly admonished
the jury that Griffin was on trial only “for the specific offenses alleged in the
Indictment.” Because defense counsel elicited the objectionable testimony, we
find no reversible error in the district court’s denial of a mistrial.
We likewise find no reversible error in the prosecutor’s failure to disclose
what he knew about the substance of the questionable statement. The government
explained that it never intended to offer the statement into evidence and that it only
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came out on cross-examination conducted by Griffin. Under these circumstances,
we find no error in the denial of Griffin’s motion for a mistrial.1
Second, Griffin challenges his conviction on the basis that the district court
violated his due process rights by allowing his trial attorney to testify at a post-trial
competency hearing because such testimony was derived from communications
protected by the attorney-client privilege. He also argues that the court abused its
discretion in finding that he was competent at the time of trial based on evidence of
competence generated after the trial had concluded. The government responds that
the waiver provision of Rule 59(a) of the Federal Rules of Criminal Procedure
precludes any further review of Griffin’s claims because a magistrate judge issued
both of the rulings and Griffin never sought review of the rulings with the district
court.
We agree with the government that Griffin waived any challenge to the
magistrate’s ruling as to competency because he never appealed this issue to the
district court. Rule 59(a) provides that failure to object to a magistrate’s ruling on
a dispositive matter “waives a party’s right to review.” The Advisory Committee
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Moreover, even if there was any error, it was harmless because there was overwhelming
evidence of Griffin’s guilt. United States v. Nilsen, 967 F.2d 539, 544 (11th Cir. 1992)
(“[P]rejudicial testimony will not mandate a mistrial when there is other significant evidence of
guilt which reduces the likelihood that the otherwise improper testimony had a substantial
impact upon the verdict of the jury.”) (quotation marks and citation omitted).
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Note to this rule states that the “waiver provision is intended to establish the
requirements for objecting in a district court in order to preserve appellate review
of magistrate judges’ decisions.” Fed. R. Crim. P. 59 advisory committee’s note.
Indeed, this circuit’s precedent is well-settled that failure to comply with the
objection and review provisions of Rule 59(a) is jurisdictional. See United States
v. Brown, 441 F.3d 1330, 1352 (11th Cir. 2006) (“We lack jurisdiction to review
the magistrate judge’s order because [the defendant] never appealed the ruling to
the district court.”). Accordingly, we are without jurisdiction to consider Griffin’s
challenge to the magistrate’s rulings on his competency and related attorney-client
privilege objection.
II. Sentencing
Griffin finally argues that the district court erred in sentencing him to a
seven-year consecutive sentence on one count of brandishing a firearm in relation
to a crime of violence under § 924(c)(1)(A)(ii) because he faced a higher
mandatory-minimum sentence of twenty-five years imprisonment, pursuant to
§ 924(c)(1)(C)(i). Griffin’s arguments regarding the imposition of a consecutive
seven-year sentence under § 924(c)(1)(A)(ii) have recently been considered and
rejected by this circuit in United States v. Segarra, 582 F.3d 1269 (11th Cir. 2009)
and United States v. Tate, 586 F.3d 936 (11th Cir. 2009).
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For the foregoing reasons, we affirm Griffin’s convictions and sentences.
AFFIRMED.
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