United States v. Rodney Burke ( 2020 )


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  •            Case: 19-11604   Date Filed: 08/07/2020   Page: 1 of 11
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 19-11604
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 4:18-cr-00017-CDL-MSH-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    RODNEY BURKE,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Georgia
    ________________________
    (August 7, 2020)
    Before JORDAN, NEWSOM, and BRANCH, Circuit Judges.
    PER CURIAM:
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    Rodney Burke appeals his convictions for possession with intent to
    distribute 50 grams or more of methamphetamine 1 and possession of a firearm by a
    convicted felon. 2 Burke argues that the government failed to present evidence
    sufficient to sustain a conviction for possession of a firearm by a convicted felon
    pursuant to Rehaif v. United States, 
    139 S. Ct. 2191
     (2019). 3 Burke also argues
    that the district court plainly erred while re-charging the jury by failing to instruct
    as to the burden of proof required for a special-verdict question concerning the
    amount of methamphetamine attributable to him.4 We affirm.
    1
    
    21 U.S.C. § 841
    (a)(1), (b)(1)(B)(viii).
    2
    
    18 U.S.C. § 922
    (g)(1).
    3
    Burke also asserts for the first time on appeal that the written stipulation providing that
    Burke had been convicted of a felony, which he and his trial counsel signed, referred in the first
    paragraph to an unknown individual named “Marcus Crocker,” and that “[t]his error alone should
    be enough to negate the stipulated facts contained therein.” Burke, however, provides no citation
    to authority in support of this proposition, and no supporting argument as to why he is entitled to
    relief under plain error review. This argument is therefore waived. United States v. Flores, 
    572 F.3d 1254
    , 1265 n.3 (11th Cir. 2009) (explaining that a bare allegation without any supporting
    authority will be deemed waived on appeal); see also Sapupo v. Allstate Floridian Ins. Co., 
    739 F.3d 678
    , 681 (11th Cir. 2014) (“We have long held that an appellant abandons a claim when he
    either makes only passing references to it or raises it in a perfunctory manner without supporting
    arguments and authority.”).
    4
    Burke also raises, for the first time on appeal, two ineffective assistance of counsel claims
    relating to the weight and quantity of the drugs. We do not review claims for ineffective assistance
    of counsel on direct appeal where the claims were not raised before the district court and there has
    been no opportunity to develop a record of evidence relevant to the merits of the claims. United
    States v. Franklin, 
    694 F.3d 1
    , 8 (11th Cir. 2012). Should Burke choose to pursue these claims
    further, they would be better resolved in a 
    28 U.S.C. § 2255
     proceeding, where an evidentiary
    hearing may be held. See United States v. Camacho, 
    40 F.3d 349
    , 355 (11th Cir. 1994), overruled
    in part on other grounds by United States v. Sanchez, 
    269 F.3d 1250
     (11th Cir. 2001); see also
    Griffith v. United States, 
    871 F.3d 1321
    , 1336, 1340 (11th Cir. 2017) (ordering an evidentiary
    hearing on a § 2255 motion where petitioner alleged that his trial counsel failed to challenge the
    2
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    I. Discussion
    A. Sufficiency of the Evidence
    Burke argues that the government failed to supply evidence at trial that he
    knew he belonged to the relevant category of persons barred from possessing a
    firearm as required by the Supreme Court’s holding in Rehaif.5 We review
    Burke’s challenge to the sufficiency of the evidence for plain error because he
    failed to raise it before the district court. United States v. Reed, 
    941 F.3d 1018
    ,
    1020 (11th Cir. 2019). Burke must prove that (1) an error occurred (2) that was
    plain and (3) affected his substantial rights. United States v. Moore, 
    954 F.3d 1322
    , 1337 (11th Cir. 2020). As to the third-prong, Burke bears the burden of
    persuasion in establishing a reasonable probability that, but for the errors, the
    outcome of the proceeding would have been different. United States v. Olano, 
    507 U.S. 725
    , 734 (1993); Molina-Martinez v. United States, 
    136 S. Ct. 1338
    , 1343
    (2016). And we may consult the entire record when evaluating an error for its
    effect on a defendant’s substantial rights. Moore, 954 F.3d at 1337. If the first
    usability of the mixture or substance relied on to convict him at trial). Thus, we decline to entertain
    Burke’s ineffective assistance claims at this juncture.
    5
    To the extent Burke also argues that, under Rehaif, the government was required to
    present evidence that Burke knew possessing a firearm as a convicted felon was a prohibited act,
    he mischaracterizes the holding of Rehaif. See Rehaif, 
    139 S. Ct. at 2200
     (holding that, in order to
    convict a defendant of violating § 922(g), “the Government must prove both that the defendant
    knew he possessed a firearm and that he knew he belonged to the relevant category of persons
    barred from possessing a firearm”).
    3
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    three prongs are met, we may exercise our discretion to correct the plain error only
    if it “seriously affects the fairness, integrity, or public reputation of judicial
    proceedings.” Olano, 
    507 U.S. at 732
     (alteration and internal quotations omitted).
    The government concedes plain error occurred. Because Burke’s trial took
    place before the Supreme Court decided Rehaif, the law at the time did not require
    the government to prove that Burke knew he belonged to the relevant category of
    persons barred from possessing a firearm. Nevertheless, upon review of the entire
    record, Burke cannot show that this error affected his substantial rights. The
    stipulation and the presentence investigation report establish that Burke had
    previously been convicted of five felonies, and Burke was sentenced to multiple
    years’ confinement for two of these convictions. Thus, the record clearly
    demonstrates that Burke knew he was a felon. See Moore, 954 F.3d at 1337–38
    (finding that the defendants’ previous confinements and stipulations regarding
    prior felonies sufficiently demonstrated their knowledge of their status as felons);
    United States v. Reed, 
    941 F.3d 1018
    , 1022 (11th Cir. 2019) (finding that the
    defendant’s eight prior felonies and 18-years of confinement “establish[ed] that
    Reed knew he was a felon [and] he cannot prove that the errors affected his
    substantial rights or the fairness, integrity, or public reputation of his trial”).
    Accordingly, Burke cannot show that his substantial rights were affected by the
    4
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    government’s failure to introduce evidence regarding his knowledge of his status
    as a felon.
    B. Jury Instruction
    Burke argues that the district court failed to instruct the jury to make a drug-
    quantity finding beyond a reasonable doubt when it provided a second jury charge.
    He further contends that this omission affected his substantial rights and distorted
    the fairness and integrity of the proceedings. We disagree that plain error
    occurred.
    At the beginning of the trial, the district court informed the jury that “[i]t
    will be the government’s burden to prove the defendant guilty beyond a reasonable
    doubt.” Later, when instructing the jury prior to deliberations, the district court
    reiterated the burden of proof incumbent upon the government, stating that “[t]he
    government must prove guilt beyond a reasonable doubt,” explaining what a
    reasonable doubt is, and emphasizing that “the government’s burden of proof is
    heavy.” The district court advised the jury that “[i]f you are convinced that the
    defendant has been proved guilty beyond a reasonable doubt, then you would say
    so in your verdict. If you are not convinced, then you would say that in your
    verdict.” The district court then instructed the jury as follows:
    The defendant can be found guilty of [possession of methamphetamine
    with intent to distribute] only if all of the following facts are proved
    beyond a reasonable doubt: One, that the defendant knowingly
    possessed methamphetamine; . . . two, that the defendant intended to
    5
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    distribute the methamphetamine; and three, that the weight of the
    methamphetamine defendant possessed was more than 50 grams.
    . . . The defendant is charged with possessing and intending to distribute
    at least 50 grams of methamphetamine. But you may find the defendant
    guilty of the crime even if the amount of the controlled substance for
    which he should be held responsible is less than 50 grams. So if you
    find the defendant guilty, you must also unanimously agree on the
    weight of the methamphetamine the defendant possessed and specify
    that on the verdict form. 6
    On the second day of deliberations, the jury sent a few notes regarding the
    determination of the weight of the drugs. The jury first asked, “Why are we being
    given a choice of two different amounts of possession? We have a juror
    questioning that you gave a choice and is having a hard time with evidence over
    the choice on our verdict on the weight.” The district court responded, “As the fact
    finder, the jury must make this determination.” Meanwhile, the district court and
    counsel continued discussing whether the initial charge regarding the weight of the
    drugs had created the potential for juror confusion. During this discussion, the jury
    sent another note stating, “[T]he jury is unanimous that the defendant is guilty of
    6
    The verdict form, in relevant part, instructed that:
    If you find the Defendant guilty of Count One, answer the following question:
    We, the jury, having found Defendant guilty of the offense charged in Count One further
    find with respect to Count One that the Defendant possessed with intent to distribute
    methamphetamine in the amount shown (place an X in the appropriate space):
    _____ WEIGHING 50 GRAMS OR MORE
    _____ WEIGHING LESS THAN 50 GRAMS
    6
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    Count 1, possession of methamphetamine with intent to distribute. The jury is
    divided on the weight.” This note was followed immediately by a third and final
    note:
    We are stuck on the second issue of over or under 50 grams. One juror
    says you’re asking how much of the 51 grams is [Burke] responsible
    for since he only paid $500 and [another person] paid $2,000.
    Therefore, he’s only responsible for one-fourth of 12.4 grams. Our
    question: Is that the purpose of Part 2, to decide his responsibility over
    or under 50 grams?
    After a long discussion with the parties’ counsel, the district court concluded
    that its initial instruction contained an error that could have been the source of the
    jury’s confusion. Accordingly, the district court called back the jury and told them
    that the previous instruction as to the elements required to find Burke guilty of
    Count I were “not entirely clear or accurate,” and that it was going to clarify “the
    instructions” and then have the jury “start [its] deliberations anew.” The district
    court re-instructed the jury thus:
    In order for the defendant to be found guilty of the crime of possession
    of a controlled substance with intent to distribute it, you must find that
    the government has proved the following by—beyond a reasonable
    doubt: that the defendant knowingly possessed methamphetamine and
    that the defendant intended to distribute the methamphetamine. Those
    are the elements of the federal crime of possession with intent to
    distribute a controlled substance.
    Now, as the fact finder—and you should not ask yourself why you’ve
    got to determine this. But as the fact finder, you have got to make a
    specific finding unanimously as to the amount, whether it’s more or less
    than the 50 grams as indicated on the verdict form.
    7
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    The district court went on to make two more important statements. First, it
    summarized its new instructions thus:
    But if you find that the government has proven beyond a reasonable
    doubt that he knowingly possessed methamphetamine and that he
    intended to distribute the methamphetamine, then you’ve got to
    determine the amount of methamphetamine that he possessed and
    intended to distribute, whether that’s more or less than 50 grams.
    Second, the district court emphasized: “Now, of course, what I told you yesterday
    about possession and what constitutes possession and that type thing, that—all of
    that still stands. All of those other instructions still apply.” Burke did not raise
    any objection to the second instruction with regard to the burden of proof. Soon
    after this second instruction, the jury formally returned a guilty verdict as to Count
    I and a determination that the drug quantity involved was greater than 50 grams.
    On appeal, Burke argues that the district court plainly erred when it did not
    directly tie the beyond-reasonable-doubt burden of proof to the quantity
    determination in the same manner as it had in its initial instruction. Specifically,
    he argues that the jury instructions did not go far enough because the weight of the
    methamphetamine increased the mandatory-minimum sentence, and any fact that
    increases the mandatory-minimum sentence for a crime is an “element” that a jury
    8
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    must find was proven beyond a reasonable doubt, pursuant to Alleyne v. United
    States, 
    570 U.S. 99
    , 103–04 (2013).7
    We review the legal correctness of an unobjected to aspect of a jury
    instruction for plain error. Fed. R. Crim. P. 30(d). As discussed with the
    evidentiary sufficiency issues above, this standard of review requires Burke to
    prove a plain error occurred that affected his substantial rights. Moore, 954 F.3d at
    1337. “Jury instructions will not be reversed for plain error unless ‘the charge,
    considered as a whole, is so clearly erroneous as to result in a likelihood of a grave
    miscarriage of justice,’ or the error ‘seriously affects the fairness, integrity, or
    public reputation of judicial proceedings.’” United States v. Starke, 
    62 F.3d 1374
    ,
    1381 (11th Cir. 1995) (quoting United States v. Pope, 
    747 F.2d 632
    , 675 (11th Cir.
    1984)).
    Although the district court’s second jury instructions on Count I are not a
    model of clarity as to the burden of proof required for the quantity determination,
    any resulting ambiguity is minor and does not result in plain error when viewing
    7
    Burke was indicted in Count I for violating 
    21 U.S.C. § 841
    (a)(1), which makes it
    unlawful for any person knowingly or intentionally to “possess with intent to . . . distribute . . . a
    controlled substance.” Count I also invoked the “penalty” subsection of § 841, which in relevant
    part provides that anyone convicted of violating subsection (a) where the violation involved “50
    grams or more of a mixture or substance containing a detectable amount of methamphetamine”
    who also has a prior conviction for a serious drug or violent felony “shall be sentenced to a term
    of imprisonment which may not be less than 10 years.” 
    21 U.S.C. § 841
    (b)(1)(B)(viii). At
    Burke’s sentencing, the district court applied the 10-year statutory minimum.
    9
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    the entire record. 8 Specifically, viewing the new recitation of the Count I elements
    within the context of the entire trial, initial instructions, jury questions, and re-
    charge, we conclude that the jury was adequately apprised of the burden of proof
    and thus no plain error was committed.
    The district court provided ample instruction as to the burden of proof from
    start to finish during its proceedings. It opened the trial and the initial jury charge
    with an unequivocal recitation of the burden of proof, which it required the jury to
    explicitly use “in [its] verdict.” That verdict, in turn, was to be memorialized on a
    verdict form that contained both the two-element recitation of the Count I offense
    and the special verdict question regarding the quantity of drugs. Thus, the district
    court’s instructions to use the beyond a reasonable doubt standard in the “verdict”
    were manifestly tied to the quantity determination. Furthermore, after giving the
    new instruction, the district court summarized its new instructions in a single
    sentence which reiterated the burden of proof and the need to make a quantity
    determination. And the district court stated that all of its previous instructions
    applied—which included its mention of the beyond reasonable doubt standard at
    8
    As an initial matter, we pass no judgment as to the prudence or propriety of the district
    court’s decision to alter the first jury charge. We are concerned only with the question of whether
    the record demonstrates that the jury was sufficiently instructed to find Burke possessed at least
    50 grams of methamphetamine beyond a reasonable doubt.
    10
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    the beginning of trial and initial jury charge. In full view of all these record
    details, the district court’s re-charge was not plainly erroneous.
    Arguing to the contrary, Burke cites to United States v. Delgado-Marrero,
    
    744 F.3d 167
     (1st Cir. 2014), where the First Circuit found plain error in a situation
    somewhat similar to the one here. In Delgado-Marrero, the First Circuit found
    plain error where a trial court, following the jury’s return of a guilty verdict and
    after indicating it was going to dismiss the jury, granted the government’s request
    for a special verdict instruction asking the jury to determine the quantity of drugs
    involved but without addressing the applicable burden of proof. 744 F.3d at 186.
    Delgado-Marrero is inapposite to the situation at hand, however, because there the
    special verdict question was provided to the jury after they had already reached a
    verdict on the substantive counts. Id. at 183–84. The First Circuit expressly based
    its holding on “the timing and manner in which the question was presented,” which
    demonstrated that “the jurors understandably may have failed to appreciate that the
    additional question represented something more than an inconsequential
    afterthought standing in the way of heading home.” Id. at 187. The same cannot
    be said here, where the jury made its drug-quantity determination at the same time
    and on the same verdict form as its determination as to Count I. Accordingly,
    Burke’s challenge to the district court’s jury instruction fails.
    AFFIRMED.
    11