United States v. Shawanna Reeves ( 2014 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-13110
________________________
D.C. Docket No. 5:10-cr-00046-MTT-CHW-4
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHAWANNA REEVES,
a.k.a. Shawanna Halcomb,
MICHAEL MCSHUN REEVES,
a.k.a. Docious,
THORNTON LAMAR MOSS,
a.k.a. Slim,
Defendants - Appellants.
________________________
Appeals from the United States District Court
for the Middle District of Georgia
________________________
(February 6, 2014)
Before MARCUS and EDMONDSON, Circuit Judges, and VINSON, ∗ District
Judge.
∗
Honorable C. Roger Vinson, United States District Judge for the Northern District of Florida,
sitting by designation.
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MARCUS, Circuit Judge:
Three co-defendants -- Michael Reeves, his wife Shawanna Reeves
(“Halcomb-Reeves”),1 and Thornton Moss -- appeal their jury trial convictions for
conspiracy to distribute cocaine. Both Reeves and Halcomb-Reeves argue that
there was insufficient evidence to sustain their convictions. Halcomb-Reeves also
challenges several of the district court’s evidentiary rulings. Specifically, she avers
that the district court erred in admitting recorded telephone calls and a co-
conspirator’s statements against her at trial, as well as in denying her motion for a
mistrial after a government case agent improperly revealed her invocation of the
right to counsel. Moss asserts that a new trial is warranted because of a series of
allegedly improper prosecutorial statements during closing argument. Finally,
Reeves claims that the district court erred in its underlying determination of the
drug quantity attributable to him at sentencing.
After thorough review, we affirm each of the defendants’ convictions and
sentences. We sua sponte remand for the limited purpose of correcting clerical
errors in Reeves’s written judgment.
I.
A.
1
For the sake of convenience, we refer to Shawanna Reeves as “Halcomb-Reeves.” The second
superseding indictment referred to Ms. Reeves as “Shawanna Reeves a/k/a ‘Shawanna
Halcomb.’”
2
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The essential facts are these. During the summer of 2009, Georgia Bureau of
Investigation officials requested assistance from the Drug Enforcement Agency
(“DEA”) in the investigation of several individuals responsible for high levels of
drug distribution in Baldwin County, Georgia. Federal authorities subsequently
obtained a court-ordered wiretap, which led to the identification of numerous
conspirators involved in a large-scale cocaine distribution network. A heavy
volume of intercepted telephone calls revealed a substantial flow of narcotics from
a Mexican supplier, Santana Romero-Diaz, to Deldrick Jackson of Atlanta. Using
couriers, such as Danielle Finney, to transport the cocaine from Tucker, Georgia to
Macon, Georgia, Jackson sold multi-kilogram quantities of cocaine to Reeves over
an extended time frame running from 2007 to 2010. In turn, Reeves sold smaller
amounts of the cocaine to lower-level distributors Joshua Smith, Moss, Leroy Hill,
Sr. (“Hill Sr.”), Eric Marshall, and Adrian Williams throughout this time frame.
These distributors supplied cocaine to low-level dealers, including Tommy Hill, III
(“Hill III”), Dara Marcus, and Charlie Seabrooks.
Between December 15, 2009 and May 5, 2010, DEA agents used video
surveillance and court-ordered wiretaps to determine that Reeves was distributing
as much as one-quarter kilogram of cocaine and multiple ounces of crack cocaine
on a weekly basis to various “customers” in and around Macon. Law enforcement
agents also learned that he used four different telephone lines, and the recorded
3
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parties (including Reeves, Hill Sr., Smith, Moss, Marshall, and Jackson) were
heard frequently discussing drug quantities and quality. In addition to the calls
between the drug distributors, the agents intercepted seven revealing calls between
Reeves and his wife, “Halcomb-Reeves.”
The investigation culminated in a series of “pick-offs,” or seizures of drugs
and cash, just after drug transactions had taken place. Thus, for example, on May
5, 2010, authorities conducted a “pick-off” following Moss’s purchase of cocaine
from Reeves. Officers found 125 grams of cocaine in Moss’s vehicle and large
amounts of cash in Reeves’s. The same day, the DEA and other state law
enforcement officials executed a search warrant at 646 Mill Run Court in Macon, a
home purchased by Halcomb-Reeves and her grandmother where Halcomb-
Reeves, Reeves, and their son resided. The officers discovered 512.8 grams of
cocaine, 23.6 grams of cocaine base, and drug paraphernalia -- including Pyrex
beakers, electronic scales, and plastic bags -- concealed in a closet in the basement.
They also seized 186.2 grams of cocaine, a .40 caliber Glock pistol, a Glock pistol
box containing ammunition, and a box for a Browning nine-millimeter handgun
from the master bedroom.
The cocaine, Glock box, and Browning box were found in a closet in the
master bedroom, and the Glock pistol was found on a bedroom nightstand. The
serial number on the Browning box matched the number on a handgun that law
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enforcement agents had confiscated from Jackson, a co-conspirator, two years
earlier. The agents also retrieved two boxes of ammunition from a kitchen drawer
in the home. At the time of Reeves’s and Halcomb-Reeves’s arrests on August 30,
2010, they discovered another .40 caliber Glock handgun in the Halcomb-Reeves
residence atop the microwave oven in the kitchen; and a magazine to the gun,
Reeves’s sunglasses, and Halcomb-Reeves’s key chain were found next to the
weapon. Halcomb-Reeves had purchased the Glock firearms for Reeves since he
was prohibited from doing so as a convicted felon.
B.
On October 28, 2010, a federal grand jury in the Middle District of Georgia
returned a thirteen-count second superseding indictment charging eleven co-
defendants (including Reeves, Halcomb-Reeves, and Moss) with multiple narcotics
and firearms offenses, as well as conspiracy to distribute cocaine from December
1, 2006 to May 5, 2010. Specifically, the indictment charged Reeves with: (1)
conspiracy to possess with intent to distribute more than five kilograms of cocaine,
in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), and 846, and 18 U.S.C. § 2
(Count One); (2) possession with intent to distribute more than 50 grams of crack
cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), and 846, and 18
U.S.C. § 2 (Count Two) 2; (3) possession with intent to distribute more than 500
2
Count Two was titled as a second conspiracy offense, but actually charged a substantive
5
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grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii), and 18
U.S.C. § 2 (Count Five); and (4) two counts of possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Counts
Seven and Thirteen). Halcomb-Reeves was also charged in Counts One, Two, and
Five. 3 Finally, the indictment charged Moss with the conspiracy alleged in Count
One, as well as with possession with intent to distribute cocaine, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2 (Count Four). 4
Four of the co-defendants -- Romero-Diaz, Finney, Smith, and Seabrooks --
pled guilty. Six proceeded to trial, including Reeves, Halcomb-Reeves, and Moss.
Co-conspirator Eric Marshall’s case was severed from the co-defendants’ trial.
Over the course of the nine-day trial, the government presented extensive evidence
of the cocaine conspiracy. The law enforcement officials who conducted the
investigation, including DEA Agent Helen Graziadei, provided damning
testimony. Several cooperating co-conspirators, including Romero-Diaz, Jackson,
and Smith, also took the stand, describing the nature and extent of the narcotics
offense. This error was acknowledged at trial, and the jury verdict form provided for the correct
offense.
3
Reeves and Halcomb-Reeves were charged in Count Six with possession with intent to
distribute more than five grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B)(iii), and 18 U.S.C. § 2. However, the government dismissed Count Six before closing
argument.
4
Moss was also charged in Count Two of the indictment, but the government dismissed this
count against Moss prior to trial.
6
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conspiracy. Moreover, the government played several incriminating telephone call
recordings between members of the conspiracy -- including exchanges between
Reeves and Moss, as well as between Reeves and Halcomb-Reeves -- and showed
accompanying video surveillance of the drug transactions, as well as photographs
of the seized cocaine and firearms taken from the Halcomb-Reeves residence. At
the close of the government’s case, all six defendants unsuccessfully moved for a
judgment of acquittal under Federal Rule of Criminal Procedure 29.
In her defense, Halcomb-Reeves elected to take the stand and testified
extensively, denying her knowledge of and participation in the conspiracy.
The jury convicted Reeves and Moss on all indicted counts. It found
Halcomb-Reeves guilty of the conspiracy count but not guilty of the other charges.
Following the jury’s verdicts, each of the defendants renewed their motions for
judgment of acquittal under Rule 29, which the district court again denied. The
trial court subsequently sentenced Reeves to 360 months of imprisonment on
Counts One and Five, 240 months on Count Two, 120 months on Count Seven,
and 120 months on Count Thirteen, all to run concurrently. It also placed Reeves
on supervised release for a term of five years following release from imprisonment,
and imposed a $500 mandatory assessment fee. The court sentenced Halcomb-
Reeves to 80 months of imprisonment, followed by three years of supervised
release, and a $100 mandatory assessment fee. Lastly, it sentenced Moss to 87
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months of imprisonment, followed by three years of supervised release, and a $200
mandatory assessment fee. Reeves, Halcomb-Reeves, and Moss each filed timely
notices of appeal.
II.
A.
First, both Reeves and Halcomb-Reeves claim that the evidence was
insufficient to sustain their conspiracy convictions. We review de novo a challenge
to the denial of a Rule 29 motion for a judgment of acquittal based on sufficiency
of the evidence grounds. United States v. Capers, 708 F.3d 1286, 1296 (11th Cir.
2013). We also view the evidence in a light most favorable to the jury verdict and
draw all inferences in its favor. Id. Thus, we are obliged to affirm the convictions if
a reasonable jury could have found the defendant guilty beyond a reasonable
doubt. Id. at 1297.
To sustain a conviction for conspiracy to distribute drugs in violation of 21
U.S.C. § 846, “the government must prove that 1) an agreement existed between
two or more people 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. Brown, 587 F.3d 1082, 1089 (11th Cir. 2009)
(quoting United States v. Matthews, 168 F.3d 1234, 1245 (11th Cir. 1999)). In
assessing whether the record is sufficient to demonstrate the existence of a single
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conspiracy, we consider whether a common goal existed, the nature of the
underlying scheme, and the overlap of participants. United States v. Richardson,
532 F.3d 1279, 1284 (11th Cir. 2008).
It is by now axiomatic that “[p]articipation in a criminal conspiracy need not
be proved by direct evidence; a common purpose or plan may be inferred from a
development and collocation of circumstances.” Glasser v. United States, 315 U.S.
60, 80 (1942) (internal quotation marks omitted); see United States v. Toler, 144
F.3d 1423, 1426 (11th Cir. 1998). It is also well established in this Circuit that
where there are repeated transactions between participants buying and selling large
quantities of illegal drugs, that may be sufficient to find the participants were
involved in a single conspiracy to distribute those drugs. Brown, 587 F.3d at 1089.
Moreover, a defendant may be found guilty of participating in a conspiracy if the
evidence demonstrates that he was aware of its essential nature, “even if he did not
know all its details or played only a minor role in the overall scheme.” United
States v. McNair, 605 F.3d 1152, 1195-96 (11th Cir. 2010) (quoting United States
v. Guerra, 293 F.3d 1279, 1285 (11th Cir. 2002)); see also Toler, 144 F.3d at 1428
(noting that, once a drug conspiracy has been shown to exist, “a defendant can be
convicted even if his or her participation in the scheme is ‘slight’ by comparison to
the actions of other co-conspirators”). The government need not prove that a
defendant participated in every stage of the conspiracy or had direct contact with
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each of the other alleged co-conspirators. McNair, 605 F.3d at 1196; see United
States v. Pacchioli, 718 F.3d 1294, 1303 (11th Cir. 2013).
B.
Despite Reeves’s claim, there was an abundance of evidence from which a
trier of fact could find him guilty of the charged conspiracy. Among the most
damning pieces of evidence were recorded telephone conversations in which
Reeves arranged his drug deals, as well as the testimony from five cooperating co-
conspirators -- Romero-Diaz, Jackson, Seabrooks, Finney, and Smith -- describing
Reeves’s essential involvement in the illegal venture. Moreover, law enforcement
agents testified about their search of Halcomb-Reeves’s home, which yielded large
amounts of cocaine and firearms near Reeves’s possessions. Thus, taking the
evidence in a light most favorable to the government and resolving all credibility
determinations in favor of the jury’s verdict, each element of the conspiracy was
established: (1) an agreement among Reeves and Jackson, Finney, Smith, and
Moss to distribute cocaine; (2) Reeves’s knowledge of the conspiratorial goal of
distributing cocaine; and (3) Reeves’s extensive, knowing, and voluntary
participation in the unlawful undertaking. See Capers, 708 F.3d at 1299; Brown,
587 F.3d at 1089.
Reeves’s primary argument seems to be that he and the charged co-
conspirators had not entered into a single criminal agreement, but rather separately
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bought and sold cocaine in the ordinary course of several discrete agreements. But
the regularity of Reeves’s kilogram-quantity purchases of cocaine from Jackson, as
well as his repeated cocaine sales to the same street-level distributors, provided
more than an adequate foundation for the jury to find, as it did, a single
overarching conspiracy to possess with intent to distribute cocaine. 5 Thus, for
example, Jackson testified that, from 2007 to May 2010, he or Finney, the courier,
would bring Reeves multiple kilograms of cocaine once or twice a week. And
Smith testified that he bought the following quantities from Reeves: (1) in 2007,
about 2.25 ounces of cocaine once a week; (2) towards the end of 2007, about 4.5
ounces of cocaine once a week; (3) in 2008, 9 ounces of cocaine a week; and (4) in
2009, about half a kilogram of cocaine every 10 to 14 days. Indeed, in the case of a
purchaser of narcotics, an “agreement may be inferred when the evidence shows a
continuing relationship that results in the repeated transfer of illegal drugs to the
purchaser.” United States v. Mercer, 165 F.3d 1331, 1335 (11th Cir. 1999). Based
on extensive evidence of Reeves’s long-term relationships with multiple co-
conspirators and his repeated cocaine transfers, the jury could reasonably find that
Reeves and the others had entered into a joint agreement. See Capers, 708 F.3d at
5
The defendants asked for and the judge gave a multiple conspiracy charge to the jury,
instructing the jurors that proof of several distinct conspiracies is not proof of the single
conspiracy charged in the indictment, unless one of the several conspiracies is the conspiracy
charged in the indictment. Moreover, the judge instructed the jurors that for them to find a
defendant guilty of the conspiracy offense, they must decide that the charged conspiracy actually
existed between two or more conspirators, and that the charged defendant was a member of the
charged conspiracy, and not some other conspiracy.
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1299-300. Moreover, having heard him on multiple calls, a rational trier of fact
could readily conclude that Reeves’s participation was knowing and voluntary.
Relying heavily on United States v. Glinton, 154 F.3d 1245 (11th Cir. 1998),
however, Reeves claims that there was neither a common goal nor an overlap of
participants sufficient to rise to the level of a single conspiracy. But unlike in
Glinton, where the only thing each defendant shared was their supplier, the
evidence here, taken in a light most favorable to the jury verdict, established that
the co-conspirators were interdependent. See id. at 1251. Each participant played a
distinct role in the charged scheme, including (1) Romero-Diaz, who supplied
cocaine to Jackson; (2) Jackson, who, in turn, supplied large quantities of cocaine
to Reeves over several years; (3) Reeves, who distributed cocaine to several mid-
level distributors, including Hill Sr. and Smith; (4) Finney, who delivered cocaine
to Reeves for Jackson; and (5) Hill Sr. and Smith, who supplied cocaine to lower-
level distributors, such as Hill III, Marcus, and Seabrooks. From the extensive and
complex pattern of facts adduced at trial, the jury was free to conclude (as it
plainly did) that the co-conspirators all shared a common objective. In a typical
drug distribution scenario like this one, “involving a large-volume seller, several
mid-level distributors, and multiple street-level dealers, . . . all share the common
goal of maximizing the cash returns of the business through the distribution of the
drugs.” United States v. Dekle, 165 F.3d 826, 829 (1999).
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C.
Halcomb-Reeves’s sufficiency of the evidence challenge presents a closer
question. As her attorney pointed out, there was nothing in the record indicating
that she personally distributed drugs. The jury found her not guilty of the
substantive drug offenses charged in Counts Two and Five. But the trial evidence
was nonetheless sufficient to allow the jury to find beyond a reasonable doubt that
she, too, knowingly and voluntarily participated in the narcotics conspiracy, albeit
playing a lesser role.
For one thing, Halcomb-Reeves’s recorded telephone conversations with
Reeves were particularly damning. On calls from March 2 and March 4, 2010,
Halcomb-Reeves informed Reeves that there were officers randomly pulling over
and searching cars on the highway. Video surveillance showed, and the agents’
testimony confirmed, that Reeves was engaged in drug-related activities on those
very days. This evidence suggested that Halcomb-Reeves had knowledge of the
cocaine conspiracy and was attempting to warn Reeves about police activity on the
highway. Again, on the May 5, 2010 calls played for the jury,6 Reeves told
6
Halcomb-Reeves’s claim that the May 5 recordings “cannot be considered to establish
Appellant’s active participation or membership in the conspiracy” is unpersuasive. “A
conspiracy is deemed to have continued as long as the purposes of the conspiracy have neither
been abandoned nor accomplished and the defendant has not made an affirmative showing that
the conspiracy has terminated. A defendant can overcome this presumption of continued
participation only by showing that he affirmatively withdrew from the conspiracy or that the
final act in furtherance of the conspiracy has occurred.” United States v. Harriston, 329 F.3d 779,
783 (11th Cir. 2003) (citation omitted). Here, Halcomb-Reeves has not met this burden. It was
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Halcomb-Reeves that Moss had been arrested. He later said that he was “so
nervous” and that he had “that shit in the house,” to which Halcomb-Reeves
replied, “I know.” In a subsequent call, Reeves instructed Halcomb-Reeves to go
home and get “that shit out of there.” Halcomb-Reeves asked where it was, and
after her husband described the location, she responded, “Alright.” Shortly
thereafter, the two agreed that Halcomb-Reeves should probably not go home at
all, and Reeves told Halcomb-Reeves that he lived at an address on West Charlton
Street.
Based on the telephone conversations, a reasonable jury could find that: (1)
Halcomb-Reeves knew that Moss had been arrested for cocaine possession; (2)
there was cocaine hidden in her house; (3) she agreed to go home and dispose of it
before the police arrived; (4) she decided not to go home for fear of being arrested;
and (5) she knew that Reeves was trying to get her to falsely tell the police he lived
at a different address.7 Indeed, efforts to conceal a conspiracy may support the
inference that a defendant knew of the conspiracy and joined it while it was in
operation. See United States v. Gold, 743 F.2d 800, 825 (11th Cir. 1984).
only on the second to last call on May 5 that Reeves announced that he had been pulled over by
the officers and was told to wait. He informed Halcomb-Reeves that the officers were probably
about to let him go, suggesting that he did not consider himself to be under arrest. But even if
Reeves had been arrested, an arrest of a co-conspirator does not necessarily end the conspiracy.
See United States v. Richardson, 532 F.3d 1279, 1285-86 (11th Cir. 2008).
7
Halcomb-Reeves herself admitted on the witness stand that she lied to Agent Lisa Gigante
about Reeves’s real address.
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In addition to the telephone conversations, co-conspirator Jackson offered
testimony revealing that Halcomb-Reeves knew about the narcotics in her house.
Jackson testified that Reeves, in the presence of Halcomb-Reeves, told him that
four kilograms of cocaine had been robbed from the home, and, as a result, Jackson
gave them a Browning nine-millimeter gun for their protection. 8
Moreover, and equally important, Halcomb-Reeves opted to take the stand
and testify in her defense, flatly contradicting Jackson’s testimony. She admitted
she bought three guns and knew many of the co-conspirators, including Jackson,
Marshall, Hill III, Hill Sr., Finney, Moss, and Smith. But she denied knowing that
Reeves and Jackson were in the drug business, that her house had ever been
robbed, and that she had ever seen the Browning gun. Halcomb-Reeves also
offered wholly innocent explanations of her recorded March and May telephone
conversations with Reeves. But the jury, hearing Halcomb-Reeves’s words and
seeing her demeanor, was free to discredit her testimony, and, in fact, to believe
the opposite of what she had said. See United States v. Brown, 53 F.3d 312, 314
(11th Cir. 1995). Quite simply, her testimony was substantive evidence the jury
could fairly consider in reaching a judgment about her knowing participation in the
charged drug conspiracy.
8
This gun was subsequently returned to Jackson and, as previously noted, confiscated by law
enforcement.
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Furthermore, a reasonable jury could infer Halcomb-Reeves’s knowing
participation in the conspiracy from the fact that she had been married to one of the
conspiracy’s ringleaders since 2009, had lived with him since 2006, and substantial
quantities of drugs, along with drug paraphernalia and firearms, were found in her
home. See United States v. Garcia, 447 F.3d 1327, 1338 (11th Cir. 2006) (noting
that fact that defendant lived in “house full of drugs” and “was related through his
common-law marriage” to conspiracy’s ringleader supported defendant’s
conspiracy conviction). Law enforcement officers Lisa Gigante, Mike Jones, Dell
Cole, and Brian Hammock testified that cocaine and drug equipment were found in
areas that were readily visible, including in the master bedroom closet and in a
closet in the basement. Indeed, they testified they seized plastic bags containing
over 500 grams of cocaine, Pyrex beakers, electronic scales, and plastic containers
from the closets. A forensic chemist determined that the seized cocaine weighed
approximately 722 grams. The seizure of large quantities of cocaine and drug
paraphernalia from Halcomb-Reeves’s master bedroom and from her basement
provided an additional foundation on which the jury could find that Halcomb-
Reeves had knowingly participated in the conspiracy. See United States v. Molina,
443 F.3d 824, 829 (11th Cir. 2006). Finally, the government presented financial
evidence from which the jury could determine that Halcomb-Reeves was relying
on the proceeds of Reeves’s drug sales to pay her bills, since the record established
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that Halcomb-Reeves’s monthly bills inexplicably far exceeded her reported
monthly income. Cf. United States v. Knowles, 66 F.3d 1146, 1156-57 (11th Cir.
1995) (noting that “a defendant’s knowing possession of a large sum of money
may be considered evidence that the defendant knew the object of the
conspiracy”).
In short, the corpus of evidence presented against Halcomb-Reeves, while
nowhere near as overwhelming as the case presented against Reeves, was
sufficient to sustain a jury verdict.
III.
Halcomb-Reeves also challenges several of the district court’s evidentiary
rulings. We are persuaded by none of them. We review a district court’s decision
to admit or exclude evidence for abuse of discretion. Capers, 708 F.3d at 1305.
Moreover, “[e]ven where an abuse of discretion is shown, non-constitutional
evidentiary errors are not grounds for reversal absent a reasonable likelihood that
the defendant’s substantial rights were affected.” Id. (quoting United States v.
Range, 94 F.3d 614, 620 (11th Cir. 1996)).
A.
Halcomb-Reeves insists that the district court abused its discretion in
admitting seven recorded telephone calls. Specifically, she claims the calls were
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improperly authenticated, and the government erred in bolstering the testimony of
the agent who identified her voice on the recordings.
In order to introduce a recording at trial, the government must establish that
it “is an accurate reproduction of relevant sounds previously audited by a witness.”
United States v. Biggins, 551 F.2d 64, 66 (5th Cir. 1977).9 Plainly, the government
carries the burden of proving: (1) the competency of the operator; (2) the fidelity of
the recording equipment; (3) the absence of material deletions, additions, or
alterations in the relevant portions of the recording; and (4) the identification of the
relevant speakers. Id. But even if one or more of these requirements has not been
satisfied, “[i]f there is independent evidence of the accuracy of the tape recordings
admitted at trial, we shall be extremely reluctant to disturb the trial court’s
decision” to admit the recording. Id. at 67. The district court has “broad discretion
in determining whether to allow a recording to be played before the jury,” id. at 66,
and its determination of authenticity should not be disturbed unless “there is no
competent evidence in the record to support it.” United States v. Munoz, 16 F.3d
1116, 1120-21 (11th Cir. 1994) (quoting United States v. Caldwell, 776 F.2d 989,
1001 (11th Cir. 1985)) (emphasis added). We add that under the Federal Rules of
Evidence, “[a]n opinion identifying a person’s voice -- whether heard firsthand or
9
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close
of business on September 30, 1981.
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through mechanical or electronic transmission or recording -- based on hearing the
voice at any time under circumstances that connect it with the alleged speaker” can
satisfy Rule 901(a). Fed. R. Evid. 901(b)(5); see United States v. Cuesta, 597 F.2d
903, 915 (5th Cir. 1979).
Here, the district court did not abuse its considerable discretion in admitting
the recordings because there was sufficient evidence establishing Halcomb-
Reeves’s identity. In the first place, the government authenticated the recordings
through the testimony of Smith, a co-conspirator who identified Halcomb-Reeves’s
voice, coupled with Halcomb-Reeves’s own admission that she had met Smith
before.10 It was up to the jury to determine the weight to place on this
identification. Cuesta, 597 F.2d at 915. Moreover, Agent Graziadei’s “opinion
identifying [Halcomb-Reeves’s] voice” -- based on her experience in the case,
Smith’s prior identification, and listening to the wiretap recordings -- was
permissible under Fed. R. Evid. 901(b)(5). But, in any event, Halcomb-Reeves
herself confirmed that the telephone recordings were actually between Reeves and
herself when she testified about what she termed wholly innocent conversations.
Thus, for example, after the March 2, 2010 call was played for the jury during
Halcomb-Reeves’s direct examination, Halcomb-Reeves’s counsel asked her, “So
10
At trial, Halcomb-Reeves acknowledged that she had met Smith at a party, where she was
introduced to him as “Mike’s wife.”
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what were you asking Michael about that morning?” Halcomb-Reeves responded,
“Was Brandon okay.” Counsel then asked, “Why were you calling him to ask him
about that?” Even if the government had not carried its burden under Biggins --
and we think it did -- Halcomb-Reeves’s testimony undeniably constituted
“sufficient independent evidence” of the identification of the speakers on the
recordings. See United States v. Hughes, 658 F.2d 317, 323 (5th Cir. Unit B Oct.
1981).
Nor are we persuaded by Halcomb-Reeves’s claim that the government
improperly bolstered the testimony of Agent Graziadei. She says that the
government’s reference to Graziadei as an expert and the proffered information
about the agent’s experience -- two days before the government asked the agent to
identify Halcomb-Reeves’s voice for the jury -- improperly bolstered the voice
identification testimony. Improper bolstering occurs when the government places
its prestige behind the witness, or when the government suggests that information
not presented to the jury actually supports the witness’s credibility. United States
v. Bernal-Benitez, 594 F.3d 1303, 1313-14 (11th Cir. 2010). Merely explicating
Graziadei’s qualifications as an agent and her role in the case is a far cry from
bolstering. The challenged remarks were not improper.
B.
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Halcomb-Reeves also claims that the district court abused its discretion by
admitting Jackson’s testimony concerning Reeves’s statement about an alleged
robbery pursuant to Fed. R. Evid. 801(d)(2)(E). Again, we are not persuaded. At
trial, Jackson, a co-conspirator, testified that, in November 2007, Reeves informed
him that four kilograms of cocaine had been robbed from the Reeves home, and as
a result, Jackson loaned Reeves the Browning nine-millimeter gun for his
protection. Jackson further testified that Halcomb-Reeves was present when
Reeves told him about the theft.
Under the Federal Rules of Evidence, statements of co-conspirators made
during the course of and in furtherance of the conspiracy are not hearsay. Fed. R.
Evid. 801(d)(2)(E). For a statement to be admissible under Rule 801(d)(2)(E), the
government must prove by a preponderance of the evidence that: “(1) a conspiracy
existed; (2) the conspiracy included the declarant and the defendant against whom
the statement is offered; and (3) the statement was made during the course and in
furtherance of the conspiracy.” United States v. Magluta, 418 F.3d 1166, 1177-78
(11th Cir. 2005) (quoting United States v. Hasner, 340 F.3d 1261, 1274 (11th Cir.
2003)). Here, Halcomb-Reeves only challenges the second requirement. But, as
we’ve already observed, there was sufficient evidence that Halcomb-Reeves knew
that Reeves was involved in the cocaine business and actively helped him conceal
his drug activity from the police. The evidence was sufficient to allow the district
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court to find by a preponderance of the evidence that the charged conspiracy
included Reeves, Halcomb-Reeves, and Jackson, and that the offending comment
was made in the course and in furtherance of the conspiracy.
Halcomb-Reeves claims, however, that she was not a member of the alleged
conspiracy at the time of the purported conversation between Reeves and Jackson.
But a co-conspirator’s declaration made in the course and in furtherance of a
conspiracy is admissible against a co-conspirator, even one who may have joined
the conspiracy after the statement was made. United States v. Tombrello, 666 F.2d
485, 491 (11th Cir. 1982). Finally, Halcomb-Reeves says that the proffered
statement is inadmissible against her because she was not present when the
discussion between her husband and Jackson took place. The first problem with the
claim is that Jackson testified that Halcomb-Reeves was present, and the jury was
free to believe his testimony over hers. Moreover, her presence at the time of the
statement need not be proven for the evidence to have been admissible. See Fed. R.
Evid. 801(d)(2)(E); Magluta, 418 F.3d at 1177-78. Her presence would only affect
the weight the jury may afford the evidence.
C.
Halcomb-Reeves also claims that Agent Gigante, who questioned her on
May 6, 2010 after Reeves had been arrested, improperly commented on her right to
remain silent. At trial, the following offending exchange occurred:
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Prosecutor: Okay. And what, if anything, did you ask? Or how did the
interview go? Can you tell us what [Halcomb-Reeves] said?
Agent Gigante: She said that she had been employed at Central State
Hospital for three years and that she lives at the 646 Mill Run Court,
and she had lived there for two years, and she owns the residence. She
said she was married to Michael Reeves. . . . And she said, I’m not
lying. He doesn’t live with me. . . . And I said, well, if you’re the only
adult living in that house, then I guess the cocaine and the gun that we
found when we did the search warrant must be yours. And at that
point [Halcomb-Reeves] hesitated for a minute, and she said, well, I
think I might need to talk to a lawyer and so --.
Halcomb-Reeves’s Counsel: Objection, Your Honor. May we
approach?
The Court: You may.
The district court subsequently denied Halcomb-Reeves’s motion for a mistrial, but
offered to give a curative instruction. Halcomb-Reeves’s counsel declined the
invitation.
We review for abuse of discretion a refusal to grant a mistrial based on a
comment regarding a defendant’s right to remain silent. United States v. Chastain,
198 F.3d 1338, 1351 (11th Cir. 1999). “A trial judge has discretion to grant a
mistrial since he . . . is in the best position to evaluate the prejudicial effect of a
statement or evidence on the jury.” United States v. Delgado, 321 F.3d 1338, 1346-
47 (11th Cir. 2003) (internal quotation marks omitted).
In Doyle v. Ohio, 426 U.S. 610, 619 (1976), the Supreme Court held that the
use of a defendant’s silence at the time of his arrest for impeachment purposes
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violates due process because warnings pursuant to Miranda v. Arizona, 384 U.S.
436 (1966), carry an implicit assurance that silence will carry no penalty. The
Court later extended this protection to post-Miranda invocations of the right to
counsel. Wainwright v. Greenfield, 474 U.S. 284, 295 (1986). “A Doyle violation
is harmless if the error had no substantial and injurious effect or influence in
determining the jury’s verdict.” United States v. Miller, 255 F.3d 1282, 1285 (11th
Cir. 2001) (internal quotation marks omitted). The error is “especially [harmless
when] the prosecutor makes no further attempt to ‘highlight’ the defendant’s
exercise of Miranda rights either in questioning other witnesses or during closing
argument.” Id. at 1286.
The government may comment on a defendant’s silence if it occurred before
the defendant was in custody and given Miranda warnings. United States v. Rivera,
944 F.2d 1563, 1568 (11th Cir. 1991); see Jenkins v. Anderson, 447 U.S. 231, 239-
40 (1980). Here, Halcomb-Reeves mentioned her need for a lawyer when she was
participating in a consensual interview at her sister’s home; she was not in custody
or under arrest at the time. Unsurprisingly, the record is wholly devoid of evidence
that Halcomb-Reeves had been advised of her Miranda rights at the time she spoke
with Agent Gigante. But even if Agent Gigante had commented on Halcomb-
Reeves’s post-Miranda silence, the district court acted well within its discretion in
denying her a mistrial based on the comment.
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The sequence of events here -- the prosecutor’s open-ended question, Agent
Gigante’s brief mention of Halcomb-Reeves’s invocation, and the immediate
objection -- resembles exchanges in cases where we have found no Fifth
Amendment violations. See United States v. Baker, 432 F.3d 1189 (11th Cir.
2005); Chastain, 198 F.3d 1338. Thus, for example, in Chastain, an officer
referenced the defendant’s silence in answering an open-ended question by the
prosecutor about his investigation. Chastain, 198 F.3d at 1351. We held that the
agent did not manifestly intend to comment on the defendant’s exercise of his
privilege not to testify, and the jury would not necessarily take the agent’s answer
to be a comment on the defendant’s failure to testify. Id. at 1351-52. Here, Agent
Gigante was generally responding to an open-ended question about her discussion
with Halcomb-Reeves. Any reference to Halcomb-Reeves’s mention of her right to
counsel does not appear to have been intended to be a comment on her exercise of
the right to remain silent. At sidebar, the government itself stated, “[O]f course, I
didn’t know she was going there. . . . We had talked about it beforehand, but it was
some time ago that I talked with her about it and so she may have forgotten.”
As we observed in Baker, a single, inappropriate reference to a defendant’s
post-arrest silence that is not mentioned again is too brief to constitute a Fifth
Amendment violation. Baker, 432 F.3d at 1222. Like the witness in Baker, Agent
Gigante only referred to Halcomb-Reeves’s request for a lawyer once, and the
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government made no further inquiry or argument about the statement. In short,
even if Gigante actually had referenced Halcomb-Reeves’s post-Miranda silence,
the inadvertent comment was “harmless” and did not warrant a mistrial.
Halcomb-Reeves also argues that the cumulative effect of the district court’s
evidentiary rulings warrants reversal of her conviction. Under the cumulative-error
doctrine, we will reverse a conviction where an aggregation of non-reversible
errors yields a denial of the constitutional right to a fair trial. Capers, 708 F.3d at
1299. But the district court did not commit any error concerning the recorded
telephone calls or the admission of Jackson’s testimony. Agent Gigante’s
testimony about Halcomb-Reeves’s invocation of her right to a lawyer was, at
worst, and only arguably, a single, harmless error. Plainly, this is insufficient to
support a cumulative error argument. See United States v. Gamory, 635 F.3d 480,
497 (11th Cir. 2011) (noting that if there are no errors or only a single error, there
can be no cumulative error).
IV.
Finally, Moss appeals his conspiracy conviction claiming that the
government deliberately and repeatedly misstated facts in its closing argument. To
find prosecutorial misconduct, a two-element test must be met: “(1) the remarks
must be improper, and (2) the remarks must prejudicially affect the substantial
rights of the defendant.” United States v. Gonzalez, 122 F.3d 1383, 1389 (11th Cir.
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1997) (quoting United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir. 1991)). “A
defendant’s substantial rights are prejudicially affected when a reasonable
probability arises that, but for the remarks, the outcome of the trial would have
been different.” United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006). We
generally consider four factors: (1) whether the challenged comments had a
tendency to mislead the jury or prejudice the defendant; (2) whether the comments
were isolated or extensive; (3) whether the comments were deliberately or
accidentally placed before the jury; and (4) the strength of the competent proof
establishing the guilt of the defendant. United States v. Lopez, 590 F.3d 1238,
1256 (11th Cir. 2009). A prosecutor’s comments in closing statement must be
viewed in the context of the trial as a whole. United States v. Bailey, 123 F.3d
1381, 1400 (11th Cir. 1997). The purpose of closing argument is to assist the jury
in analyzing the evidence, and although a prosecutor may not exceed the evidence
presented at trial during her closing argument, she may state conclusions drawn
from the trial evidence. Id. Additionally, “the prosecutor, as an advocate, is entitled
to make a fair response to the arguments of defense counsel.” United States v.
Sarmiento, 744 F.2d 755, 765 (11th Cir. 1984) (quotation and alteration omitted).
Thus, issues raised by a defendant in closing argument are “fair game for the
prosecution on rebuttal.” Id.
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Having reviewed this record, we can discern no reversible error based on the
prosecutor’s closing argument. Of the six comments that Moss challenges on
appeal, three were not improper because the government was merely drawing
conclusions from the trial evidence. These three remarks included the
government’s use of a hand-drawn wheel diagram to explain the relationship
between the defendants, its statement that two of the co-conspirators (Hill Sr. and
Marcus) had a pre-existing relationship, and its assertion that “seven or eight,” as
used in a telephone call between Hill Sr. and Reeves, referred to ounces. The other
three cited errors -- a misstatement that jurors must consider Halcomb-Reeves’s
testimony in the same way they assess a cooperating co-conspirator’s testimony, an
incorrect statement that Hill III’s counsel referenced facts not in evidence during
his closing argument, and an inaccurate attribution of two kilograms of cocaine to
Moss -- could be deemed improper. But they do not affect Moss’s substantial
rights because there isn’t a reasonable probability that, but for the remarks, the
outcome of his trial would have been different. Indeed, the cocaine attribution
misstatement is the only mistake that even potentially could have implicated Moss.
And the government quickly corrected the error, clarifying that it was Romero-
Diaz who had been in possession of two kilograms and properly attributing only
124 grams of cocaine to Moss.
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Furthermore, any error in the prosecutor’s comments was harmless because
the record contains sufficient independent evidence of Moss’s guilt concerning the
conspiracy charge, including the presentation of several recorded conversations
between Moss and Reeves discussing cocaine purchases. Moreover, the court
cured all of the complained-of remarks through its jury instructions. See Lopez,
590 F.3d at 1256 (finding that if the district court takes a curative measure in
response to prosecutorial misconduct during closing arguments, a court of appeals
will reverse only if the evidence is so prejudicial as to be incurable by that
measure). Moss has not come close to establishing that the closing argument was
so highly prejudicial as to be incurable by the court’s instructions. The improper
comments did not prejudicially affect Moss’s substantial rights, and the district
court did not abuse its discretion by refusing to grant a mistrial.
V.
In addition to challenging the sufficiency of the evidence, Reeves contends
that the district court erred by attributing at least 150 kilograms of cocaine to him
at sentencing. We review for clear error a district court’s determination of drug
quantity. United States v. Almedina, 686 F.3d 1312, 1315 (11th Cir. 2012). The
government must establish drug quantity by a preponderance of the evidence. Id.
When the amount of the drugs seized does not reflect the scale of the offense, the
district court must approximate the drug quantity attributable to the defendant. Id.
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at 1315-16; see United States v. Frazier, 89 F.3d 1501, 1506 (11th Cir. 1996). In
estimating the quantity, the trial court may rely on evidence demonstrating the
average frequency and amount of a defendant’s drug sales over a given period of
time. Frazier, 89 F.3d at 1506. “This determination may be based on fair, accurate,
and conservative estimates of the drug quantity attributable to a defendant, [but it]
cannot be based on calculations of drug quantities that are merely speculative.”
Almedina, 686 F.3d at 1316 (quoting United States v. Zapata, 139 F.3d 1355, 1359
(11th Cir. 1998) (per curiam)).
The foundation for the district court’s calculation of drugs at sentencing was
neither “vague” nor “uncertain.” See United States v. Simpson, 228 F.3d 1294,
1301 (2000). Jackson testified that he sold Reeves the following specific amounts:
(1) in 2007, between five to ten kilograms of cocaine a week; (2) in 2008, ten
kilograms of cocaine a week; (3) in 2009, three kilograms of cocaine twice a week;
and (4) in 2010, three kilograms of cocaine, once or twice a week. At sentencing,
the district court analyzed this evidence, observing that although the Presentence
Investigation Report attributed an approximate minimum of 883 kilograms of
cocaine to Reeves, “the real relevant issue” was simply whether a preponderance
of the evidence supported a quantity of more than 150 kilograms. 11 And the court
found that it did, even accepting that Jackson may have “exaggerated somewhat.”
11
Under the Sentencing Guidelines, a defendant’s base offense level is 38 -- the highest level
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The district court acknowledged that there were arguably inconsistencies in
Jackson’s account, took them into consideration at the sentencing hearing, and
discussed Jackson’s trial testimony at length. Having conducted both the trial and
the sentencing, the district court was in the best position to make credibility
choices among various pieces of testimony regarding the quantity of drugs
involved in a conspiracy. See United States v. Alred, 144 F.3d 1405, 1417 (11th
Cir. 1998) (finding no clear error when the district court judge relied on a grand
jury witness’s testimony of quantity over a different witness’s trial testimony of
quantity). Indeed, where there are two acceptable views of the evidence, the
factfinder’s choice cannot be clearly erroneous. United States v. Izquierdo, 448
F.3d 1269, 1278 (11th Cir. 2006). A preponderance of the evidence showed that
Reeves was responsible for well in excess of 150 kilograms of cocaine, and Reeves
has failed to demonstrate why “great deference” should not be accorded to this
factual determination. United States v. Gregg, 179 F.3d 1312, 1316 (11th Cir.
1999). 12
available -- if the offense involves 150 kilograms or more of cocaine. U.S.S.G. § 2D1.1(c)(1).
12
Reeves’s written judgment contains several scrivener’s errors. We may sua sponte raise the
issue of clerical errors in a judgment and remand with instructions that the district court correct
them. See United States v. Massey, 443 F.3d 814, 822 (11th Cir. 2006) (remanding with
directions for the district court to correct the clerical error where the judgment listed the correct
crime, but incorrectly listed the corresponding indictment count). Count One of the written
judgment should be corrected to reflect the offense of conspiracy to possess with intent to
distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 846 in connection
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Accordingly, we affirm Reeves’s, Halcomb-Reeves’s, and Moss’s
convictions and sentences. But we remand for the limited purpose of correcting the
scrivener’s errors in Reeves’s written judgment.
AFFIRMED; AND REMANDED IN PART.
with § 841(a)(1) and (b)(1)(A)(ii), as charged in the second superseding indictment and as found
by the jury. Count Two of the written judgment should be amended to reflect the offense of
possession with intent to distribute more than five, but less than 50, grams of crack cocaine, as
charged in the indictment and as found by the jury, in violation of 21 U.S.C. § 841(a)(1) and (b).
The correction of these clerical errors “would not prejudice [Reeves] in any reversible way.”
United States v. Diaz, 190 F.3d 1247, 1252 (11th Cir. 1999).
32