United States v. Kirk Howard

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12526
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KIRK HOWARD,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:20-cr-00011-MW-MJF-1
____________________
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2 Opinion of the Court 21-12526
Before WILLIAM PRYOR, Chief Judge, LUCK and LAGOA, Cir-
cuit Judges.
PER CURIAM:
Kirk Howard, a federal prisoner, appeals the denial of his
motion for a new trial. Fed. R. Crim. P. 33. Howard argued that his
trial counsel, Rachel Seaton, was ineffective for refusing to argue
that officers planted drugs in his home and for discrediting his tes-
timony during closing argument. The district court ruled that Sea-
ton was not ineffective by refusing to present a defense unsup-
ported by her pretrial investigation or by making a closing argu-
ment that accounted for Howard’s testimony and offered a plausi-
ble defense. We affirm.
A grand jury indicted Howard for possessing with intent to
distribute 500 grams or more of a mixture containing methamphet-
amine, 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii), and for possessing a
firearm and ammunition as a felon, 18 U.S.C. §§ 922(g)(1),
924(a)(2). Howard pleaded not guilty to both charges.
At trial, the government presented testimony from Agent
Alain C. Llorens of the Bureau of Alcohol, Tobacco, Firearms, and
Explosives, Investigator Steven Cook of the Bay County Sheriff’s
Office, and a cooperating drug seller. Agent Llorens arrested Tim-
othy Hester for distributing drugs and, after agents found nine
ounces of methamphetamine in Hester’s home, he identified How-
ard as his supplier. Hester then arranged a controlled purchase by
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21-12526 Opinion of the Court 3
sending to Howard a text message, “Hey, I’m ready.” Agent
Llorens and Investigator Cook surveilled Howard and watched
him put what appeared to be a sheet or bag with camouflage print
in his vehicle and drive to Hester’s house. Agents stopped Howard
in Hester’s driveway and, after a police canine alerted to the pres-
ence of drugs in his vehicle, discovered a camouflage blanket
wrapped around a bag of nine ounces of methamphetamine on the
back seat and a loaded Taurus firearm in the glove compartment.
Howard waived his rights to remain silent and to counsel, Miranda
v. Arizona, 384 U.S. 436, 444 (1966), and consented to agents
searching his residence. Agents transported Howard home where
the mother of Howard’s children, Mercedes Lyons, who resided
there, also gave verbal consent to the search after speaking with
Howard. Both Howard and Lyons signed written waivers. Agents
seized a drug scale from the studio bedroom, multiple scales inside
the home that were encircled by methamphetamine, a shoebox
containing methamphetamine, and plastic bags.
Lyons testified as a hostile witness. She stated that she con-
sented begrudgingly to a search of her home and claimed owner-
ship of the Taurus firearm found in Howard’s glovebox. But when
confronted with her past statements to Agent Llorens, Lyons
acknowledged she had consented to the search and that she bought
the gun at Howard’s request and in his company. When confronted
with her earlier statement that Howard showed her how to use the
gun, Lyons replied that she never said Howard touched the gun
and that he provided instruction by video call. Lyons also testified
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4 Opinion of the Court 21-12526
that a man named Cornelius, who fathered her third child, had
lived with her until the day before agents searched her house.
The government rested its case and Howard moved for a
judgment of acquittal on both charges. Howard argued that the
government failed to prove he knowingly possessed the metham-
phetamine discovered in Lyons’s house and failed to prove that he
knowingly possessed the seized firearm because it did not have his
latent prints or his biological material. The district court denied
Howard’s motion.
Howard complained about Seaton’s representation. The dis-
trict court advised Howard that he could ask to proceed pro se, hire
a new attorney, or identify a legal conflict with Seaton. Howard
alleged that agents had planted drugs at Lyons’s house and that
Seaton refused to question witnesses to develop that defense. Sea-
ton responded that she lacked evidence to substantiate the defense.
After the district court ruled that Seaton had made a tactical deci-
sion that did not warrant substituting defense counsel, Howard
elected to proceed with Seaton as counsel.
Howard testified that he had been living at a hotel when he
received Hester’s text requesting drugs. Howard denied transport-
ing a camouflage blanket to Hester’s house and described their re-
lationship as rocky because he once sold Hester a placebo instead
of methamphetamine. Howard stated that he consented to a search
of Lyons’s house under duress and that Investigator Cook had
transported a “big 483-gram bag [of methamphetamine] and all
that other” from Hester’s house in a brown bag and planted it in
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21-12526 Opinion of the Court 5
Lyons’s house. Howard insisted that a news article showing the
drugs seized from Hester’s and Lyons’s houses and a statement
from an inmate, Joe Brady, that agents had found the same big bag
of methamphetamine at Hester’s house established that drugs had
been planted at Lyons’s house. But Howard admitted to “ha[ving]
some half and half mixed stuff”—“about a 28-gram bag in the
car”—and having “sold it before.”
In her closing argument, Seaton explained why Howard’s
testimony supported an acquittal. Seaton questioned “whether or
not the government c[ould] prove beyond a reasonable doubt that
those substances were possessed and handled by Mr. Howard.” She
recounted that Howard was “very specific” in “blam[ing] . . . Inves-
tigator Cook” instead of Agent Llorens. Seaton acknowledged that
Howard’s story “sound[ed] outlandish” and that Investigator Cook
“probably didn’t” plant evidence because everyone present “would
like to think he wouldn’t do it.” But Seaton offered “another expla-
nation . . . that Cornelius was a guest in the home for a couple of
weeks” and “had access to the room in the home,” although he was
unavailable to testify because “he died in November.” Seaton also
acknowledged that Howard admitted to possessing methampheta-
mine and was culpable “whether or not he knew, you know, how
many grams it weighed.” Even so, Seaton argued, the government
had not proved that Howard possessed more than 500 grams of
methamphetamine. She “encourage[d] [the jury] to go back and ac-
tually look at th[e] two reports” from the Florida Department of
Law Enforcement and the Drug Enforcement Administration and
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6 Opinion of the Court 21-12526
“look at the[ir] [different] amounts.” She told jurors that, “if there
is a reasonable doubt in your mind, then you have to be committed
to that position when you go back there” and “to stand by your, no
pun intended, convictions.”
The jury found Howard guilty of the drug offense, 21 U.S.C.
§ 841(a)(1), (b)(1)(A)(viii), and it found him not guilty of the firearm
offense, 18 U.S.C. §§ 922(g)(1), 924(a)(2). Before sentencing, the dis-
trict court appointed Richard Greenberg to represent Howard.
Howard moved for a new trial on the ground that Seaton
was ineffective. Howard amended his motion and argued that Sea-
ton should have refrained from admitting Howard was guilty of a
drug offense, see McCoy v. Louisiana, 138 S.Ct. 1500 (2018), and
should have developed a defense that officers planted the drugs, see
Strickland v. Washington, 466 U.S. 668 (1984). The government re-
sponded that Seaton made reasonable strategic decisions and that
her performance did not prejudice Howard because he admitted
possessing methamphetamine.
The district court held a two-part evidentiary hearing. How-
ard testified that he spoke with Seaton twice in person for 30 to 45
minutes and twice on the telephone briefly, but when questioned
by the district court, Howard admitted to a third telephone conver-
sation with Seaton and to receiving information that her assistant
delivered to him. Howard stated he was arrested the same day as
Brady and that they “discussed what was found and the things that
police were doing during that search.” But Howard testified that
Seaton failed to contact Brady and ignored Howard’s request that
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21-12526 Opinion of the Court 7
she interview Miles Tanner Burges as a potential witness. Howard
proffered that Burges would have testified he was arrested at Hes-
ter’s house and saw agents retain some of the methamphetamine
seized and that Burges could identify the drugs planted at Lyons’s
house. Howard testified that he never permitted Seaton to concede
he had a small amount of methamphetamine, but he also acknowl-
edged that he confessed to committing a drug crime during his trial
testimony. Howard also acknowledged that Seaton obtained rec-
ords of the seizures at Lyons’s and Hester’s houses, but they inter-
preted those records differently.
The district court rejected Howard’s argument that Seaton
violated his right to maintain innocence. The district court ruled
that Seaton reasonably conceded that Howard had possessed a
small amount of methamphetamine and that Seaton’s closing state-
ments were consistent with Howard’s defense that he possessed a
small quantity of drugs but was not responsible for the large quan-
tity discovered in Lyons’s house.
After Howard elected to litigate his claim of ineffective assis-
tance on direct appeal instead of in a postconviction proceeding,
Seaton testified. She stated that she encouraged Howard’s attorney
in his state prosecution to depose officers with her present and that
the attorney never stated the drugs had been planted in Lyons’s
house. Seaton recounted reviewing with Howard the records of
the search of Hester’s house and the news article of the drug sei-
zures at Hester’s and Lyons’s houses. Seaton testified that, begin-
ning with her opening statement, she developed the theory that
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8 Opinion of the Court 21-12526
Howard possessed drugs, but not the 500 grams necessary to trig-
ger a statutory mandatory minimum sentence. Seaton testified that
Howard become “increasingly agitated” during trial and “ex-
tremely irate” at the conclusion of the officers’ testimony. Before
the government rested, Howard asked her to argue exclusively that
officers planted the drugs, but she refused to do so due to a lack of
evidence. She also became concerned that Howard might perjure
himself. Howard never told Seaton that Investigator Cook planted
the drugs or that he saw anyone take a bag into his house that he
believed contained drugs. Seaton decided that the information
Brady might provide was irrelevant because he was arrested before
Howard.
The district court denied Howard’s motion for a new trial
and sentenced him to 120 months of imprisonment. The district
court credited Seaton’s testimony and ruled that Howard had not
been prejudiced by Seaton’s refusal to argue that officers planted
drugs in Lyons’s house.
We review the denial of Howard’s motion for a new trial for
abuse of discretion. United States v. Tokars, 95 F.3d 1520, 1531
(11th Cir. 1996). Ordinarily we do not entertain a claim of ineffec-
tive assistance of counsel on direct appeal, but we will consider
such a claim where the defendant develops a factual record in the
district court. United States v. Bender, 290 F.3d 1279, 1284 (11th
Cir. 2002). Howard’s argument that Seaton was ineffective pre-
sents a mixed question of law and fact that we review de novo. Id.USCA11 Case: 21-12526 Date Filed: 06/07/2022 Page: 9 of 11
21-12526 Opinion of the Court 9
Under Strickland, Howard must satisfy a two-part test to
prove that Seaton was ineffective. 466 U.S. at 687. First, Howard
must prove that Seaton made errors so serious that she failed to
function as the counsel guaranteed by the Sixth Amendment. Id.Seaton enjoys the strong presumption that her conduct fell within
the range of reasonable professional assistance. Id. at 689. And Sea-
ton’s strategic decisions amount to deficient performance only if
no competent attorney would have made the same decisions. Ad-
ams v. Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983). Second,
Howard also must prove that there is a reasonable probability that,
but for Seaton’s errors, the outcome at trial would have been dif-
ferent. Strickland, 668 U.S. at 694.
Howard failed to prove that Seaton was deficient or that he
was prejudiced by her refusal to accuse officers of planting drugs in
his house. The district court was entitled to credit Seaton’s testi-
mony that Howard never mentioned drug planting to counsel rep-
resenting him in a state prosecution, that he provided Seaton no
specific information of drug planting to investigate, and that she
unearthed no evidence of drug planting despite reviewing police
records and news accounts of the drug seizures. See Devine v.
United States, 520 F.3d 1286, 1287 (11th Cir. 2008) (“We allot ‘sub-
stantial deference to the factfinder . . . in reaching credibility deter-
minations with respect to witness testimony.’”). Seaton was not re-
quired to act on Howard’s speculation that Brady and Burges
would testify that officers planted the drugs. See Tejada v. Dugger,
941 F.2d 1551, 1559 (11th Cir. 1991) (“claims [that] are merely
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10 Opinion of the Court 21-12526
‘conclusory allegations unsupported by specifics’” do not support a
claim of ineffective assistance of counsel). Seaton reasonably re-
jected Howard’s requests that she contact Brady and Burges be-
cause both men had been arrested and did not observe the officers
at Lyons’s house. See Adams, 709 F.2d at 1445 (“[A] strategic deci-
sion to pursue less than all plausible lines of defense will rarely, if
ever, be deemed ineffective if counsel first adequately investigated
the rejected alternatives.”). Seaton also exercised reasonable pro-
fessional judgment in refusing to question officers about planting
drugs without any evidence to support that defense. And without
testimony or an affidavit from Brady or Burges, Howard could not
prove that Seaton’s refusal to investigate or subpoena the two men
prejudiced the outcome of his trial, see Strickland, 668 U.S. at 694.
Howard also failed to prove that Seaton’s closing argument
was deficient or prejudiced his defense. Seaton earned credibility
with the jury by discounting Howard’s statements about drug
planting as “outlandish,” acknowledging that he had admitted to
possessing some methamphetamine, and attributing the large
quantity of drugs to Lyons’s boyfriend. Those statements gave the
jury a plausible reason to attribute a small amount of methamphet-
amine to Howard and created the potential for him to avoid a
lengthy statutory mandatory sentence. Howard cannot establish
that Seaton’s closing argument “reflect[s] less than reasoned pro-
fessional judgment.” See Adams, 709 F.2d at 1445. And Howard
failed to prove that he was prejudiced by Seaton’s strategic decision
to reject Howard’s theory that officers planted the drugs and to
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21-12526 Opinion of the Court 11
present a more plausible argument in his defense. See Strickland,
668 U.S. at 694.
We AFFIRM the denial of Howard’s motion for a new trial.