United States v. Coree Patrick

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15814
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-00040-SPM-GRJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
COREE PATRICK,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(August 28, 2013)
Before HULL, JORDAN and FAY, Circuit Judges.
PER CURIAM:
Coree Patrick appeals his convictions for three counts of being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). On
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appeal, he argues the district court abused its discretion by admitting evidence at
trial regarding his prior armed robbery offense. We affirm.
I.
Police investigator Burton Miller testified at trial that he began investigating
Patrick in 2011. During the investigation, Neville Thompson, a Confidential
Informant (“CI”), contacted Miller about Patrick’s offering to sell guns, and
Thompson agreed to introduce Patrick to another CI, Matthew Edmundson. In
August 2011, Patrick sold Thompson a .25 caliber pistol, which Thompson gave to
Edmundson. Miller later contacted Thompson to find out how much money they
owed Patrick for the .25 caliber firearm, and Thompson told Miller that Patrick
also was attempting to sell a .38 caliber firearm. Miller decided that Edmundson
would make a controlled purchase from Patrick to obtain the .38 caliber firearm.
Thompson testified that he had known Patrick for approximately 15 years,
and, in 2011, Patrick approached Thompson and asked him if he knew anyone who
wanted to buy firearms. Further, he testified that he received the .25 caliber
firearm from Patrick. Shortly after this sale, Thompson, Edmundson, and Patrick
went to a trailer where Patrick obtained another gun, which he sold to Edmundson.
Edmundson testified that Patrick sold him the .38 caliber firearm to him for
$100, and, afterwards, Patrick told Edmundson that he could obtain other guns
from Gainesville. In September 2011, Patrick arranged to meet Edmundson to sell
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more firearms. When they met, Edmundson followed Patrick to Thompson’s
house, where Edmundson purchased two more firearms from Patrick: a .45 caliber
and a 9 millimeter firearm. The transactions between Edmundson and Patrick were
audio and video recorded; the jury heard portions of the recordings. The video of
the September 2011 transaction showed Patrick giving Edmundson a .45 caliber
handgun. The government also submitted audio recordings of phone calls that
Patrick had made from jail, during which he made incriminating statements.
Prior to trial, Patrick had filed a motion in limine to exclude evidence of two
prior crimes that the government sought to admit under Fed.R.Evid. 404(b).
Regarding the charged crimes, he alleged that he was entrapped by three CIs.
Patrick represented the government would offer Rule 404(b) evidence consisting of
testimony from Shirley Ribbeck, Xavier Macon, Andre Buie, and Kevin Edwards.
While their evidence would show he was selling firearms regularly, he contended
the proposed Rule 404(b) evidence was inadmissible because: (1) the prior crimes
were too remote to be probative of Patrick’s predisposition to possess a firearm in
2011; (2) the evidence did not clearly show that Patrick was the shooter; (3) there
is no similarity between the prior crimes and the instant charges; (4) the
government had no valid purpose for presenting the evidence; (5) the evidence was
propensity evidence of bad character, which is inadmissible under Rule 404(b);
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and (6) the evidence was highly prejudicial and should be excluded under
Fed.R.Evid. 403.
The district court denied Patrick’s motion to exclude the Rule 404(b)
evidence and noted Patrick intended to present an entrapment defense at trial by
arguing he had no intent to possess a firearm until he was persuaded to do so by the
government CIs. Because Patrick put his character at issue by raising an
entrapment defense, the court concluded Patrick could not contest the
government’s introduction of character evidence, which was probative of Patrick’s
intent, motive, and predisposition to possess firearms. Despite the temporal
remoteness of the prior shootings, nothing indicated Patrick had undergone a
transformation to change his state of mind. Therefore, the court determined the
probative value of the evidence is not outweighed by unfair prejudice.
Regarding the Rule 404(b) evidence, the court instructed the jury that its
consideration was limited to whether Patrick was entrapped. The jury found
Patrick guilty on all counts; he received three concurrent 264-month sentences.
II.
We review a district court’s evidentiary rulings for abuse of discretion.
United States v. Bradley, 644 F.3d 1213, 1270 (11th Cir. 2011), cert. denied, 132
S.Ct. 2375 (2012). Federal Rule of Evidence 404(b) allows evidence of other
crimes to be admitted for the purpose of showing a defendant’s intent. Fed.R.Evid.
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404(b). To be admissible, the Rule 404(b) evidence must: (1) be relevant to an
issue other than the defendant’s character; (2) be proved sufficiently to permit a
jury determination that the defendant committed the act; and (3) be of probative
value that is not substantially outweighed by undue prejudice and meet the other
requirements under Fed.R.Evid. 403. United States v. Jernigan, 341 F.3d 1273,
1280 (11th Cir. 2003).
The district court did not abuse its discretion in admitting evidence of
Patrick’s prior armed robbery offense under Rule 404(b). First, the evidence of
Patrick’s prior armed robbery was relevant to an issue other than his character,
because his intent was directly at issue based on his not guilty plea and the
defense’s theory that government officials induced the firearm possession. See
Jernigan, 341 F.3d at 1280; United States v. Matthews, 431 F.3d 1296, 1311(11th
Cir. 2005). Contrary to Patrick’s argument the 1993 armed robbery was not
relevant to his knowing possession of firearms and that it was so lacking in
probative value that it invited the jury to convict him based on his character, the
prior crime was similar to Patrick’s charged offenses because both crimes involved
his knowing possession of a firearm.
Second, because Patrick does not challenge on appeal the sufficiency of the
evidence supporting his robbery offense, we need not examine the second part of
the Rule 404(b) test. See Jernigan, 341 F.3d at 1280. Third, the probative value of
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the armed robbery offense was not outweighed by undue prejudice. Id. Although
the evidence of the prior robbery involved a shooting, it also was probative of
Patrick’s willingness and intent to possess firearms. See United States v. Ramirez,
426 F.3d 1344, 1354 (11th Cir. 2005) (“A similarity between the other act and a
charged offense will make the other offense highly probative with regard to a
defendant’s intent in the charged offense.”). As in this case, a trial court’s limiting
instruction can reduce the risk of any unfair prejudice. United States v. Edouard,
485 F.3d 1324, 1346 (11th Cir. 2007).
As to length of time since the prior armed robbery, Patrick merely asserts
evidence of the robbery was irrelevant and lacking in probative value without
specifically developing an argument regarding its temporal remoteness. He fails to
meet his heavy burden of showing that the district court abused its broad discretion
in determining that the offense was not too remote to be probative. See Matthews,
431 F.3d at 1311. Although Patrick’s robbery offense was 18 years before the
charged crimes, we have declined to adopt a bright-line rule regarding temporal
remoteness. Id.
The entrapment defense requires “government inducement of a crime and a
lack of predisposition by the defendant to commit the crime.” United States v.
Duran, 596 F.3d 1283, 1298-99 (11th Cir. 2010). After the defendant asserts an
entrapment defense, the burden shifts to the government to establish that the
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defendant was predisposed to commit the charged offense beyond a reasonable
doubt. Id. at 1299. “[B]ecause similar acts used to demonstrate predisposition are
offered precisely to show propensity, they are more broadly applicable and their
use is not subject to the normal constraints of evidence admitted under Rule
404(b).” Id. Accordingly, when a “defendant puts his character at issue by raising
an entrapment defense, he cannot complain that the [g]overnment introduces
evidence as to such character.” Id.Even if the challenged evidence did not meet the requirements for
admissibility under Rule 404(b), it was admissible propensity evidence to rebut
Patrick’s entrapment defense. See Duran, 596 F.3d at 1299. Because Patrick’s
prior armed robbery offense was used to show his predisposition to possess
firearms, it was not subject to the normal constraints of Rule 404(b). Id. Since
Patrick put his character at issue by arguing that he was entrapped, he may not
challenge the government’s use of his prior armed robbery offense as character
evidence. Id.AFFIRMED.
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JORDAN, Circuit Judge, concurring in judgment:
In my opinion, the district court erred in admitting evidence of the 1993
laundromat armed robbery/shooting. Indeed, the government does not even try to
defend the ruling under Rule 403. See Brief for United States at 12–13.
Nevertheless, I agree with the majority that Mr. Patrick is not entitled to a
new trial. The admission of the 1993 felony “had no substantial influence on the
outcome and sufficient evidence uninfected by [the] error support[ed] the verdict.”
United States v. Dickerson, 248 F.3d 1036, 1048 (11th Cir. 2001).
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