United States v. Jean Oscar

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14584
________________________
D.C. Docket No. 1:13-cr-20561-RNS-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEAN OSCAR,
a.k.a. ZB,
HYPICO BEAULIEU,
a.k.a. Pico,
a.k.a. Dred,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(December 20, 2017)
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Before HULL, JORDAN and BOGGS, * Circuit Judges.
HULL, Circuit Judge:
Defendant Hypico Beaulieu appeals his six criminal convictions and his
sentence, all related to drug trafficking and the illegal possession of firearms. Co-
defendant Jean Oscar appeals his two convictions for being a convicted felon in
possession of a firearm on two different dates. Their appeals present five issues,
implicating the lengthy investigation that led to their arrests and their joint criminal
trial.
After careful review, and with the benefit of oral argument, we affirm
Beaulieu’s and Oscar’s convictions. We vacate Beaulieu’s sentence imposed
under the Armed Career Criminal Act and remand for resentencing.
I. BACKGROUND
A. Indictment
On October 8, 2013, a grand jury indictment in the Southern District of
Florida charged Beaulieu with conspiring to distribute cocaine and crack cocaine,
in violation of 21 U.S.C. § 846 (Count One); three counts of distributing cocaine,
in violation of 21 U.S.C. § 841(a)(1) (Counts Two, Three, and Four); stealing more
than $1,000 from the United States, in violation of 18 U.S.C. §§ 641 and 2 (Count
Five); possessing with the intent to distribute cocaine and crack cocaine, in
*
Honorable Danny J. Boggs, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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violation of 21 U.S.C. § 841(a)(1) (Count Six); possessing a firearm in furtherance
of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count
Seven); and being a convicted felon in possession of a firearm, in violation of
18 U.S.C. §§ 922(g)(1) and 924(e) (Count Eight).
That same indictment also charged Oscar with two counts of being a
convicted felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1)
and 924(e). The same indictment also charged crimes against seven of Beaulieu’s
and Oscar’s co-defendants: Francisco Castellon, Sandy Saintange, Christopher
Dalpe, Aaron Hines, Gary Alexander, Ronald Prudent, and Lonnie Clanton.
Ultimately, five of those co-defendants pled guilty, but not Saintange, who is a
fugitive.
On June 2, 2014, Beaulieu, Oscar, and Dalpe proceeded to trial. At trial, co-
defendant Castellon testified against them.
B. Trial, Convictions, and Sentences
At trial, the government presented the testimony of (1) the undercover agent
(“UA”) who purchased contraband from the defendants, (2) the Department of
Homeland Security (“DHS”) agent who led the investigation, and (3) various
federal and local law enforcement officers involved in the investigation. Beaulieu,
Oscar, and Dalpe did not testify. Beaulieu did, however, offer the testimony of
Renetta Smith, his girlfriend, who testified that she owned the firearm found in
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Beaulieu’s residence. The parties finished their closing arguments on June 6,
2014.
On the fourth day of jury deliberations, the jury returned its verdict,
convicting Beaulieu of Counts One, Three through Six, and Eight and acquitting
him of Counts Two and Seven. The jury convicted Oscar of the two felon-in-
possession counts.
On October 3, 2014, the district court sentenced Beaulieu to 210 months’
imprisonment and Oscar to 144 months’ imprisonment. This timely appeal
followed.1 We first review the trial evidence and then discuss the five issues
presented on appeal.
II. TRIAL EVIDENCE
In 2012, DHS launched an investigation into narcotics trafficking in the
greater Miami, Florida area. By making controlled contraband purchases, the UA
infiltrated a neighborhood where narcotics and illegal firearms sales were common.
The UA’s investigation eventually focused on Saintonas Oscar (“Saintonas”), who
brokered sales of narcotics and firearms between the UA and multiple people.
Defendant Oscar is a cousin of Saintonas.
1
The government also filed a cross-appeal concerning Oscar’s sentence, arguing that the
district court erred when it ruled that Oscar’s prior drug convictions did not count as “serious
drug offenses” under the Armed Career Criminal Act. On December 6, 2016, the government
filed a motion to voluntarily dismiss its appeal. On December 8, 2016, this Court granted that
motion.
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For controlled purchases of narcotics and firearms, the UA would call
Saintonas, negotiate a price for the contraband, and agree on a meeting time and
location. The UA would drive to the agreed-upon location to complete the
transaction, with Saintonas present to facilitate the exchange of money and
contraband between the UA and the seller.
A. November 7 and 15, 2012 Sales
On November 7, 2012, the UA made a controlled narcotics purchase from
defendant Beaulieu. The UA called Saintonas and ordered one ounce of cocaine.
Saintonas agreed to the sale and instructed the UA to drive him to the Food Point
Mart in Hallandale Beach, Florida. Upon arrival, the UA saw Beaulieu, who was
walking towards the Food Point Mart parking lot from an adjacent field. While
Beaulieu was approaching, the UA paid Saintonas $1,150 in cash. Saintonas then
exited the car, “made contact” with Beaulieu, and returned to the UA with one
ounce of cocaine.
On November 15, 2012, the UA again ordered cocaine from Saintonas.
After the UA and Saintonas agreed on a price, they set a time and location for the
transaction. The UA and Saintonas met and travelled together to the same Food
Point Mart, where Beaulieu was again present. Similar to the transaction on
November 7, Saintonas took $1,800 in cash from the UA upon arrival, before
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leaving the UA to meet with Beaulieu. Saintonas then returned to the UA with
one-and-a-half ounces of cocaine.
B. January 8, 15, and 18, 2013 Sales
On January 8, 2013, the UA purchased a sawed-off shotgun from Saintonas
with defendant Oscar present. After completing the purchase, the UA spoke to
Oscar about buying three more firearms, and they negotiated the price for two of
them.
On January 15, 2013, the UA asked Saintonas to help him obtain a firearm.
Saintonas told the UA that there was a pistol for sale for $300, and the UA agreed
to purchase it.
Later that day, Saintonas and the UA arrived at Saintonas’ residence, and, in
the front yard, the UA saw Oscar with the pistol in his waistband. The UA took
that firearm and gave Saintonas $300 in cash. During the transaction, Oscar told
the UA that he had fired the pistol. Saintonas and the UA then discussed the
purchase of a rifle.
On January 18, 2013, after agreeing to purchase a rifle, the UA called
Saintonas. At Saintonas’ instruction, the UA picked up Saintonas and Oscar in the
UA’s vehicle. Oscar directed the UA to a second location, where they picked up a
fourth person who was not identified at trial. That fourth person directed the UA
to an apartment where the firearm was located. Once at the apartment, Oscar and
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the fourth person walked towards a stairwell. The UA gave Saintonas $700 in cash
before Saintonas also walked to the stairwell. The UA then exited his vehicle,
opened the trunk, and waited. Oscar and the fourth person exited the stairwell and
walked to the rear of the UA’s vehicle. Once at the vehicle, Oscar pulled a rifle
out of the right leg of his pants and placed it in the UA’s trunk.
C. February 27, 2013 Attempted Sale
On February 27, 2013, the UA negotiated the purchase of two firearms—a
rifle and a pistol—from Saintonas. The UA drove to Saintonas’ residence.
Saintonas approached the UA’s car, and the UA handed him $1,800 in cash.
Saintonas then walked away from the UA’s vehicle and did not return. Saintonas
never delivered the firearms. After Saintonas departed, the UA waited for 45
minutes, repeatedly calling Saintonas’ phone to no avail. During this 45-minute
period, while waiting for the firearms, the UA noticed Oscar arrive at Saintonas’
residence. Oscar approached the UA and told him that Saintonas had already sold
the firearms but that the UA should buy firearms directly from Oscar. During this
conversation, Oscar offered to sell the UA “a .45 revolver.”
D. April 2, 2013 Sale
On April 2, 2013, Saintonas, in an effort “to make things right,” referred the
UA to Beaulieu, from whom the UA previously had purchased cocaine. Similar to
the purchases conducted through Saintonas, the UA met Beaulieu at the Food Point
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Mart. After Beaulieu entered the UA’s vehicle, the UA gave Beaulieu $1,150 in
cash in exchange for one ounce of cocaine.
E. April 11, 2013 Attempted Sale
On April 11, 2013, the UA and Beaulieu negotiated a purchase of two
ounces of cocaine for $2,300. When the UA and Beaulieu arrived at the Food
Point Mart for the cocaine sale, the UA noticed that there was no activity at the
store and that the only other car in the parking lot was a Ford F-150 backed into a
parking spot. The UA observed the driver of the vehicle, who “just seemed to be
staring straight ahead.” After waiting a few minutes, the UA called Beaulieu. As
he had for past transactions, Beaulieu approached from the field adjacent to the
Food Point Mart. Once Beaulieu entered the car, the UA handed him $2,300 in
cash.
But unlike past purchases, Beaulieu did not hand the narcotics to the UA.
Instead, Beaulieu began to count the cash slowly. While Beaulieu was counting,
the driver of the Ford F-150 exited his vehicle, holding one hand to his chest. As
the driver of the Ford F-150 went to shut his door, a silver badge fell from
underneath the hand on his chest. The driver approached the left side of the UA’s
vehicle.
As the driver of the Ford F-150 was nearing the UA’s vehicle, Beaulieu
exited the UA’s vehicle on the passenger’s side and ran to the front of the UA’s
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vehicle. As Beaulieu ran away, the driver turned, ran, got into the Ford F-150, and
began pursuing Beaulieu, who was fleeing on foot. As the driver began his pursuit,
driving westbound away from the Food Point Mart, the UA fled the parking lot in
his car. Later that day, the UA called Beaulieu to complain about “being ripped
off,” as Beaulieu had taken the $2,300 without giving the UA any cocaine.2
That same day, April 11, shortly after Beaulieu “robbed” the UA, two Drug
Enforcement Agency (“DEA”) agents stopped Beaulieu in a vehicle as he was
leaving his residence. DHS Agent Jubal Gimble, who led the investigation against
Oscar and Beaulieu, also arrived at the scene and was present when one of the
DEA agents told Beaulieu that he was aware of the robbery and “just want[ed] the
money back . . . [t]hat’s it.” Beaulieu complied and also consented when Agent
Gimble and a DEA agent asked to come to his residence to retrieve the money.
Beaulieu took the law enforcement agents inside his residence and gave them
$2,200 in cash that he had taken from the UA. 3
F. August 16, 2013 Arrests
On August 16, 2013, federal and local law enforcement officers arrested
Beaulieu at his mother’s residence after obtaining an arrest warrant. A search of
2
As was revealed at trial, the driver of the Ford F-150 was Francisco Castellon,
Beaulieu’s friend. Castellon was a co-defendant but pled guilty. At trial, Castellon testified that
he had agreed to pose as a police officer during the cocaine transaction because Beaulieu paid
him $100 to do so.
3
Law enforcement officers had already retrieved $100 from Castellon.
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the home revealed $1,473 in cash in Beaulieu’s shorts; two plastic bags of cocaine
in the bathroom; and a firearm, ammunition, marijuana, crack cocaine, and drug
trafficking paraphernalia in Beaulieu’s bedroom. DHS agents arrested Beaulieu
and transported him to a DHS office. Before questioning him, the agents advised
Beaulieu of his Miranda4 rights, and Beaulieu affirmed that he understood his
rights by signing a Miranda waiver form. Beaulieu then admitted that he had sold
cocaine to Saintonas and the UA. Beaulieu also admitted that the firearm in his
bedroom was his and that he knew he was not allowed to possess a firearm.
Beaulieu claimed that he had bought the firearm in order to protect himself.
Oscar was arrested a few days later, on August 19, 2013.
With this trial evidence as background, we turn to the five issues on appeal.
III. JURY’S QUESTIONS
A. Court’s Answer
The first issue is Beaulieu’s challenge to the district court’s answer to two
written jury questions about possession of a firearm by a convicted felon. 5 The
first question asked: “If you are a convicted felon, does the law specify whether or
not you can knowingly be near or around a gun or is there space specification (in
4
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
5
Oscar does not raise this issue on appeal.
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the room or just near)?” The second question asked: “If a convicted felon, is it
illegal just to be ‘around’ a firearm?”
Beaulieu’s defense counsel argued that the district court should respond
“no” to both questions. The government advocated that the district court should
instruct the jury to rely on the district court’s prior instructions. The district court
had fully instructed the jury already on the elements of this firearm offense, as
follows:
A defendant can be found guilty of this crime only if all of the
following facts are proved beyond a reasonable doubt:
1. The defendant knowingly possessed a firearm or ammunition in or
affecting interstate or foreign commerce and;
2. Before possessing the firearm, or ammunition, the defendant had
been convicted of a felony, a crime punishable by imprisonment
for more than one year.
(emphasis added).
After defining firearm, ammunition, and interstate commerce, the district
court also initially instructed the jury on actual and constructive possession as
follows:
The law recognizes several kinds of possession. A person may have
actual possession, constructive possession, sole possession or joint
possession. Actual possession of a thing occurs if a person knowingly
has direct physical control of it. Constructive possession of a thing
occurs if a person does not have actual possession of it, but has both
the power and the intention to take control over it later. Sole
possession of a thing occurs if a person is the only one to possess it.
Joint possess[ion] of a thing occurs if two or more people share
possession of it. The term “possession” includes actual, constructive,
sole and joint possession.
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Beaulieu did not object to this initial instruction.
After receiving the jury’s questions and hearing from defense counsel and
the government, the district court proposed this answer to both questions:
Members of the jury, the definition of possession is fully set forth on
page 15 of the instructions. It is not sufficient to be around or near a
gun. The government must prove beyond reasonable doubt that the
defendant either knowingly had actual direct physical control of the
gun or if he did not have actual possession of it, that he had both the
power and intention to take control over the gun later.
A defendant may have sole possession if he is the only person to
possess the gun, or he may have joint possession if he and another
share possession of it.
(emphasis in original). After hearing from counsel, the district court sent a
note to the jury reciting the foregoing answer.
B. Analysis
Beaulieu argues that the district court erred in its answer to the jury’s
questions by allowing the jury to convict him of either constructive or joint
possession, without Beaulieu’s having knowledge of the presence of the firearm.
For several reasons, we conclude there was no error in the district court’s answer.6
First, the district court’s answer requires context. The district court’s
original jury instruction had already explained the elements of the crime and
expressly told the jury that the government must prove that Beaulieu “knowingly
6
We review a district court’s response to a jury question for an abuse of discretion.
United States v. Wright, 392 F.3d 1269, 1279 (11th Cir. 2004).
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possessed” the firearm. A challenged supplemental jury instruction is not
reviewed in isolation, but reviewed as part of the entire jury charge. United States
v. Lopez, 590 F.3d 1238, 1248 (11th Cir. 2009); United States v. Johnson, 139
F.3d 1359, 1366 (11th Cir. 1998). The initial charge made it clear that Beaulieu
had to “knowingly” possess the firearm. See United States v. Hill, 799 F.3d 1318,
1320-21 (11th Cir. 2015) (district court did not abuse its discretion when it
declined to give defendant’s proposed jury instruction because the instruction
already given “adequately covered” the defendant’s proposed instruction).
Second, the district court’s initial charge correctly told the jury that the law
recognizes several kinds of possession and that possession of a firearm may be
either actual or constructive. United States v. Perez, 661 F.3d 568, 576 (11th Cir.
2011). “[T]he essence of constructive possession is the power to control the
contraband itself.” United States v. Cochran, 683 F.3d 1314, 1320 (11th Cir. 2012)
(emphasis added). Thus, the district court correctly instructed the jury that
constructive possession occurs when a defendant “has both the power and the
intention to take control” of the firearm.
Third, this definition of constructive possession did not remove the
knowledge requirement but was consistent with it. Indeed, a defendant must
necessarily have knowledge of the firearm in order to have a present intention to
take control over it later. This Court has explained before that this definition of
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constructive possession implies a requirement of “knowledge or an awareness of
the object possessed.” See Hill, 799 F.3d at 1321 (stating this definition of
constructive possession “impliedly required that Hill knowingly possess the
firearm”); United States v. Winchester, 916 F.2d 601, 605 (11th Cir. 1990)
(concluding that a jury instruction, which defined “constructive possession” as
when a person “has both the power and intention to later take control over
something,” did not constitute reversible error because it “defined ‘constructive
possession’ as impliedly requiring knowledge or awareness of the object
possessed”).
Here, the district court’s supplemental charge thus did not misstate the law
as to possession or knowledge, and there was no error.
IV. PROSECUTORIAL MISCONDUCT
Beaulieu’s second claim on appeal is that the government committed
misconduct that prejudiced his right to a fair trial when (1) it introduced evidence
of the murder of Saintonas and (2) it called Renetta Smith a liar. We review the
context of both events and then explain why neither constituted misconduct.7
7
A claim of prosecutorial misconduct ordinarily is reviewed de novo. United States v.
Merrill, 513 F.3d 1293, 1306-07 (11th Cir. 2008). Even though Oscar, not Beaulieu, first
objected to the government’s reference to Saintonas’ death, Oscar on appeal does not raise any
claims of prosecutorial misconduct as to Saintonas’ death.
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A. Saintonas Oscar
On the afternoon of June 2, after jury selection but before the trial
commenced, defendant Oscar requested that the government not mention that
Saintonas was murdered. Oscar argued that evidence of Saintonas’ murder would
be highly prejudicial, as the jury might infer that one of the defendants was
involved in his murder.
In response, the government explained that it was not going to say that
Saintonas was murdered but would say only that he was dead to explain the
context of the investigation. Although Oscar argued that Saintonas’ death was
irrelevant, the district court ruled that the government was allowed “to mention
[that] he is deceased, but not that he was murdered or killed.” Beaulieu did not
object to this ruling. As discussed later, Saintonas’ death was relevant to explain
why he was not charged and was not testifying at trial, even though he facilitated
all of the defendants’ crimes.
During its opening statement, the government explained that Saintonas
distributed contraband to the UA and arranged the multiple transactions that
underlay the charges against the defendants. After describing the charges against
the defendants, the government stated “Finally, ladies and gentlemen, what about
Saintonas Oscar. You’ve heard a lot about some other people, but what about
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Saintonas Oscar. As you will hear, Saintonas Oscar is dead. Saintonas Oscar died
in May of last year.” There was no contemporaneous objection.
At the end of the first day of trial, after the district court dismissed the jury,
co-defendant Dalpe moved for a mistrial. Dalpe argued that the government’s
proclamation that Saintonas was dead was prejudicial to his defense.8 The district
court denied the motion.
Saintonas’ death was also the subject of the UA’s testimony. On direct
examination by the government, the UA testified that Saintonas “is deceased.” In
addition, during his cross-examination of the UA, Beaulieu’s counsel asked
“[Saintonas] is dead now, correct?”
But then a dispute arose when DHS Agent Gimble testified. Beaulieu’s
counsel asked, “So you were satisfied that whatever you had, you would run with it
when you met with the representatives of the United States Attorney’s Office?”
Agent Gimble responded that DHS would have liked to continue the investigation
but that “Saintonas at that point was dead.” Agent Gimble continued, stating:
“Hypico [Beaulieu] was the only other person that we really mainly dealt with, that
we dealt with face-to-face other than Jean [Oscar] on a couple of times, but there
8
Dalpe’s counsel did not articulate a clear legal ground for his objection but did implicitly
state that Saintonas’ death was not relevant to the case:
I think that that was an inference that because of this situation he is dead and, you
know, long pause, drugs and guns, and I just—we don’t have any idea, I don’t at
least, of how or why this person passed away and I don’t understand the relevance
to this case and so I make my motion.
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were some issues between the undercover officer and Jean [Oscar] and his brother
John. They felt that he was somehow involved in [Saintonas’] death because of
Saintonas’ ripping off Special Agent Lampkins [the UA].”
Oscar then objected and moved for a mistrial. 9 The district court overruled
the objection and denied the motion. The district court reasoned that Beaulieu’s
counsel had “asked a very broad, open-ended question” and no objection was made
to the question when asked. The district court agreed, however, to give a curative
instruction, telling the jury that none of the defendants on trial had anything to do
with Saintonas’ death:
[T]here is absolutely no information that anybody in this trial had
anything to do with the death of Saintonas Oscar, so please don’t
think the fact that it was mentioned there is something out there,
maybe there’s something else going on. That is just not part of this
case. You heard that he is no longer among the living. None of these
people that are in this trial had anything to do with his death.
Shortly after this instruction, Beaulieu’s counsel asked Agent Gimble if
Miami homicide detectives had assisted in arresting Beaulieu. Agent Gimble
responded “yes,” but before he was able to explain why, Beaulieu’s counsel
interjected with another question. Later during his cross-examination of Gimble,
Beaulieu’s counsel asked “How many detectives [talked] to [Beaulieu on the day
of his arrest]?” Agent Gimble responded that Miami-Dade homicide detectives
9
Earlier in the trial, the district court said that it would consider an objection by one
defendant to be an objection by all of them unless a co-defendant opted out. Thus, we consider
this objection as by defendant Beaulieu too.
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“were the only other ones that talked to him.” Counsel for Dalpe objected, but the
district court overruled the objection.
Later, in his closing argument, Beaulieu’s counsel noted on three occasions
that Saintonas was dead.
B. Renetta Smith
On the second-to-last day of trial, June 5, defendant Beaulieu called Renetta
Smith as a witness. Smith identified herself as Beaulieu’s girlfriend and testified
that she was living with Beaulieu at his mother’s house when he was arrested.
Earlier in the trial, Francisco Olive, a DHS agent who assisted in the arrest of
Beaulieu, testified that Smith initially told the agents that Beaulieu was not home
when in fact he was. Smith disputed Olive’s account, claiming that it was
Beaulieu’s mother who told the agents that Beaulieu was not home. As recounted
earlier, a firearm was found in the closet of Beaulieu’s bedroom. At trial, Smith
testified that the firearm was hers.
On cross-examination, with no objection from Beaulieu, the government
asked Smith if she had been lying about this case, to which she stated “no.” The
government then confronted her about her inconsistent statements and the
contradictory evidence concerning Beaulieu’s presence on the day of his arrest, her
statements concerning the type and location of the firearm found in Beaulieu’s
closet, and whether she or Beaulieu owned the firearm.
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Later, in closing, the government—again with no objection from Beaulieu—
stated: “You heard Renetta Smith get up on the stand and tell you now that that
gun is hers. Ms. Smith is lying.” The government then noted that, even though
Smith had stated that the firearm was hers, she could not describe the firearm’s
specifications or how it operated. The government also emphasized that Smith
claimed that the firearm was hers only after Beaulieu had lost his suppression
motion.
The government’s closing argument also referenced an audio recording
introduced during Agent Gimble’s testimony. The recording was a telephone
conversation between Beaulieu and Smith. On the audio tape Smith is heard
stating: “He told me that was going to be the plan B after the suppression didn’t
work. . . . The fact that it’s mine.” When questioned about this recording, Smith
testified that she had told Beaulieu’s previous lawyer that she was the owner of the
gun that was found in the closet on August 16, 2013, but prior counsel told Smith
not to worry about it because he was going to file a motion to suppress the firearm.
Smith testified that Beaulieu fired that attorney and hired the current counsel as his
trial attorney. Smith explained that the “Plan B” discussed in the recorded call
referred to Beaulieu’s plan to fire his previous attorney if his motion to suppress
was unsuccessful.
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The government concluded its closing discussion of Smith by arguing that
“[s]he has lied before and she is lying now. She lied when agents went to the
house and asked her is [Beaulieu] home[?] She said no. He was there. She lied
today and said, no, I never said that, and now she is lying today.”
C. Discussion
For a prosecutor’s remarks to constitute prosecutorial misconduct, they must
(1) be improper and (2) prejudicially affect the defendant’s substantial rights.
United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006). “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.” Id..
On appeal, Beaulieu argues that the government’s opening statement
violated the district court’s order by implying that Saintonas was murdered.10 A
review of the transcript reveals that Beaulieu misrepresents the government’s
description of Saintonas’ death. Contrary to his claim on appeal, the government
did not refer to Saintonas’ death before stating that “drugs and guns are
dangerous.” Rather, the government’s handling of Saintonas’ death was consistent
with the district court’s order—not discussing murder, but simply explaining his
absence, as he was deceased.
10
Beaulieu alleges that the prosecutor, “in dramatic fashion” said that “Saintonas Oscar is
dead . . . Drugs and guns are dangerous.”
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Further, the district court did not err in allowing the government to tell the
jury that Saintonas had died. It was relevant to explain why Saintonas, even
though he had brokered the drug and firearm sales and was a link between the
defendants, was not present as a co-defendant or witness. Moreover, any potential
prejudice from mentioning Saintonas’ death was cured by the district court’s
curative instruction, which emphasized that no one at trial had anything to do with
the death. United States v. Thomas, 62 F.3d 1332, 1343 (11th Cir. 1995)
(concluding that curative instruction rendered allegedly prejudicial remark
harmless). In short, the government did not act improperly in mentioning
Saintonas’ death before the jury.
It was also not improper for the government to state that Smith was lying
during closing argument given Smith’s inconsistencies. Agent Olive testified that
Smith told DHS officers that Beaulieu was not at home when he in fact was. Smith
testified that she owned the gun but was unable to describe the basic parts of the
gun. Smith’s testimony is also contradicted by Beaulieu’s admission on the day of
his arrest that he owned the gun. In her recorded telephone conversation, Smith
appeared to reference her claim of owning the gun (which occurred after Beaulieu
lost his motion to suppress) as “Plan B.” The government’s statements in closing
were not improper, nor did they prejudicially affect Beaulieu’s substantial rights.
Again, there was no error, much less plain error. See United States v. Schmitz,
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634 F.3d 1247, 1270 (11th Cir. 2011) (“We have no doubt that there are some
cases where a prosecutor is justified in arguing during closing arguments that a
particular witness is lying, if that is an inference supported by the evidence at
trial.”); see also Chandler v. Moore, 240 F.3d 907, 914 (11th Cir. 2001) (finding
that prosecutor’s comment during closing argument that a witness was a liar was
an accurate statement because the witness had told different stories regarding the
defendant’s whereabouts).
This leaves Agent Gimble’s statements about the death of Saintonas.
Beaulieu timely objected at trial and thus we review this issue de novo. Gimble’s
testimony came out on questioning from Beaulieu’s own counsel, raising the
possibility that Beaulieu has waived this argument through the doctrine of invited
error. United States v. Parikh, 858 F.2d 688, 695 (11th Cir. 1988) (holding “the
admission of out of court statements by a government witness, when responding to
an inquiry by defense counsel, creates ‘invited error,’” because “[d]efense counsel
effectively caused the injury about which he now complains by questioning the
witness about the contents of the letter,” which was the objectionable matter).
However, we need not, and do not, rely on invited error because the district
court gave a strong curative instruction, stating as a fact that none of the defendants
had anything to do with Saintonas’ death. This instruction cured any alleged
prejudice. See Thomas, 62 F.3d at 1343; United States v. Sanchez, 722 F.2d 1501,
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1508-09 (11th Cir. 1984) (holding that limiting instruction cured any prejudice to
the defendant when, in response to the prosecutor’s question, a witness stated that
the defendant had told him that two people were killed as a result of a failed drug
transaction during the conspiracy); see also United States v. Shenberg, 89 F.3d
1461, 1472 (11th Cir. 1996) (“We presume that a jury follows the court’s
instructions.”).
We acknowledge that Beaulieu relies heavily on United States v. Harriston,
329 F.3d 779, 786-89 (11th Cir. 2003), where this Court vacated a conviction and
ruled that a mistrial should have been declared based on the statements of a witness
that the defendant on trial had a prior murder conviction. Harriston is materially
different. For starters, the Harriston witness’s statements concerned a murder
conviction of the defendant on trial, and one of the predicate RICO acts charged
against that defendant was murder. Id. at 786-87. Here the statement was, at
worst, an implication that the defendants may have been involved in the death of
Saintonas. Importantly too, the testimony at issue in Harriston was elicited by the
prosecutor, rather than defense counsel. Id. at 786.
For these reasons and even under de novo review, we conclude that Beaulieu
has not shown any prosecutorial misconduct as to Saintonas’ death or Smith’s
lying. And the district court’s jury instruction cured any prejudice from Agent
Gimble’s responses to the questions posed by Beaulieu’s counsel.
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V. JUROR 11
Oscar and Beaulieu challenge three of the district court’s rulings made
during the jury’s deliberations: (1) the giving of an Allen 11 charge, both in its
contents and its timing; (2) the dismissal of Juror 11; and (3) the replacement of
Juror 11 with an alternate juror. We discuss what happened during the jury’s
deliberations and review each ruling in turn. 12
A. Background
On June 9—the second day of jury deliberations—Juror 11 sent the district
court a note. Juror 11’s note explained that, even though she had initially asserted
during voir dire that she had no bias concerning this case, her answer had changed.
Juror 11 asked to be excused from the case.
The government recommended excusing Juror 11 and seating an alternate.
The defendants requested that the district court question her. The district court
agreed with the defendants. When questioned by the district court, Juror 11
expressed concerns that the criminal justice system was prejudiced, that innocent
people were being convicted, and that the other jurors were biased. When asked to
specify, Juror 11 could not cite any examples of other jurors making biased
statements. Juror 11 went on to explain that, although she came into the case with
11
Allen v. United States, 164 U.S. 492, 17 S. Ct. 154 (1896).
12
On September 5, 2017, Beaulieu filed a motion to adopt the arguments advanced by
Oscar on this juror dismissal issue. This Court granted the motion on September 19, 2017.
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an open mind, she was now “in a defense mode” to “defend[] my people.” Juror
11 also noted that she and the other jurors could not come to an agreement after
discussing the case and that her disagreement was based on the law.
The government asked that Juror 11 be excused because she had expressed
bias. The defendants argued that Juror 11 should remain. The district court then
described its concern: “[M]y concern is that she has strongly stated that she doesn’t
believe she can continue to deliberate with the other jurors in light of her feelings
that they themselves are biased.” The district court recognized that “[i]t seems like
there’s a significant number in her mind of people who she believes are biased.”
Still, the district court noted, the jury had been deliberating for over a day.
Oscar moved for a mistrial while Beaulieu advocated that the jury be
instructed to renew their discussions with Juror 11 remaining on the jury. The
district court denied Oscar’s motion for a mistrial but chose not to dismiss Juror
11. The district court then gave the jury an Allen charge without any objections.
The district court used the Eleventh Circuit pattern modified Allen charge with
minor variations. See Eleventh Circuit Pattern Jury Instructions (Criminal Cases)
2010, Judicial Council of the Eleventh Circuit (June 21, 2010). The jury continued
to deliberate.
The next day, on June 10, the jury sent the district court another note,
stating: “A juror has expressed that the evidence is irrelevant and wants a hung
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jury. For count[s] 3 and 8. We all disagree. She has stated that she can not be
impartial and isn’t following the law.”
The government responded that if a juror is not deliberating, she should be
excused. Beaulieu argued that the jury was hung, and Oscar moved for a mistrial.
The district court—over Beaulieu’s and Oscar’s objections—questioned the jury
foreperson, who stated that the jury note was about Juror 11.
The district court questioned Juror 11 again. Juror 11 stated that she had
“tried to” follow the law but that “I don’t think that some of the decisions I really
did follow the law” because “too many emotions are involved in it.” Juror 11
accused the other jurors of being biased, although she clarified that she meant that
they were disrespectful of her and her opinions. At one point, Juror 11 stated, “No,
I am not fair,” before noting that she was “biased” because she was “defending”
herself, as the system “is still bad for a lot of people.” The district court then asked
Juror 11 to return to the jury room.
At this point, the government requested for a third time that Juror 11 be
removed because she had indicated that she could not be fair or deliberate. In
particular, the government highlighted Juror 11’s repeated statements that her
emotions were influencing her and that she had begun crying when discussing the
prospect of someone going to prison.
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Oscar moved for a mistrial, again. The district court denied Oscar’s motion,
explaining that it was removing Juror 11 and replacing her with an alternate
because Juror 11 had admitted that she was not following the law and could not
give any examples as to how the jury was biased. The district court instructed the
remaining jurors that it was bringing in an alternate, which meant that deliberations
would have to start anew. As consented to by the parties, the district court also
shortly thereafter substituted a second alternate for Juror 12 due to a family
medical emergency.
The next morning, on June 11, Oscar again moved for a mistrial, which the
district court denied. The district court instructed the jurors “to commence your
deliberations anew” at 9:06 a.m. Later that evening, at 6:35 p.m., the jury reached
its verdict, convicting Beaulieu of Counts One, Three through Six, and Eight and
acquitting him of Counts Two and Seven. The jury also convicted Oscar of both
counts charged against him.
B. Allen Charge
Oscar contends that a new trial is required because the Allen charge coerced
the jury requiring a new trial. We disagree and explain why. 13
13
We review a district court’s decision to give an Allen charge for abuse of discretion.
United States v. Bush, 727 F.3d 1308, 1320 n.6 (11th Cir. 2013). We may reverse only if we
find that, under the totality of the circumstances, the Allen charge was inherently coercive.
United States v. Chigbo, 38 F.3d 543, 545 (11th Cir. 1994); United States v. Brokemond, 959
F.2d 206, 208 (11th Cir. 1992).
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First, the text of the Allen charge given was the Eleventh Circuit pattern jury
instruction, which this Court repeatedly has held is appropriate and not coercive.
See, e.g., United States v. Bush, 727 F.3d 1308, 1320 (11th Cir. 2013); United
States v. Woodard, 531 F.3d 1352, 1364 (11th Cir. 2008).
Second, the timing of the Allen charge was also not coercive. With respect
to timing, it is within the trial court’s discretion to decide when to give an Allen
charge. United States v. Alonso, 740 F.2d 862, 877 (11th Cir. 1984). An Allen
charge is not “premature just because the jury did not expressly state that it was
deadlocked,” as “[o]ur precedent does not require such an express indication of
deadlock before the district court gives an Allen charge.” Bush, 727 F.3d at 1321.
Here, in giving the Allen charge, the district court properly interpreted Juror
11’s initial comments to indicate that the jury’s deliberations had stalled, especially
given that Juror 11 had stated that “we’re not going to get anywhere,” and that the
other jurors had “already figured out what they [were] going to do.” Juror 11 also
responded “yes” when the district court asked if the jurors “just can’t agree.”
Third, the fact that the jury continued to deliberate for several more days
reflects the non-coercive nature of the Allen charge. Fourth, the jury acquitted
Beaulieu of Counts Two and Seven, further suggesting that the district court’s
Allen charge did not coerce their deliberations.
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The Allen charge and its timing were not coercive, and did not taint the
entire trial or cause the resulting convictions to violate due process. Accordingly,
the district court did not abuse its discretion in giving the Allen charge.
C. Dismissing Juror 11
We also must reject Beaulieu’s claim that the district court erred in
dismissing Juror 11 and denying Oscar’s motions for a mistrial. 14 Generally,
courts should be cautious about dismissing a juror, unless it is evident that the juror
will impede a just outcome, and courts “may not dismiss a juror during
deliberations if the request for discharge stems from doubts the juror harbors about
the sufficiency of the government’s evidence.” United States v. Brown, 823 F.2d
591, 596 (D.C. Cir. 1987). Because a district court could misread a juror’s
motives, it must be cautious to avoid the danger “that a dissenting juror might be
excused under the mistaken view that the juror is engaging in impermissible
nullification.” United States v. Abbell, 271 F.3d 1286, 1302 (11th Cir. 2001).
Nonetheless, sometimes dismissal is appropriate. Good cause exists to
dismiss a juror “when that juror refuses to apply the law or to follow the court’s
instructions.” Id.; United States v. Thomas, 116 F.3d 606, 613 (2d Cir. 1997)
14
A district court’s denial of a motion for a mistrial is reviewed for an abuse of discretion.
United States v. Ronda, 455 F.3d 1273, 1296 n.33 (11th Cir. 2006); United States v. Dominguez,
226 F.3d 1235, 1247 (11th Cir. 2000). A district court’s decision to excuse a juror after the start
of deliberations is also reviewed for abuse of discretion. United States v. Polar, 369 F.3d 1248,
1253-54 (11th Cir. 2004); United States v. Abbell, 271 F.3d 1286, 1302 (11th Cir. 2001).
Whether a juror is following the law is a finding of fact, which this Court reviews for clear error.
Abbell, 271 F.3d at 1302-03.
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(“[Federal Rule of Criminal Procedure] Rule 23(b) dismissals have been upheld
repeatedly in cases where the trial court found that a juror was no longer capable of
rendering an impartial verdict.”). Ultimately, the district court should excuse the
juror “only when no ‘substantial possibility’ exists that she is basing her decision
on the sufficiency of the evidence.” Abbell, 271 F.3d at 1302 (describing this as a
“beyond a reasonable doubt” standard).
In questioning a juror, the district court also must take care not to invade the
secrecy of the jury’s deliberations and, thus, must “err on the side of too little
inquiry as opposed to too much.” United States v. Augustin, 661 F.3d 1105, 1133
(11th Cir. 2011) (quotation marks omitted). To put it differently, a reviewing court
“will reverse the district court only if [it] find[s] that [the district court] discharged
the juror ‘without factual support, or for a legally irrelevant reason.’” Abbell, 271
F.3d at 1302 (quoting United States v. Register, 182 F.3d 820, 840 (11th Cir.
1999)).
Each of the district court’s colloquies with Juror 11 demonstrates that the
district court did not abuse its discretion in dismissing Juror 11. In her second
colloquy with the district court—on June 10, the third day of jury deliberations—
Juror 11 stated that she was biased, was not “fair,” and was too emotional to follow
the law. These statements came in addition to Juror 11’s remarks on June 9, the
second day of jury deliberations, where she decried a biased criminal justice
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system and described her need to “defend [her] people.”15 Furthermore, towards
the end of the district court’s questioning on June 10, Juror 11 began crying when
discussing the prospect of the defendants going to prison. Indeed, Oscar concedes
that Juror 11 could not proceed once she became emotional.
Simply put, district courts are to be afforded significant discretion in
dismissing a juror. Id. at 1303. (“[T]he district court is uniquely situated to make
the credibility determinations that must be made . . . where a juror’s motivations
and intentions are at issue.”). Juror 11’s statements establish that “no ‘substantial
possibility’ exist[ed] that [Juror 11 was] basing her decision on the sufficiency of
the evidence,” id. at 1302, including her statements that (1) she was not following
the law; (2) she was biased; (3) she believed that “[t]here’s something—something
very wrong about the system”; (4) she could not be fair; and (5) she would not
deliberate with other jurors.
15
The district court’s colloquy with Juror 11 on June 9 went as follows:
JUROR NO. 11: But since I know they don’t have an open mind, we’re not going
to get anywhere. I had an open mind. I don’t have an open mind now because I
already know their agenda. I don’t have an open mind. I’m in a defense mode
right now. Defense.
THE COURT: You mean defense of yourself?
JUROR NO. 11: Defending my people.
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Because she refused to follow the law and admitted her inability to be fair,
the district court did not abuse its discretion when it dismissed Juror 11. 16
D. Replacing Juror 11 with an Alternate Juror
Even if Juror 11 was properly dismissed, the defendants argue that the
district court erred in replacing Juror 11 with an alternate juror and should have
allowed deliberations to proceed with 11 jurors. If a district court dismisses a
juror, it has the option to declare a mistrial or continue with 11 jurors. See United
States v. Gabay, 923 F.2d 1536, 1543 (11th Cir. 1991); Fed. R. Crim. P. 23(b)
advisory committee’s note to 1983 amendment (“The amendment provides that if a
juror is excused after the jury has retired to consider its verdict, it is within the
discretion of the court whether to declare a mistrial or to permit deliberations to
continue with 11 jurors.”). Generally, a jury in a criminal trial will consist of 12
jurors, but, where a juror is removed for good cause after the jury has retired to
deliberate, the district court can permit a jury of 11 to return a verdict. Fed. R.
Crim. P. 23(b)(3). This Court has long approved the procedure of proceeding with
16
Beaulieu argues, for the first time in his reply brief, that the district court abused its
discretion because it failed to identify what legal standard it employed in dismissing Juror 11. In
United States v. Abbell, this Court stated that a district court “is required to apply the ‘substantial
possibility’ standard . . . in coming to [its] determination that the juror is or is not basing her
decision on the sufficiency of the evidence.” 271 F.3d at 1303. After reviewing the trial
transcript, we are confident that the district court applied the correct standard and did not abuse
its discretion when it dismissed Juror 11 because it found that she was “unable to participate and
follow the law.” A district court is not required to use the magic words “substantial possibility”
or “beyond a reasonable doubt” when dismissing a juror. This is especially true here, where the
clear import of the district court’s ruling was that there was no substantial possibility that Juror
11 would participate fairly and follow the law in deliberations.
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11 jurors. United States v. Geffrard, 87 F.3d 448, 450-52 (11th Cir. 1996);
Shenberg, 89 F.3d at 1473; Gabay, 923 F.2d at 1543.
However, Federal Rule of Criminal Procedure 24(c) allows the district court
to replace a juror with an alternate whenever it finds that a juror is unable to
perform or is disqualified from performing his duties, which is what occurred here.
Fed. R. Crim. P. 24(c)(1). This Court has explained that the substitution of an
alternate juror after the jury has begun deliberating “constitutes reversible error
only if the defendant is prejudiced by the substitution.” United States v. Guevara,
823 F.2d 446, 448 (11th Cir. 1987). The biggest concern about the substitution of
an alternate juror after deliberations have begun is that the remaining jurors have
already decided the verdict and will coerce any replacements. See Shenberg, 89
F.3d at 1473.
In determining whether a defendant is prejudiced by the substitution of an
alternate juror, this Court considers several factors, such as the length and
complexity of the trial; the amount of time the jury had deliberated before a juror
was removed; the steps that the district court took to ensure that the alternate had
not been exposed to extrinsic information about the case; and whether the
remaining jurors began their deliberations anew after the alternate was substituted.
See Guevara, 823 F.2d at 448.
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Here, this trial involved multiple defendants, over a dozen counts, and 74
exhibits. Before the substitution the jury had deliberated for about five hours on
Friday and a full day on Monday and Tuesday (June 9 and 10). At the beginning
of trial, the district court instructed all of the prospective jurors to avoid extrinsic
evidence and “base [their] decision only on the evidence presented in court.”
Subsequently, the district court also instructed twice that the jury should deliberate
“anew”—first on June 10 and again the following morning after substituting the
two alternate jurors. 17 United States v. Acevedo, 141 F.3d 1421, 1426-27 (11th
Cir. 1998) (“We assume that jurors follow their instructions.”). And the district
court had not only orally instructed the jury and alternates before any deliberation
but also had given the jury its instructions in writing, obviating any need to
recharge the jury with the alternates seated.
At bottom, Oscar and Beaulieu doubt that the two substituted jurors could
have actually “deliberate[d] anew,” as the other jurors had already been
deliberating for several days. True, replacing an excused juror with an alternate
after deliberations have begun is not favored. Geffrard, 87 F.3d at 452. But
neither is having to dismiss a disruptive juror because of clear and expressed bias
and refusal to follow the law. It is noteworthy too that the newly constituted jury
17
When the initial 12 jurors retired to deliberate, the district court presciently explained to
the two alternates that, “one of you or both of you could be called in to participate in the
deliberations” and “[i]f that did happen, then we would instruct the jurors, look, you’ve got to
start from square one.”
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deliberated for approximately nine more hours after the alternate jurors were
substituted, indicating that the jury did in fact renew its deliberations. And the jury
acquitted Beaulieu of two counts, suggesting it fairly and thoroughly evaluated the
trial evidence.18
This case is somewhat unique in that two alternates were substituted at the
same time, which diminished the risk of coercion. Proceeding with a jury of 12
with two new jurors also theoretically decreased the chances of conviction.
Guevara, 823 F.2d at 448 (“A criminal defendant quite reasonably may prefer to
have his fate decided by a jury of twelve rather than a smaller group of eleven. The
additional juror is one more person whom the government must convince beyond a
reasonable doubt of the defendant’s guilt.”) Here, there were two more jurors who
had to be convinced by the government’s evidence. Under the totality of the
circumstances, we conclude that the district court did not abuse its discretion in
replacing Juror 11 with an alternate juror.
VI. MOTION TO SEVER
Oscar appeals the district court’s denial of his motion to sever his trial from
that of Beaulieu and Dalpe.
18
We do point out that the district court could have ordered that all juror notes compiled
during prior deliberations be confiscated. While that is good practice, we cannot say that it is
required.
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A. Background
On May 27, 2014, approximately a week before his trial, Oscar filed a
motion to sever his trial from that of his co-defendants, which the district court
denied. In its order, the district court explained (1) that Oscar did not establish
prejudice because his crimes arose out of “a single string of controlled transactions
all comprising a single investigation,” (2) that the case “[was] not particularly
complex,” and thus the jury was not likely to misapply evidence to the wrong
defendant, and (3) that any purported prejudice could be mitigated by a cautionary
instruction to the jury.
During trial, Oscar renewed his severance motion twice, arguing that he was
prejudiced because Beaulieu and Dalpe had confessed to their crimes whereas he
had not. The district court denied both motions.
B. Compelling Prejudice Standard
The general rule is to try defendants indicted together in the same trial.
United States v. Lopez, 649 F.3d 1222, 1234 (11th Cir. 2011); United States v.
Cassano, 132 F.3d 646, 651 (11th Cir. 1998). However, a severance under Rule 14
may be granted if a defendant can demonstrate that a joint trial will result in
“specific and compelling prejudice” to his or her defense. United States v. Liss,
265 F.3d 1220, 1228 (11th Cir. 2001) (discussing Federal Rule of Criminal
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Procedure 14); see also United States v. Eyster, 948 F.2d 1196, 1214 (11th Cir.
1991).
This is a heavy burden. “Compelling prejudice” requires a defendant to
establish that a joint trial “would actually prejudice the defendant and that a
severance is the only proper remedy for that prejudice—jury instructions or some
other remedy short of severance will not work.” Lopez, 649 F.3d at 1234. The
defendant must show that a jury will be unable, due to the complex nature of the
evidence, to make a reliable determination of guilt for each defendant. Id. at 1235.
The mere fact that there may be an enormous disparity in the evidence admissible
against one defendant compared to the other defendants is not a sufficient basis for
reversal. United States v. Schlei, 122 F.3d 944, 984 (11th Cir. 1997).
“A defendant does not suffer compelling prejudice, sufficient to mandate a
severance, simply because much of the evidence at trial is applicable only to co-
defendants.” Id. (quotation marks omitted). Conclusory allegations of spillover
prejudice will not satisfy this heavy burden. United States v. Francis, 131 F.3d
1452, 1459 (11th Cir. 1997). In other words, the “potential for prejudice from a
joint trial is not enough.” Lopez, 649 F.3d at 1234, 1236-41 (determining that
defendants charged with drug trafficking had not established compelling prejudice
due to joinder with co-defendants charged for capital murder); United States v.
Knowles, 66 F.3d 1146, 1158-60 (11th Cir. 1995). Further, where the district court
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gives a curative instruction to address prejudicial evidence, this Court will reverse
only where the evidence was so highly prejudicial that it could not be cured by the
district court’s admonition. United States v. Funt, 896 F.2d 1288, 1295-96 (11th
Cir. 1990).
C. Analysis
Here, the district court did not abuse its discretion in denying Oscar’s motion
for severance. As the trial evidence demonstrated, the defendants shared a
criminal network. Indeed, Oscar benefited from this network, using Saintonas’
connection to the UA to make his gun sales.
Any potential spillover effect of the drug sales was substantially mitigated
by the UA’s testimony that Oscar never tried to sell him drugs. Any concerns that
the evidence against Beaulieu would prejudice Oscar’s defense were also mitigated
by the district court’s two cautionary instructions to the jury. Lopez, 649 F.3d at
1235 (reiterating that a district court’s cautionary instructions to the jury
“ordinarily will mitigate the potential ‘spillover effect’ of evidence of a co-
defendant’s guilt” (quoting United States v. Kennard, 472 F.3d 851, 859 (11th Cir.
2006))). The district court gave the first instruction before an expert witness
testified about the connection between drug sales and guns. The district court
instructed the jury as follows:
[W]e are having one trial because a lot of the witnesses’ testimony
relates to more than one defendant, sometimes all three defendants,
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and so rather than have three sets of jurors listening to this and have
the witnesses come in two or three times, we try the cases together for
the convenience of everybody.
But there really are three separate trials going on and part of the
instructions is your verdict as to one defendant should not affect your
verdict as to any of the other defendants in this case.
So as to this particular witness, his testimony is only admissible
against the defendant Hypico Beaulieu. I am not telling you to accept
his testimony, that you have to use it against Mr. Beaulieu, but I am
just saying you can’t consider it against the other defendants. It is only
admissible for whatever value you think it has as to Mr. Beaulieu.
Then before jury deliberations, the district court instructed the jury to consider
each crime and each defendant “separately and individually,” as follows:
Each count of the superseding Indictment charges a separate crime
against one of the defendants. You must consider each crime and the
evidence relating to it separately. And you must consider the case of
each defendant separately and individually. If you find a defendant
guilty of one crime, that must not affect your verdict for any other
crime or any other defendant.
I caution you that each defendant is on trial only for the specific
crimes charged in the superseding Indictment. You are here to
determine from the evidence in this case whether each defendant is
guilty or not guilty of those specific crimes.
Indeed, the jury convicted Beaulieu of some crimes, but not others, evidencing
individual examination of each crime. Given the UA’s testimony and these two
instructions, Oscar has not met his heavy burden to show specific and compelling
prejudice.
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VII. BEAULIEU’S SENTENCE
Beaulieu appeals his sentence imposed under the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e). 19
A. Presentence Report and Sentencing
The Presentence Report (“PSR”) calculated that Beaulieu had an adjusted
offense level of 30 without the ACCA increase, consisting of (1) a base offense
level of 24 under U.S.S.G. § 2K2.1(a)(2) because Beaulieu had at least two prior
felony convictions for a crime of violence or controlled substance offense; (2) a
two-level increase under § 2K2.1(b)(4)(A) because the firearm was stolen; and (3)
a four-level increase under § 2K2.1(b)(6)(B) because Beaulieu possessed the
firearm in connection with another felony. Beaulieu had 10 criminal history
points, yielding a criminal history category of V. The district court sustained
Beaulieu’s objection to the four-level increase under § 2K2.1(b)(6)(B), but
overruled his objection to the two-level increase for the stolen firearm. 20 That
made Beaulieu’s offense level 26. The PSR also noted that Beaulieu was a career
19
This Court reviews de novo the district court’s interpretation of the Sentencing
Guidelines and its application of the Guidelines to the facts. United States v. Moran, 778 F.3d
942, 959 (11th Cir. 2015). When timely objections are made in the district court, we review de
novo whether a prior conviction qualifies as a predicate offense under the ACCA. United States
v. Green, 873 F.3d 846, 869 (11th Cir. 2017).
20
The firearm retrieved from Beaulieu’s bedroom during his arrest had been reported
stolen during a residential burglary in Coral Gables, Florida in 2011.
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offender under § 4B1.1(a), which increased his offense level to 32. On appeal,
Beaulieu has not challenged these calculations.
However, the PSR and the district court also determined that Beaulieu was
an armed career criminal based on three prior convictions for violent felonies, with
one being his conviction for Florida burglary under Florida Statute § 810.02. This
increased Beaulieu’s total offense level to 33. Beaulieu’s criminal history category
of V, combined with his total offense level of 33, resulted in an advisory guidelines
range of 210 to 262 months of imprisonment.
During the October 3, 2014 sentencing hearing, Beaulieu argued that his
Florida burglary conviction was not a violent felony under the ACCA and thus that
he did not have the three required predicate offenses. The district court disagreed
under the applicable precedent at the time. The district court sentenced Beaulieu to
210 months’ imprisonment on Counts One, Three, Four, Six, and Eight, and 120
months’ imprisonment on Count Five, all to run concurrently.
B. Johnson and Esprit
Under the ACCA, a felon who is convicted of illegally possessing a firearm
and has at least three prior convictions for a “violent felony” or “serious drug
offense” receives a mandatory minimum sentence of 15 years’ imprisonment. 18
U.S.C. § 924(e)(1). The ACCA defines a “violent felony” as any crime punishable
by a term of imprisonment exceeding one year that:
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(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another[.]
Id. § 924(e)(2)(B).
The first prong of this definition is sometimes referred to as the “elements
clause,” while the second prong contains the “enumerated crimes clause” and what
is commonly called the “residual clause.” United States v. Owens, 672 F.3d 966,
968 (11th Cir. 2012). In Johnson v. United States, the Supreme Court held that the
ACCA’s residual clause is unconstitutionally vague, but did not call into question
the ACCA’s elements clause or the enumerated crimes clause. See Johnson v.
United States, 576 U.S. ___, 135 S. Ct. 2551, 2557-58, 2563 (2015).
Subsequently, this Court held that a Florida burglary conviction under
Florida Statute §§ 810.02(1)(b)(1) and 810.011(2) no longer constitutes a violent
felony under the ACCA. United States v. Esprit, 841 F.3d 1235, 1241 (11th Cir.
2016). More specifically, in Esprit, this Court held that a Florida burglary
conviction under Florida Statute §§ 810.02(1)(b)(1) and 810.011(2) cannot serve as
an ACCA predicate offense under the enumerated offense clause and “indisputably
does not implicate the elements clause.” Id. at 1237, 1240-41.
Thus, after Johnson and Esprit, Beaulieu’s particular Florida burglary
conviction does not count for the purposes of the ACCA. And even looking at all
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of the other convictions listed in the PSR, we conclude that Beaulieu has only two
prior convictions that qualify as violent felonies. We vacate Beaulieu’s sentence
because he is not subject to the ACCA’s enhanced penalties and is not an armed
career criminal as defined under U.S.S.G. § 4B1.4(a).
VIII. CONCLUSION
For all of the above reasons, we affirm Oscar’s and Beaulieu’s convictions.
However, under Johnson and Esprit, we vacate Beaulieu’s sentence on Count Eight
and remand to the district court to resentence him without the ACCA
enhancement. 21
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
21
On appeal Beaulieu advances an ineffective-assistance-of-counsel claim, citing his trial
counsel’s failure to file a motion to suppress. Beaulieu argues that the statements he made to
federal law enforcement officers on April 11, 2013—the day he orchestrated the ruse to rob the
UA of $2,300—were elicited from him in violation of his Fifth Amendment rights. Beaulieu
further contends that the search of his residence, and the resulting seizure of the money from the
robbery, violated his Fourth Amendment rights because his consent to the search was not
voluntary.
Because the record is not developed on this claim, we will not address it on direct appeal.
United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002) (“We will not generally consider
claims of ineffective assistance of counsel on direct appeal where the district court did not
entertain the claim nor develop a factual record.”).
43