United States v. Paul Dexter Harris

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-12418
________________________
D.C. Docket No. 1:17-cr-00025-LJA-TQL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL DEXTER HARRIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_______________________
(February 19, 2019)
Before WILLIAM PRYOR and ROSENBAUM, Circuit Judges, and CONWAY, *
District Judge.
WILLIAM PRYOR, Circuit Judge:
*
Honorable Anne C. Conway, United States District Judge for the Middle District of Florida,
sitting by designation.
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This criminal appeal presents two questions: first, whether sufficient
evidence supports Paul Harris’s conviction of extortion in violation of the Hobbs
Act, 18 U.S.C. § 1951(a), (b)(2); and second, whether the district court violated
Harris’s right to present a complete defense when it limited his closing argument.
While Harris worked as a corrections officer at Autry State Prison, he discovered
that inmates were operating a phone scam in which they posed as government
officials and tricked their victims into paying fake fines in the form of prepaid
debit-card numbers. Harris confessed to investigators that he seized some of these
numbers from the inmates and took the ill-gotten funds for his personal use. Harris
cast himself as “Robin Hood” as he took from the inmates, but his actions more
closely resemble those of the Sheriff of Nottingham: instead of taking extorted
spoils from the rich and returning them to the poor, Harris extorted the scheming
inmates to enrich himself. See generally Joseph Ritson, Robin Hood: A Collection
of All the Ancient Poems, Songs, and Ballads, Now Extant, Relative to that
Celebrated English Outlaw (Longman et al. 1820) (1795). A jury convicted Harris
of extortion by two alternative means: “by wrongful use of actual or threatened
force, violence, or fear” and “under color of official right.” 18 U.S.C. § 1951(b)(2).
And the district court later denied his motion for a judgment of acquittal. We now
affirm.
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I. BACKGROUND
Inmates at Autry State Prison operated a phone scam in which they would
masquerade as law-enforcement or court officials and dupe their victims into
paying them for fake infractions. For example, an inmate would tell a victim that
he had missed jury duty and would be arrested if he did not pay a fine. Victims
paid money to the inmates in the form of Green Dot numbers. Green Dot
Corporation sells debit cards that can be reloaded by purchasing a MoneyPak at a
store’s checkout counter. Each MoneyPak has a unique 14-digit number hidden
under a scratch-off field, and this Green Dot number can then be used to load
money onto a Green Dot debit card. So when a victim of the scam sent a Green
Dot number to inmates, they could use the number to load money onto their Green
Dot debit cards over the phone. Inmates were not allowed to have money,
including Green Dot numbers, in the prison, so they wrote the numbers on pieces
of paper and hid the papers in their cells until they could load the money. The scam
succeeded; one inmate collected over $15,000 in Green Dot numbers from his
victims.
Paul Harris, a corrections officer at Autry, discovered the inmates’ scam.
Harris had a reputation as “the asshole” at Autry. He worked on a special team of
officers who monitored unruly inmates and conducted surprise “shakedowns”—
that is, “a search of the cell or of the inmate.” Harris knew that he was obliged to
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confiscate contraband that he found during the shakedowns. When he conducted
shakedowns of the inmates in the summer of 2013, Harris began to find Green Dot
numbers. He initially flushed the numbers down a toilet, but an inmate suggested
that he should “stop throwing money away like that” and instead “load that money
up.” So Harris decided, in his words, to “Robin-Hood” the inmates. Harris knew
that the inmates had obtained the numbers illegally; he told inmates that “[s]ince
you be around stealing[,] . . . I’m a [sic] steal from you.” Instead of turning the
numbers over to supervisors, Harris loaded the money onto his Green Dot cards.
No inmates were reported for possessing contraband, and they continued to operate
their scam.
After police departments across the country received numerous complaints
about the scam, agents of the Federal Bureau of Investigation traced the scam back
to the prison. As part of their investigation, the agents subpoenaed the Green Dot
histories for corrections officers, and Harris’s Green Dot history raised a red flag.
Harris had two Green Dot cards, the first activated in January 2013 and the
second in June 2013. In the summer of 2013, Harris loaded 29 Green Dot numbers
onto his cards, and the amount exceeded his income for the time period. His Green
Dot numbers had been purchased across the country, including from stores in
Georgia, Washington, Florida, Texas, North Carolina, California, Oklahoma, South
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Carolina, Nebraska, Pennsylvania, and Alaska—almost all places that Harris had
never visited.
Agents James Hosty and Brian Davis went to Harris’s house unannounced
one morning to interview him about his suspicious Green Dot history. Harris
changed his story several times. At first, Harris denied having Green Dot cards or
using Green Dot numbers. When the agents confronted him with his Green Dot
history, Harris then blamed his ex-girlfriend. But Harris eventually confessed that
he had taken Green Dot numbers from inmates during shakedowns and loaded the
money onto his cards.
A grand jury indicted Harris on one count of Hobbs Act extortion, 18 U.S.C.
§ 1951(a), (b)(2), by means of either the wrongful use of fear or under color of
official right. After a two-day trial, Harris’s counsel argued in closing that,
although Harris’s conduct may have constituted theft, it did not constitute
extortion. He provided the definition of common-law theft to the jury and argued
that the government charged Harris with the wrong crime. The jury could not reach
a verdict, so the district court declared a mistrial.
Before the second trial, the government moved in limine to bar Harris from
arguing to the jury that he may have committed theft but did not commit extortion.
The district court granted the motion. It ruled that Harris could not argue that he
“commit[ted] common-law theft or . . . make any type of indication that he should
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have been charged with something different.” But the district court also ruled that
Harris could argue that, even if he did something wrong, the government failed to
prove that he committed extortion.
At the second trial, Woodrow Tripp, an investigator for the Georgia
Department of Corrections, testified about prison policies and the phone scam at
Autry. He explained that a “primary responsibility” of corrections officers is to
seize contraband from inmates and that officers may not keep contraband for their
personal use. The contraband policy in the summer of 2013 required corrections
officers to report contraband that they seized, and that report would have triggered
a disciplinary hearing for the offending inmate. Tripp explained that, at the
hearing, “there is an administrative remedy available to an inmate who believes
that his property may have been wrongfully taken by a corrections officer.” The
discipline for possessing contraband was administrative segregation, commonly
referred to as time in “the hole.” Tripp testified that, to his knowledge, no inmates
had been disciplined for possessing Green Dot numbers and no corrections officers
had been reported for taking inmates’ Green Dot numbers for their personal use in
the summer of 2013. On cross-examination, Tripp testified that he knew nothing
about shakedowns conducted by Harris.
Michael Oliver, an inmate involved in the scam when he was at Autry in
2014 and 2015, testified that the “whole prison” was involved in the scam. After
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one shakedown, Oliver’s Green Dot numbers went missing, and someone else had
taken the funds. But he never reported the missing Green Dot numbers to prison
officials because they were contraband, and he did not want to implicate himself in
the scam. On cross-examination, Oliver testified that he was not an inmate at Autry
during the summer of 2013, nor did he know Harris.
Agent Hosty testified in detail about his investigation of the phone scam at
Autry. He also recounted his interview of Harris. The government then played a
recording of Harris’s interview for the jury.
At the close of the government’s case, Harris moved for a judgment of
acquittal. He argued that the government failed to provide sufficient evidence of
his guilt, in part because it never identified any victim of his alleged extortion. The
district court took the motion under advisement.
During closing argument, Harris’s counsel argued that “[w]e’re not saying
Mr. Harris is not guilty of any crime or that he didn’t break any law. He just didn’t
break this law.” He explained that “extortion is not stealing. Extortion is not
robbing. It has more elements.” The jury was not convinced. It found Harris guilty
of extortion both by the wrongful use of fear and under color of official right.
The district court then denied Harris’s motion for a judgment of acquittal.
Although the government did not identify specific victims of his extortion, the
district court concluded that a reasonable jury could find that the inmates had a
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fearful state of mind when Harris conducted shakedowns. It also concluded that a
reasonable jury could find that an understanding existed between Harris and the
inmates, in which Harris would not report the inmates for possessing contraband
Green Dot numbers and the inmates would not report Harris for keeping the
money. The district court sentenced Harris to serve 12 months and one day of
imprisonment followed by two years of supervised release.
II. STANDARDS OF REVIEW
We review de novo the sufficiency of the evidence. United States v.
Gonzalez, 834 F.3d 1206, 1214 (11th Cir. 2016). We view “the evidence in the
light most favorable to the jury verdict and draw all inferences in its favor.” Id. We
must affirm the conviction “if there is substantial evidence to support [it], unless
no trier of fact could have found guilt beyond a reasonable doubt.” Id. (internal
quotation marks omitted) (quoting United States v. Pineiro, 389 F.3d 1359, 1367
(11th Cir. 2004)). Because “[t]he district court has broad discretion over the scope
of closing argument,” we review a restriction on closing argument for abuse of
discretion. United States v. Gaines, 690 F.2d 849, 858 (11th Cir. 1982). “Absent a
showing of an abuse of discretion the district court will not be reversed for limiting
summation as long as the defendant has the opportunity to make all legally tenable
arguments that are supported by the facts of the case.” Id. Although we review a
restriction on closing argument for abuse of discretion, we review de novo
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constitutional questions. United States v. Mitrovic, 890 F.3d 1217, 1220 (11th Cir.
2018).
III. DISCUSSION
We divide our discussion in two parts. First, we explain that sufficient
evidence supports Harris’s conviction of Hobbs Act extortion. Second, we explain
that the district court did not violate Harris’s right to present a complete defense
when it limited his closing argument.
A. Sufficient Evidence Supports Harris’s Conviction of Hobbs Act Extortion.
Harris contends that insufficient evidence supports his conviction of Hobbs
Act extortion. The Hobbs Act prohibits interference with interstate commerce by
robbery or extortion. See 18 U.S.C. § 1951(a). Hobbs Act extortion “contains two
elements: (1) extortion, and (2) interference with interstate commerce.” United
States v. Bornscheuer, 563 F.3d 1228, 1236 (11th Cir. 2009). Extortion is defined
as “the obtaining of property from another, with his consent, induced by wrongful
use of actual or threatened force, violence, or fear, or under color of official right.”
18 U.S.C. § 1951(b)(2).
Harris raises two arguments that the government failed to prove extortion.
First, he argues that the government presented insufficient evidence to support the
finding that the inmates consented to his taking of their Green Dot numbers.
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Second, he argues that the government presented insufficient evidence that he used
a requisite means of extortion. Both arguments fail.
1. The Government Proved the Inmates’ Consent.
Harris first argues that the government failed to prove extortion because
insufficient evidence supports the finding that he obtained Green Dot numbers
from any inmate “with his consent.” At trial, the government argued that inmates
consented to give Harris their Green Dot numbers out of either fear or a mutual
understanding: an inmate would not report Harris for taking his Green Dot number
so that Harris would not report him for possessing contraband. Harris contends that
the inmates could not consent because he took their Green Dot numbers during
shakedowns that they could not refuse.
Harris’s argument misapprehends the nature of consent for the crime of
extortion, as reflected by the historical development of that offense. “Extortion is
one of the oldest crimes in Anglo-American jurisprudence.” Evans v. United
States, 504 U.S. 255, 278 (1992) (Thomas, J., dissenting); see also 3 Edward Coke,
Institutes of the Laws of England 149 (1644). At common law, the offense
concerned public officials who used their office to corruptly obtain money not
owed to them. See 4 Charles E. Torcia, Wharton’s Criminal Law § 654 (15th ed.
2018) (collecting cases). Blackstone explained that common-law extortion “is an
abuse of public justice, which consists in any officer’s unlawfully taking, by colour
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of his office, from any man, any money or thing of value, that is not due to him, or
more than is due, or before it is due.” 4 William Blackstone, Commentaries on the
Laws of England 141 (4th ed. 1770). So “in a large Sense,” extortion “signifies any
Oppression under Colour of Right,” but “in a strict Sense[,] it signifies the Taking
of Money by any Officer, by Colour of his Office, either where none at all is due,
or not so much is due, or where it is not yet due.” 1 William Hawkins, Treatise of
Pleas of the Crown 170 (2d ed. 1724); see also 2 Francis Wharton, A Treatise on
Criminal Law § 1574, at 373 (8th ed. 1880); 2 Matthew Bacon, A New Abridgment
of the Law 453 (3d ed. 1768).
As states codified the crime of extortion, they specified two means by which
a person may commit extortion, with one means mirroring the common law and
the second expanding it beyond public officials to include private individuals. See,
e.g., N.Y. Penal Law § 850 (1909). The Field Code, a nineteenth-century model
code, defined extortion as “the obtaining of property from another, with his
consent, induced by a wrongful use of force or fear, or under color of official
right.” 4 Commissioners of the Code, Proposed Penal Code of the State of New
York § 613 (1865). Extortion “under color of official right” consists of a public
official wrongfully using his office to obtain another’s property—the common-law
definition of extortion. Evans, 504 U.S. at 260. Extortion “by a wrongful use of
force or fear” consists of either a private individual or public official wrongfully
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using force or fear to obtain another’s property—an expansion of the common-law
definition. Id. at 264 n.13. To distinguish the crime of robbery from extortion,
some statutes specified that “in the former the taking of property must be ‘against
the will’ of the victim, while in the latter the taking must be ‘with the consent’ of
the victim, induced by the other’s unlawful threat.” Wayne R. LaFave, Criminal
Law § 20.4, at 1336 (6th ed. 2017); see also N.Y. Penal Law § 850.
The meaning of “consent” in extortion statutes derives from this distinction
between extortion and robbery. Extortion is “closely related to the crime of
robbery, having in fact been created in order to plug a loophole in the robbery law
by covering sundry threats which will not do for robbery.” LaFave, Criminal Law
§ 20.4, at 1335–36. Common-law robbery required a taking of property from a
person by use of force or threatened force. See 4 Torcia, Wharton’s Criminal Law
§ 454. But this definition embraced only threats of immediate bodily harm to the
victim—“doubtless because the severe penalty for robbery, long a capital offense,
restrained the courts from expanding robbery to include the acquisition of property
by means of other effective threats.” LaFave, Criminal Law § 20.4, at 1332. The
crime of extortion later “evolved to cover other types of intimidation which were
apparently viewed as presenting a lesser threat to personal security and thus not
requiring the same severe punishment.” Commonwealth v. Froelich, 326 A.2d 364,
368 (Pa. 1974). Because it requires coercion or intimidation of some sort, extortion
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is never a truly voluntary transaction. So “in spite of the different expressions” that
robbery must be against the victim’s will while extortion must be with his consent,
“both crimes equally require that the defendant’s threats induce the victim to give
up his property, something which he would not otherwise have done.” LaFave,
Criminal Law § 20.4, at 1336; see also Froelich, 326 A.2d at 368 (opining that
“the use of the concept of consent in this context is not necessarily the most
informative method of distinguishing between the crimes”).
Against this backdrop, Congress in 1946 enacted the Hobbs Act, which
codified the federal crime of extortion. 18 U.S.C. § 1951. As state laws had already
done, the Hobbs Act adopted both the common-law definition of extortion and the
expanded definition that included the wrongful use of fear. Evans, 504 U.S. at 261.
Congress also followed state laws in distinguishing between robbery and extortion;
the Hobbs Act defines robbery as obtaining another’s property “against his will”
and extortion as obtaining it “with his consent.” Compare 18 U.S.C. § 1951(b)(1),
with id. § 1951(b)(2).
The Supreme Court has explained that the term “consent” must be
understood according to its historical meaning. “[A]s used in the Hobbs Act, the
phrase ‘with his consent’ is designed to distinguish extortion . . . from robbery.”
Ocasio v. United States, 136 S. Ct. 1423, 1435 (2016). That is, consent for Hobbs
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Act extortion “simply signifies the taking of property under circumstances falling
short of robbery.” Id.
Harris argues that the inmates did not consent to the extortion because they
had no choice in his taking of their Green Dot numbers, but the term “consent” in
this context does not connote the degree of voluntariness that Harris suggests. A
victim who “grudging[ly]” or “reluctantly” gives up his property to a defendant
consents for purposes of the Hobbs Act. Id. at 1435–36. Consent does not mean
“free of all compulsion.” Froelich, 326 A.2d at 368. As the Second Circuit has
explained, a victim consents to extortion so long as he “retains some degree of
choice in whether to comply with the extortionate threat, however much of a
Hobson’s choice that may be.” United States v. Zhou, 428 F.3d 361, 371 (2d. Cir.
2005).
Sufficient evidence supports the jury’s finding that the inmates consented to
Harris taking their Green Dot numbers, without reporting him, so that they would
not implicate themselves for possessing contraband or for being involved in the
Green Dot scam. Harris confessed to investigators that he took Green Dot numbers
from inmates during shakedowns; he explained that, “If I stop somebody walking,
[I] shake ’em down” and “say I’m a [sic] load your money up.” Harris knew that
the inmates obtained the Green Dot numbers illegally. He told the inmates,
“[S]ince you being illegal around here, I’m a [sic] take your money from you.”
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Although he initially flushed the numbers down the toilet, Harris decided to keep
the money for himself at an inmate’s suggestion to “stop throwing money away
like that” and to “load that money up,” even though he was required to report the
possession of contraband. Tripp testified that, to his knowledge, inmates had
neither been disciplined for possessing Green Dot numbers nor complained that
corrections officers had taken their Green Dot numbers in the summer of 2013.
And Oliver, an inmate involved in the scam, testified that he never reported when
officers took Green Dot numbers from him because he did not want his
participation in the scam to come to light. To be sure, the inmates could not have
refused Harris’s shakedowns, but they could have reported him for keeping the
Green Dot numbers for his personal use. The jury could have reasonably inferred
that the inmates grudgingly agreed to keep quiet as Harris took their Green Dot
numbers, and their grudging consent is all that is required for extortion.
Sufficient evidence also supports the jury’s finding that the inmates
consented to Harris’s receipt of the Green Dot numbers for his personal benefit.
Under the Hobbs Act, “[o]btaining property requires not only the deprivation but
also the acquisition of property.” Sekhar v. United States, 570 U.S. 729, 734 (2013)
(citation and internal quotation marks omitted). So for Hobbs Act extortion, the
victim’s consent must be to the defendant’s receipt of the property for his personal
benefit. See id. at 736. The inmates knew that Harris took their Green Dot numbers
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for his personal benefit because Harris told the inmates he did so. Despite this
knowledge, the inmates did not report Harris. So the jury could have reasonably
inferred that the inmates consented to Harris’s receipt of their Green Dot numbers
by not reporting him.
Harris argues that the inmates had “obvious motivations” out of self-interest
not to report him, but consent for extortion does not require a single-minded
decision. Consent may exist even when other factors “weigh[] powerfully” in a
victim’s decision to give up his property to the extorter. United States v. Cain, 671
F.3d 271, 283–84 (2d Cir. 2012). Self-interest is always at play in extortion: the
idea behind extortion is that the victim gives up his property so that some worse
harm will not befall him. True, if the inmates had reported Harris for taking their
Green Dot numbers, they would have necessarily implicated themselves in the
illegal scam and for possessing contraband. But that Hobson’s choice—even if
influenced by self-interested motivations—does not eliminate their consent to
Harris’s extortion. The inmates still “retain[ed] some degree of choice in whether
to comply with the extortionate threat” because they could have reported Harris.
Zhou, 428 F.3d at 371.
Harris points out that no inmate testified that he consented to the taking and
argues that the jury could only speculate “[a]s to the thought processes of the
unknown inmates,” but this argument about evidence the government did not
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present ignores the evidence that it did present. The government presented a
recorded interview of Harris in which he confessed that he took Green Dot
numbers from inmates and made clear to them that he knew about their ongoing
scam. It also presented circumstantial evidence that Harris did not report inmates,
and the inmates did not report him. And it presented evidence that inmates did not
report officers who confiscated their Green Dot numbers because they did not want
their participation in the scheme to come to light. Based on the government’s
evidence, the jury could have inferred the inmates consented to Harris’s obtaining
of the numbers. When we view “the evidence in the light most favorable to the jury
verdict and draw all inferences in its favor,” Gonzalez, 834 F.3d at 1214, we must
conclude that the government presented sufficient evidence that the inmates
consented to Harris’s taking.
2. The Government Proved that Harris Wrongfully Used Fear.
Harris also argues that the government failed to prove a requisite means of
extortion, but we again disagree. The jury convicted Harris of both alternative
means—that is, extortion by the wrongful use of fear and under color of official
right. Because sufficient evidence proved that Harris obtained the inmates’ Green
Dot numbers by the wrongful use of fear, we need not address whether sufficient
evidence also proved that he did so under color of official right.
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The first of the alternative means of Hobbs Act extortion occurs when a
defendant obtains another person’s property “induced by wrongful use of actual or
threatened force, violence, or fear.” 18 U.S.C. § 1951(b)(2). The government must
prove the “constituent sub-element” of “the victim’s fearful state of mind.”
Bornscheuer, 563 F.3d at 1236. Fear means “a state of anxious concern, alarm[,] or
apprehension of harm.” Id. (citation and quotation marks omitted). It includes “fear
of economic loss as well as fear of physical violence.” Id. (citation and quotation
marks omitted). “[I]t is not necessary to show that the defendant caused the fear or
made a direct threat” because the government need only “prove that the defendant
intended to exploit the fear.” United States v. Flynt, 15 F.3d 1002, 1007 (11th Cir.
1994). When deciding whether victims were induced to give up their property out
of fear, the jury may consider the defendant’s reputation. United States v. Vallejo,
297 F.3d 1154, 1165 (11th Cir. 2002); see also United States v. Grassi, 783 F.2d
1572, 1576 (11th Cir. 1986). As the Second Circuit has explained, a defendant’s
“[b]ad reputation is relevant to the fear element” because “such a reputation
frequently conveys a tacit threat of violence.” United States v. Fazio, 770 F.3d 160,
165 (2d Cir. 2014) (citation and internal quotation marks omitted).
The government presented sufficient evidence that Harris obtained Green
Dot numbers from inmates by the wrongful use of fear. When he confessed to the
investigators, Harris acknowledged his reputation as “the asshole” at the prison and
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explained how he berated inmates during shakedowns when he found Green Dot
numbers. He told inmates, “You ain’t shit. You’s-a lame [sic]. You know I’m
fixin’ to take your money from you then. . . . How ’bout that?” Harris knew that
the inmates tried to avoid him. Indeed, the inmates had a code word for Harris that
they would yell when he walked into their block of cells. So the jury could have
reasonably inferred that, because of Harris’s reputation, the inmates were in a
fearful state of mind when he discovered their Green Dot numbers during
shakedowns.
The inmates also feared potential punishment. An inmate caught with
contraband should have been disciplined immediately by being sent to “the
hole”—a punishment of solitary confinement. If the inmates had refused to
acquiesce in Harris’s extortion, they could have been punished for possessing
contraband. The inmates also would have opened themselves up to retribution from
the self-described “asshole” for refusing his extortionate scheme. The inmates
feared economic harm as well: had their illegal conduct surfaced, their ability to
continue their lucrative scam would have been threatened. Sufficient evidence
permitted the jury to find that the inmates were in a “state of anxious concern,
alarm[,] or apprehension of harm” when Harris shook them down and found Green
Dot numbers. Bornscheuer, 563 F.3d at 1236.
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Although he concedes that “[t]he jury could reasonably infer that inmates
feared [him] or punishment for their contraband,” Harris argues that the jury could
not have inferred “that he intended to ‘exploit’ that fear in taking the Green Dot
numbers,” but we disagree. To convict Harris of extortion by the wrongful use of
fear, the jury had to find that he used fear to induce the inmates’ consent to his
obtaining of their Green Dot numbers. 18 U.S.C. § 1951(b)(2). “Inducement” is
defined as an “act or process of enticing or persuading another person to take a
certain course of action.” Inducement, Black’s Law Dictionary (10th ed. 2014).
The jury could have reasonably found that Harris enticed the inmates to take a
certain course of action during a shakedown—permit Harris to take their Green
Dot numbers for himself without reporting his misconduct—and that he did so
with knowledge of and the intent to exploit their fear of him and of punishment.
The jury was “free to choose between or among the reasonable conclusions to be
drawn from the evidence.” United States v. Watts, 896 F.3d 1245, 1251 (11th Cir.
2018). And Harris’s jury reasonably inferred that he committed extortion by
wrongfully using the inmates’ fear.
B. The District Court Did Not Violate Harris’s Right to Present a Complete
Defense when It Limited His Closing Argument.
Harris also contends that the district court abused its discretion and violated
his constitutional right to present a complete defense when it prevented him from
arguing in closing that, although he might have committed theft, he did not commit
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extortion. Closing argument is a critical stage of trial. Hunter v. Moore, 304 F.3d
1066, 1070 (11th Cir. 2002). It presents “the last clear chance to persuade the trier
of fact that there may be reasonable doubt of the defendant’s guilt.” Herring v.
New York, 422 U.S. 853, 862 (1975). But “[t]his is not to say that closing
arguments in a criminal case must be uncontrolled or even unrestrained.” Id. A
district court “must be and is given great latitude in . . . limiting the scope of
closing summations.” Id. It “may ensure that argument does not stray unduly from
the mark, or otherwise impede the fair and orderly conduct of the trial.” Id.
The Constitution “guarantees criminal defendants a meaningful opportunity
to present a complete defense,” Crane v. Kentucky, 476 U.S. 683, 690 (1986)
(citation and quotation marks omitted), but this guarantee does not mean that a
defendant can make any argument he desires. See Mitrovic, 890 F.3d at 1221
(explaining that “a defendant’s right to present a complete defense is not absolute,
and is subject to reasonable restrictions”). A district court’s “total denial of the
opportunity for final argument” violates that right. Herring, 422 U.S. at 859. But if
the court permits a defendant to present the essence of his desired argument to the
jury, his right to present a complete defense has not been prejudiced. See United
States v. Buckley, 586 F.2d 498, 503 (5th Cir. 1978).
The district court’s modest restriction of Harris’s closing argument was
neither an abuse of discretion nor a violation of his right to present a complete
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defense. The district court prevented Harris from arguing that he may have
committed the specific crime of theft. But it permitted Harris to argue that,
although he did something wrong, he did not commit the crime charged in the
indictment. Indeed, during closing argument, his counsel argued that Harris may
have been guilty of some crime but not the specific crime of extortion. He
explained that extortion is not “just stealing or robbing.” He later repeated that
“extortion is not stealing. Extortion is not robbing. It has more elements.” The
district court provided Harris an adequate opportunity to present his defense.
A defendant is not entitled “to have the jury choose between the charged
offense and an uncharged offense more to his liking” because that choice
misconstrues the role of the jury. United States v. Bradshaw, 580 F.3d 1129, 1136
(10th Cir. 2009) (explaining that a district court may exclude a closing argument
that “would have injected confusion about the actual crime charged”). The jury’s
role was to decide only whether the government proved that Harris committed
extortion, not whether extortion was the correct charge to bring. So the district
court did not abuse its discretion when it ruled that Harris’s argument that the
government should have charged him with theft instead of extortion risked
confusing the jury.
If the jury believed that the government’s evidence failed to prove extortion,
it could have acquitted Harris. It did not. The district court did not err when it
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exercised its “great latitude” to prevent Harris’s closing argument from “stray[ing]
unduly from the mark.” Herring, 422 U.S. at 862.
IV. CONCLUSION
We AFFIRM Harris’s conviction.
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