United States v. Wade Parker

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15017 ELEVENTH CIRCUIT
APRIL 14, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-60238-CR-WJZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WADE PARKER,
a.k.a. George Toogood,
ISHWADE SUBRAN,
ANTHONY FOSTER,
a.k.a. Daymion Johnson,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(April 14, 2010)
Before EDMONDSON, BIRCH and FAY, Circuit Judges.
PER CURIAM:
Wade Parker, Ishwade Subran, and Anthony Foster appeal from their
convictions, which were obtained after a joint trial. Each defendant argues that the
evidence was insufficient to sustain one or more of his convictions. Parker and
Subran contend that the evidence was insufficient to support their convictions for
possessing a firearm in furtherance of a drug trafficking offense, in violation of 18
U.S.C. § 924(c)(1). Subran also argues that the evidence was insufficient to
support his conviction for possessing a firearm as a convicted felon, in violation of
18 U.S.C. §§ 922(g). Parker argues that the evidence was insufficient to sustain his
conviction for unlawfully re-entering the United States after previously having
been removed from the United States, in violation of 8 U.S.C. § 1326(a). In
addition, Foster asserts that the evidence was insufficient to sustain his conviction
for attempt to possess with intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(b)(1)(A).
The defendants also challenge various evidentiary rulings by the district
court. Parker contends that the district court erred in permitting Officer Steve
McKean to testify about the origin and purpose of the Street Terror Offender
Program (“STOP”), in violation of Fed.R.Evid. 401, 403, 701, and 704(b). Foster
has adopted this argument. In addition, Foster contends that this same testimony
2
violated Fed.R.Evid. 404(b). Subran argues that the district court erred by
admitting into evidence his recorded statements concerning his probationary status
and previous incarceration, asserting that this evidence violated Fed.R.Evid. 401,
402, 403, and 404(b). Foster argues that the district court erred in admitting a
recorded exchange between himself and Subran, asserting that police officers
acquired this recording in violation of his Fifth Amendment right to remain silent.
In addition, the defendants raise issues regarding the jury instructions and
the prosecution’s closing argument. Subran argues that the district court erred by
declining to issue a missing witness instruction to the jury, and Foster has adopted
this argument. Foster also asserts that the district court erred by permitting the
prosecutor, during his closing and rebuttal arguments, to make certain statements
concerning the credibility of the witnesses who testified at trial, as these remarks
amounted to an impermissible comment on his failure to testify in his own defense.
In addition, Foster argues that these same statements by the prosecutor amounted
to an impermissible argument that he bore the burden of proving that he was
innocent.
Finally, Foster also contends that the district court erred by ordering that his
mandatory minimum sentence for his firearm offense under 18 U.S.C. § 924(c)
must run consecutively to his mandatory minimum sentence for his drug
3
trafficking offense under 21 U.S.C. § 841.
For the reasons set forth below, we affirm.
I.
In a superseding indictment, a federal grand jury charged Parker, Subran,
Foster, and Patrick Aiken with the following: (1) robbery, in violation of 18 U.S.C.
§ 1951(a) (“Count 1”); (2) conspiracy to possess with intent to distribute at least
five kilograms of cocaine, in violation of 21 U.S.C. § 846 (“Count 2”); (3) attempt
to possess with intent to distribute at least five kilograms or more of cocaine, in
violation of 21 U.S.C. § 841(b)(1)(A) (“Count 3”); (4) conspiracy to use and carry
a firearm during and in relation to a crime of violence and a drug trafficking
offense, as set forth in Counts 1-3, in violation of 18 U.S.C. § 924(o) (“Count 4”);
(5) using and carrying a firearm during and in relation to a crime of violence and a
drug trafficking offense, as set forth in Counts 1-3, in violation of 21 U.S.C.
§ 924(c)(1) and 18 U.S.C. § 2 (“Count 5”); and (6) possessing a firearm as a
convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(e) (“Count 6”). In
addition, the jury charged Parker with: (1) possessing a firearm as an alien
unlawfully inside the United States, in violation of 18 U.S.C. § 922(g)(5) (“Count
7”); and (2) unlawfully entering the United States after having previously been
removed from the United States, in violation of 8 U.S.C. § 1326(a) (“Count 8”).
4
Foster filed a motion to sever his trial or, in the alternative, to exclude a
recording of an exchange between himself and Subran. In his motion, Foster
asserted that he had invoked his right to remain silent after he was arrested on
September 19, 2007. Thereafter, police officers placed him, along with Aiken, in
the backseat of a patrol car that was equipped with recording equipment. Foster
alleged that, because neither he nor Aiken made inculpatory statements, the
officers moved him to the backseat of another patrol car, which was occupied by
Subran. This patrol car was also equipped with recording equipment. Once Foster
was inside the second patrol car, Subran asked Foster if he thought that the police
had discovered their car, and Foster responded, “Of course.” Subran then told
Foster that, had they conducted things differently on September 19, they possibly
could have avoided arrest. Foster did not respond to this statement. Subran then
asked Foster if the police had found a gun on his (Foster’s) person. Foster did not
respond to this statement. Foster argued that, if the government were permitted to
introduce this recording at trial, this use of his silence in the face of Subran’s
incriminating accusations would violate his Fifth Amendment right to remain
silent.
The magistrate judge held a hearing, during which she addressed Foster’s
motion. During the hearing, Foster argued that, after he was arrested and advised
5
of his Miranda rights, the police placed him in a patrol car with Subran as an
interrogation technique. Foster argued that this action amounted to a violation of
his Fifth Amendment right to remain silent, asserting that the police officers used
Subran as an unwitting government agent to elicit incriminating statements from
him.
The magistrate issued a report and recommendation, recommending that the
court deny Foster’s motion to sever his trial or exclude the patrol-car recording.
The magistrate reasoned that the government was permitted to comment on a
defendant’s silence when it occurred after his arrest but before he received his
Miranda1 warnings. The court adopted the report and recommendation, noting that
none of the defendants had objected to the report.
Subran filed a pre-trial discovery motion, requesting that the court order the
government to disclose the name and address of a confidential informant (“CI”)
involved in the case, who was later identified as Langford Jackto. Subran asserted
that Jackto made numerous attempts to convince him to commit illegal acts, and
that he would not have become involved in criminal activity absent Jackto’s
misconduct. Subran argued that evidence of his interactions with Jackto could
support an entrapment defense.
1
Miranda v. Arizona, 384 U.S. 436, 458-71, 86 S.Ct. 1602, 1619-26, 16 L.Ed.2d 694 (1966).
6
The magistrate judge granted Subran’s motion in part, finding that he had
“proffered some minimal evidence of entrapment.” The magistrate ordered that:
1. The Government will inquire of the [CI] whether he/she desires
to speak with defendant’s counsel. If the [CI] desires to speak
with counsel, the Government shall make arrangements for an
interview to take place at a time convenient to all parties, and
2. The Government shall, at time of trial, produce the [CI] if the
defendant wishes to call the informant as his witness.
Aiken subsequently filed a motion to dismiss the indictment, in which he
noted that the government had informed him that Jackto was not available to testify
at trial. He argued that the court should dismiss the indictment because Jackto’s
testimony was necessary to his entrapment defense, and it would violate his due
process rights to proceed without this material witness. Subran joined in Aiken’s
motion.
The government responded, explaining that Jackto’s whereabouts were
unknown. The government argued that the court should not dismiss the indictment
because Aiken and Subran could not show that Jackto’s testimony would be
favorable to them.
After another hearing, the magistrate issued a report and recommendation,
recommending that the court deny the motion to dismiss the indictment. In its
motion, the magistrate noted that the only witness who testified at the hearing was
Detective Jason Hendrick, who was employed by the Broward County Sheriff’s
7
Office and supervised Jackto. Hendrick testified that Jackto was arrested on state
charges and, in August 2007, was sentenced based on these charges. Thereafter,
immigration authorities advised Jackto that he was removable based on his state
conviction, and that he could choose between formal deportation and voluntary
departure (i.e. self-deportation). Jackto informed Hendrick that he intended to
deport himself. On October 3, 2007, Jackto told Hendrick that he would leave for
his home country, Jamaica, the following day, October 4. On the morning of
October 4, Hendrick went to Jackto’s house and ascertained that he was not at
home. Hendrick later discovered that Jackto did not board his scheduled flight.
Based on these facts, the magistrate found that the government was not responsible
for Jackto’s unavailability. Moreover, the magistrate found that Aiken and Subran
did not offer any proof that Jackto would have testified that he used impermissible
tactics to induce them into criminal activity.
The court adopted the magistrate’s report and recommendation. Aiken
subsequently entered a guilty plea in this case.
Subran also filed a motion in limine to exclude recordings of post-arrest
statements that he made to Parker and Foster while they were sitting in the back of
a police car after their arrests. He explained that he had made statements
concerning the following subjects: (1) the fact that he was on probation at the time
8
of his arrest; and (2) the fact that he previously had served a term of imprisonment,
during which time he became friends with Jackto. He argued that these statements
should be excluded as irrelevant under Fed.R.Evid. 401, 402, and 403.
The government responded, generally arguing that evidence of Subran’s
association with Jackto and probationary status were relevant in light of his
entrapment defense. The government contended that evidence of Subran’s
relationship with Jackto provided an important context for analyzing the
interactions between Subran and Jackto. The government also argued that
Subran’s probationary status was relevant, since the fact that he had been close to
completing his probation at the time of the present offense made it less likely that
he could have been coerced into participating in the offense.
Immediately before the trial began, the court denied Subran’s motion to
exclude his statements regarding his probationary status and his association with
Jackto during his incarceration. The court reasoned that the probative value of this
evidence was not outweighed by its potential to prejudice Subran. Subran objected
to the court’s ruling. Also before trial, the court and the parties agreed that any
objection made by one defendant would be adopted by the other defendants, unless
otherwise specified.
At trial, McKean, a special agent employed by the Bureau of Alcohol,
9
Tobacco, and Firearms (“ATF”), testified that he had helped to create STOP in
1991. McKean explained that the purpose of STOP was to investigate home-
invasion narcotics robberies. He explained that STOP agents focus on,
“identifying these groups that are committing these robberies in South Florida,
trying to infiltrate these groups to confirm that they are doing these robberies and
subsequently incarcerate them.” McKean provided a brief summary of the systems
that STOP previously used in order to apprehend robbers, and explained that these
past systems were dangerous for government agents because they often led to
shootings. Subran objected that this testimony was not relevant under Fed.R.Evid.
401, 402, and 403. The court overruled the objection.
McKean further testified that STOP currently used an investigation system
whereby a CI would inform a government agent that he had been approached by an
individual who wished to commit a narcotics robbery. The agent would then
instruct the CI to tell the potential robbers that he could arrange a meeting with
someone who was seeking individuals to rob a quantity of cocaine, which usually
was 15 kilograms. Foster objected to McKean’s testimony on the ground that it
was not relevant because it was not specific to the present case. The court
sustained the objection, and instructed the government to focus on the present case.
Foster moved for a mistrial, arguing that McKean’s testimony did not pertain to the
10
present case and that, instead, his testimony had focused on other cases and the
activity of “dangerous drug gangs.” He asserted that McKean’s general testimony
about drug gangs was “almost like [Fed.R.Evid.] 404(b) evidence” because it
influenced the jury to believe that the defendants must be involved with these
gangs. The court denied the motion.
McKean explained that Jackto provided him with information regarding the
present case on August 20, 2007. He instructed Jackto to tell Subran that he
(Jackto) knew someone who needed individuals to rob approximately 15 kilograms
of cocaine from a stash house. McKean also instructed Jackto to set up a meeting
where he, Jackto, and Subran could discuss the robbery. Jackto set up a meeting
with Subran, which was to take place on August 24, 2007, at a Hooters Restaurant
in Sunrise, Florida. McKean, Jackto, Subran, and Aiken attended the meeting.
During the meeting, McKean introduced himself as a disgruntled drug courier
working for a Colombian drug organization. When he told Subran and Aiken that
he wanted them to rob the Colombian organization’s stash house, he mentioned
that there likely would be one or two armed individuals guarding the stash house.
Aiken stated to McKean that he had no problem with armed guards. McKean also
told Subran and Aiken that the location of the organization’s stash houses changed
with each delivery. He explained that the drug organization would call him to
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inform him of the stash house location the day before he was scheduled to pick up
cocaine for transport. The meeting ended with McKean and Aiken agreeing that
they would meet again about the robbery in the future.
On August 29, 2007, McKean and Jackto met with Subran, Aiken, and
Parker at the same restaurant. McKean reviewed the details of the robbery with
Subran, Aiken, and Parker, including the fact that an armed individual would likely
guard the stash house, and they told him that they were ready to commit the
robbery soon. Subran suggested that they could assault the stash house as McKean
entered it to pick up his cocaine for delivery. Subran provided McKean with his
contact information. They agreed that McKean would contact Subran when a
shipment of cocaine arrived. On September 2, Subran called McKean and told him
that he wished to set up an additional meeting regarding the robbery. On
September 4, McKean, Jackto, Parker, Subran, and Aiken again met at the Hooters
in Sunrise. During this meeting, McKean stated that it seemed like the robbery
would be difficult, and both Subran and Aiken assured McKean that the robbery
would be easy.
McKean further testified that, on September 14 and 17, Subran called him in
order to check on the status of the proposed robbery. On September 18, McKean
called Subran and informed him that he had been in touch with the Colombian drug
12
organization, and that a shipment of cocaine would arrive on the following day.
Shortly thereafter, Subran called McKean and informed him that they were ready
to conduct the robbery. On September 19, McKean and Subran had several
telephone conversations, during which McKean instructed Subran to get in touch
with Jackto, and that Jackto would lead Subran, Parker, and Aiken to a location to
meet with McKean. Thereafter, Subran, Parker, Aiken, and Foster met with Jackto
at Hooters, and then followed Jackto to a gas station to meet with McKean. When
McKean arrived at the gas station, he saw that Aiken, Parker, and Subran were in a
silver Infiniti. He also saw a black Honda that Aiken had driven to one of their
previous meetings, and saw that an individual, who he later learned to be Foster,
was driving the Honda. From the gas station, Aiken, Subran, Parker, and Foster
followed McKean to a building that he had identified as his undercover business.
McKean further testified that, after they all entered the undercover business,
he reviewed the details of the robbery. He directed this conversation to Foster,
specifically stating that they would steal 15 kilograms of cocaine. Either Subran or
Parker assured McKean that Foster was familiar with the robbery details because
he was part of their group. McKean averred that he reviewed all of the details of
the robbery in Foster’s presence, and that Foster did not indicate an unwillingness
to go ahead with the robbery. Subran and Aiken informed McKean that, because
13
they had to pretend that McKean was not involved in the robbery scheme, they
would tie him up along with the individuals guarding the stash house. Subran and
Aiken also told McKean that he should remove his jewelry, because they were
going to steal the guards’ jewelry and did not want to steal his as well. Thereafter,
McKean, Jackto, Subran, Parker, Aiken, and Foster remained inside the undercover
business and waited for the drug organization to call McKean with the address of
the stash house. During this time, McKean gave an arrest signal, and government
agents arrested the defendants.
McKean further testified that, after the arrests, the officers placed the
defendants into police cars equipped with recording devices. The officers initially
placed Subran in the same patrol car as Aiken, but subsequently moved Subran into
a patrol car with Foster. At this point in McKean’s testimony, the government
offered the tape of the recorded patrol-car conversation between Subran and Foster
into evidence. None of the defendants raised an objection.
McKean and Hendrick took statements from Parker and Subran. Both
Parker and Subran admitted that they had met with McKean for the purpose of
robbing 15 kilograms of cocaine. In his statement, Subran added that Jackto had
approached him about the robbery, and that he (Subran) then approached Aiken
about the scheme. Subran also stated that, on the night of the robbery, he and
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Aiken had arrived at the restaurant in Aiken’s black Honda. Parker and Foster
arrived in the silver Infiniti. When they reached the gas station, Aiken got into the
Infiniti, and Foster switched cars to drive the Honda. Subran had not met Foster
until the evening of the robbery.
On cross-examination, McKean confirmed that Jackto was paid
approximately $50 a day for his involvement in the present case, and that he
received a reward of $2,500 because the investigation was successful. McKean
agreed that the term “entrapment” generally refers to a situation where a
government agent or a CI pressures or persuades an unwilling individual to commit
a criminal offense. When Jackto became a documented ATF informant in August
2007, ATF agents explained the meaning of entrapment to him, and instructed him
that he was not permitted to engage in entrapment. In this case, McKean
specifically instructed Jackto that he should tell Subran only that he knew someone
who was interested in finding individuals to rob 15 kilograms of cocaine. McKean
conceded that there were no recordings of Jackto’s conversations with Subran that
occurred before the August 24 meeting at Hooters. He did not know if “persistent
pressure” had been placed on Subran in order to get him to attend meetings about
the robbery. He reiterated that he instructed Jackto that his conduct should be
limited to mentioning the robbery to Subran and setting up an initial meeting.
15
McKean admitted that he did not know whether Jackto had made additional
statements about the robbery to Subran.
On cross-examination, McKean also testified that, when he, Jackto, Subran,
Parker, Foster, and Aiken arrived at the undercover location, he observed that
Aiken had been driving the silver Infiniti, and that Parker had been seated in the
front passenger seat. Subran had been seated on the right-hand side of the car’s
backseat. McKean admitted that he did not know Jackto’s current whereabouts,
and that Jackto was “on the run.” On the last occasion that he saw Jackto, McKean
did not tell him that he needed to remain available in order to testify in the present
case. McKean had been aware that immigration authorities were going to schedule
Jackto for deportation, and that Jackto planned to deport himself.
At this point during McKean’s testimony, the parties had a sidebar
discussion regarding Jackto’s unavailability. During this discussion, Subran asked
that the court take judicial notice of the magistrate’s order that the government was
required to produce Jackto at trial if requested to do so by the defense. The court
took judicial notice of this order and read the substance of this order aloud to the
jury. McKean subsequently testified that he had been aware of the magistrate’s
order to produce Jackto upon the defense’s request, and that he had searched for
Jackto by checking various databases.
16
On redirect examination, McKean testified that, once he, Jackto, Parker,
Foster, Subran and Aiken were inside the undercover business, he asked Foster if
he was fully aware of what they were about to do. Before Foster could answer the
question, Aiken assured McKean that Foster was aware of the robbery plan.
McKean then stated that he was asking about Foster’s presence at the undercover
business because he wanted to make sure that their plan went forward without any
“surprises.” Parker told McKean that Foster knew “everything,” and that Foster
would be accompanying himself and Aiken into the stash house to conduct the
robbery. Subran would remain in the car as the getaway driver. Foster did not
object to these statements regarding his role in the robbery. While everyone was
still inside the undercover business, and in Foster’s presence, Parker demonstrated
the method by which they would enter the stash house. Parker pointed at Foster
and stated that both he and Foster would enter the house, and Foster did not object
to this arrangement. Thereafter, McKean stated that he would personally receive
five kilograms of cocaine from the robbery, and Foster responded by nodding and
smiling.
After McKean concluded his testimony, the government played a tape of the
patrol-car conversation between Subran and Foster in open court. None of the
defendants raised an objection. In addition, the government published to the jury
17
the tapes of Subran’s recorded patrol-car statements regarding his probationary
status and previous imprisonment.
William Flanery, an ATF agent, testified that he participated in the present
case as a member of the arrest team. Flanery had observed another agent arrest
Foster. Flanery further observed that the other agent asked Foster whether he had a
weapon, and Foster replied that he had a weapon in the waistband of his pants.
Flanery then saw that the agent instructed Foster, who had been lying on the floor,
to stand up. When Foster stood up, a gun fell out of his pants. Flanery secured the
gun and discovered that it was loaded.
Pamela Bradley, an ATF special agent and expert on interstate firearms,
testified that she had assisted with the present case by collecting and preserving
evidence. After the defendants were arrested, she searched the silver Infiniti and
discovered that a loaded pistol was between the driver’s seat and the center
console. Based on her examination of this firearm, Bradley opined that it was
manufactured outside of the state of Florida.
After Bradley concluded her testimony, the government and Subran
stipulated that Subran was convicted of a felony before August 24, 2007.
Imtiaz Baksh, an intelligence resource specialist employed by the ATF,
testified that he had analyzed the defendants’, McKean’s, and Jackto’s telephone
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records. As a result of this analysis, he discovered that, between July 1, 2007, and
September 19, 2007, there were 115 telephone calls between Foster and Parker.
Only five of these calls occurred between July 1 and August 28. Between August
29 and September 3, there were 15 telephone calls between Foster and Parker.
Between September 4 and September 18, there were 84 telephone calls between
Foster and Parker. Of these 84 calls, Foster called Parker 72 times, and Parker
made 12 calls to Foster. On September 19, Foster called Parker 11 times, and
Parker called Foster 7 times. On cross-examination, Baksh testified that, between
July 25, 2007, and August 24, 2007, there were numerous calls between Jackto and
Subran, and that most of these calls were initiated by Jackto. Between 10:13 a.m.
and 1:26 p.m. on August 24, Jackto called Subran nine times.
James Kocak, a special agent employed by U.S. Immigration and Customs
Enforcement (“ICE”), testified that he had been asked to investigate Parker’s
immigration status. Kocak reviewed Parker’s alien file (“A-file”), and learned that
Parker was a citizen of Jamaica, who previously had been removed from the
United States. Kocak confirmed that Parker’s A-file included Parker’s I-205 form,
which documents an alien’s removal from the United States. As the custodian of
Foster’s I-205 form, Kocak testified that this form showed that Parker was
removed from the United States to Jamaica in October 2000. The form bore
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Parker’s photograph. The form was signed by Isaiah Hughes, an ICE deportation
officer. By signing the form, Hughes had attested that he witnessed Parker’s
removal from the United States. Kocak also reviewed Foster’s I-294 form, which
reflected that he was not permitted to re-enter the United States. Kocak identified a
document referred to as a “certificate of non-existence of record,” which reflected
that he had inquired as to whether Parker had received permission to return to the
United States, and that no documents existed that indicated that Parker had
received such permission.
On cross-examination, Kocak testified that he did not personally witness
Parker leave the United States in October 2000. On redirect examination, he
testified that the I-205 form provided the signing deportation officer with a space
to identify the means by which he verified the alien’s departure, if such officer had
not personally witnessed the departure. Hughes had not written anything in this
space on Parker’s I-205 form, thereby attesting that he personally witnessed
Parker’s departure.
Subran moved for a judgment of acquittal as to Counts 5 and 6, arguing that
there was no evidence that he actually or constructively possessed a firearm, or that
he aided and abetted a codefendant in possessing a firearm. Parker adopted
Subran’s arguments as to Counts 5 and 6. In addition, Parker moved for a
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judgment of acquittal as to Counts 7 and 8, arguing that the government did not
meet its burden of proving that he had been physically removed from the United
States. Parker emphasized that Kocak had no personal knowledge of his removal
from the United States. Foster moved for a judgment of acquittal as to Counts 1-4,
arguing, among other things, that there was no evidence that he knew that a
robbery was going to occur on September 19.
Foster renewed his motion for a mistrial based on McKean’s testimony
regarding the STOP program. Subran and Foster adopted this motion. The court
denied the motion, finding that, even if McKean’s testimony regarding STOP were
prejudicial, it did not deprive the defendants of a fundamentally fair trial.
Before the defense presented its case, Subran noted, outside of the jury’s
presence, that he had intended to elicit Jackto’s testimony but could not do so. The
government confirmed that it did not know of Jackto’s whereabouts. Subran also
stated that, because the court had ruled that his recorded statements regarding his
probation and incarceration were admissible, he would deal with this evidence by
discussing it in his own testimony. He noted that he did not waive his objection to
his recorded statements being admitted into evidence.
Thereafter, Detective Hendrick testified consistently with the testimony he
had provided at the hearing before the magistrate regarding Aiken’s motion to
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dismiss the indictment. He added that, late September or early October, Jackto told
Hendrick that he was leaving for Jamaica, but did not indicate that he would be
leaving immediately. Hendrick responded by telling Jackto that he needed to be
available to testify in the present case and other cases. Part of Jackto’s agreement
with the government to work as a CI was to remain available to provide testimony,
and he violated this agreement by leaving for Jamaica before the trial in the present
case. Hendrick and Jackto came to an agreement whereby, after he deported
himself, the ATF would work to ensure that he was readmitted into the country so
that he could fulfill this obligations as a CI. In order for the ATF to be able to do
this, Jackto would need to deport himself rather than be forcibly deported. On
October 4, Hendrick went to the airport in order to ascertain whether Jackto
boarded his scheduled flight to Jamaica. He discovered that Jackto had not
boarded the flight. During the middle of October, Hendrick contacted McKean,
the Office of Immigration and Customs Enforcement (“ICE”), and the U.S. State
Department in an attempt to discover Jackto’s whereabouts. Federal agencies
searched for Jackto, and Hendrick visited Jackto’s former home twice and spoke
with Jackto’s previous attorney, but these efforts did not reveal Jackto’s
whereabouts.
Subran testified that he met Jackto in 2006, while they were both in prison at
22
the Broward County Jail. Before this time, he had seen Jackto at social gatherings,
but had not spoken with him. Based on their conversations in prison, Jackto knew
that Subran’s mother had cancer. In June 2007, after both Jackto and Subran had
been released from prison, Jackto called Subran and visited him at his (Subran’s)
apartment. During this visit, Subran informed Jackto that his mother’s cancer had
worsened, and that he was “barely surviving” on the money his mother sent to him
from Jamaica. On July 25, 2007, Jackto called Subran and proposed that Subran
participate in a cocaine robbery. Subran told Jackto that he was not interested in
the robbery but, at Jackto’s request, gave him permission to come over to his
apartment. Once he arrived at Subran’s apartment, Jackto again stated that he
knew someone who wanted to conduct a robbery of cocaine. Jackto told Subran
that the robbery would be easy, and that he knew that Subran needed the money.
Subran reiterated that he was not interested, and Jackto ceased to discuss the
proposition.
Subran further testified that Jackto mentioned the robbery to him again at
some point between July 25 and August 20, informing him that the robbery would
involve 15 kilograms of cocaine. Subran told Jackto that he would consider the
proposition. Jackto and Subran met again on August 20 and, during this meeting,
Jackto reiterated that the robbery would be easy, and also told Subran that he
23
would receive $40,000 from his participation in the robbery, which he could send
to his ailing mother. Subran accepted, reasoning that $40,000 was a large payment
in exchange for minimal effort. Subran admitted that, while he did not plan on
entering the stash house on September 19, he had agreed to act as the get-away
driver during the robbery. He conceded that he knew that the robbery would
involve a gun. On cross-examination, Subran admitted that, on September 19, he
knew that there was a gun in the Infiniti.
After Subran concluded his testimony, the defendants renewed their motions
for judgments of acquittal, which the court denied. Subran requested a missing
witness instruction, arguing that the government was responsible for Jackto’s
unavailability because Hendrick did not stop him from leaving the United States.
The court denied the request, reasoning that it had allowed Subran “wide latitude”
in presenting his evidence, and that the jury could weigh that evidence for itself.
In its instructions to the jury, the court instructed the jury that Subran
presented the defense of entrapment, explaining that a defendant is entrapped
where, “law enforcement officers or cooperating individuals under their direction
induce or persuade a defendant to commit a crime that the defendant had no
previous intent to commit.” In addition, the court instructed the jury that a
defendant is not required to prove his innocence. The court also instructed the
24
jury, at length, that the government was required to prove a defendant’s guilt
beyond a reasonable doubt.
During its closing statement, the government remarked:
The government submits to you that as you begin to use your common
sense, as you weigh the credibility of the witnesses, the judge has
already given you the questions you should ask. Did the witness
impress you as one who was telling the truth. Several witnesses in
this case, Special Agent McKean[,] Special Agent Flanery, Special
Agent Bradley, Special Agent Ray Roldan, Deputy U.S. Marshal
Cooper, Special Agent Justin Kocak, JoAnn Meisenheimer, Nathan
Kingsale, Imtiaz Baksh, Jason Hendrick, Steven Yuresko[,] and one of
the defendants in this case, Ishwade Subran, ask yourself that question
about all of those witnesses.
None of the defendants objected to this statement. During its rebuttal argument,
the government stated:
Here’s the thing about the witnesses you heard from. Everyone gets
in that same witness box, takes the same oath and swears to tell the
same truth. There’s a slight difference when one of those witnesses
comes from this table. Here’s the difference. That witness is the only
witness that you’ve heard from in this case that at the time they sat in
that chair had heard everything else that every other witness that sat in
that chair had said. That’s the one witness, the one that comes from
this table, that by the time they get there have seen every single thing
that’s on the table.
None of the defendants objected to this statement.
The jury found Subran guilty as to Counts 3-6, and not guilty as to Counts 1
and 2. The jury found Foster guilty as to Counts 1-6, and Parker guilty as to
Counts 1-8.
25
In Foster’s presentence investigation report (“PSI”), the probation officer
grouped Counts 1, 2, 3, 4, and 6 together pursuant to U.S.S.G. § 3D1.2(c). Having
grouped these offenses together, the officer determined that Foster’s base offense
level and total offense level was 34 under U.S.S.G. § 2D1.1(a)(3). The officer
further determined that, based on Foster’s offense level of 34 and criminal history
category of III, the applicable guideline range was 188 to 235 months’
imprisonment. As to Count 5, the officer found that, pursuant to 18 U.S.C.
§ 924(c)(1)(A), Foster was subject to a statutory mandatory term of 60 months’
imprisonment, to run consecutively to any other term of imprisonment imposed.
Foster did not file any objections to the PSI.
At sentencing, Foster stated that he had no objections to the PSI. Foster
further stated that he understood that the court was required to impose a sentence
of at least 60 months’ imprisonment as to Count 5, and that this sentence would
run consecutively to any other term of imprisonment. The court determined that it
was appropriate to sentence Foster at the middle of his guideline range, and
sentenced him to 260 months’ imprisonment. The court noted that this term of
imprisonment included a consecutive term of 60 months’ imprisonment as to
Count 5. The court asked the parties if there were any objections to its factual
findings and legal conclusions, and the parties stated that they had none. The court
26
also asked if the parties had any objections to the sentence or the manner in which
it was imposed, and the parties averred that there were none.
II.
“We review the sufficiency of the evidence presented at trial de novo. The
evidence is viewed in the light most favorable to the government, with all
inferences and credibility choices drawn in the government’s favor.” United States
v. LeCroy, 441 F.3d 914, 924 (11th Cir. 2006). “It is not necessary that the
evidence exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt, provided a reasonable trier
of fact could find that the evidence establishes guilt beyond a reasonable doubt.”
United States v. Young, 906 F.2d 615, 618 (11th Cir.1990).
In order to sustain a conviction under 18 U.S.C. § 924(c), the government
must show that a defendant used, carried, or possessed a firearm in furtherance of a
drug trafficking offense or a crime of violence. 18 U.S.C. § 924(c); United States
v. Gunn, 369 F.3d 1229, 1234 (11th Cir. 2004). “Possession may be actual or
constructive, joint or sole.” Id. “In order to establish constructive possession, the
government must show that the defendant exercised ownership, dominion, or
control over the firearm or the vehicle concealing the firearm.” Id. We have held
that a defendant constructively possessed a firearm based on his “knowledge of the
27
firearms coupled with his leadership role and proximity to the firearms.” Id. at
1236. Also, the government may demonstrate a defendant’s guilt under § 924(c)
by showing that his co-conspirator’s possession of a firearm was reasonably
foreseeable. Id.
In addition to demonstrating possession, the government must establish that
the defendant possessed a firearm in furtherance of a drug trafficking crime or a
crime of violence. United States v. Timmons, 283 F.3d 1246, 1252-53 (11th Cir.
2002). In order to meet its burden of proof as to this element, the government must
show a nexus between the firearm and the criminal activity, or, in other words, that
the defendant used the firearm to “advance or promote” the criminal activity. Id.In order to sustain a conviction under 18 U.S.C. § 922(g)(1), the government must
prove that a defendant: (1) previously was convicted of a felony offense; and
(2) knowingly possessed a firearm. 18 U.S.C. § 922(g)(1); Gunn, 369 F.3d at
1235.
Here, the evidence was sufficient to sustain both Subran’s and Parker’s
convictions for possessing a firearm in furtherance of a drug trafficking crime and
they may be affirmed under the theory of co-conspirator liability. One of Subran’s
and Parker’s co-conspirators, Aiken, drove the Infiniti on September 19 while a
gun was in between the driver’s seat and the car’s center console. Thus, Aiken
28
exercised dominion over both the Infiniti and the gun inside the Infiniti and, as a
result, constructively possessed a firearm. In his testimony, Subran conceded that
he was aware that the narcotics robbery would involve a gun, and that the Infiniti
contained a gun. Thus, it is clear that it was reasonably foreseeable to Subran that
the robbery would involve a gun. Because Parker was present at the August 29,
2007 meeting at Hooters, where McKean informed the defendants that at least one
armed individual would guard the stash house, it was also reasonably foreseeable
to Parker that the robbery would involve a gun. In addition, both Subran and
Parker stated to police officers that they had met with McKean for the purpose of
planning a narcotics robbery. As a result, the evidence showed that the object of
the conspiracy in this case was the theft of narcotics, and a jury could reasonably
infer that the gun inside the Infiniti would serve the purpose of countering the
armed guards at the stash house.
In addition, the evidence was sufficient to sustain Subran’s conviction for
possessing a firearm as a convicted felon under § 922(g). As noted above, Subran
was aware that the robbery would involve a gun, and that the car in which he was a
passenger on September 19 contained a gun. Moreover, Subran played an active
role in coordinating the offense by telling Aiken about the scheme, attending the
preparatory meetings with McKean, and calling McKean several times to arrange
29
meetings and check on the status of the robbery. Subran called McKean on
September 18 in order to let McKean know that they were ready to commit the
robbery, and, during meetings about the robbery, suggested when and how to enter
the stash house, and also suggested that McKean should remove his jewelry before
the robbery began. Thus, Subran played an active role in coordinating this offense,
knew about the gun in the Infiniti, and was in close proximity to this gun. As a
result, the jury could reasonably have concluded that Subran constructively
possessed a gun because he had the power and intention to exercise control over a
gun during the narcotics robbery.
III.
In order to demonstrate that a defendant is guilty of attempt to possess with
intent to distribute cocaine, the government must show that the defendant
“(1) acted with the kind of culpability required to possess cocaine knowingly and
willfully and with the intent to distribute it; and (2) engaged in conduct which
constitutes a substantial step toward the commission of the crime under
circumstances strongly corroborative of their criminal intent.” United States v.
McDowell, 250 F.3d 1354, 1365 (11th Cir. 2001).
Here, the evidence was sufficient to support Foster’s conviction for attempt
to possess with intent to distribute cocaine. Baksh testified that there was an
30
unusually high level of telephone calls between Foster and Parker between August
28 and September 19, which coincided with the period during which Parker,
Subran, Aiken, Jackto, and McKean planned the narcotics robbery. Foster
followed his codefendants to the undercover business, and carried a concealed gun
with him when he walked inside the undercover business. McKean, Subran,
Aiken, and Parker discussed the robbery in Foster’s presence, and Foster did not
indicate that he was unaware of the robbery, or unwilling to go forward with the
robbery. Moreover, McKean specifically directed his review of the robbery details
to Foster, and, when he questioned Foster’s presence, Parker assured McKean that
Foster knew “everything.” In addition, when McKean stated that he would receive
five kilograms of cocaine from the robbery, Foster smiled and nodded. Finally,
Foster did not object when Parker physically demonstrated the method by which he
would enter the stash house, pointed at Foster, and announced that Foster would
accompany him.
Based on the conversations inside the undercover business, the jury
reasonably could find that Foster was aware of the robbery and its object.
Moreover, because McKean testified that he reviewed all of the details of the
robbery in Foster’s presence, the jury could infer that Foster was aware that the
undercover building was being used as preparatory site for the defendants to gather
31
and review their tactics before committing the robbery. Because Foster arrived at
this building on September 19, remained in the building while the group waited for
the call from the drug organization, and carried a gun on his person, the jury
reasonably could have concluded that Foster took a substantial step toward
possessing cocaine.
IV.
In order to prove that a defendant violated 8 U.S.C. § 1326(a), the
government must show that the defendant is: (1) an alien; (2) who previously has
been deported from the United States; and (3) subsequently was found in the
United States without the Attorney General’s consent to apply for readmission.
United States v. Henry, 111 F.3d 111, 113 (11th Cir. 1997).
We have held that an alien’s warrant of deportation constitutes admissible
evidence of his guilt under § 1326(a). United States v. Cantellano, 430 F.3d 1142,
1145-56 (11th Cir. 2005). Such a document constitutes a routine record reflecting
“where, when, and how a deportee left the country.” Id. at 1145. Because a
deportation warrant constitutes admissible evidence relevant to a defendant’s
previous deportation, and the jury here was presented with such evidence, there
was sufficient evidence to support the jury’s determination that Parker violated
§ 1326(a).
32
V.
We review a district court’s decision regarding the admissibility of evidence
for abuse of discretion. United States v. Schlei, 122 F.3d 944, 990 (11th Cir.
1997). Where a defendant failed to object to evidence based on a particular
evidentiary ground before the district court, we review the defendant’s argument
that the evidence violated that particular evidentiary rule for plain error. United
States v. Ruiz, 253 F.3d 634, 640 (11th Cir. 2001). Under the plain-error standard
of review, we will correct an error “only if there was (1) error, (2) that is plain, and
(3) that affects substantial rights.” United States v. Williams, 408 F.3d 745, 748
(11th Cir. 2005) (quotation omitted). If these conditions are met, we may correct
the error if it “seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. (quotation omitted).
Under Fed.R.Evid. 401, evidence is “relevant” if it has “any tendency to
make the existence of any fact that is of consequence to the determination of the
action more probable or less probable.” Fed.R.Evid. 401. In general, relevant
evidence is admissible at trial. Fed.R.Evid. 402. Rule 403 provides, in part, that
relevant evidence “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury.” Fed.R.Evid. 403. “In evaluating the district court’s ruling
33
under Rule 403, we view the evidence in the light most favorable to admission,
maximizing its probative value and minimizing its undue prejudicial impact.”
United States v. Bradberry, 466 F.3d 1249, 1253 (11th Cir. 2006). “The court’s
discretion to exclude evidence under Rule 403 is narrowly circumscribed . . . Rule
403 is an extraordinary remedy which should be used only sparingly since it
permits the trial court to exclude concededly probative evidence.” United States v.
Church, 955 F.2d 688, 700 (11th Cir. 1992) (quotation and alteration omitted).
Rule 404 generally provides that “evidence of a person’s character or trait of
character is not admissible for the purpose of proving action in conformity
therewith.” Fed.R.Evid. 404(a). Under Fed.R.Evid. 404(b):
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident, provided that upon request
by the accused, the prosecution in a criminal case shall provide
reasonable notice in advance of trial, or during trial if the court
excuses pretrial notice on good cause shown, of the general nature of
any such evidence it intends to introduce at trial.
Fed.R.Evid. 404(b).
Only extrinsic evidence is subject to the requirements of Fed.R.Evid. 404(b).
Schlei, 122 F.3d at 990. “Evidence, not part of the crime charged but pertaining to
the chain of events explaining the context, motive, and set-up of the crime, is
34
properly admitted if linked in time and circumstances with the charged crime, or
forms an integral and natural part of an account of the crime, or is necessary to
complete the story of the crime for the jury.” United States v. Edouard, 485 F.3d
1324, 1344 (11th Cir. 2007) (quotation and alteration omitted). Such evidence “is
not extrinsic under Rule 404(b), and thus falls outside the scope of the Rule. Id.(quotation omitted); United States v. Richardson, 764 F.2d 1514, 1521 (11th Cir.
1985) (“[t]hese prior wrongs were not extrinsic to the charged crimes because the
evidence concerning prior crimes was inextricably intertwined with the evidence of
the charged crime”). “[E]vidence of criminal activity other than the charged
offense, whether inside or outside the scope of Rule 404(b), must still satisfy the
requirements of Fed.R.Evid. 403.” Edouard, 485 F.3d at 1344.
Under Fed.R.Evid. 701, where a witness is not qualified as an expert, he may
offer his opinion on a matter only where his opinion is: (1) rationally based on his
own perception; (2) helpful to a clear understanding of his testimony or a fact in
issue; and (3) not based on scientific, technical, or other specialized knowledge.
Fed.R.Evid. 701. We have recognized that “an experienced narcotics agent may
testify about the significance of certain conduct or methods of operation unique to
the drug distribution business.” United States v. Butler, 102 F.3d 1191, 1199 (11th
Cir. 1997). Under Fed.R.Evid. 704(b), an expert witness may not testify as to
35
whether a defendant did or did not have the mental state or condition constituting
an element of the crime. Fed.R.Evid. 704(b).
Evidence admitted in violation of Rule 404(b), 701, or 403 is harmless when
there otherwise was substantial evidence of the defendant’s guilt. United States v.
Chavez, 204 F.3d 1305, 1317 (11th Cir. 2000) (Rule 404(b)); United States v.
Dulcio, 441 F.3d 1269, 1275 (11th Cir. 2006); Gunn, 369 F.3d at 1236 (Rule 403).
i. Subran’s statements regarding his probationary status and
previous imprisonment
Subran’s argument that his recorded statements regarding his probationary
status and previous imprisonment should not have been admitted into evidence
because they were irrelevant lacks merit. Because Subran raised an entrapment
defense, the fact that he developed a friendly relationship with Jackto while they
were in prison was relevant, as it caused it to be more likely that he would look
favorably upon a drug robbery proposed by Jackto. In addition, Subran’s
statements about his probation status were relevant in light of his entrapment
defense, because the fact that he was on probation made it less probable that he
could be coerced into committing a crime. While Subran asserts that the jury’s
hearing that he previously was incarcerated and was on probation at the time of the
present offense was prejudicial, the jury otherwise would have learned that Subran
had been incarcerated because he stipulated that he was a convicted felon.
36
Accordingly, viewing this evidence in the light most favorable to admission, the
district court did not abuse its discretion in admitting Subran’s statements about his
probation and previous incarceration into evidence.
Because Subran did not object to the introduction of his recorded statements
under Fed.R.Evid. 404(b), we review his 404(b) argument for plain error. The
district court did not commit plain error under Rule 404(b) by admitting Subran’s
statements about his probationary status and his previous incarceration. The fact
that Subran met Jackto while they were in prison provided a context for why Jackto
approached Subran about the narcotics robbery, as well as for why Subran
entertained the proposal. This same information provided an explanation for the
set-up of the crime. In addition, Subran’s argument that his probationary status
was not probative of any subject other than his character lacks merit, as it provided
a context relevant to his entrapment defense. Moreover, even if the district court
erred in admitting this evidence, this error was not prejudicial to Subran in light of
the substantial evidence of his guilt. Because the admission of this evidence did
not prejudice Subran, any error in this regard could not constitute plain error.
ii. Officer McKean’s testimony about the origin and purpose of
STOP
The district court did not abuse its discretion by admitting Officer McKean’s
testimony about STOP over the defendants’ objections under Fed.R.Evid. 401 and
37
403. This evidence was relevant because Subran sought to raise an entrapment
defense, and evidence that STOP typically used CI’s to propose drug robberies to
defendants made it less probable that Jackto unfairly targeted Subran in an attempt
to coerce him into illegal activity. In addition, this testimony provided a context
for the investigation in this case. Accordingly, viewing this evidence in the light
most favorable to admission, its probative value was not outweighed by its
potential prejudice.
We review Parker’s argument that McKean’s STOP testimony violated
Fed.R.Evid. 701 and 704(b) for plain error, because none of the defendants
objected to his testimony based on either of these rules at trial. The district court
did not commit error, let alone plain error, under Fed.R.Evid. 701 because
McKean’s testimony constituted a mere explanation of the purpose of the STOP
program and the manner in which it operated, and did not include opinions or
inferences. To the extent that McKean’s testimony about the origin, purpose, and
methods of STOP included a lay witness opinion, it was based on his personal
knowledge because he participated in creating the program. Moreover, this
testimony was helpful to the jury’s understanding of a fact in issue because Subran
had raised an entrapment defense. Finally, this testimony was not based on
scientific, technical, or highly specialized knowledge, apart from knowledge of law
38
enforcement tactics, of which McKean had personal knowledge.
In addition, Parker’s argument that McKean’s testimony violated
Fed.R.Evid. 704(b) also fails to satisfy plain-error review, because McKean did not
testify as an expert and, in any event, his testimony about STOP did not include an
opinion about mental states of the defendants in this case.
Finally, Foster’s argument that McKean’s STOP testimony violated Rule
404(b) lacks merit. Rule 404(b) prohibits the use of a defendant’s prior bad act to
show action in conformity therewith, and McKean’s testimony about STOP did not
indicate that Foster or his codefendants had previously committed narcotics
robberies or other bad acts.
VI.
In Miranda, the Supreme Court held that the government “may not use
statements, whether exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination.” Miranda,
384 U.S. at 444, 86 S.Ct. at 1612. “It is well established that after Miranda
warnings have been given, the government cannot fairly use a defendant’s silence
against him at trial as evidence of guilt.” United States v. Tenorio, 69 F.3d 1103,
1106 (11th Cir. 1995). This is because the Miranda warnings carry an implied
39
assurance that a defendant’s silence cannot be used against him at trial. Id.Nevertheless, “[t]he government may comment on a defendant’s silence where it
occurs after arrest, but before Miranda warnings are given.” United States v.
Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991).
The Supreme Court has clarified that “interrogation” within the meaning of
Miranda encompasses both “express questioning” and its “functional equivalent.”
Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297(1980). The Supreme Court defined “functional equivalent” as “words or actions
on the part of the police (other than those normally attendant to arrest and custody)
that the police should know are reasonably likely to elicit an incriminating
response from the suspect.” Id. at 301, 100 S.Ct. at 1690. The Supreme Court has
made clear, however, that “[o]fficers do not interrogate a suspect simply by hoping
that he will incriminate himself.” Arizona v. Mauro, 481 U.S. 520, 529-30, 107
S.Ct. 1931, 1936, 95 L.Ed.2d 458 (1987). Thus, there is no “interrogation” where
law enforcement officers are mere silent third parties present during conversations
between the accused and his spouse. Id. Similarly, “[p]loys to mislead a suspect
or lull him into a false sense of security that do not rise to the level of compulsion
or coercion to speak are not within Miranda’s concerns.” Illinois v. Perkins, 496
U.S. 292, 297, 110 S.Ct. 2394, 2397, 110 L.Ed.2d 243 (1990).
40
We review Foster’s arguments as to this issue for plain error, because he did
not object to the introduction of the recorded exchange between himself and
Subran at trial, and did not file objections to the magistrate’s report and
recommendation concerning this matter. The district court did not plainly err in
admitting the recorded patrol-car exchange between Foster and Subran. While the
record does not establish whether Foster had received Miranda warnings at the
time of his exchange with Subran, his argument lacks merit regardless of whether
he had received Miranda warnings. To the extent that Foster had not received
Miranda warnings, his silence constituted admissible evidence that could be used
against him at trial.
Even if Foster had received Miranda warnings, the admission of the
recording would not violate Miranda because Foster was not under custodial
interrogation at the time of his exchange with Subran. Placing arrestees in the back
of a police car for transport is not an action reasonably calculated to elicit an
incriminating response from a defendant. While the police may have equipped the
patrol car with recording devices in the hope that defendants would make
incriminating statements, this does not rise to the level of interrogation. Rather, in
the situation here, the police were in the position of a third party overhearing a
conversation between two codefendants. Accordingly, regardless of whether the
41
officers intentionally placed Foster and Subran together in the hope that they
would make incriminating statements to each other, and regardless of whether the
government’s introduction of this recording at trial constituted a comment on
Foster’s silence, the admission of this recording into evidence did not violate
Foster’s Fifth Amendment right to remain silent. Moreover, even if the admission
of this recording constituted error, the error did not prejudice Foster in light of the
substantial evidence against him.
VII.
We review the district court’s refusal to give a missing witness instruction
for abuse of discretion. United States v. Link, 921 F.2d 1523, 1528-29 (11th Cir.
1991). “When a witness is peculiarly within the control of one party, and the
witness’[s] testimony would elucidate facts in issue, an instruction is appropriate
regarding the permissible inference which the jury may draw from the party’s
failure to call the witness.” United States v. Nahoom, 791 F.2d 841, 846 (11th Cir.
1986). A district court is not required to give a missing witness instruction where
the missing witness’s testimony would not have been favorable to the defendant.
Link, 921 F.2d at 1529. Even if the district court erred in declining to give a
missing witness instruction, we will affirm where the error could not have affected
the jury’s verdict. Nahoom, 791 F.2d at 846.
42
Any error the district court may have made in declining to issue a missing
witness instruction was harmless and could not have affected the jury’s verdict.
The jury was presented with evidence that Jackto was unavailable, as well as with
the reasons why he was unavailable. In addition, the jury heard evidence regarding
the government’s role in the situation. The jury also heard that the government had
been ordered to produce Jackto at trial in the event that the defense wished to call
him as a witness. The jury further heard that Jackto would receive $2,500 if the
investigation was successful. Finally, the jury heard Subran’s testimony
concerning his unrecorded conversations with Jackto, and was presented with
telephone records regarding the frequency of telephone calls between Jackto and
Subran. As a result, the jury was presented with ample evidence to enable it to
determine whether it was appropriate to infer that Jackto’s testimony would have
been favorable to the defendants. In addition, it also heard sufficient evidence to
enable it to determine whether to accept Subran’s entrapment defense. For these
reasons, any error the district court may have made in declining to issue a missing
witness instruction was harmless.
VIII.
The Fifth Amendment prohibits a prosecutor from directly or indirectly
commenting on a defendant’s failure to testify. Griffin v. California, 380 U.S. 609,
43
615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965); United States v. Knowles, 66
F.3d 1146, 1162 (11th Cir. 1995). We have explained that:
A prosecutor’s statement violates the defendant’s right to remain
silent if either (1) the statement was manifestly intended to be a
comment on the defendant's failure to testify; or (2) the statement was
of such a character that a jury would naturally and necessarily take it
to be a comment on the failure of the accused to testify. The question
is not whether the jury possibly or even probably would view the
remark in this manner, but whether the jury necessarily would have
done so. The defendant bears the burden of establishing the existence
of one of the two criteria. The comment must be examined in context,
in order to evaluate the prosecutor’s motive and to discern the impact
of the statement.
Knowles, 66 F.3d at 1162-63 (quotations omitted).
“Prosecutors must refrain from making burden-shifting arguments which
suggest that the defendant has an obligation to produce any evidence or to prove
innocence.” United States v. Simon, 964 F.2d 1082, 1086 (11th Cir. 1992). Even
if a prosecutor errs by making such a remark, this error may be rendered harmless
by a curative instruction to the jury. Id. at 1087.
Because none of the defendants objected to the prosecutor’s statements, we
review Foster’s arguments concerning these statements for plain error. Here, the
prosecutor’s statements during closing and rebuttal arguments were focused on the
credibility of the witnesses who testified in this case. The prosecutor referred to
Subran’s testimony only to point out that Subran had heard all of the evidence
44
before he testified. None of these comments were of such a nature that they would
“necessarily” cause the jury to construe them as comments on Foster’s failure to
testify.
Because the prosecutor’s comments only asked the jury to consider the
credibility of the witnesses, these remarks also did not constitute an impermissible
burden-shifting argument. Moreover, the court had specifically instructed the jury
that the government, and not the defendants, bore the burden of proof in this case.
Thus, the district court did not err, let alone plainly err, in permitting the prosecutor
to make the challenged statements.
IX.
Because Foster did not raise his sentencing argument before the district
court, we review it for plain error.
In United States v. Segarra, we considered whether the exception clause in
§ 924(c) prohibits consecutive sentences where a defendant is convicted of both a
drug offense and a firearm offense that carry statutory minimum sentences. 582
F.3d 1269, 1270 (11th Cir. 2009), petition for cert. filed, (U.S. Jan. 8, 2010) (No.
09-8536). The defendant had been sentenced to 120 months’ imprisonment for his
drug trafficking conviction under 21 U.S.C. § 841, and a mandatory minimum
consecutive sentence of 60 months’ imprisonment for his possession of a firearm
45
in furtherance of a drug trafficking offense, under § 924(c). Id. at 1271. The
defendant argued that, because he was subject to a ten-year mandatory minimum
sentence for his drug trafficking offense, § 924(c)’s exception clause prohibited the
court from sentencing him to a 60-month mandatory consecutive sentence for his
firearm offense. Id. at 1272. We rejected his argument, holding that, under
§ 924(c), the district court properly ordered that the defendant’s 60-month sentence
for his firearm offense should run consecutively to his term of imprisonment for
the drug trafficking offense. Id. at 1272-73.
Because Foster’s argument is identical to that raised by the defendant in
Segarra, Segarra precludes Foster’s sentencing argument, and the district court did
not err, let alone plainly err, in this regard.
AFFIRMED.
46