United States v. James Avery, Jr.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
U.S. COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
________________________ DEC 18, 2006
THOMAS K. KAHN
No. 06-12058 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 05-00144-CR-ORL-28-KRS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES AVERY, JR.,
a.k.a. Terry Avery,
a.k.a. James Terry Avery,
a.k.a. James Avery,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 18, 2006)
Before BIRCH, DUBINA and FAY, Circuit Judges.
PER CURIAM:
James Avery, Jr. appeals his conviction and 210-month sentence for
possession of a firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2), and 924(e)(1). Avery raises three issues on appeal:
(1) whether the district court abused its discretion in denying his motion for
mistrial; (2) whether the district court erred in denying his motion to dismiss the
indictment; and (3) whether the district court erred in enhancing his sentence based
upon prior convictions that were not admitted or proven beyond a reasonable
doubt. For the reasons set forth more fully below, we affirm.
I. Background
A. Motion for Mistrial
On August 30, 2005, a federal grand jury returned an indictment against
Avery, charging him with knowingly possessing a firearm after having been
convicted of a crime punishable by a term of imprisonment exceeding one year, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)(1). The indictment
listed Avery’s prior felonies as: (1) armed burglary, grand theft of a firearm,
robbery with a firearm, and grand theft of property in Brevard County, Florida; and
(2) armed robbery, robbery, and burglary in Fulton County, Georgia.
During voir dire, the district court read Avery’s indictment, including the
listed prior convictions, to the venire. After the court had read the entire
indictment and voir dire had proceeded, Avery’s counsel moved for a mistrial
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based upon the court reading the entire indictment to the jury where the parties had
entered into a stipulation regarding notice to the jury of Avery’s specific prior
convictions. The parties acknowledged that they had entered the stipulation just
before voir dire began and that they notified the court of the stipulation only after
the court had read the indictment. The court reserved judgment on the motion for
mistrial, but asked each of the venire members whether they felt that Avery
deserved any less of a fair trial because he had been convicted of a crime in the
past. All venire members answered in the negative. After the court selected the
jury, it instructed the jury that “[its] reading of [the] charges is not proof or
evidence and you should not consider it at all as such.”
After further argument on the motion, the court accepted the stipulation and
indicated that it would read the stipulation to the jury. The court nonetheless
denied the motion for mistrial, finding that, as the parties conceded, it was not
aware of the stipulation prior to reading the indictment to the jury and thus “the
objection didn’t come until sometime after the court read the charge included in the
indictment.” The court acknowledged that, after it learned of the stipulation, it
twice informed the jury that the indictment was not evidence. The court also
agreed to give the jury an additional curative instruction upon Avery’s request.
After the government rested its case, the court read the stipulation to the jury as
follows:
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The United States of America and defendant James Avery, Jr. jointly
agree at the time of the alleged crime Avery previously had been
convicted in a court of a crime punishable by imprisonment for a term
in excess of one year, that is, a felony offense. Furthermore, Avery
never has had his civil rights, including the right to keep and bear
firearms, restored by the State of Florida Office of Executive
Clemency. The parties jointly agree that this element has been proved
beyond a reasonable doubt.
B. Government’s Case-In-Chief
Agent Scott Perala of the Bureau of Alcohol, Firearms, and Tobacco
(“ATF”) testified that, in February 2005, he investigated numerous persons
involved in firearms and narcotics transactions and used the CI Stanley Domino to
aid in the investigation. Domino’s role in the investigation included introducing
Agent Perala to Avery so that Agent Perala could purchase a firearm from Avery.
Agent Perala further stated that the general cover story he and Domino used was
that Agent Perala was a friend of Domino’s from California and that Agent Perala
wanted to buy firearms and narcotics to ship back to California. On February 11,
2005, Agent Perala and Domino met Avery at a Publix supermarket. Avery
entered Agent Perala and Domino’s car and directed them to drive him to a
location where he could pick up the firearm and sell it to Agent Perala for $100.
Agent Perala and Domino took Avery to a house where Avery gave them a firearm
and ammunition.
On cross-examination, Agent Perala testified that he met Avery on February
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9, 2005 and thought that Avery would have had a firearm to sell him on that day.
Avery did not have a firearm on that day, but he indicated to Agent Perala that he
knew where a firearm was located and that he intended to steal it and sell it to
Agent Perala. Agent Perala told Avery that he would pay him for the gun and that
he “already had it sold.” Agent Perala then notified his undercover investigation
team that he intended to drive Avery to the neighborhood where Avery wanted to
conduct the potential burglary. Agent Perala drove Avery to the neighborhood,
hoping that Avery “would identify the house he was going to in which case we
could arrest him . . . in the course of committing a burglary.” Avery did not
identify the house.
Agent Perala further testified that, later in the day on February 9, 2005, he
sent Domino to find Avery and determine whether he had the firearm. When
Domino found Avery, Avery told him that he did not have the firearm and that he
planned to wait until nightfall to obtain it. Agent Perala did not arrest Avery, but
he and other officers canvassed the neighborhood, contacted the residents, and “did
everything they could to even keep [Avery] from doing a burglary or stop him.”
Avery actually sold Agent Perala the firearm on February 11, 2005. On that day,
Agent Perala picked up Avery at the Publix and drove him to a vacant house that
did not belong to him, but at which he had stayed the previous night. Avery
entered the house and returned to Agent Perala’s car with a firearm in his
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possession. In response to Avery’s counsel’s questions regarding whether Agent
Perala aided Avery in committing a burglary, Agent Perala stated that, “in my
opinion [Avery] was going to do that burglary whether I had anything to do with it
or not, so my idea was at least law enforcement is somewhat intrinsically involved
and we could find out where he was going.”
C. Motion to Dismiss the Indictment
On September 6, 2005, before trial, the district court had entered a
scheduling order, requiring the parties to submit all motions, including motions to
dismiss the indictment, by September 26, 2005. The order also included a waiver
provision, which indicated that the failure to raise any defenses or objections in a
timely motion would constitute waiver unless the party could demonstrate
excusable neglect. On November 25, 2005, Avery filed a motion to dismiss the
indictment on the basis of “outrageous government conduct.” Avery contended
that Agent Perala’s participation in aiding Avery to commit a burglary and
encouraging the criminal activity was extreme and outrageous conduct. The
district court did not rule on Avery’s motion to dismiss the indictment, and trial
began on November 28, 2005.
Avery renewed his motion to dismiss the indictment at the close of the
government’s case. The court first found that Avery’s motion was untimely and
that he did not establish a sufficient excuse for the delay. The court also denied
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Avery’s motion on the merits, finding that, while law enforcement’s conduct was
troubling, it did not rise to the level of a constitutional violation. Avery thereafter
made an ore tenus motion for judgment of acquittal based upon the government’s
outrageous conduct and the violation of Avery’s due process rights. The court also
gave the jury one final cautionary instruction with regard to not considering the
indictment as evidence.
D. Sentencing
At sentencing, Avery objected to the use of his prior felony convictions to
determine his status as an armed career criminal. Avery argued that there was
insufficient proof to establish that he committed some of the prior crimes reported
in his criminal history, and, thus, they could not support the armed career criminal
designation. He further maintained that, in order for his prior convictions to be
used to support armed career criminal status, the jury had to find proof of those
convictions beyond a reasonable doubt and the court should apply the same
standard. The court concluded that the government proved Avery’s prior
convictions by a preponderance of the evidence, overruled Avery’s objection, and
found that Avery qualified for the sentencing enhancement based upon his armed
career criminal status.
II. Discussion
A. Motion for Mistrial
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Avery argues on appeal that the district court’s reading of the indictment that
contained the specifics of his prior felony convictions violated his constitutional
rights to due process and a fair trial. He cites the Supreme Court decision in Old
Chief1 to support his argument that he suffered unfair prejudice because the jury
heard the nature of his prior convictions and could have used those convictions to
reach a verdict in his case. He further contends that the stipulation was valid upon
both parties accepting and signing it, which the parties did prior to the start of the
voir dire. He maintains that nothing the court did to cure the reading of the entire
indictment could have erased the prejudicial effect the reading had on his trial.
We ordinarily review a district court’s denial of a motion for mistrial for
abuse of discretion. United States v. Trujillo, 146 F.3d 838, 845 (11th Cir. 1998).
“When a district court issues a curative instruction, we will reverse only if the
evidence is so highly prejudicial as to be incurable by the trial court’s admonition.”
Id. (quotation omitted). However, the government contends that plain error review
applies here due to Avery’s untimely objection. “An appellate court may not
correct an error the defendant failed to raise in the district court unless there is:
(1) error, (2) that is plain, and (3) that affects substantial rights.” United States v.
Rodriguez, 398 F.3d 1291, 1297 (11th Cir.), cert. denied, 545 U.S. 1127 (2005)
(quotation omitted). When these three factors are met, we may then exercise our
1
Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997).
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discretion and correct the error if it seriously affects the fairness, integrity, or
public reputation of the judicial proceedings. Id. We have explained that “[t]he
purpose of the plain error rule is to enforce the requirement that parties object to
errors at trial in a timely manner so as to provide the trial judge an opportunity to
avoid or correct any error, and thus avoid the costs of reversal.” United States v.
Sorondo, 845 F.2d 945, 948-49 (11th Cir. 1988) (quotation omitted). In his reply,
Avery does not argue that plain error review should not apply, but he states only
that he did not object immediately after the court’s reading of the indictment
because the “damage was already done.” This argument, however, does not
explain why Avery did not object immediately when he heard the court start to
read the indictment. Thus, plain error review is appropriate here. Regardless, as
discussed more fully below, Avery is not entitled to a reversal even under the less
stringent abuse of discretion standard.
Avery does not establish on appeal that the court plainly erred or abused its
discretion in denying his motion for a mistrial. Avery admits that neither party
informed the court of the stipulation prior to voir dire, and, thus, the court had no
knowledge that its reading of the indictment violated the terms of the stipulation.
Avery contends that the stipulation was binding on the court when the parties
accepted and signed it, but Avery cites no support for this conclusion. Assuming
without deciding that the stipulation was binding on the court, Avery has not
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demonstrated that a mistrial was warranted because the court gave numerous
curative instructions and there was overwhelming evidence of Avery’s guilt. The
court inquired whether any member of the venire felt that Avery deserved any less
of a fair trial because he had been convicted of a crime in the past, and all venire
members answered in the negative. The court also informed the jury five separate
times that the indictment was not evidence and that the jury should not consider it
as such. See United States v. Brazel, 102 F.3d 1120, 1145 (11th Cir. 1997)
(explaining that we presume that a jury follows a district court’s curative
instructions); United States v. Satterfield, 743 F.2d 827, 848 (11th Cir. 1984)
(holding that the district court did not abuse its discretion by erroneously reading
to the jury an indictment containing the defendant’s alias that had been stricken
from the indictment, where the court gave a cautionary instruction and later read
the corrected version of the indictment to the jury). The court’s instructions were
in accordance with what Avery’s counsel requested after the court denied the
motion for mistrial and the parties had rested their cases. Moreover, Avery’s prior
convictions were never mentioned again and, upon the parties’ request, the court
read the stipulation to the jury.
In addition, the government produced substantial evidence of Avery’s guilt
at trial, regardless of the court’s reading of his prior convictions. See United States
v. Harriston, 329 F.3d 779, 789 (11th Cir. 2003) (“an error in admitting evidence
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of a prior conviction was harmless where there is overwhelming evidence of
guilt”). A conviction under 18 U.S.C. § 922(g)(1) requires the government to
prove that a defendant was: “(1) in knowing possession of a firearm, (2) a
convicted felon, and (3) that the firearm affected interstate commerce.” United
States v. Billue, 994 F.2d 1562, 1565 n.2 (11th Cir. 1993). Avery does not
challenge that the government did not prove these elements beyond a reasonable
doubt at trial. Furthermore, the parties’ stipulation established that Avery was a
convicted felon and Agent Perala’s testimony provided proof of the remaining
elements.
Lastly, as the government correctly argues, Old Chief is not on point in this
case. In Old Chief, the Supreme Court determined that a district court abuses its
discretion when it rejects the parties’ stipulation that a defendant was a convicted
felon “when the purpose of the evidence is solely to prove the element of prior
conviction.” Old Chief, 519 U.S. at 174, 117 S.Ct. at 647. Here, the issue is not
whether the court abused its discretion in rejecting a stipulation, because the court
actually accepted the stipulation. Rather, as discussed above, the issue is whether
the court erred or abused its discretion in not granting a mistrial. Thus, the
reasoning of Old Chief is inapplicable for the resolution of Avery’s case.
B. Motion to Dismiss the Indictment
Avery argues on appeal that the indictment should have been dismissed
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because the government’s conduct in his case was extreme and outrageous where
the ATF agents aided and abetted Avery in committing two burglaries. He also
argues that the motion to dismiss was not untimely because the court did not have
sworn facts about the government’s conduct until the evidence was produced at
trial. He alternatively asserts that the court should have granted his motion for
judgment of acquittal, which he made because the court determined that his motion
to dismiss was untimely, because the government’s conduct was outrageous and
violated his due process rights.
We review a district court’s denial of a defendant’s motion to dismiss an
indictment for abuse of discretion. United States v. Clarke, 312 F.3d 1343, 1345
n.1 (11th Cir. 2002). However, a motion to dismiss the indictment due to
outrageous government conduct involves a question of law that we review de novo.
United States v. Savage, 701 F.2d 867, 868 n.1 (11th Cir. 1983).
A motion to dismiss an indictment must be made prior to trial.
Fed.R.Crim.P. 12(b)(3)(B). A district court may set a deadline by which parties
must make pre-trial motions. Fed.R.Crim.P. 12(c). However, “[a] party waives
any Rule 12(b)(3) defense, objection, or request not raised by the deadline the
court sets under Rule 12(c) or by any extension the court provides. For good
cause, the court may grant relief from the waiver.” Fed.R.Crim.P. 12(e). In
Avery’s case, the district court entered a scheduling order in which the court
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required that any motion to dismiss the indictment be filed by September 26, 2005.
Avery filed his motion to dismiss on November 25, 2005, which was the Friday
before his trial began the following Monday. Thus, under the explicit language of
Rule 12 and the court’s scheduling order, Avery waived his right to move to
dismiss the indictment. Nonetheless, Avery argues on appeal that the facts upon
which his motion relied could not have been fully discovered until trial. However,
given that Avery’s motion to dismiss contained three pages of detailed facts
regarding the government’s conduct in his case, his argument that the necessary
facts could not have been discovered prior to trial is meritless. As such, the district
court correctly determined that Avery’s motion to dismiss was untimely.
Avery alternatively argues on appeal that the court’s denial of his motion for
judgment of acquittal was erroneous for the same reasons as he argues with regard
to the motion to dismiss. Pursuant to Federal Rule of Criminal Procedure 29, “the
court on the defendant’s motion must enter a judgment of acquittal of any offense
for which the evidence is insufficient to sustain a conviction.” Fed.R.Crim.P.
29(a). Avery did not argue that he was entitled to a judgment of acquittal on
sufficiency of the evidence grounds, but rather asserted that it was warranted
because of the government’s outrageous conduct. Such a ground is not
contemplated in Rule 29, and, thus, the district court properly denied Avery’s
motion for judgment of acquittal.
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C. Armed Career Criminal Designation
Avery argues that the district court violated the Sixth Amendment in
imposing an enhanced sentence based upon Avery’s status as an armed career
criminal because the court considered Avery’s prior convictions that had neither
been admitted nor proven beyond a reasonable doubt. Avery acknowledges that
the current case law indicates that the government does not have to prove prior
convictions beyond a reasonable doubt, but Avery states that he raises the issue for
preservation.
We review constitutional errors at sentencing de novo, but reverse only for
harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). With
regard to prior convictions that are used to enhance a sentence, the Supreme Court
held in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140
L. Ed. 2d 350 (1998) that the government need not allege in its indictment, and need
not prove beyond a reasonable doubt, that a defendant had prior convictions in
order for a district court to use those convictions for purposes of enhancing a
sentence. Almendarez-Torres, 523 U.S. at 247, 118 S.Ct. at 1233. We explained
in United States v. Greer, 440 F.3d 1267 (11th Cir. 2006) that we continue to
follow the rule as set forth in Almendarez-Torres. Greer, 440 F.3d at 1274.
At sentencing in Avery’s case, the district court determined that the
government had proven Avery’s prior convictions by a preponderance of the
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evidence. According to binding precedent, the district court’s use of Avery’s prior
convictions as a basis for finding him an armed career criminal did not violate the
Sixth Amendment.
III. Conclusion
For the foregoing reasons, the district court did not err in denying Avery’s
motions for mistrial and dismissal of the indictment, nor did it err in imposing
Avery’s sentence. Accordingly, Avery’s conviction and sentence are
AFFIRMED.
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