United States v. Michael Anthony

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 10, 2009
No. 08-14370 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-20721-CR-JLK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL ANTHONY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 10, 2009)
Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Michael Lamar Anthony appeals his convictions and 120-month sentences
for possession with intent to distribute crack, cocaine, heroin, and marijuana, in
violation of 21 U.S.C. § 841. Anthony now appeals, arguing (1) the court erred by
denying his motion to suppress evidence seized from his apartment; (2) various
improper statements at trial by the court and prosecutor amounted to misconduct
and prejudiced his case; and (3) the notice of enhanced penalties was insufficient
under 21 U.S.C. § 851 to confer jurisdiction. After a thorough review of the record
and the parties’ briefs, we affirm.
1. Motion to Suppress
“A district court’s ruling on a motion to suppress presents a mixed question
of law and fact.” United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999).
We accept the district court’s findings of fact to be true, unless shown to be clearly
erroneous, and review de novo the district court’s application of the law to those
facts. Id. “[A]ll facts are construed in the light most favorable to the prevailing
party below.” United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000).
“The individual challenging the search bears the burdens of proof and persuasion.”
United States v. Cooper, 133 F.3d 1394, 1398 (11th Cir. 1998). In reviewing the
denial of a motion to suppress, we may consider the entire record. United States v.
Newsome, 475 F.3d 1221, 1224 (11th Cir. 2007).
Although the Fourth Amendment shields one’s home from unreasonable
searches and seizures by law enforcement officers, “because the ultimate
2
touchstone of the Fourth Amendment is ‘reasonableness,’ the warrant requirement
is subject to certain exceptions.” Brigham City, Utah v. Stuart, 547 U.S. 398, 126
S. Ct. 1943, 1947, 164 L. Ed. 2d 650 (2006). One exception is a warrantless search
made pursuant to voluntary consent. Illinois v. Rodriguez, 497 U.S. 177, 181, 110
S. Ct. 2793, 2797, 111 L. Ed. 2d 148 (1990); Katz v. United States, 389 U.S. 347,
357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967). Consent is voluntary “if it is the
product of an ‘essentially free and unconstrained choice.’” United States v.
Purcell, 236 F.3d 1274, 1281 (11th Cir. 2001) (quotation omitted). The
government bears the burden of proving the existence of valid consent-that the
consent was given voluntarily and not in acquiescence to a claim of lawful
authority. United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989). Consent
“usually turns on credibility choices resulting from conflicting testimony.” United
States v. Gonzalez, 71 F.3d 819, 828 (11th Cir. 1996) (internal quotations marks
omitted). Credibility determinations are within the province of the fact finder
“because the fact finder personally observes the testimony and is thus in a better
position than a reviewing court to assess the credibility of witnesses.” United
States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). We “‘must accept
the evidence unless it is contrary to the laws of nature, or is so inconsistent or
improbable on its face that no reasonable factfinder could accept it.’” Id.
3
(alteration in original) (quotation omitted).
In this case, Miami-Dade Police Detective Kevin Richardson, Detective
William Padraja, and Sergeant Jose Ramirez testified that they went to Anthony’s
apartment after receiving an anonymous tip. Catherine Cannady, Anthony’s
mother and the lease holder on the apartment, answered the door, invited them in,
and gave both written and verbal consent to search the apartment. Cannady was
calm and cooperative and was not pressured or coerced to give consent. Cannady
escorted the officers to the bathroom where they spoke with Anthony, who
identified his bedroom and gave verbal consent to a search. Police found drugs,
drug paraphernalia, and a firearm. Anthony was arrested and given his rights, after
which he admitted the contraband was his and stated that his mother knew nothing
about it. Police also searched the bathroom and found more drugs, which Anthony
also admitted were his.
Cannady testified that when she opened the door, there were about seven or
eight officers there. One of the officers slid his foot over the threshold so she
could not close the door. After the officers entered the apartment, one officer
pushed a form at her. She was very nervous, did not know what the form was, and
felt pressured to sign it. Although she allowed the police entry into her home and
permitted them to look around, she did not think she had given consent to a search.
4
Nevertheless, she admitted that she had written her address on the consent form
and had signed and dated it. She also admitted that she signed the form where it
indicated that consent had been given freely.
Upon review, we conclude the district court properly denied the motion to
suppress. The magistrate judge explained that the officers’s testimony was more
credible than Cannady’s.1 Viewing the evidence in the light most favorable to the
government, the testimony established that three officers arrived at Anthony’s
apartment, identified themselves, and informed Cannady that they were
investigating a tip. Cannady invited them in; she was calm and cooperative as she
signed the consent form and led the officers through the house. On these facts,
Anthony has not shown that the initial entry into the apartment or the subsequent
consent to search was invalid. See United States v. Ramirez-Chilel, 289 F.3d 744,
(11th Cir. 2002) (deferring to magistrate judge’s credibility determination where
magistrate judge explained reasons for finding police more credible and report
indicated that magistrate judge had considered all the testimony).
2. Alleged Errors at Trial
1
In his motion to suppress and objections to the magistrate judge’s recommendation,
Anthony argued that the consent was involuntary but did not explicitly argue that the initial entry
was invalid. In a single sentence, which is insufficient to preserve the issue, Anthony stated that
seven or eight officers arrived at the house and one officer placed his foot in the door to prevent
Cannady from closing it. He offered no law to argue that this entry was illegal or non-consensual.
Nevertheless, a review of the evidence establishes that the initial entry into the apartment was
consensual and not the result of coercion or a show of authority.
5
Anthony argues that the following instances of prosecutorial and judicial
misconduct prejudiced his case: (1) the court’s explanation of the charges against
Anthony during opening statements, stating “if I may put it in this fashion for the
jury to understand, operating sort of a pharmacy or drug store”; (2) the
prosecutor’s reference in opening statements that “in the words of a convicted
felon,” Anthony admitted his possession of the gun and drugs; (3) the court’s
refusal to allow defense counsel to offer its view of the evidence during opening
statements; and (4) the prosecutor’s reference in rebuttal to Anthony going home,
which implied that he was in custody. According to Anthony, the cumulative
effect of these errors compels reversal of his convictions.
We review a judge’s comment on evidence for an abuse of discretion. See,
e.g., United States v. Berdick, 555 F.2d 1329, 1330 (5th Cir. 1977).2 Allegations
of prosecutorial misconduct present mixed questions of fact and law that are
reviewed de novo. United States v. Noriega, 117 F.3d 1206, 1218 (11th Cir.
1997). We review a claim that the district court improperly limited a defendant’s
opening statement for an abuse of discretion. See United States v. Burns, 298 F.3d
523, 543 (6th Cir. 2002) (stating a district judge’s conduct of a trial, including
opening statements, is reviewed for an abuse of discretion) (persuasive authority).
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this court
held that all decisions handed down by the former Fifth Circuit before the close of business on
September 30, 1981, are binding precedent in the Eleventh Circuit.
6
The denial of a motion for a mistrial is reviewed for abuse of discretion. United
States v. Campa, 529 F.3d 980, 992 (11th Cir. 2008), cert. denied, 129 S. Ct. 2790
(2009). When a defendant fails to object to an error before the district court, we
review the argument for plain error. United States v. Hall, 314 F.3d 565, 566 (11th
Cir. 2002); see also United States v. Olano, 507 U.S. 725, 731-32, 113 S. Ct. 1770,
1776, 123 L. Ed. 2d 508 (1993). “Plain error occurs where (1) there is an error; (2)
that is plain or obvious; (3) affecting the defendant’s substantial rights in that it
was prejudicial and not harmless; and (4) that seriously affects the fairness,
integrity, or public reputation of the judicial proceedings.” Hall, 314 F.3d at 566;
Olano, 507 U.S. at 732.
a. the court’s statement
Anthony challenges the district court’s statement to the jury that Anthony
was operating a drug store. Because Anthony failed to object at trial, we review
this issue for plain error.
Remarks may constitute error if they (1) were improper and (2) prejudiced
the defendant’s substantive rights. United States v. Delgado, 56 F.3d 1357, 1368
-1369 (11th Cir. 1995). Furthermore, ‘[a] clear effect on the jury is required to
reverse for comment by the trial judge.’” United States v. Morales, 868 F.2d 1562,
1576 (11th Cir. 1989). “[I]n order to amount to reversible error, a judge’s remarks
7
must demonstrate such pervasive bias and unfairness that they prejudice one of the
parties in the case.” United States v. Ramirez-Chilel, 289 F.3d 744, 750 n.6 (11th
Cir. 2002); see also United States v. Verbitskaya, 406 F.3d 1324, 1337 (11th Cir.
2005).
Here, the court’s statement was a single, isolated comment. The jury heard
testimony that Anthony admitted possession of the drugs. In light of this evidence,
Anthony cannot show that he was prejudiced by the court’s comment.
b. the prosecutor’s opening statement
Anthony next challenges the prosecutor’s reference during open statement to
Anthony’s status as a convicted felon. Again, we review this claim for plain error.
Prosecutorial misconduct is a basis for reversing an appellant’s conviction
only if, in the context of the entire trial and in light of any curative instruction, the
misconduct may have prejudiced the substantial rights of the accused. United
States v. Cordoba-Mosquera, 212 F.3d 1194, 1198 (11th Cir. 2000). When we
review an issue of prosecutorial misconduct, we must determine (1) whether the
challenged comments were improper and (2) if so, whether they prejudiced the
defendant’s substantial rights. United States v. Paul, 175 F.3d 906, 909 (11th
Cir.1999). “A defendant’s substantial rights are prejudicially affected when a
reasonable probability arises that, but for the remarks, the outcome of the trial
8
would have been different.” United States v. Eckhardt, 466 F.3d 938, 947 (11th
Cir. 2006). “This court gives ‘considerable weight to the district court’s
assessment of the prejudicial effect of the prosecutor’s remarks and conduct.’”
Cordoba-Mosquera, 212 F.3d at 1198 (internal citation omitted). When the record
contains sufficient independent evidence of guilt, such error is usually harmless.
United States v. Adams, 74 F.3d 1093, 1097-98 (11th Cir. 1996).
Here, the prosecutor stated in opening remarks that Anthony was a convicted
felon who had admitted possession of the drugs. During trial, Anthony stipulated
that he had a prior felony conviction. The jury then heard testimony that Anthony
admitted possessing the drugs. Anthony cannot show that the alleged error
resulted in prejudice.
c. defense counsel’s opening statement
Anthony next challenges the court’s limitations on defense counsel’s
opening statement. An opening statement gives counsel the opportunity to state
what evidence will be presented in order to make it easier for the jurors to
understand what is to follow, and is not an occasion for argument. United States v.
Zielie, 734 F.2d 1447, 1455 (11th Cir. 1984), abrogated on other grounds by
United States v. Chestang, 849 F.2d 528, 531 (11th Cir. 1988). “The scope and
extent of the defendant’s opening statement rests largely in the discretion of the
9
trial court.” United States v. Freeman, 514 F.2d 1184, 1192 (10th Cir. 1975)
(persuasive authority). The court “can exclude irrelevant facts and stop argument
if it occurs.” Zielie, 734 F.2d at 1455.
Here, defense counsel’s statements constituted argument and did not inform
the jury as to the evidence it would hear. Accordingly, the district court’s warnings
to defense counsel were proper.
d. rebuttal
Anthony contends that the prosecutor’s reference to Anthony “going home
tonight” was an impermissible statement that Anthony was in custody. In order to
succeed on appeal, Anthony must show that the statement was improper and that,
in the context of the entire trial, the improper statement prejudiced his substantial
rights. Cordoba-Mosquera, 212 F.3d at 1198.
This court has expressed concern over the potential prejudice arising from
the jury’s knowledge that the defendant has been incarcerated while awaiting trial.
United States v. Harris, 703 F.2d 508, 510 (11th Cir. 1983) (concluding that a
defendant’s appearance at trial dressed in prison clothes prejudiced the jury but
explaining that reversal was not warranted if the error was harmless beyond a
reasonable doubt). A brief utterance or comment of the word “jail,” “prison,” or
“custody,” however, does not constitute per se reversible error. See United States
10
v. Villabona-Garnica, 63 F.3d 1051, 1058 (11th Cir. 1995).
Here, Anthony’s cousin, Tremaine King, testified that he had obtained the
gun the day before the arrest and had brought it into the bedroom. After the
defense reminded the jury in closing argument that Tremaine admitted the gun was
his, the government in rebuttal asserted that Tremaine’s testimony was simply that
of a young boy trying to protect his cousin, “to try to let his cousin go home
tonight too.”
Upon review, we conclude the prosecutor’s rebuttal argument did not violate
due process. First, it was a single comment and did not directly reference – or
arguably even imply – Anthony’s custody status. Second, the jury was instructed
that what the lawyers say is not evidence, and we presume the jury followed its
instructions. United States v. Simon, 964 F.2d 1082, 1087 (11th Cir. 1992). Third,
the evidence against Anthony was overwhelming. Accordingly, Anthony cannot
show that the statement resulted in prejudice.
e. cumulative effect
“[T]he cumulative effect of several errors that are harmless by themselves
could so prejudice the defendant’s right to a fair trial that a new trial might be
necessary.” United States v. Preciado-Cordobas, 981 F.2d 1206, 1215 n.8 (11th
Cir. 1993). “In addressing a claim of cumulative error, [this court] must examine
11
the trial as a whole to determine whether the appellant was afforded a
fundamentally fair trial.” United States v. Calderon, 127 F.3d 1314, 1333 (11th
Cir. 1997). Where there is no error or only a single error, there can be no
cumulative error. See United States v. Waldon, 363 F.3d 1103, 1110 (11th Cir.
2004).
Because, as discussed above, there were no errors, there could be no
cumulative error. Waldon, 363 F.3d at 1110.
3. Sentencing Enhancement
Anthony argues that the district court lacked jurisdiction to impose the
mandatory minimum sentence for the crack cocaine offense because the
government’s § 851 notice failed to identify the date of the prior conviction or the
relevant statutory provision supporting the enhancement.
Relevant to the issue of notice, Anthony was indicted for possession with
intent to distribute five grams or more of crack, in violation of 21 U.S.C. § 841(a)
and (b)(1)(B). Prior to trial, the government filed a notice of enhanced penalties
under 21 U.S.C. § 851 because Anthony had a prior conviction. The notice
identified the prior offense as a conviction “in Miami-Dade County, Miami,
Florida, in case number F01-039526 (Cocaine Possession with Intent to
Sell/Deliver & Cannabis Possession with Intent to Sell/Deliver).”
12
We review de novo questions regarding the adequacy of a § 851 notice.
United States v. Ramirez, 501 F.3d 1237, 1239 (11th Cir. 2007).
Section 851(a)(1) provides:
No person who stands convicted of an offense under this part shall be
sentenced to increased punishment by reason of one or more prior
convictions, unless before trial, or before entry of a plea of guilty, the
United States attorney files an information with the court . . . stating in
writing the previous convictions to be relied upon. . . . Clerical
mistakes in the information may be amended at any time prior to the
pronouncement of sentence.
21 U.S.C. § 851(a)(1). The purpose of § 851(a)(1) is to “allow the defendant to
contest the accuracy of the information . . . [and] to have ample time to determine
whether to enter a plea or go to trial and plan his trial strategy with full knowledge
of the consequences of a potential guilty verdict.” United States v. Williams, 59
F.3d 1180, 1185 (11th Cir. 1995).
The § 851 “notice requirement is jurisdictional: unless the government
strictly complies, the district court lacks jurisdiction to impose the enhanced
sentence.”3 United States v. Jackson, 544 F.3d 1176, 1184-85 (11th Cir. 2008),
cert. denied, 129 S. Ct. 1925 (2009); United States v. Ramirez, 501 F.3d 1237, 1239
(11th Cir. 2007); United States v. Thompson, 473 F.3d 1137, 1144 (11th Cir.
2006). When a notice of enhancement contains minor errors, this court will find
3
Although Anthony did not challenge the adequacy of the notice before the district court,
because the issue is jurisdictional, Anthony can raise it at any time. United States v. Giraldo-Prado,
150 F.3d 1328, 1329 (11th Cir. 1998).
13
§ 851 compliance as long as the notice, despite the errors, unambiguously signaled
the government’s intent. Perez v. United States, 249 F.3d 1261, 1266-67 (11th Cir.
2001).
Importantly, the text of the statute does nothing more than require the
government to file notice before trial or entry of a guilty plea; it does not specify
how to satisfy the notice requirement. To answer this question, this court has
considered the purpose behind the notice requirement. See Ramirez, 501 F.3d at
1239.
Here, the notice was filed prior to trial and identified the prior conviction by
case number, offense, and venue. Contrary to Anthony’s claim, this was sufficient
to meet the first purpose of the notice requirements and enabled Anthony to contest
the accuracy of the information.
The question is whether the notice meets the second requirement, the
identification of the relevant statute. There is no dispute that the notice failed to
identify the statute under which the enhanced penalty fell. Section 841(b) allows
for enhanced penalties ranging from a ten-year mandatory minimum to life
imprisonment depending on the amount of drugs involved and the type of prior
conviction. See 21 U.S.C. § 841(b)(1)(A), (B), (C).
In this case, the indictment charged Anthony with possession with intent to
14
distribute five grams or more of crack in violation of § 841(b)(1)(B). Thus,
Anthony should have known that he faced an enhanced sentence of ten years’
imprisonment based on the amount of drugs and his prior felony conviction.
Moreover, Anthony conceded at sentencing that he faced the ten-year mandatory
minimum sentence, indicating that he was not confused by the failure to list the
statutory provision in the § 851 notice.4 On these facts, we conclude the notice was
sufficient to meet the purposes of § 851 when considered in conjunction with the
indictment.
For the foregoing reasons, we affirm Anthony’s convictions and sentences.
AFFIRMED.
4
Anthony’s reliance on United States v. Bowden, 2009 WL 32755 (11th Cir. Jan. 7, 2009),
is misplaced. We are not bound by unpublished opinions. Nevertheless, the facts of the case are
distinguishable. In Bowden, the notice listed the wrong conviction date and the wrong enhancement
statute. In contrast, here, the government listed the case number of the prior conviction, indicating
to Anthony precisely which conviction on which the government relied. Moreover, the indictment
specified the amount of drugs and the statutory provision setting forth the penalties.
15