United States v. Antonio Cruz , 225 F. App'x 807 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 18, 2007
No. 06-12720 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-60242-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO CRUZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 18, 2007)
Before DUBINA, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
I.
Antonio Cruz appeals his conviction for drug and firearm related offenses.
II.
Cruz was arrested after a Hallandale Beach police officer observed what
appeared to be Cruz and two other individuals selling drugs in a parking lot outside
an apartment complex. On September 22, 2005, Cruz was indicted for possession
with intent to distribute crack cocaine near a playground, in violation of 21 U.S.C.
§§ 841 and 860 (Count I); carrying a firearm in relation to a drug trafficking
offense, in violation of 18 U.S.C. § 924(c) (Count II); and possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g) (Count III).
At the beginning of Cruz’s trial, the court learned that a security officer had
told several jurors not to wear their badges outside the courthouse because a female
juror had been attacked. This information then filtered through the entire jury.
Defense counsel stated the he was concerned the jury would draw conclusions
about Cruz given that he was charged with drug and firearm offenses. The district
court disagreed, but believed a curative instruction might be appropriate. The
district court then instructed the jury that it was unaware of any problems or
attacks, and asked whether any of the jurors were concerned. None of the jurors
expressed any concern, except one juror did state that he did not wish his name to
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be part of the public record. The district court agreed to seal the names and refer to
jurors by number. Defense counsel argued that this would not cure the harm, and
he requested a mistrial. The district court denied the motion, finding that sealing
the names alleviated any concerns.
During the trial, the government called Hallandale Beach Police Department
special operations officer Thomas Honan. Honan testified that the department had
received some complaints about drugs, and, while patrolling the area in question,
he observed people loitering in the parking lot outside an apartment building. He
then obtained an unmarked car and returned to the location where he observed
Cruz and two other individuals, Earl Jackson and Mitchell Beachum, engage in
what appeared to be three separate drug transactions. In each transaction, the
purchaser would hand money to Cruz, who would place the cash in his front right
pocket, and then receive drugs from Jackson. After the third deal, Honan and
backup officers converged on the parking lot and the men were arrested. Cruz was
arrested by Officer Marsha Roaden, who conducted a pat-down and found a
firearm.
At the police station, an officer searched Cruz and found money in his right
front pocket. Cruz was then taken to another area of the station and strip searched.
While this search was occurring, Honan heard a struggle and entered the room
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where Cruz was being searched. Honan heard Cruz say that he had swallowed the
“rock,” which Honan knew to be the street name of crack. According to Honan,
drug dealers sometimes store crack in their mouth and swallow it if police try to
search them. He also testified, however, that he did not see Cruz put drugs in his
mouth or take drugs out of his mouth at any time during the surveillance. Police
did find drugs on Jackson and Beachum, including 1.9 grams of crack on Jackson.
Officer Thomas Montellancio testified that he conducted the search of Cruz
at the station. He explained that when he took Cruz to another room for a strip
search, he removed Cruz’s handcuffs. Cruz then put his hands to his mouth and
Montellancio noticed a white rock-like object. He ordered Cruz to spit it out, but
Cruz closed his mouth and chewed. When ordered to spit it out, Cruz stated
several times that he had swallowed it. Montellancio opened Cruz’s mouth and
saw a milky white substance on his tongue.
ATF Agent Richard Young also testified at trial. He testified regarding the
firearm found on Cruz. During his testimony, he referred to the weapon once as a
“Saturday Night Special.” Defense counsel objected, asserting that the statement
was prejudicial and gave the impression the firearm was obtained illegally.
Counsel then moved for a mistrial, or at least a curative instruction. The court
concluded that the name was simply a name and was not prejudicial. The court
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denied the motion for a mistrial and found that a curative instruction was
unnecessary.
The government then reminded the district court that it intended to introduce
evidence of prior bad acts. Prior to trial, the government had issued notice of its
intent to admit evidence of three prior bad acts under Federal Rule of Evidence
404(b) to establish intent and lack of mistake. Cruz had objected, arguing that the
evidence was prejudicial, irrelevant to the issue of intent, and too remote in time.
At trial, the government sought to admit evidence of only one prior bad act, an
incident from 1998 in which Cruz stored crack in his mouth before selling it to an
undercover officer. The government argued that this evidence was relevant to
show intent, absence of mistake, and Cruz’s method of operation. Cruz’s counsel
renewed his objection. The district court found that the evidence was relevant and
probative, and, therefore, overruled the objection. The district court did, however,
issue a limiting instruction to the jury. Officer Andrew Raphael then testified that
he had conducted an undercover drug buy from Cruz in 1998. According to
Raphael, when he arrived for the buy, Cruz removed the drugs from his mouth and
exchanged them for money.
At the conclusion of the trial, Cruz was convicted on all three counts. The
court sentenced Cruz to 188 months on Counts I and III, to run concurrently, with a
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consecutive 60-month sentence on Count II.
III.
We review a district court’s refusal to grant a mistrial for abuse of
discretion. United States v. Newsome, 475 F.3d 1221, 1227 (11th Cir. 2007);
United States v. Perez, 30 F.3d 1407, 1410 (11th Cir. 1994). A mistrial should be
granted if the defendant’s substantial rights are prejudicially affected. Newson,
475 F.3d at 1227. This occurs when there is a reasonable probability that, but for
the remarks, the outcome of the trial would have been different. Id. In
determining whether the defendant’s substantial rights were affected, this court
considers the context of the entire trial and whether any curative instruction was
given. Id. Furthermore, when the record contains sufficient independent evidence
of guilt, any error is harmless. United States v. Adams, 74 F.3d 1093, 1097-98
(11th Cir. 1996).
We review a district court’s decision to admit evidence for abuse of
discretion. United States v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006).
IV.
A mistrial or new trial is required only if the extrinsic evidence known by
the jury posed a reasonable possibility of prejudice to the defendant. United States
v. Ronda, 455 F.3d 1273, 1299 (11th Cir. 2006); United States v. Perkins, 748 F.2d
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1519, 1533 (11th Cir. 1984). The court must investigate the alleged impropriety,
and the defendant has the burden to show that the jury has been exposed to
extrinsic evidence or extrinsic contacts. Remmer v. United States, 347 U.S. 227,
229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954); McNair v. Campbell, 416 F.3d 1291,
1307-08 (11th Cir. 2005), cert. denied, 126 S.Ct. 1828 (2006); United States v.
Counsins, 842 F.2d 1245, 1247 (11th Cir. 1988). Once the defendant establishes
that such exposure in fact occurred, prejudice is presumed and the burden shifts to
the government to rebut the presumption. See Remmer, 347 U.S. at 229; McNair,
416 F.3d at 1307-08.1 To rebut the presumption of prejudice, the government must
show that the jurors’ consideration of extrinsic evidence was harmless to the
defendant. Remmer, 347 U.S. at 229; McNair, 416 F.3d at 1307-08. To evaluate
whether the government has rebutted that presumption, we consider the totality of
the circumstances surrounding the introduction of the extrinsic evidence to the
1
Although prior precedent recognized the presumption of prejudice from Remmer, this
Court, on at least two later occasions, has stated that prejudice is not presumed even when jurors
considered extrinsic evidence. United States v. Rowe, 906 F.2d 654, 656-57 (11th Cir. 1990);
United States v. De La Vega, 913 F.2d 861, 870 (11th Cir. 1990). In Martinez, we recognized
“the apparent conflict between the standard pronounced in Rowe and the unambiguous mandate
of Remmer.” Martinez, 14 F.3d at 550 n.3. We declined to resolve the conflict because it had
no bearing on the outcome in Martinez. Id.
As in Martinez, the presumption of prejudice does not drive the outcome of this appeal.
Even granting Appellant the presumption of prejudice, we conclude that the government has
sufficiently rebutted that presumption. Accordingly, we again decline to consider the issue
further.
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jury. Remmer, 347 U.S. at 229-30; McNair, 416 F.3d at 1307-08. The factors we
consider “include (1) the nature of the extrinsic evidence; (2) the manner in which
the information reached the jury; (3) the factual findings in the district court and
the manner of the court’s inquiry into the juror issues; and (4) the strength of the
government’s case.” See McNair, 416 F.3d at 1307-08.
Cruz first argues that he was denied a fair and impartial jury when the
district court denied his motion for a mistrial because the jurors were influenced
and biased by the comment that other jurors had been attacked. Nothing in the
statement by the security guard to the jury, however, connected the alleged attack
to Cruz. Furthermore, when the district court questioned the jurors, only one juror
expressed concern about his name being made public. Finally, after the district
court assured the jury that their names would be sealed, none of the jurors
expressed any further concern. As such, it does not appear that the security guard’s
comments prejudiced the jury. Even if we were to assume prejudice, the
government rebutted the presumption. The government’s case was strong,
including officer Honan’s observation of Cruz participating in three drug deals and
placing money from the deals in his right front pocket, where cash was later found,
the discovery of a firearm when Cruz was searched by officer Roaden, Cruz’s
admission that he swallowed the drugs, and the observation of officer Montellancio
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that Cruz shoved something in his mouth and that there was a milky substance on
Cruz’s tongue. Moreover, each juror confirmed that they did not have any
concerns and could be impartial. Ronda, 455 F.3d at 1300-01; United States v.
Gabay, 923 F.2d 1536, 1542-43 (11th Cir. 1991) (considering the court’s actions to
ensure the jury was impartial). Accordingly, the district court did not abuse its
discretion in denying the mistrial on these grounds.
Cruz next argues that a mistrial should have been granted when one of the
witnesses referred to the gun as a “Saturday Night Special.” Contrary to Cruz’s
argument, there is no improper or prejudicial connotation associated with this term
for the gun. The term is often used to describe small, inexpensive handguns. See
United States v. Coleman, 22 F.3d 126, 131 n.4 (7th Cir. 1994). Moreover, it was
a single and isolated comment. See United States v. Ruz-Salazar, 764 F.2d 1433(11th Cir. 1985); United States v. Benz, 740 F.2d 903 (11th Cir. 1984). Even if the
comment was improper, we should not reverse “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.” United States v.
Perez, 30 F.3d 1407, 1411 (11th Cir. 1994) (internal citations and quotation marks
omitted). As discussed above, the government’s evidence against Cruz was strong.
Accordingly, the district court did not abuse its discretion by denying the motion
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for a mistrial on these grounds.
Finally, Cruz argues that the evidence related to his prior conviction was
prejudicial and should not have been admitted. He argues that the prior conviction
was seven years earlier and too remote in time and that in the instant case he was
not the person supplying the drugs, and, therefore, the prior crime did not establish
any intent.
Under Rule 404(b), “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident . . . .” Fed. R. Evid. 404(b). Evidence is admissible under
Rule 404(b) if: “(1) it is relevant to an issue other than the defendant’s character;
(2) the prior act is proved sufficiently to permit a jury determination the defendant
committed the act; and (3) the evidence’s probative value cannot be substantially
outweighed by its undue prejudice, and it must satisfy Federal Rule of Evidence
403.” United States v. Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006); Jernigan, 341
F.3d 1273, 1280 (11th Cir. 2003). Cruz does not challenge whether the prior
convictions were proven sufficiently, and, therefore, only the first and third prongs
of the Eckardt analysis are at issue.
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Here, the prior conviction was relevant to show intent and absence of
mistake. Cruz’s defense was that here he was merely present, was not a supplier,
and was not involved in the drug buys. As such, Cruz placed his intent and lack of
mistake at issue, and the evidence was admissible to prove these elements.
Jernigan, 341 F.3d at 1281-82. We also conclude that the time span between
Cruz’s 1998 conduct and the conduct here does not render the previous incident
too remote for proper consideration. See, e.g., United States v. Calderon, 127 F.3d
1314, 1332 (11th Cir. 1997) (a six-year span did not render the extrinsic acts too
remote for proper consideration); United States v. Lampley, 68 F.3d 1296, 1300
(11th Cir. 1995) (the district court’s admission of testimony regarding prior drug
dealing fifteen years before was not an abuse of discretion); United States v.
Pollock, 926 F.2d 1044, 1048 (11th Cir. 1991) (a five-year span did not render the
extrinsic conduct too remote for proper consideration). Furthermore, the probative
value of the evidence outweighed the prejudicial value. The evidence established
that Cruz used this technique to store and conceal drugs in the past. The evidence
also corroborated the officers’ testimony that Cruz put something in his mouth and
stated that he swallowed the drugs. Thus, the evidence was relevant and probative.
Moreover, the district court instructed the jury that the evidence was admissible for
the limited purpose of showing intent and absence of mistake, and not to determine
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whether Cruz committed the instant offense. Jernigan, 341 F.3d at 1282.
Therefore, the court did not abuse its discretion by admitting the prior conduct.
Even had the court erred in admitting the prior conduct, we conclude that it was
harmless error in light of the overwhelming evidence against Cruz. United States
v. Gunn, 369 F.3d 1229, 1236 (11th Cir. 2004); United States v. Harriston, 329
F.3d 779, 789 (11th Cir. 2003).
V.
Accordingly, we AFFIRM.
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