United States v. Mark Anthony Myrie ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
_________________________ ELEVENTH CIRCUIT
JUNE 21, 2012
No. 11-13077 JOHN LEY
CLERK
Non-Argument Calendar
_________________________
D.C. Docket No. 8:09-cr-00572-JSM-TGW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee
Cross Appellant,
versus
MARK ANTHONY MYRIE,
a.k.a. Buju Banton,
Defendant-Appellant
Cross-Appellee.
_________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(June 21, 2012)
Before DUBINA, Chief Judge, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
Appellant Mark Anthony Myrie appeals his convictions for conspiracy to
distribute cocaine, in violation of 21 U.S.C. § 846, and aiding and abetting
another’s use of a phone to facilitate a drug crime, in violation of 21 U.S.C.
§ 843(b). The government cross-appeals the district court’s judgment of acquittal
of Myrie’s charge of gun possession in furtherance of a drug crime, in violation of
21 U.S.C. § 924(c).
On appeal, Myrie argues that the government did not establish that he was
part of a drug conspiracy because there was never an agreement in place and mere
presence is insufficient to sustain his conviction. Further, he argues that he did
not aid and abet his codefendant, Ian Thomas, in using a phone to facilitate a drug
crime because his only involvement with a phone was directing Thomas to ask a
question with regard to a drug deal that never happened.
Myrie also argues that his convictions should be overturned because
Alexander Johnson, a government confidential informant, pursued him to engage
in drug dealing over a six-month period, which constituted entrapment as a matter
of law. Myrie contends that, based on a Seventh Circuit opinion, the government
did not show his predisposition to commit a crime.
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Additionally, Myrie argues that this case should be dismissed because the
district court violated the Speedy Trial Act, 18 U.S.C. § 3161, et seq., by holding
trial after the 70-day clock expired. Myrie argues that the district court did not
properly articulate its reason for issuing two continuances as required by 18
U.S.C. § 3161(h)(7), and the delay was unreasonable and prejudicial under 18
U.S.C. § 3161(h)(6).
Finally, the government cross-appeals the district court’s judgment of
acquittal on Myrie’s 18 U.S.C. § 924(c) conviction on the basis that it was
reasonably foreseeable that a gun would be used in furtherance of his drug
conspiracy. The evidence established that one of Myrie’s codefendants, James
Mack, carried the gun in furtherance of the cocaine deal, and the jury’s conviction
should be upheld under a Pinkerton1 theory of liability.
Myrie responds that the government violated the Double Jeopardy Clause
because it constructively amended the indictment by abandoning an aiding and
abetting theory in favor of a Pinkerton theory, and the charge should be dismissed.
Alternatively, he argues that if we overturn the judgment of acquittal, we should
remand the case or grant a new trial because the district court never conditionally
ruled on his motion for a new trial.
1
Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489(1946).
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I.
We review de novo whether the evidence was sufficient to sustain a jury
verdict. United States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009). The
evidence is viewed in the light most favorable to the government, with all
reasonable inferences and credibility choices made in the government’s favor.
United States v. Frank, 599 F.3d 1221, 1233 (11th Cir. 2010), cert. denied, 131 S.
Ct. 186 (2010). “A conviction must be upheld unless the jury could not have
found the defendant guilty under any reasonable construction of the evidence.”
United States v. Chastain, 198 F.3d 1338, 1351 (11th Cir. 1999).
Credibility questions are for the jury, and we will assume that the jury
answered all of them in a manner that supports the jury’s verdict. See Jiminez, 564
F.3d at 1285. A defendant’s own testimony, if disbelieved by the jury, may be
considered as “substantive evidence of the defendant’s guilt.” Id. (internal
quotation marks omitted). We are “bound by the jury’s credibility determinations,
and by its rejection of the inferences raised by the defendant.” United States v.
Hernandez, 433 F.3d 1328, 1334 (11th Cir. 2005) (internal quotation marks
omitted).
“To sustain a conviction for conspiring to distribute [cocaine] the
government must prove that 1) an agreement existed between two or more persons
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to distribute the drugs; 2) that the defendant at issue knew of the conspiratorial
goal; and 3) that he knowingly joined or participated in the illegal venture.”
United States v. Matthews 168 F.3d 1234, 1245 (11th Cir. 2009). The defendant is
considered to have participated in the conspiracy so long as the “defendant’s
actions facilitated the endeavors of other co-conspirators, or facilitated the venture
as a whole.” United States v. Chandler, 388 F.3d 796, 811 (11th Cir. 2004)
(internal quotation marks omitted). “It is irrelevant that particular conspirators
may not have known other conspirators or participated in every stage of the
conspiracy.” United States v. Alred, 144 F.3d 1405, 1415 (11th Cir. 1998).
To prove a violation of 21 U.S.C. § 843(b), the government must show that
the defendant knowingly and intentionally used a communications facility to
facilitate the commission of a drug felony. United States v. Rivera, 775 F.2d 1559,
1562 (11th Cir. 1985). To prove facilitation, the government must show that the
phone call “comes within the common meaning of facilitate–‘to make easier’ or
less difficult, or to assist or aid.” Id. (internal quotation marks omitted).
Viewed in the light most favorable to the government, we conclude that the
evidence on the record supports Myrie’s conviction. Here, Myrie demonstrated
familiarity with the drug trade, and his behavior during the instant offense was
consistent with his described role of an investor who stays on the outside.
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Further, Myrie introduced Thomas to Johnson, vouched for Thomas’s credibility,
told Johnson they had a done deal, thanked Johnson for the opportunity to do the
deal, and stood to gain five kilograms of cocaine from the agreement. Similarly,
the evidence establishes that a reasonable jury could have concluded that Myrie
knowingly and intentionally aided and abetted Thomas in using a phone to
facilitate the cocaine deal because Myrie directed Thomas to ask how much the
buyer wanted.
II.
“‘A successful entrapment defense requires two elements: 1) government
inducement of the crime, and 2) lack of predisposition on the part of the
defendant.’” United States v. Padron, 527 F.3d 1156, 1160 (11th Cir. 2008)
(internal quotation marks omitted). “When an entrapment defense is rejected by
the jury, our review is limited to deciding whether the evidence was sufficient for
a reasonable jury to conclude that the defendant was predisposed to [commit the
crime].” United States v. Brown, 43 F.3d 618, 622 (11th Cir. 1995). We may not
overturn a jury verdict “if any reasonable construction of the evidence would
allow the jury to find the defendant guilty beyond a reasonable doubt.” Id. We
review such a verdict de novo, but must view all facts and make all inferences in
favor of the government. Id.
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The record demonstrates that the district court instructed the jury on Myrie’s
entrapment defense, and the jury rejected that defense. While Myrie relies on
factors used by the Seventh Circuit, in analyzing an entrapment defense the
evidence here, when viewed in the light most favorable to the government,
allowed the jury to find Myrie guilty beyond a reasonable doubt. See Brown, 43
F.3d at 622. Johnson only engaged Myrie on the topic of cocaine after Myrie
indicated his familiarity with drug dealing, and Myrie asked Johnson if he could
purchase cocaine for him while discussing extensive drug operations. Myrie never
told Johnson to stop asking him about a cocaine deal, and Myrie ultimately
introduced Thomas, a broker, to Johnson. Though Myrie testified that he was just
trying to outtalk Johnson and that he was not a drug dealer trying to conduct a
drug deal, we assume that, based on the jury verdict, the jury disbelieved Myrie
and Myrie’s testimony can thus be used as substantive evidence of his guilt. See
Jiminez, 564 F.3d at 1285.
III.
“We review a claim under the Speedy Trial Act de novo and review the
district court’s factual determinations on excludable time for clear error.” United
States v. Williams, 314 F.3d 552, 556 (11th Cir. 2002). Under the Speedy Trial
Act, the government must take a defendant to trial within 70 days of the
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defendant’s indictment or initial appearance, whichever occurred later. 18 U.S.C.
§ 3161(c)(1).
In calculating this 70-day period, certain events, as specified in 18 U.S.C.
§ 3161(h), are excluded from the speedy trial clock. Of relevance, the 70-day
period excludes (1) any delay resulting from certain proceedings concerning the
defendant, such as the resolution of pretrial motions from filing through the
conclusion of the hearing, (2) a reasonable delay when the defendant is joined for
trial with a codefendant for whom the time for trial has not run, and no motion to
sever has been granted, and (3) any delay resulting form a continuance granted by
any judge if the ends of justice served by taking such action outweigh the best
interests of the public and the defendant in a speedy trial. 18 U.S.C.
§§ 3161(h)(1)(D), (h)(6), (h)(7)(A).
The continuance exception in § 3161(h)(7)(A) requires that the judge set
forth in the record, either orally or in writing, its reasons for finding that the ends
of justice served by the continuance outweigh the interests of the public and the
defendant. 18 U.S.C. § 3161(h)(7)(A). The Supreme Court held in Zedner v.
United States, 547 U.S. 489, 126 S. Ct. 1976, 164 L. Ed. 2d 749 (2006), that a
court must put its findings regarding an ends-of-justice continuance on the record
at least by the time the court rules on a defendant’s motion to dismiss for a speedy
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trial violation, although the best practice is to state the reasons when granting the
continuance. Zedner, 547 U.S. at 506-07, 507 n.7, 126 S. Ct. at 1988-89, 1989
n.7.
We previously held that § 3161(h)(6)2 attributes to a defendant any
reasonable delay caused by a codefendant. United States v. Davenport, 935 F.2d
1223, 1229 (11th Cir. 1991). “[W]hether the amount of delay attributed to
appellant under [§ 3161(h)(6)] was reasonable can be determined by reference to
the totality of the circumstances prior to trial, by the extent to which the
appellant’s defense was prejudiced, or by the sheer length of the delay.” Id. at
1236.
Section 3161(h)(6) attributes to Myrie any reasonable delay caused by co-
defendant James Mack. See Davenport, 935 F.2d at 1229. However, we must first
determine whether the district court satisfied the requirements of the Speedy Trial
Act to exclude the delay to Mack caused by the continuances. See 18 U.S.C.
§ 3161(h)(7)(A). In addressing Myrie’s motion to dismiss the indictment for a
violation of the Speedy Trial Act, the district court satisfied § 3161(h)(7)(A) by
stating that Mack’s attorney’s potential conflict of interest supported a
continuance and amended the previously issued continuances to reflect that the
2
The opinion, interpreting an older version of the code, refers to this section as § 3161(h)(7).
This section was redesignated (h)(6) in a 2008 amendment. Pub. L. No. 110-406 § 13(3) (2008).
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ends of justice served by granting the continuances outweighed the best interests
of the public and the defendants in a speedy trial. See Zedner, 547 U.S. at 508,
126 S. Ct. at 1989.
Because the delay to Mack was properly excluded, we now determine
whether the delay to Myrie was reasonable under § 3161(h)(6). The totality of the
circumstances prior to trial weigh in favor of finding the three month delay to be
reasonable given Mack’s attorney’s conflict of interest and the need for
confidentiality in light of the ongoing criminal investigation. See Davenport, 935
F.2d at 1236. Likewise, there is no allegation or evidence to support an allegation
that the delay caused by the continuances prejudiced Myrie’s defense. See id. at
1236-37. Finally, as to the three month delay, we have held longer periods of
delay to be reasonable. See id.; United States v. Tobin, 840 F.2d 867, 869-70
(11th Cir. 1988) (delay of eight months and ten days). As a result, the delays to
trial caused by the continuances are excluded from the speedy trial calculation,
and we conclude that there was no violation of the Speedy Trial Act.
IV.
We review de novo the disposition of a defendant’s properly preserved
motion for judgment of acquittal. United States v. Perez-Tosta, 36 F.3d 1552,
1556 (11th Cir. 1994). We must determine whether a reasonable fact-finder could
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conclude that the evidence established the defendant’s guilt beyond a reasonable
doubt. United States v. Pistone, 177 F.3d 957, 958 (11th Cir. 1999). “In deciding
a motion for entry of judgment of acquittal under Fed.R.Crim.P. 29(c), district
courts should apply the same standard as that used for reviewing a conviction of
sufficiency of the evidence.” United States v. Sellers, 871 F.2d 1019, 1021 (11th
Cir. 1989) “If the court enters a judgment of acquittal after a guilty verdict, the
court must also conditionally determine whether any motion for a new trial should
be granted if the judgment of acquittal is later vacated or reversed. The court must
specify the reasons for that determination.” Fed.R.Crim.P. 29(d)(1).
To convict a defendant under 18 U.S.C. § 924(c), the government must
show that, during and in relation to a drug-trafficking offense, the defendant used,
carried or possessed a firearm in furtherance of that crime. United States v. Gunn,
369 F.3d 1229, 1234 (11th Cir. 2004). A defendant may be liable under a
Pinkerton theory for a co-conspirator’s gun possession if the possession was
reasonably foreseeable. United States v. Bell, 137 F.3d 1274, 1274-75 (11th Cir.
1998). “[A]n absent conspirator may be found guilty of violating § 924(c) if the
carrying or using of a firearm by a coconspirator is a reasonably foreseeable action
of the conspiracy.” United States v. Diaz, 248 F.3d 1065, 1100 (11th Cir. 2001).
We have previously stated that guns and drugs go together hand-in-hand. See
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United States v. Lopez, 649 F.3d 1222, 1242 (11th Cir. 2011).
In United States v. Diaz, the original indictment charged a violation of
§ 924(c) on an aiding and abetting theory. Diaz, 248 F.3d at 1099. At the close of
evidence, the government amended the indictment, over defendant’s objection, to
remove the aiding and abetting language and proceed under a Pinkerton theory of
liability. Id.
We conclude from the record that the evidence, when viewed in the light
most favorable to the government, supports the jury’s conclusion that it was
reasonably foreseeable that a co-conspirator would possess a gun in furtherance of
the conspiracy. See Frank, 599 F.3d at 1233. Myrie, Thomas, and Johnson had
discussed a deal where Thomas would bring in another party to purchase a large
quantity of cocaine, and Special Agent McAffrey and Sergeant Hasley both
testified that guns are common in drug deals, especially for deals comparable in
size to the amount of drugs involved in this case. Given Myrie’s familiarity with
the drug trade, the jury could have reasonably concluded that the carrying or using
of a gun by a co-conspirator was a reasonably foreseeable action of the conspiracy.
See Diaz, 248 F.3d at 1100. Additionally, the jury could reasonably conclude that
the gun was carried in furtherance of the drug deal given the storage of the gun in
the same trap compartment as the money. See United States v. Range, 94 F.3d
12614, 617 (11th Cir. 1996) (upholding conviction where defendant stored the gun
under the floor mat while delivering money for the cocaine).
Myrie contends that the government impermissibly constructively amended
the indictment by dropping the aiding and abetting theory and proceeding on a
Pinkerton theory of liability. However, we have previously upheld the dismissal
of an aiding and abetting theory, and subsequent advancement of a Pinkerton
theory of liability after the close of evidence. See Diaz, 248 F.3d at 1099-1100.
After the jury found Myrie guilty on Counts One, Two, and Three, Myrie
filed a motion for judgment of acquittal or for a new trial, and the district court
granted Myrie a judgment of acquittal on Count Three, but did not rule on his
motion for a new trial. Because the district court did not comply with the demands
of Rule 29(d)(1), we remand for the district court to make a determination on
Myrie’s motion for a new trial. United States v. Ward, 274 F.3d 1320, 1323-24
(11th Cir. 2001).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED IN
PART.
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