The opinion
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________
No. 12-16602
_____________________________
D.C. Docket No. 1:12-cr-20276-FAM-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL MACK,
OCTAVIUS MCLENDON,
HENRY LEE BRYANT,
Defendants-Appellants.
____________________________
Appeals from the United States District Court
for the Southern District of Florida
____________________________
(July 24, 2014)
Before MARCUS, Circuit Judge, PROCTOR,* and EVANS,** District Judges.
*
The Honorable R. David Proctor, United States District Judge for the Northern District
of Alabama, sitting by designation.
**
The Honorable Orinda D. Evans, United States District Judge for the Northern District
of Georgia, sitting by designation.
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EVANS, District Judge:
Defendants/Appellants (hereinafter “Defendants”) Daniel Mack (“Mack”),
Henry Lee Bryant (“Bryant”), and Octavius McLendon (“McLendon”) were
convicted of, inter alia, conspiracy to possess with intent to distribute five
kilograms or more of cocaine and possession of a firearm in furtherance of a drug
trafficking crime. They appeal, raising numerous issues related to their
convictions. Bryant also appeals his sentence. We affirm.
I. Background
A. The Evidence
The following is the evidence construed in the government’s favor.1 United
States v. Harris, 20 F.3d 445, 452 (11th Cir. 1994) (citation omitted).
In 2011, the Federal Bureau of Investigation (the “FBI”) initiated an
investigation in Miami Beach, Florida. As part of that investigation, undercover
FBI agent Dante Jackson (“Agent Jackson”) posed as “Kevin Johnson,” the
general manager of a Miami Beach nightclub called Dolce UltraLounge (“Dolce”).
While acting as the nightclub manager, Agent Jackson was introduced to
Defendant Bryant, a veteran Miami Beach fire inspector.
1
Much of the evidence was recorded, and the recordings were played for the jury.
2
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During a meeting at the nightclub office on December 2, 2011, Agent
Jackson told Bryant that he was helping a drug-trafficker friend from New York
by transporting drugs. Agent Jackson proposed a plan to move some of the
friend’s drugs from the Miami Beach nightclub to the Aventura Mall in north
Miami-Dade County, and asked Bryant whether he could provide police protection
for the transport. Jackson specifically insisted that the officers be in uniform and
drive marked police cruisers to avoid interdiction by other law enforcement.
On December 4, 2011, Bryant told Agent Jackson that he had “four County
guys” and “two Beach guys” who would escort the drugs. He added that he would
bring in Defendant McLendon, to whom Bryant referred as his “brother.” Bryant
described McLendon as “the point man" who would communicate the plans to the
officers.
On December 6, 2011, Agent Jackson called Bryant and attempted to
arrange a meeting with the officers who had been enlisted by Bryant to provide the
escort. Bryant did not bring his “guys” to his follow-up meeting with Jackson that
took place on December 9, 2011; however, he assured Agent Jackson in a
recorded conversation that “[the police officers] gonna know what’s gonna on,
cause [Bryant was] gonna tell them [what the deal was] straight up.” Bryant also
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commented that he and McLendon had been “in this thing together for, since
[they]’ve been eight years old.”
Agent Jackson and Bryant had several additional conversations in which
they discussed the details of the transportation of the drugs. During a telephone
call on December 10, 2011, Agent Jackson referred to the “dope” that they would
be transporting, and Bryant immediately hung up. Later, Bryant reprimanded
Jackson stating he had thought that Jackson had said “coke.” Bryant instructed
Jackson not to use the word “coke” over the telephone because their conversations
could be intercepted by law enforcement.
December 21, 2011 was the date of the first of two drug transportation trips.
On that day, Agent Jackson introduced Bryant to his drug-trafficking friend from
New York, who was played by Detective KayTee Tyson (“Det. Tyson”), at a
restaurant on South Beach. At approximately 4:30 p.m. that afternoon, Bryant,
accompanied by McLendon, arrived at Dolce to collect the cocaine.2 Agent
Jackson and Det. Tyson were present in their undercover roles.
Bryant and McLendon began discussing the route that they were going to
take. McLendon stated that they should not use the SunPass toll lane, and Bryant
clarified that this was because the camera on the toll lane takes pictures. Det.
2
That meeting was video recorded.
4
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Tyson then told Bryant and McLendon that “there’s nine in there,” referencing the
quantity of cocaine in kilograms, and stated that “we need to make sure that all
nine of these get there.” McLendon nodded his head in agreement. Det. Tyson
added, “cause this money, see what I’m saying?”
In front of both Bryant and McLendon, Det. Tyson then marked each of the
nine packaged bricks of sham cocaine with a marker, and Agent Jackson placed
the packages into a duffel bag. After Bryant and McLendon counted or partially
counted the nine kilograms of sham cocaine, Det. Tyson told them that there may
be “no deviation, no taste, no test,” and asked if either of them “get high?”
According to Det. Tyson, they appeared to be insulted and McLendon made a
sound as though he was upset with the question.
FBI agents on the ground and in a surveillance aircraft observed Bryant and
McLendon driving away from the nightclub. Bryant and McLendon’s vehicle
drove to Aventura Mall. Their vehicle was escorted by a marked police patrol car
with the numbers 1929A painted on its roof. There is no express evidence as to
who was driving that vehicle, but the patrol car was assigned to Defendant Mack.3
3
The government and Defendant Mack stipulated that vehicle number 1929A was
assigned to Mack.
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Mack’s vehicle kept going past the mall and did not reappear. Bryant was paid
$10,500 for the job.
On the morning of January 14, 2012, the date of the second drug
transportation trip, the undercover agents met with Bryant and Defendant Mack at
a restaurant. Mack had been a police officer with the Miami-Dade police
department for sixteen years. He had been scheduled to work that day, but had
requested the day off.
Before Mack arrived, the undercover agents attempted to confirm with
Bryant that “everybody was on the same page [about what they were doing].”
Bryant assured Tyson that Mack “[knew] exactly what [they were] doing” and that
“there’s no secrets.”
Mack arrived in his Miami-Dade police patrol car. He wore his police
uniform and badge, but not his name tag. His firearm was visible, holstered at his
waist. When Mack arrived, Bryant stated, “James, T.” Jackson interpreted this as
Bryant introducing Mack by the name “James.”
Due to lack of seating at the restaurant, the group decided to move the
meeting to another restaurant. Det. Tyson and Bryant rode together in Bryant’s
vehicle. They were followed by Agent Jackson. Mack met them at the second
restaurant. At the new restaurant location, they sat together.
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During the meeting at that restaurant, which began at about 9:05 a.m., Agent
Jackson and Det. Tyson did not mention the words “cocaine” or “drugs.” Det.
Tyson emphasized that it was important that Mack understood what was going on
and that he was “on the same point.”4 Mack did not ask any questions while
Tyson was speaking. He gave brief affirmative responses when spoken to, such
as, “[t]hat’s true,” “[r]ight,” “[y]ou right,” and “[y]eah.” He asked no questions.
At some point, while they were still in the restaurant, Mack and Det. Tyson
began discussing the county's plan to reduce the police force by laying off
hundreds of police officers, to which Tyson replied “[w]e ready to get rich.”
Tyson also commented that “[n]obody down [in Miami] be working” and that
“we” could be in Miami “all the time,” and Mack confirmed that “[t]here won’t be
[anybody working].” Jackson then added that Miami would be “wide open.”
Mack said nothing in response to that statement.
As the group left the restaurant, Agent Jackson said “[h]ey but I appreciate
it man[,]” to which Mack replied “[n]o problem.” Jackson told Mack that they
were “trying to make it work” because Miami was “new territory for us.” He also
stated that they had “many t-shirts coming through you know what I mean, we just
want to make sure everything is right you know what I mean.” Mack responded,
4
That meeting was recorded.
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“I don’t hate, so that’s why I respect and understand everything he mentioned.”
Jackson then remarked that “ain’t nobody trying to get locked up.” Mack
responded “[y]ou know how they do us” and gestured as though he was
handcuffed, which Jackson interpreted to mean “the government against two black
guys.” The meeting broke up at 10:18 a.m.
Less than two hours later, Bryant arrived at the nightclub with McLendon.
There, McLendon counted ten brick-shaped packages of cocaine as they were
packed into a duffel bag. There is no evidence that Mack was present when the
packages were counted and packed. A little after 12:03 p.m., Bryant and
McLendon transported the 10 kilograms of sham cocaine in their car to Aventura.
Their vehicle, a PT Cruiser, was followed closely for about eight to ten miles by
the same marked patrol car that was observed escorting the December 21, 2011
transport. The marked patrol car kept going behind Bryant and McLendon’s
vehicle until it entered a Publix parking lot in Aventura. FBI agents testified that
throughout the surveillance, there was radio communication between the marked
patrol car and the PT Cruiser.
Bryant, McLendon, and Mack were arrested on April 11, 2012.
All three Defendants were indicted on four counts: (1) conspiracy to possess
with intent to distribute five kilograms or more of cocaine, in violation of 21
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U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count One); (2) attempt to possess
with intent to distribute cocaine on December 21, 2011, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A)(ii), 846, and 18 U.S.C. § 2 (Count Two); (3) attempt
to possess with intent to distribute cocaine on January 14, 2012, in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), 846, and 18 U.S.C. § 2 (Count Three); and
(4) possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. §§
924(c)(1)(A) and 2 (Count Four).
B. Procedural History
On September 13, 2012, the government filed a motion in limine to exclude
testimony at trial concerning Bryant’s and Mack’s statements at the time of their
arrest. According to the government’s pretrial motion, Bryant and Mack each
stated to the arresting officers that Mack was led to believe he was escorting
money, not cocaine. The motion does not detail the content of the post-arrest
statements, and the government did not attach any copies of said statements.
Although there is nothing in the record for us to determine what precisely the
statements were, there does not appear to be any dispute that statements of this
nature were made.
Mack did not file a pretrial motion for severance. On the Friday preceding
the trial, which began on Tuesday, October 2, 2012, Bryant made additional
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statements to the prosecutors, asserting that he had led Mack to believe that the
transportation involved money, not drugs. Those statements were not recorded or
otherwise made a part of the record. At the outset of trial, the court granted the
government’s motion in limine to bar Mack’s and Bryant’s statements to the
arresting officers. The court also ruled that exculpatory statements are
inadmissible hearsay. Mack then orally moved to sever the trials. The court
inquired whether Bryant was going to testify in the joint trial, but Bryant's counsel
stated he could not confirm that he would. The district judge denied the motion as
premature, and stated that if Bryant did not testify in the joint trial, Mack could
move to sever at that time. Defense counsel did not offer information that Bryant
would testify on Mack’s behalf at a separate trial. Neither did the court inquire
whether this would be the case.
The government’s case concluded on Thursday, October 4, 2012. All three
Defendants made motions for judgments of acquittal pursuant to Rule 29 on the
ground that there was insufficient evidence to prove that they knew what was
being transported was cocaine and to prove that any firearms were possessed or
carried in connection with the drug transportation. No renewed severance request
was made by Mack. The court questioned the prosecutor closely concerning the
sufficiency of evidence as to Defendant Mack. She outlined the government’s
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evidence. At a couple of points the court interjected, expressing some skepticism
about whether there was enough evidence to support the government’s case
against Mack. At the conclusion of that colloquy, the court denied Mack’s motion
for judgment of acquittal but stated that “it’s a close question.” The court
specifically stated, “I assume at the end of the defense case, it will be raised
again.” The court then inquired of Mack’s counsel “Mr. Rouviere, what are you
going to do in front of the jury?” Mack’s counsel stated that “. . . in light of the
court’s deep analysis of the judgment of acquittal, I would like a couple of minutes
to discuss it with my client.” The court stated: “Oh, I’m not telling you what I’m
going to do.” After hearing from counsel for the two other Defendants, who stated
that they would not be presenting any evidence, the court inquired again of Mack’s
counsel who stated his client would not be testifying. Then the court affirmed
with Mack individually that he understood that no witnesses would be called on
his behalf and that he had made a decision not to testify in his own behalf.
At that point the jury was brought in and counsel for all Defendants
announced that they rested. After the jury retired from the courtroom, the
following colloquy occurred:
THE COURT: All right. You’re renewing your motions for judgment
of acquittal pursuant to Rule 29, right, Mr. Stonick?
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MR. STONICK: Correct, Judge, and I’d also restate and renew all
previous objections for appellate purposes, if necessary.
THE COURT: Mr. Rouviere.
MR. ROUVIERE: Yes, Judge. I’m renewing my Rule 29 motion and
maintaining all prior objections.
THE COURT: Mr. Walker.
MR. WALKER: And also, same Rule 29 and maintaining all the
prior objections that I made during the course of the trial.
The court denied Bryant’s and McClendon’s motions. It announced it
would take Mack’s motion under advisement, and suggested to Mack’s counsel
that he file a brief over the long weekend. We do not construe Mack’s reference to
“maintaining all prior objections” as a renewed request for severance.
The court recessed until Tuesday, October 9, 2012. After closing arguments
on October 9, 2012, the district court orally denied Mack’s Rule 29 motion for
judgment of acquittal.
On October 10, 2012, a jury found Bryant and McLendon guilty of all four
counts. Mack was found guilty of Counts One, Three, and Four, but not guilty of
Count Two (the attempt charge related to the December 21, 2011 drug
transportation). On October 17, 2012, the district court issued a written order once
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again denying all Defendants’ renewed motions for judgment of acquittal on the
ground that the evidence was sufficient to support a jury finding.
On October 17, 2012, Mack filed a renewed motion for judgment of
acquittal, or alternative motion for new trial. That motion specifically mentioned
the district court’s failure to sever Mack’s case for trial as a reason to grant a new
trial. On the same date, Mack filed a motion for leave to file an affidavit that he
anticipated receiving from Bryant, in which Bryant was expected to affirm that he
would have provided exculpatory statements for Mack in a separate trial. The
court denied both motions in an order entered on October 24, 2012.
On November 12, 2012, Mack filed a second renewed motion for a new trial
or in the alternative, motion to alter, amend, or correct order denying motion for a
new trial and judgment of acquittal. That motion was also based on the court’s
denial of severance. An affidavit of Bryant dated November 5, 2012 was attached
to the motion. It stated that Bryant had not told Mack that the transaction involved
drugs.
On December 18, 2012, McLendon filed a motion adopting Mack’s motion
for new trial. McLendon subsequently submitted an affidavit of Bryant dated
November 15, 2012 concerning McLendon’s lack of knowledge that cocaine
would be involved in the transaction. Mack’s second renewed motion was denied
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in an order entered on November 15, 2012, and McLendon’s motion was denied
during the December 19, 2012 sentencing proceedings.
On December 19, 2012, McLendon and Mack were sentenced to 188 and
120 months’ imprisonment, respectively, on each of the drug counts they were
convicted of, all terms to be served concurrently, followed by 60-months’
imprisonment for Count Four, to be served consecutively. The court also imposed
a five-year supervised release term on all of the counts, to be served concurrently.
On the same date, after his request for a downward variance based on
sentencing factor manipulation was denied, Bryant was sentenced to 204 months’
imprisonment for Counts One, Two, and Three, and to a consecutive 60-month
term on Count Four, followed by ten years of supervised release on all counts, to
be served concurrently.
II. Issues on Appeal
Defendants challenge the denial of their motions for a judgment of acquittal.
Mack appeals the district court’s denial of his oral motion made on the first day of
trial and of his written post trial motion pertaining to severance. Both Mack and
McLendon attack the district court’s denial of their respective motions for new
trial. All Defendants challenge the district court’s failure to admit Bryant’s post-
arrest statements for impeachment purposes. They further contend that the
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cumulative effect of purported prosecutorial misconduct, improper government
witness testimony, and erroneous judicial rulings warrant a reversal in this case.
Only Bryant appeals his sentence.
III. Sufficiency of the Evidence
A. Standard of Review
All Defendants assert that their convictions were not supported by sufficient
evidence. We review de novo the question whether sufficient evidence supports a
jury verdict. United States v. Calderon, 127 F.3d 1314, 1324 (11th Cir. 1997)
(citing Harris, 20 F.3d at 452). On review of a guilty verdict, “the evidence is
viewed in the light most favorable to the government, with all reasonable
inferences and credibility choices made in the government’s favor.” Id. The
verdict must be upheld “if there is substantial evidence to support it, that is ‘unless
no trier of fact could have found guilt beyond a reasonable doubt.’” Id. (quoting
United States v. Battle, 892 F.2d 992, 998 (11th Cir. 1990)).
We first address the district court’s denial of Defendants’ Rule 29 motion
for acquittal with respect to the conspiracy and attempt charges (Counts One
through Three). We then turn to the sufficiency of the evidence on the 18 U.S.C.
§ 924(c) charge (Count Four). We find that the evidence presented to the jury was
sufficient to support Defendants’ convictions on all counts.
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B. The Conspiracy and Attempt Charges
The conspiracy charge requires the government to prove beyond a
reasonable doubt that: “(1) a conspiracy existed; (2) [Defendants] knew the
essential objectives of the conspiracy; and (3) [Defendants] knowingly and
voluntarily participated in the conspiracy.” Calderon, 127 F.3d at 1326 (quoting
Harris, 20 F.3d at 452 (internal quotation marks omitted)). To find Defendants
guilty of attempt, the jury had to find beyond a reasonable doubt (1) that they
acted with the culpability required for the commission of the crime, and (2) that
they took a substantial step toward to the commission of the crime. United States
v. Ohayon, 483 F.3d 1281, 1285 (11th Cir. 2007). At issue for both the conspiracy
and the attempt charges (hereinafter “the drug charges”) is the sufficiency of the
evidence that Defendants knew that the transaction involved drugs.
1. Bryant’s Knowledge
The record is rife with evidence of Bryant’s knowledge that the contents of
the cargo consisted of drugs. On December 9, 2011, Agent Jackson told Bryant
“it’s ten keys . . . , I mean that’s what gonna be moving.” Bryant responded,
“okay.” Jackson repeated himself, to be clear that Bryant understood, “[j]ust so
you know. Uh, its ten kilo’s.” Bryant again said, “okay.” Bryant acknowledged
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that moving the drugs was “a huge risk” and that the police he had recruited to do
the job “usually get paid four, five gran’ a piece.”
Later in the conversation, Agent Jackson stated , “it’s not a incre-,
incredible amount of cocaine, I mean so it ain’t a ton. Know what I mean?”
Bryant replied, “I understand, I understand.” Jackson also said that “cocaine
prices isn’t what it used to be . . . .” Bryant hung up when Jackson, on one
occasion, referred to the “coke” during a telephone conversation with him, and
later chided Jackson for using that term on the telephone. Bryant suggested that
Agent Jackson could use many other terms to refer to cocaine. There can be no
doubt that Bryant knew exactly what he had agreed to transport. Thus, his
conviction on the drug charges must be upheld.5
5
Bryant also contends that the “outrageous government conduct” warrants an acquittal.
That argument was not presented to the district court. Issues raised for the first time on appeal
are reviewed only for plain error. See United States v. Kelly, 888 F.2d 732, 739 n.12 (11th Cir.
1989) (a defendant’s claim of outrageous government conduct that was not raised at trial is
reviewable only for plain error).
An acquittal on grounds that the government engaged in outrageous conduct requires a
showing by the defendant that, based on the totality of the circumstances, the government’s
conduct and over-involvement violated that “fundamental fairness, shocking to the universal
sense of justice” mandated by the Due Process Clause of the Fifth Amendment to the United
States Constitution. Wilcox v. Ford, 813 F.2d 1140, 1147 (11th Cir. 1987) (quoting United
States v. Russell, 411 U.S. 423, 432, 93 S. Ct. 1637, 1647 (1973) (internal quotation marks
omitted)). The defense can be raised only in the “rarest and most outrageous circumstances.”
United States v. Tobias, 662 F.2d 381, 387 (5th Cir. Unit B 1981), cert. denied 457 U.S. 1108,
102 S. Ct. 2908 (1982).
According to Bryant, the government’s conduct was outrageous because this “egregious
reverse sting” involved two drug transportation trips instead of one. We disagree. The second
run enabled agents to meet and collect evidence against Mack, one of the police officers who
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2. McLendon’s Knowledge
The evidence is ample with respect to McLendon’s knowledge that the
offense involved drugs. Bryant stated to Agent Jackson that McLendon would
serve as his “point man” to the police officers on the transaction and that he and
McLendon have been “in this thing” since they were children.
In addition, McLendon’s knowledge of the drugs is supported by
independent evidence. McLendon was present at the nightclub office on
December 21, 2011 when Det. Tyson marked each of the nine brick-shaped items,
counted them, and placed them in a duffel bag. Det. Tyson then handed the bag to
McLendon and told him that “there’s nine in there” and that “[they] need[ed] to
make sure all nine of these get there.”
McLendon contends that he was not told what was contained in the
“opaque, brick-shaped, shrink-wrapped items that were placed in a duffel bag by
the undercover agents and given to him and Bryant to transport.” But Det. Tyson
instructed both Bryant and McLendon that there can be “no deviation, no test, no
taste” and asked “neither one of y’all get high right?”
assisted Bryant and who was charged as a co-conspirator. Thus, the government’s decision in
conducting two runs, instead of one, was not “fundamentally unfair.”
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McLendon points out that Det. Tyson himself told McLendon and Bryant
that they were transporting money, not drugs, by making the statement “cause this
money, see what I’m saying?” However, that statement was made immediately
after Tyson had counted the nine brick-like objects and after he had handed the
bag to McLendon, cautioning him that they needed to make sure the cargo reaches
its destination intact. Thus, this statement is consistent with Tyson’s testimony
that he sought to communicate to McLendon and Bryant that the nine kilograms of
cocaine were worth a lot of money to him. In sum, the evidence in the record fully
sustains McLendon’s conviction on the drug charges.
3. Mack’s Knowledge
Mack asserts that there was no evidence from which a reasonable jury could
find, beyond a reasonable doubt, that he knew the conspiracy involved drugs,
instead of money. He points out that he was not involved in any of the
negotiations or preparations for the offense. He was not present when the drugs
were loaded into the vehicle driven by Bryant and McLendon, and he drove away
before they were unloaded. He never saw the sham cocaine or the bag in which it
was carried. He adds that, on the morning of the second drug transportation trip,
the undercover agents were still trying to confirm that he knew that he was
escorting drugs.
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Even though the evidence of Mack’s knowledge of the drugs is not
overwhelming, it is sufficient to support his conviction on the drug charges. Mack
appeared at the January 14, 2012 meeting in full uniform; he was wearing his
badge but not his name tag. His weapon was visible and was holstered on his
person. Approximately two hours later, FBI agents observed his marked police
car following closely the vehicle driven by Bryant and McLendon. We have held
that “repeated presence at the scene of the drug trafficking . . . can give rise to a
permissible inference of participation in the conspiracy.” Calderon, 127 F.3d at
1326 (citations omitted). Although “mere presence,” standing alone, is
insufficient to support a conviction for a drug-related offense, it is “a material and
probative factor” that may be considered by the jury in reaching the verdict. Id.
(internal quotation marks and citations omitted); United States v.
Baptista-Rodriguez, 17 F.3d 1354, 1374 (11th Cir. 1994).
Mack argues that the “permissible inference” does not apply in his case
because he was never present around the drugs and his presence at the scene was
not recurring. Contrary to Mack’s contentions, a co-conspirator’s presence around
the drugs involved in the offense is not the only way to trigger the permissible
inference. Rather, the inference of participation in the conspiracy can arise from a
co-conspirator’s presence at meetings related to the conspiracy. See Baptista-
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Rodriguez, 17 F.3d at 1374 (the defendant challenging the sufficiency of his
conviction was present at two “key meetings” involving the conspiracy). In the
present case, Mack’s presence extends not only to his participation in the January
14, 2012 meeting, but to his subsequent escort of the drugs later that day.6
Moreover, the record reflects additional proved circumstances that support
the inference of Mack’s guilty knowledge. See United States v. Hernandez, 141
F.3d 1042, 1053 (11th Cir. 1998) (“‘a conspiracy conviction will be upheld . . .
when the circumstances surrounding a person’s presence at the scene of
conspiratorial activity are so obvious that knowledge of its character can fairly be
attributed to him’”) (quoting Calderon, 127 F.3d at 1326). We find the
conversation between Mack and Agent Jackson to be significant in that regard.
The undercover agents told Mack that, as a result of the police officer layoffs, they
would be able to do more business in Miami and would “get rich” because Miami
would be “wide open.” Agent Jackson then confided in Mack that Miami was
“new territory” for him and Tyson, and that they had “this many t-shirts coming
through you know what I mean, we just want to make sure everything is right you
know what I mean.” Mack stated that he understood and respected that.
6
Mack was found not guilty of the attempt offense charged in Count Two, which
stemmed from the December 21, 2011 drug transport.
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Although Mack did not say much during the meeting, “[a]n illegal
agreement may be inferred from the conspirators’ conduct and other circumstantial
evidence.” Baptista-Rodriguez, 17 F.3d at 1374 (citations omitted) (concluding
that the evidence was sufficient to support the defendant’s conviction, despite the
absence of evidence showing that he verbally assented to the scheme); cf. United
States v. Kelly, 749 F.2d 1541, 1548-49 (11th Cir. 1985) (reversing a defendant’s
conviction of drug-related conspiracy because the defendant’s proven involvement
in the conspiracy was limited to his presence at another conspirator’s house, at
which the defendant could have been present as a social guest, particularly where
“[n]o evidence exist[ed] that the affairs of the . . . schemes were discussed with
[the defendant]”).
Mack contends that there is no direct evidence of his knowledge that “t-
shirts” is one of the many code words for drugs. However, Agent Jackson, who is
an agent on the drug squad, testified that “t-shirts” was a very common word for
cocaine “not just [in] Atlanta, . . . but everywhere”; it was also a term he had used
with Bryant in reference to the drugs involved in this case. In light of Mack’s 16-
year experience on the Miami-Dade police force, the jury could reasonably have
inferred that Mack knew exactly what Jackson was referring to and that he knew
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that the indubitably criminal activity in which he was about to participate involved
drugs.
Finally, Bryant made numerous statements to the undercover agents
assuring them that Mack knew everything.7 These statements likely bolstered the
government’s case against Mack on the drug charges. However, they are not
necessary to sustain a guilty verdict. Even absent these statements, the cumulative
effect of the circumstantial evidence discussed above is sufficient to show Mack’s
knowledge of the drugs.8
Accordingly, taken in the light most favorable to the verdict, we cannot say
that the record reveals a lack of substantial evidence from which a factfinder could
7
These statements include: “They gonna know what’s going on because I’m gonna tell
them straight out”; “My guys are all on board”; “He knows exactly what we’re doing; there’s no
secrets”; “They ain’t talking cheap”; “[H]e knows about it”; “These guys, they know exactly
what’s going on, ‘cause I, I’m straight forward with all of them”; and “They do know.” Agent
Jackson did testify, however, that while they were waiting for Mack on the morning of January
14, 2012, Bryant stated that the less the officers knew, the better off they were.
8
Mack contends that this case is indistinguishable from United States v. Martinez, 83
F.3d 371 (11th Cir. 1996), in which we reversed the convictions on, inter alia, drug charges of
one of the defendants (Gomez). Id. at 377. Gomez claimed that he was told that he was going to
a house to steal money, as opposed to cocaine. Id. at 374.
We find Martinez distinguishable. There, the entirety of the evidence showing Gomez’s
knowledge of the drugs consisted of a co-defendant’s statement to the undercover agents that he
(the co-defendant) “had men ready to steal the cocaine [from a house].” Id. In contrast, here,
even if Bryant had led Mack to believe that he was escorting money, Mack’s subsequent
conversation with the undercover agents, coupled with his 16 years of experience as a police
officer in Miami-Dade County, amounts to sufficient evidence to support Mack’s conviction.
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find guilt beyond a reasonable doubt. Calderon, 127 F.3d at 1324. Thus, we
affirm Bryant’s, McLendon’s, and Mack’s convictions on the drug charges.9
C. The “Firearms Charge”
18 U.S.C. § 924(c)(1)(A) provides in part:
any person who, during and in relation to any crime of violence or
drug trafficking crime . . . for which the person may be prosecuted in
a court of the United States, uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm, shall, in addition
to the punishment provided for such crime of violence or drug
trafficking crime . . . be sentenced to a term of imprisonment of [a
minimum of 5 years].
18 U.S.C. § 924(c)(1)(A)(i) (emphasis added). Accordingly, to prove the firearms
charge, the government must show that the defendant (1) knowingly used or
carried a firearm during and in relation to any drug trafficking crime for which he
could be prosecuted in a court of the United States, or (2) possessed a firearm in
furtherance of such a crime. United States v. Woodard, 531 F.3d 1352, 1362 (11th
Cir. 2008); United States v. Haile, 685 F.3d 1211, 1217 (11th Cir. 2012), cert.
denied, 133 S. Ct. 1723 (2013) and cert. denied, 133 S. Ct. 1724 (2013) (stating
that “the enhanced penalties [under the statute] are triggered in one of two ways:
9
Mack does not argue that the evidence was insufficient as to whether he took a
substantial step toward the commission of the crime. The evidence presented to the jury
concerning Mack’s knowledge of the drugs also supports Mack’s conviction on the attempted
possession count.
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under the ‘during and in relation to . . . uses or carries’ prong, or under the ‘in
furtherance of . . . possesses’ prong.” Id.
All Defendants were charged with carrying a firearm during and in relation
to a drug trafficking crime and with possessing a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. §§ 924(c) and 2. The district judge
instructed the jury on aiding and abetting under 18 U.S.C. § 2 for the section
924(c) charge. The jury found Mack guilty of carrying a firearm during and in
relation to the drug trafficking crime, in violation of 18 U.S.C. § 924(c). Bryant
and McLendon were found guilty of possessing a firearm in furtherance of the
drug trafficking crime, in violation of 18 U.S.C. §§ 924(c) and 2.
1. Sufficiency of the Evidence as to Mack
Mack argues that there is no evidence that he carried a firearm during and in
relation to the drug trafficking crime. In order to show that a person carried a
firearm “in relation to” a crime, the firearm must have “facilitate[d], or [had] the
potential of facilitating, the drug trafficking offense”; “its presence or involvement
cannot be the result of accident or coincidence.” United States v. Novaton, 271
F.3d 968, 1013 (11th Cir. 2001) and United States v. Timmons, 283 F.3d 1246,
1251 (11th Cir. 2002) (both citing Smith v. United States, 508 U.S. 223, 237-38,
113 S. Ct. 2050, 2058-29 (1993)). “The phrase ‘in relation to’ is expansive.”
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Novaton, 271 F.3d at 1013; see also Timmons, 283 F.3d at 1251-52 (noting that
the “during and in relation to” requirement “was intended to be a limiting phrase
to ‘prevent the misuse of the statute [from] penaliz[ing] those whose conduct does
not create the risks of harm [–i.e., combining drugs and guns–] at which the statute
aims’”) (quoting Muscarello v. United States, 524 U.S. 125, 132, 118 S. Ct. 1911,
1916 (1998)).
We conclude there was sufficient evidence to support Mack’s conviction on
the firearm charge. It is undisputed that Mack was carrying his firearm
approximately two hours before the actual drug transportation. He knew of the
illegal nature of the conspiracy, and he understood that his police officer status
was a necessary condition to his participation in the deal. In light of this evidence,
it was reasonable for the jury to conclude that Mack carried a firearm in relation to
the drug trafficking conspiracy.
Mack argues that the firearm had no role in the offense, and that, even if he
carried a firearm, it was solely an incident of his wearing his police uniform. Our
holding in Novaton defeats this argument. In that case, we found that a police
officer, who admitted to carrying his service firearm during the events at issue,
“furthered the drug trafficking conspiracy by providing protection for and
escorting co-conspirators to and from the Novaton residence while [the co-
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conspirators] were transporting drugs or drug proceeds.” Novaton, 271 F.3d at
1013. Similarly, Mack’s carrying his service firearm was necessary to facilitate
the drug transportation in the present case, regardless of whether its purpose was
to avoid interdiction from law enforcement or also to provide security for the
cargo from potential thieves. Even if Mack carried the firearm merely as a
necessary accessory to his police uniform, he did so with the recognition that his
carrying his “police-issued service firearm,” id., combined with his full uniform
and his marked police cruiser, would signal to other law enforcement officers that
he was one of them—just another police officer on legitimate business. At the
very least, the presence of the firearm had the potential for facilitating the
conspiracy. See id. (finding that the defendant’s police-issued service firearm
“facilitated, or had the potential for facilitating” the conspiracy).10 Accordingly,
10
Mack attempts to distinguish Novaton, in which there was evidence that the officer was
responsible for directly protecting the drugs and drug proceeds. See 271 F.3d at 982. Mack
asserts that his whole role was limited to driving his police car. Mack’s argument misses the
mark. It is clear that the evidence of the involvement of the police officer in Novaton exceeded
the threshold of proof required to show that the firearm was carried “in relation to” the offense.
In the present case, Agent Jackson told Bryant that Jackson wanted uniformed officers in marked
police vehicles “in case there was officers that would interdict the loads.” Mack’s appearance (in
full uniform and armed) and his conduct (escorting the drugs according to plan) clearly had the
potential for facilitating the offense.
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the jury verdict finding Mack guilty of carrying a firearm during and in relation to
the drug trafficking crime, in violation of 18 U.S.C. § 924(c), must be upheld.11
2. Sufficiency of the Evidence as to Bryant and McLendon
Bryant contends that there is no evidence that either he or his co-defendants
possessed or carried a firearm. We have already concluded that a reasonable jury
could find that Mack carried a firearm on January 14, 2012. Accordingly, Bryant’s
culpability on the firearm charge turns on proof of his aiding and abetting in
Mack’s firearm offense under 18 U.S.C. § 2.12
18 U.S.C. § 2(a) provides that “[w]hoever . . . aids, abets, counsels,
commands, induces or procures [a crime’s] commission, is punishable as a
principal.” 18 U.S.C. § 2(a). To prove aiding and abetting in a section 924(c)
case in this circuit, the government must show that (1) the substantive offense was
11
Mack contends that we should analyze the “during” and “in relation to” elements of
section 924(c) separately. He argues that there is no evidence that he carried the firearm while he
was actually escorting the drugs. Our analysis in Novaton and in Timmons focused exclusively
on the “in relation to” requirement because in both of those cases, there was no question that the
firearm was carried during the drug trafficking offense. See Novaton, 271 F.3d at 1013 (the
defendant admitted that he carried his firearm “during the events involved in this case”);
Timmons, 283 F.3d at 1251 (“[t]here is little question that . . . [the defendant carried the firearm
“during” the drug trafficking offense] as the gun was sold along with the drugs”). Even though
Mack denies carrying his firearm during the actual transportation, it is undisputed that he carried
his weapon during the January 14, 2012 meeting; thus, he was armed “during the events involved
in this case.” See Novaton, 271 F.3d at 1013.
12
Although there is some evidence in the record suggesting that Bryant may have carried
a firearm on January 14, 2012, we affirm the district court’s denial of Bryant’s Rule 29 motion
on an aiding and abetting theory.
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committed; (2) that the defendant associated himself with the underlying criminal
venture; and (3) that he committed some act that furthered the crime. See
Bazemore v. United States, 138 F.3d 947, 949 (11th Cir. 1998) (citing United
States v. Hamblin, 911 F.2d 551, 557 (11th Cir. 1990)). In addition, the defendant
must have known that a firearm was being used or carried by a co-conspirator. Id.;
see also Rutledge v. United States, 138 F.3d 1358, 1359 (11th Cir. 1998).13
The United States Supreme Court recently clarified the showing of intent
required for conviction of an aiding and abetting violation under section 924(c).
Rosemond v. United States, 134 S. Ct. 1240 (Mar. 5, 2014). Rosemond involved a
“drug deal gone bad,” after either the defendant (Rosemond) or one of his
confederates (it was unclear who) fired a gun at the putative drug buyers. Id. at
1243. Rosemond was charged with violating 18 U.S.C. § 924(c) by using or
carrying a firearm in connection with a drug trafficking offense, or, in the
13
In Rutledge we phrased the third element of aiding and abetting as a requirement to
show that the defendant “committed some act related to the gun,” as opposed to some act which
facilitated the crime. 138 F.3d at 1359; cf., e.g., United States v. Pareja, 876 F.2d 1567, 1570
(11th Cir. 1989). We derived this requirement from cases discussing the need to link the
defendant to the gun. Bazemore, 138 F.3d at 949 (explaining that “section 924(c) does not
permit ‘guilt by association.’”) (citation omitted). In Bazemore, we effectively subsumed the
proof necessary to show that the defendant facilitated the carrying of a firearm in the evidence
required to establish the defendant’s knowledge of the firearm. Id. at 950 (“[O]nce knowledge
on the part of the aider and abettor is established, it does not take much to satisfy the facilitation
element.”) (internal quotation marks and citation omitted). We have held that the “facilitation
element” can be met by the defendant “knowingly benefit[ting] from the protection afforded by
the firearm.” Id.
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alternative, aiding and abetting that crime under 18 U.S.C. § 2. Id. At trial, the
district judge rejected Rosemond’s proposed instructions that a guilty verdict
required the jury to find that the defendant “intentionally [facilitated or
encouraged the firearm’s use], as opposed to [merely] the predicate drug offense.”
Id. at 1244. Instead, the jury was instructed that Rosemond was guilty of aiding
and abetting a section 924(c) offense if “(1) [he] knew his cohort used a firearm in
the drug trafficking crime, and (2) [he] knowingly and actively participated in the
drug trafficking crime.” Id. (internal quotation marks and citation omitted). He
was convicted by the jury, and the United States Court of Appeals for the Tenth
Circuit affirmed. Id. at 1244-45.
The United States Supreme Court reversed Rosemond’s § 924(c)
conviction. Id. at 1252. Writing for the majority, Justice Kagan first concluded
that the district court correctly instructed the jury that Rosemond could be
convicted of aiding and abetting, even if he facilitated only the drug element, not
the gun element, of the section 924(c) offense. Id. at 1247-48. Justice Kagan then
clarified the proof necessary for the intent element of aiding and abetting a section
924(c) violation—i.e., the defendant’s knowledge that a co-conspirator will carry a
gun. Id. at 1249. “[The d]efendant’s knowledge of a firearm must be advance
knowledge”—that is, knowledge at a time when the accomplice “can attempt to
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alter [the] plan, . . . withdraw from the enterprise[, or] go ahead with his role in the
venture.” Id. An accomplice’s knowledge of “a confederate’s design to carry a
gun” is not “advance” if it does not afford him “a realistic opportunity to quit the
crime.” Id. Accordingly, Justice Kagan concluded that the district court’s jury
instructions were erroneous because they did not direct the jury to determine when
Rosemond obtained the requisite knowledge and to decide whether Rosemond
knew about the gun in sufficient time to withdraw from the crime. Id. at 1251-52.
We are now called upon to determine the effect of Rosemond on the
analytical framework employed in cases alleging aiding and abetting a section
924(c) offense. The literal meaning of the requirement that the defendant’s
knowledge of the firearm be “advance” is obvious. In addition, Rosemond’s
holding that “the affirmative” act or “facilitation” requirement for aiding and
abetting a section 924(c) violation is met by the defendant’s participation in the
drug deal itself and that no act directed to the use of the firearm is required makes
clear that the government is not required to show that the defendant “committed
some act related to the gun” (as opposed to the substantive offense). See
Rosemond, 134 S. Ct. at 1247-48.
Applying the familiar framework, as modified by Rosemond, to the present
case, we have no trouble concluding that the evidence against Bryant and
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McLendon was sufficient to sustain a guilty verdict for their aiding and abetting in
Mack’s section 924(c) offense. First, the substantive offense was committed by
Mack carrying a firearm during and in relation to the drug trafficking crime.14
Next, it is evident that Bryant knowingly associated himself with the drug
trafficking conspiracy. And, we have already concluded that the evidence
showing McLendon’s knowledge of the drug transport was sufficient to sustain his
guilty verdict. Third, there is ample evidence of various “affirmative acts,” by
both Bryant and McLendon which furthered the drug conspiracy. Id. at 1247-48.
Bryant organized the transportation of large quantities of narcotics and enlisted
police officers to assist him. McLendon was the “point man” to the police
officers, and he actively participated in the scheme by collecting and dropping off
the drugs on two occasions.
Finally, Bryant knew well in advance that a firearm would be carried; in
fact, he recruited Mack to participate in the offense based on Agent Jackson’s
explicit request for uniformed policemen. Mack arrived at the January 14, 2012
meeting in full uniform; his service weapon was holstered at his waist. The
14
While Mack was specifically convicted of carrying a firearm during and in relation to
the drug trafficking crime, McLendon and Bryant were convicted of possessing a firearm in
furtherance of the crime (on an aiding-and-abetting theory). These verdicts are not necessarily
inconsistent. Based on the particular facts in this case the evidence of Mack’s conduct supports
both types of firearm offense convictions.
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breakfast ended approximately two hours before Bryant, accompanied by
McLendon, picked up the drugs. It is obvious that Bryant had advance knowledge
“that enable[d] him to make the relevant legal (and indeed, moral) choice.”
Rosemond, 134 S. Ct. at 1249.
Unlike Bryant, McLendon was not present at the January 14, 2012 meeting,
and could not have observed Mack’s openly displayed firearm. Nevertheless,
according to the testimony of agents conducting the surveillance, Mack’s marked
patrol car trailed the vehicle in which Bryant and McLendon were riding, and was
either directly behind or a few cars behind it from the moment that vehicle left
Miami Beach and drove north to the drop-off location. Furthermore, there was
telephone communication between the patrol car and Bryant and McLendon’s
vehicle throughout the duration of the escort. Accordingly, a reasonable jury
could have concluded that McLendon, to whom Bryant referred as his “point man”
to the police officers and who was in a vehicle that was loaded with the drugs,
believed that the police cruiser following closely over the course of eight or ten
miles was driven by an armed police officer.
The question, under the Rosemond test, is whether McLendon’s knowledge
that Mack was carrying a firearm, was “advance,” such that it gave McLendon
sufficient time to walk away from the crime. This inquiry implicates the practical
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difficulties of delineating the exact contours of Rosemond’s “advance knowledge”
directive.
As to McLendon, we answer the question in the affirmative. After the
conclusion of the morning meeting (which McLendon did not attend), Bryant and
McLendon jointly collected the drugs that were to be moved. Moreover,
McLendon knew that they were transporting drugs that afternoon, that the drugs
would be escorted by a police officer (as was the case during the first
transportation on December 21, 2011), and that the participation of a uniformed
(and likely armed) officer was essential to the success of the drug conspiracy.
McLendon had a realistic opportunity to either not enter the vehicle at all, or to
exit it before it embarked upon its route. He made a conscious choice to proceed.
His knowledge of the gun was sufficiently advance. Compare these circumstances
with the illustration in Rosemond involving a defendant in a section 924(c)
prosecution who “agrees to participate in a drug sale on the express condition that
no one brings a gun to the place of exchange” and whose knowledge is not
sufficiently “advance” for purposes of conviction if one of his confederates arrives
at the meeting carrying a concealed gun in his jacket. Rosemond, 134 S. Ct. at
1251. As a result, Bryant’s and McLendon’s guilty verdicts for aiding and
abetting in Mack’s firearm offense under section 924(c) are affirmed.
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IV. Mack’s Motion to Sever
A. Standard of Review
Mack argues that because Bryant’s testimony would have contradicted the
government’s case and exonerated Mack, the district court’s refusal to sever the
trials was an abuse of discretion which deprived Mack of a fair trial. We review
the denial of a motion for severance for abuse of discretion. United States v.
Kennard, 472 F.3d 851, 858-59 (11th Cir. 2006). “Appellate courts are reluctant
to second-guess trial court refusals to grant a severance." United States v. Pepe,
747 F.2d 632, 650-51 (11th Cir. 1984) (citations omitted).
B. Discussion
Bryant’s “exculpatory statements” concern Mack’s alleged lack of
knowledge of the contents of the cargo escorted by Mack. They consist of (1)
Bryant’s statements to the arresting officers,15 and (2) the additional statements he
made to the prosecutors before trial, in which he asserted that Mack was told he
was following cash, not drugs.
At the outset of trial, the court ruled that post-arrest statements “that include
inculpatory statements about other defendants” could not be used in opening
15
Mack also made post-arrest statements averring that he thought he was following cash,
not drugs. Mack’s statements to the arresting officers are not at issue here.
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statements or otherwise mentioned by counsel. The district judge cautioned
counsel that failure to abide by the Bruton rule16 would have dire consequences for
counsel, including contempt sanctions and jail time. The judge emphasized, on
several occasions, the importance of counsel’s compliance with his ruling. Mack
points to the following colloquy between the district court and counsel for Mack:
THE COURT: . . . So there will be no mention by a defense lawyer of
any statement that inculpates another defendant. You, of course, can
talk about your own client and what he did.
Any question about that? Unless you want free room and board,
that’s the way it’s going to be.
MR. ROUVIERE: Your Honor, may I address the Court?
THE COURT: Do you understand what I said?
MR. ROUVIERE: I do understand, Your Honor, but that raises --
THE COURT: Then just abide by it.
MR. ROUVIERE: But Judge, it raises another issue that needs to be
raised.
THE COURT: I don’t want to deal with another issue. I want to deal
with these issues first.
MR. ROUVIERE: Well, it is with this issue, Judge.
16
The Bruton rule bars the admission of incriminating statements made by nontestifying
co-defendants at a joint trial. See United States v. Thayer, 204 F.3d 1352, 1355 (11th Cir. 2000)
(explaining the Bruton rule) (citing Bruton v. United States, 391 U.S. 123, 135-36, 88 S. Ct.
1620 (1968)).
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THE COURT: What didn’t you understand about how I ruled?
MR. ROUVIERE: Exculpatory statements made --
THE COURT: I haven’t gotten to that yet.
MR. ROUVIERE: Okay. Well, Judge, it may lead to a motion to
sever, because some things happened over the weekend.
THE COURT: . . . . Exculpatory statements cannot come in because
they’re hearsay. A defendant’s own exculpatory statements made
after arrest cannot come in, because it’s rank hearsay.
[ . . .]
But you cannot bring in a defendant’s inculpatory statement that
includes guilt of another defendant, and you cannot bring in a
defendant’s exculpatory statement.
Any problems with that? Any misunderstanding? Because I’m
serious about this. Not only would there be a mistrial, the reason
there will be a mistrial is because the lawyer is going to have a lot of
time of consultation with a client if the client is in jail. If the client is
not in jail, we’re going to have the reverse. The client is going to
have to seek permission to see the lawyer in jail. So don’t violate this
when I’ve been giving you a warning. Please don’t do it.
[...]
THE COURT: What are you going to say that you think is
questionable that may impinge upon your liberty?
MR. STONICK: Nothing, Judge.
THE COURT: Okay. No, if there is, ask me now because I mean it.
MR. ROUVIERE: Judge, I do have a question.
THE COURT: Okay.
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MR. ROUVIERE: A statement from one codefendant exculpating
another codefendant --
THE COURT: Can’t come in, cannot come in. It’s hearsay.
MR. ROUVIERE: Your Honor, then at this point in time I would –
[ . . .]
MR. ROUVIERE: Your Honor, at this time on behalf of Daniel
Mack, I would make a motion to sever Daniel Mack from this trial,
and I need to explain to the Court on the record why.
THE COURT: Well, why didn’t you do it before?
MR. ROUVIERE: Well, Your Honor --
THE COURT: That’s the first thing you need to explain.
MR. ROUVIERE: Well, Your Honor, I sent an email. I knew that a
statement was made post arrest. However --
THE COURT: What statement? It can’t come in. Even in a separate
trial, it can’t come in.
MR. ROUVIERE: Well, Judge, only if I can call the other defendant
as a witness in a separate trial. Because at this time, he has a Fifth
Amendment right to remain silent.
THE COURT: And he also has a Fifth Amendment right afterwards.
MR. ROUVIERE: Not if his case is over, Judge.
[...]
THE COURT: What if he’s found guilty?
MR. ROUVIERE: He can still testify, Judge.
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THE COURT: He can also say, I ain’t testifying, I’m going to take an
appeal, or I’m not going to testify.
[ . . . ] (discussing the duration of a defendant’s appeal and the filing of a
petition for writ of certiorari to the United States Supreme Court)
MR. ROUVIERE: Judge, however, apparently on Friday evening, there was
a meeting between the Government, the agents, Mr. Bryant wherein in that
statement, he made a statement –
THE COURT: In what statement?
[...]
MR. ROUVIERE: Mr. Bryant made a statement to the Government
and the agents that, in fact, my client was told that what was in the car
at the time was cash.
THE COURT: Who told him?
MR. ROUVIERE: Mr. Bryant.
THE COURT: So Mr. Bryant says that he told Mr. Mack, . . .
THE COURT: He’s following cash. Okay.
MR. ROUVIERE: Yes, sir. And that was made in a post arrest
statement. However, now it’s been made in a secondary meeting with
the Government and I believe Judge under Rule --
THE COURT: Well, is Mr. Bryant going to testify in this trial?
MR. ROUVIERE: I don’t know if Mr. Bryant is going to testify.
THE COURT: Have you asked his lawyer?
MR. ROUVIERE: They weren’t able to tell me yes or no at this point.
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THE COURT: Well, how about if I ask him? Okay. Mr. Stonick, is
your client going to testify?
MR. STONICK: Judge, at this point we reserve our right to testify or
not. I cannot indicate if my client will testify.
THE COURT: There you go. So then you can ask him all you want
about that. Just don’t mention it until he testifies. Resolved. Motion
for severance denied.
The defendant has indicated that he’s going to testify. And then if he
doesn’t bring it up, you can cross-examine him and even lead him if
you want. . . .
[...]
THE COURT: Do you have a severance motion?
MR. ROUVIERE: An oral one, Judge. My system has been down.
THE COURT: It doesn’t have to be in writing unless you knew
before.
What would be the possible grounds? Defendant says he’s going to
testify. You question him. If he doesn’t testify, then you can make it
at that point, but as of now, it’s denied as premature.
As noted above, Mack’s alternative motion for new trial based on the denial
of severance and his motion for leave to file an affidavit that he expected to
receive from Bryant were filed on October 17, 2012, a week after the conclusion
of the trial. Mack submitted Bryant’s November 5, 2012 affidavit to the district
court on November 12, 2012, in conjunction with Mack’s second renewed motion
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for a new trial or in the alternative, motion to alter, amend, or correct order
denying motion for a new trial and judgment of acquittal.17
In this circuit, the rule about joint trials is that “defendants who are indicted
together are usually tried together.” United States v. Browne, 505 F.3d 1229,
1268 (11th Cir. 2007) (citing, inter alia, Zafiro v. United States, 506 U.S. 534,
537–38, 113 S. Ct. 933, 937 (1993)). “That rule is even more pronounced in
conspiracy cases where the refrain is that ‘defendants charged with a common
conspiracy should be tried together.’” United States v. Lopez, 649 F.3d 1222,
1234 (11th Cir. 2011) (citations omitted).
A severance should be granted if “there is a serious risk that a joint trial
17
In his affidavit, Bryant averred as follows:
1. My name is Henry Bryant and I am a co-defendant in the above styled case and this
affidavit is based upon my own personal knowledge.
2. At all times between December 1, 2011 to April 4, 2012, during the events that
have lead to this case, I never discussed with Daniel Mack anything about dealing in
narcotics or escorting narcotics.
3. Daniel Mack, at all times, was lead [sic] to believe, by me, that the item in the car
he was escorting was money and money only.
4. If I was not a co-defendant and my trial had taken place first and had been called
to testify at a separate trial for Daniel Mack, I would have testified on behalf of
Daniel Mack that he was never advised or told by me that the items he was to escort
were narcotics.
5. I presented myself to the AUSA’s Waugh and Dwyer Friday, September 28, 2012
before trial and expressed to them that at no time did I ever have any conversation
about narcotics with Daniel Mack.
6. Upon my arrest in this case, I advised the agents who interviewed me that I had
told Daniel Mack that he was escorting cash for a Miami Beach night club owner.
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would compromise a specific trial right of one of the defendants.” Zafiro, 506
U.S. at 539, 113 S. Ct. at 938. “[A] defendant might suffer prejudice if essential
exculpatory evidence that would be available to a defendant tried alone were
unavailable in a joint trial.” Id. (citing Tifford v. Wainwright, 588 F.2d 954 (5th
Cir. 1979)); see also United States v. Cobb, 185 F.3d 1193, 1197 (11th Cir. 1999)
(“To justify severance, the defendant must ‘demonstrate that a joint trial will result
in specific and compelling prejudice to the conduct of his defense.’”) (citation
omitted). A defendant’s burden of demonstrating “compelling prejudice”
stemming from the denial of a motion to sever is a heavy one. Pepe, 747 F.2d at
651.
As part of that “heavy burden,” a movant seeking severance in reliance on
the exculpatory testimony of a co-defendant must show: (1) a bona fide need for
the testimony; (2) the substance of the desired testimony; (3) the exculpatory
nature and the effect of the desired testimony; and (4) that the co-defendant would
indeed have testified at a separate trial. Novaton, 271 F.3d at 989 (quotation
marks and citation omitted). After the defendant makes that showing, the district
court must still weigh the significance of the testimony against considerations of
judicial economy. Id. Whether severance is proper in light of concerns of judicial
administration requires the court to assess (1) the significance of the testimony in
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relation to the defenses, (2) the extent of the prejudice caused by the absence of
the testimony, (3) the effect of severance on judicial economy and the
administration of justice, and (4) the timeliness of the motion. United States v.
DiBernardo, 880 F.2d 1216, 1228 (11th Cir. 1989) (quotation marks and citation
omitted).
We consider Mack’s challenge to the district court’s denial of his oral
motion made at the opening of the trial in light of the district judge’s knowledge of
the facts at the time he ruled on the motion. Byrd v. Wainwright, 428 F.2d 1017,
1018 (5th Cir. 1970).18 With that in mind, we turn to the four elements set forth in
this circuit’s framework for analyzing a motion to sever, and conclude that the first
three requirements are met here.
First, it cannot seriously be doubted that Mack had a bona fide need for
Bryant’s testimony and that Bryant’s proposed testimony would have had an
exculpatory effect. Indeed, Mack needed that testimony to contradict the
numerous statements confirming Mack’s knowledge of the details of the offense
which Bryant made to the undercover officers and which were presented to the
jury.
18
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding all decisions of the former Fifth Circuit issued on or before September 30,
1981.
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As to the substance of Bryant’s testimony, we note that, at the time of the
motion, a movant is required to make a concrete showing of what the co-defendant
would say if he took the stand in a separate trial. See Pepe, 747 F.2d at 652
(affirming the district court’s denial of the defendants’ severance motions because,
inter alia, the defendants did not “proffer what [the co-conspirator’s] testimony
would be [if they were tried separately].”) We will assume, for purposes of
assessing the specificity of Bryant’s proffered testimony only, that Bryant’s
proposed testimony was reflected in his post-trial affidavit. The government
characterizes the statements contained in that affidavit as “conclusory and self-
serving” and as “lacking strong credibility.” As we explained in Novaton, the
conclusory nature of an affidavit consists of “bare exculpatory denials [of the
charges in the indictment], devoid of any specific exonerative facts.” Novaton,
271 F.3d at 990 (internal quotation marks and citation omitted) (rejecting as
“conclusory” the co-conspirator’s affidavit that stated only that the police officer
who provided protection for the drugs in that case “did not conspire with me, or to
my knowledge with anyone else, to possess with intent to distribute cocaine”). Id.
By contrast, Bryant’s affidavit specifically states that “during the events that have
lead to this case, I never discussed with Daniel Mack anything about dealing in
narcotics or escorting narcotics,” that “Daniel Mack, at all times, was lead [sic] to
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believe, by me, that the item in the car he was escorting was money and money
only,” and that Bryant would have testified to that effect in a separate trial.
Therefore, the substance of Bryant’s proposed testimony is not unduly conclusory.
There are, however, legitimate concerns with respect to the credibility of
Bryant’s affidavit. That is not because, as the government suggests, the affidavit
is utterly devoid of statements contrary to Bryant’s penal interest. See Pepe, 747
F.2d at 651 (rejecting an affidavit by a co-defendant that, in addition to being
conclusory, was “of dubious credibility because it was in no way contrary to [the
co-defendant’s] own [penal] interests”); see also Novaton, 271 F.3d at 990-91
(same). Rather, two other facts substantially undermine the credibility of the
statements contained in Bryant’s affidavit: (1) he did not submit the affidavit until
the trial was over; and (2) he submitted a similar affidavit in favor of McLendon,
even though Bryant’s statements to the arresting officers and to the prosecutors
concerned only Mack’s knowledge.19
19
As to McLendon, Bryant’s affidavit states that, during the events at issue, Bryant did
not discuss with McLendon anything about drugs. Bryant also avers that he led McLendon to
believe he was transporting money, and that he would have testified to that effect in a separate
trial. From this point on, the contents of Bryant’s affidavit as to McLendon begin to differ from
those submitted in support of Mack’s motion. Specifically, Bryant affirms that he told his
attorney “numerous times” that he never discussed transporting drugs with McLendon. He
further states that, upon his arrest, he advised the agents that he had “told [his] alleged Co-
Defendants [(without mentioning McLendon’s name)] that they believed it was cash for a Miami
Beach Night Club owner.” In contrast, in the affidavit that he submitted for Mack, Bryant
specifically states that he made the exculpatory statements to the arresting officers and the
prosecutors concerning Mack’s knowledge (emphasis added).
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Notwithstanding our observations, we need not decide whether the “dubious
credibility” of Bryant’s affidavit is outcome determinative with respect to Mack’s
motion to sever. This is so because Mack has not shown that he established a
likelihood Bryant would have testified in a separate trial.
A movant “must establish . . . that the designated co-defendant will in fact
testify at a separate trial.” United States v. Morrow, 537 F.2d 120, 135 (5th Cir.
1976). “Movant . . . need only demonstrate a ‘likelihood’ of future testimony by
his co-defendant . . . . ” Id. n.9 (citations omitted); see also Cobb, 185 F.3d at
1199 (“Our concern with whether a co-defendant will testify for the defendant in a
separate trial is limited to determining whether the co-defendant is likely to testify,
not whether he is certain to do so.”) (emphasis in original) (citations omitted).
“The court is not required to sever where the possibility of the codefendant’s
testifying is merely colorable”; the possibility of such testimony must be “more
than a gleam of possibility in the defendant’s eye.” Byrd, 428 F.2d at 1022.
It is clear from the transcript of the October 2, 2012 jury trial proceedings
that Mack’s counsel did not advise the district court judge that Bryant would
testify for Mack in a separate trial. Instead, counsel engaged in a theoretical
debate with the district court over whether a defendant, whose trial was over,
could testify for a co-defendant in a separate trial. Counsel then brought Bryant’s
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statement to the prosecutors to the court’s attention. At no time did counsel state
or even imply that Bryant would, or might, testify for Mack at a separate trial. Cf.
Cobb, 185 F.3d at 1199-1200 (reversing the district court’s denial of the
defendant’s motion for severance because the co-conspirator’s counsel stated that
he was willing to testify on the defendant’s behalf in a separate trial, even though
his own conviction was awaiting appeal). While the statements (or lack thereof)
of Mack’s counsel at the outset of the jury trial reflected a “merely colorable”
possibility that Bryant may testify in a separate trial, they fall short of establishing
a likelihood of such testimony.20
Apparently relying on Cobb, 185 F.3d 1193, Mack faults the district court
for not inquiring sua sponte whether Bryant would testify for Mack in a separate
trial. In Cobb, we considered the district court’s inquiry whether the co-
conspirator would be willing to testify on the defendant’s behalf only to examine
the district court’s interpretation of the co-conspirator’s offer to testify “as
20
Mack’s contentions that the mere existence of Bryant’s statements to the arresting
officers and to the prosecutors establish a likelihood of future testimony in a separate trial are
unsupported by any authority. In addition, United States v. Martinez, 486 F.2d 15 (5th Cir. 1973)
upon which Mack relies is inapposite. There, our predecessor court quoted an observation made
by the United States Court of Appeals for the Fourth Circuit that “‘a severance is obligatory
where one defendant’s case rests heavily on the exculpatory testimony of his co-defendant,
willing to give such testimony but for the fear that by taking the stand in the joint trial he would
jeopardize his own defense.’” Martinez, 486 F.2d at 23 (quoting United States v. Shuford, 454
F.2d 772, 776 (4th Cir. 1971)) (emphasis added). In the present case, at the time of the motion, it
was by no means clear that Bryant was willing to testify in the joint trial; in fact, Bryant’s
counsel stated that he could not indicate if his client would testify.
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conditioned on [the co-conspirator’s] case being tried first.” Id. at 1198. Nothing
in Cobb supports Mack’s sweeping presumption that any part of the burden in a
motion to sever, that is specifically allotted to the movant, see Novaton, 271 F.3d
at 989, should be shifted to the district judge. Similarly, Mack’s reliance on
certain language contained in Byrd is misguided. See Byrd, 428 F.2d at 1019 n.1
(remarking that there may be error if, “in a sufficiently extreme case of prejudice,
[the trial judge fails] on his own motion to reopen the question of severance,
where, after denial, the circumstances have sufficiently changed”). In the present
case, the circumstances concerning the likelihood of Bryant’s testimony in a new
trial did not change conclusively until November 12, 2012—the date on which
Mack filed his second renewed motion for a new trial, along with Bryant’s
affidavit. This was a full month after the conclusion of the joint trial. Cf. id. at
1019 (discussing events that occurred at the trial).
The district court did ask whether Bryant was going to testify in the joint
trial. The judge noted that if Bryant did testify, his statements could be addressed
during cross-examination, and that if he did not take the stand, Mack could make
his motion to sever at that time. Mack did not renew his motion to sever during
the trial. His alternative motion for new trial based on the denial of severance was
filed a week after the jury returned a guilty verdict. Cf. Cobb, 185 F.3d at 1197
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(where the district court denied the defendant’s motion on the morning of the trial
and the defendant renewed it at the close of the government’s case). Importantly,
Mack did not even file his motion for leave to file an affidavit until a week after
the conclusion of the trial. And, he did not produce Bryant’s affidavit until a
month after he had filed the motion for leave. Cf. Pepe, 747 F.2d at 650 (where
the district court noted that there was “some likelihood” that the co-defendants
would testify for the defendant based on the co-defendants’ affidavits from their
grand jury testimony); and Byrd, 428 F.2d at 1022 (noting that “[t]he unsupported
possibility that (exculpatory testimony of a co-defendant) might be forthcoming
does not make the denial of a motion for severance erroneous”) (internal quotation
marks and citation omitted); see also United States v. Neal, 27 F.3d 1035, 1047
(5th Cir. 1994) (holding that the defendants demonstrated that a co-defendant
would have testified on their behalf in a separate trial when that co-defendant
submitted an affidavit in favor of the defendants and “extensively testified in
camera” that one of the defendants did not participate in the controlled substance
conspiracy).
Because Mack has not made the requisite showing that severance in the
present case was proper, we need not address the judicial economy considerations.
We feel compelled to point out, however, that, were we to examine those factors,
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we would have grave doubts whether Mack’s motion to sever was timely. Even
though Bryant’s statements to the prosecutors were made on the Friday before the
trial, his motion was based, in part, on his statements to the arresting officers, of
which counsel for Mack knew well in advance of trial. Counsel conceded that
“[he] knew a statement [that Mack was told by Bryant that he was following cash]
was made post arrest.” The district judge inquired whether counsel for Mack had
filed a severance motion and invited him to explain why he had not done so. After
the judge stated that “[the motion] doesn’t have to be in writing unless you knew
before,” he considered, and ultimately denied, counsel’s oral motion.
Mack correctly points out that the district court did not deny his motion on
timeliness grounds, although he easily could have done so, in light of counsel’s
advance knowledge of the statements to the arresting officers. See Cobb, 185 F.3d
at 1200 (noting that the district court would likely have been justified in finding
that the severance motion was untimely because the defendant amended his initial
motion, which was filed well before trial, with his intention to seek the co-
conspirator’s exculpatory statement on the morning of trial). Although we held in
Cobb that a district court’s failure to deny a motion for severance on untimeliness
grounds requires us to review the district court’s decision on the merits, id., the
circumstances in the present case are distinguishable. The district court apparently
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assumed that counsel had just learned of the grounds underlying the motion (i.e.,
Bryant’s statements to the prosecutors). Thus, he did not question counsel’s
failure to file a motion to sever based on Bryant’s statements to the arresting
officers, and counsel did not bring this omission to the court’s attention.
Our comments on the timeliness of Mack’s motion only buttress our
conclusion that this is not “one of those rare cases,” in which the defendant raises
“a compelling argument that he suffered ‘prejudice resulting in the denial of a fair
trial flow[ing] from the failure to grant the motion’ for severance.” Cobb, 185
F.3d at 1197-98 (concluding that the defendant presented such an argument where
the sole evidence against him consisted of another defendant’s testimony).
Accordingly, we hold that district court did not abuse its discretion by denying
Mack’s motion to sever.
V. Mack’s and McLendon’s Motions for New Trial
As noted, one week after the trial, Mack renewed his motion for judgment
of acquittal, or alternative motion for new trial based on the denial of severance.
After that motion was denied, Mack filed a second renewed motion for a new trial,
or in the alternative, motion to alter, amend, or correct order denying motion for a
new trial and judgment of acquittal. McLendon also filed a motion, adopting
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Mack’s motion to overturn the jury verdict and to grant a new trial.21 In support of
their respective motions, both Mack and McLendon presented the aforementioned
affidavits from Bryant. Mack and McLendon challenge the district court’s denial
of their respective motions for new trial.
A. Standard of Review
This court reviews the denial of a motion for new trial for abuse of
discretion. United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006).
B. Discussion
To succeed on a motion for a new trial based on newly discovered
evidence, the movant must establish that (1) the evidence was discovered after
trial, (2) the failure of the defendant to discover the evidence was not due to a lack
of due diligence, (3) the evidence is not merely cumulative or impeaching, (4) the
evidence is material to issues before the court, and (5) the evidence is such that a
new trial would probably produce a different result. United States v. Gates, 10
F.3d 765, 767 (11th Cir. 1993), modified on reh’g in part, 20 F.3d 1550 (11th Cir.
1994) (citation omitted). “The failure to satisfy any one of these elements is fatal
to a motion for a new trial.” United States v. Lee, 68 F.3d 1267, 1274 (11th Cir.
1995) (citation omitted).
21
McLendon did not join in Mack’s oral motion to sever that was made at the outset of
trial.
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The subject evidence in the instant case was not discovered after trial. The
defense knew of the substance of Bryant’s exculpatory statements as early as the
government’s pretrial motion in limine and Mack’s oral motion to sever made on
October 2, 2012, the first day of the trial. See DiBernardo, 880 F.2d at 1225
(reiterating that newly-available exculpatory testimony of a co-defendant is not
synonymous with newly discovered evidence sufficient to grant a Rule 33 motion
where the defendants benefitting from the exculpatory testimony were well aware
of the proposed testimony prior to trial); cf. Gates, 10 F.3d at 767-68 (concluding
that the “newly discovered” evidence requirement was met when the defendant did
not discover until six months after the trial that his co-conspirator would exculpate
him, and where there was no evidence in the record that the defendant “knew or
had access to knowledge that [the co-conspirator] would exculpate him”).
The defense argues that DiBernardo is distinguishable because it involved a
pretrial affidavit. 880 F.2d at 1219. But both Mack and McLendon knew of the
substance of Bryant’s exculpatory testimony prior to the inception of the trial.
Mack’s counsel argued at the sentencing proceedings on December 19, 2012 that
he made the oral motion to sever on the first day of trial because “we had believed
that Mr. Bryant would testify as he did when he was arrested and as he also did in
the meeting with the Government the Friday night before the trial . . . .” Similarly,
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during the same proceedings, McLendon’s counsel stated that he joined in Mack’s
oral motion to sever “when we were doing our pretrial arguments for the reason
that clearly Mr. Bryant could have been a witness [. . . and] because I was under
the impression that he might be able to get an exculpatory [affidavit].”
Furthermore, in his motion for leave filed only a week after the joint trial was
over, Mack stated that he anticipated obtaining an affidavit from Bryant regarding
Mack’s lack of knowledge of the drugs. This timing further buttresses Mack’s and
McLendon’s knowledge of the proposed testimony before the trial was over.
Thus, the exculpatory statements in Bryant’s affidavits do not qualify as “newly
discovered” evidence for purposes of Rule 33.
In addition to Mack’s and McLendon’s failure to show that the evidence
was discovered after the trial, we are not persuaded that Bryant’s proposed
testimony would probably produce a different outcome in McLendon’s case.
Gates, 10 F.3d at 767.22 A jury might not be receptive to Bryant’s proffered
testimony, which is inconsistent with the multiple statements he gave to the
undercover agents. As already noted, the credibility of Bryant’s proposed
testimony is further called into question by his failure to refer to both Mack and
22
We make no determination in this regard in Mack’s case.
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McLendon in, at least some of, his post-arrest statements.23 See id. at 768
(cautioning that “post-trial exculpatory statements given by a convicted
co-defendant must be viewed with care” because “a jury might find [the
co-defendant] to be not a credible witness”).
Because Mack and McLendon have not shown that Bryant’s statements
were “newly discovered evidence” and that they would probably lead to a different
outcome, at least in McLendon’s case, we do not address the other elements
required to establish entitlement to a new trial.
VI. The District Court’s Failure to Admit Bryant’s Exculpatory Statements
Mack24 asserts that Bryant’s post-arrest statements regarding Mack’s lack of
knowledge of the drugs were admissible, under Federal Rule of Evidence 806, to
impeach Bryant's inconsistent co-conspirator statements to the undercover agents.
The problem for Mack and McLendon is that they never presented this argument
to the district court.
A. Standard of Review
23
In his affidavit in support of McLendon’s motion for new trial, Bryant does not state, as
he did with respect to Mack, that he told the prosecutors that he had never discussed drugs with
McLendon.
24
In his brief, McLendon also challenges the exclusion of Bryant’s exculpatory statements
as to Mack, and adopts the arguments made by Mack on that issue. McLendon argues that the
exculpatory statements would have established Mack’s innocence, which in turn would have
vitiated the grounds for McLendon’s conviction of the firearm charge.
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A district court’s evidentiary rulings are generally reviewed for abuse of
discretion. United States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005). Absent
contemporaneous objection to evidentiary matter, “we do not apply the customary
abuse of discretion standard”; rather, we limit our review to “a search for ‘plain
error.’” Calderon, 127 F.3d at 1334; see also United States v. Sorondo, 845 F.2d
945, 949 (11th Cir. 1988) (“the plain error rule must apply when, as here, a party
states an inaccurate objection just as when a party states no objection at all”).
“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.” United States v. Johnson, 694 F.3d 1192, 1195 (11th
Cir. 2012) (internal quotation marks and citation omitted).
B. Discussion
Federal Rule of Evidence 806 states:
When a hearsay statement -- or a statement described in Rule
801(d)(2)(C), (D), or (E) -- has been admitted in evidence, the
declarant's credibility may be attacked, and then supported, by any
evidence that would be admissible for those purposes if the declarant
had testified as a witness. The court may admit evidence of the
declarant's inconsistent statement or conduct, regardless of when it
occurred or whether the declarant had an opportunity to explain or
deny it. If the party against whom the statement was admitted calls
the declarant as a witness, the party may examine the declarant on the
statement as if on cross-examination.
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FED. R. EVID. 806.
The record shows that numerous out-of-court statements made by Bryant to
the undercover agents were entered into evidence and used by the government to
establish Mack’s guilty knowledge. We have no difficulty concluding that
Bryant’s post-arrest statements—that he told Mack that they were transporting
money and that he had never discussed narcotics with Mack—were inconsistent,
as required by Rule 806, with the recorded statements (which were played for the
jury), in which Bryant said that Mack “knows exactly what we’re doing” and
which were used to convict Mack of the drug charges. See United States v. Grant,
256 F.3d 1146, 1153-55 (11th Cir. 2001).25
It bears repeating that the discussion at the opening of the trial concerning
Bryant’s remarks to the arresting agents and the prosecutor was general and
25
We agree with Mack that Grant, 256 F.3d 1146, which involved a drug trafficking
conspiracy, squarely resolves the inconsistency issue here. In Grant, we considered a challenge
to the district court’s refusal to admit a co-conspirator’s exculpatory affidavit introduced by the
defendant (Wilson) for impeachment purposes. The district court had found that the statements
in the affidavit were not sufficiently inconsistent with the co-conspirators inculpatory statements
admitted through the testimony of a Customs Service agent. Id. at 1153. We disagreed, and
concluded that the government had used Wilson’s co-conspirator statements to establish the
existence of a conspiracy, and the statements in Wilson’s affidavit were “inconsistent with the
existence of any conspiracy at all, and for that reason were inconsistent with his co-conspirator
statements.” Id. at 1154-55.
Similarly here, the prosecution used Bryant’s statements admitted through the agents to
demonstrate that Mack knew the conspiracy involved drugs. Bryant’s post-arrest statements
directly contradict Bryant’s statements to the undercover agents concerning Mack’s knowledge
of the drugs.
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hypothetical in nature. There was no formal proffer of evidence or offer of a
stipulation. Thus, Bryant’s counsel had no opportunity to object. We are not at all
confident that Bryant’s counsel would not have objected to any mention of his
(Bryant’s) prior statement to the jury because the statements are at least mildly
inculpatory as to Bryant¯he was telling the agents and the prosecutor that he had
never told Mack that drugs would be involved in the deal; only cash would be
involved. The question which must be asked is: how would Bryant know what
was going to be involved in the deal unless he was himself culpable? Finally, we
note that there was no formal tender of evidence for the district court to rule on.
Mack has failed to demonstrate plain error by the district court.
VII. Defendants’ Cumulative Error Argument26
Defendants contend that a number of instances of prosecutorial misconduct,
combined with improper government witness testimony and erroneous judicial
rulings, amount to a cumulative error, impairing their fair trial and due process
rights under the Fifth and Sixth Amendments to the United States Constitution and
warranting reversal of the jury verdict.
A. Standard of Review
The question whether cumulative errors have deprived the defendant of a
26
This argument, raised by McLendon, was also adopted by Mack and Bryant.
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fair trial is reviewed de novo. United States v. Dohan, 508 F.3d 989, 993 (11th
Cir. 2007) (citation omitted). “In addressing a claim of cumulative error, we must
examine the trial as a whole to determine whether the [defendant] was afforded a
fundamentally fair trial.” Calderon, 127 F.3d at 1333 (citation omitted).
B. Discussion
In order to establish cumulative error warranting reversal, each incident
must constitute error in itself. United States v. Waldon, 363 F.3d 1103, 1110
(11th Cir. 2004) (“If there are no errors or a single error, there can be no
cumulative error.”) (internal quotation marks and citation omitted). We consider
(1) whether each complained of incident constitutes error; and (2) if so, whether
the cumulative effect of all errors mandates a reversal.
1. Prosecutorial Misconduct
“‘To find prosecutorial misconduct, a two-pronged test must be met: (1) the
remarks must be improper, and (2) the remarks must prejudicially affect the
substantial rights of the defendant.’” United States v. Epps, 613 F.3d 1093, 1100
(11th Cir. 2010) (quoting United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir.
1991)). “[R]emarks prejudicially affect the substantial rights of the defendant
when they ‘so infect[ ] the trial with unfairness as to make the resulting conviction
a denial of due process.’” Eyster, 948 F.2d at 1206 (citation omitted).
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Defendants contend that the prosecutorial misconduct in this case consists
of, inter alia, the following burden-shifting statements:
(1) In its closing argument, the government commented on the lack of
evidence that Mack and McLendon believed they were transporting money (as
opposed to cocaine), and that Mack was just trying to help a friend move money.
(2) In its rebuttal closing argument, the government denigrated defense
counsel and characterized Mack and McLendon’s defense of “lack of knowledge”
as a “red herring.”
(3) At the very conclusion of its rebuttal, the prosecutor stated:
Finally, ladies and gentlemen, all three defense counsel dealt with this
instruction here. And they said: Proof beyond a reasonable doubt is
proof so convincing that you would be willing to rely and act on it
without hesitation in the most important of your own affairs.
[. . . ]
I think an important affair in life would be the choice to transport drugs.
That’s life changing. You could go to jail for a very long, very short time,
who knows. But it could maybe take you away from your family. But it
could also bring you riches. That’s one of the most important of your own
affairs. Am I going to act legally or am I going to act illegally? . . .
(followed by McLendon’s counsel objecting and the court overruling the
objection). The prosecutor continued by stating:
The most important of your own affairs was the choice to bring a
co-conspirator and not a witness.
[. . .]
The most important affairs of your life, ladies and gentlemen, were those
choices that Henry Bryant made. Those actions, ladies and gentlemen,
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coupled with all of the other recordings prove beyond a reasonable doubt
that all three of these men are guilty.
McLendon again objected to these comments, and his objection was again
overruled.
During closing arguments, “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) (citation omitted). However, “prejudice from the
comments of a prosecutor which may result in a shifting of the burden of proof can
be cured by a court’s instruction regarding the burden of proof.” Id. (citations
omitted).
There is no error as to the first and second “burden-shifting” statements.
The government prefaced its statement that no evidence was presented concerning
Mack’s and McLendon’s knowledge that the transport involved money by stating:
The defendant has no burden whatsoever. He doesn’t have to produce
any such evidence, but there’s no evidence in this case that Daniel
Mack thought they were transporting money. That’s speculation.
That’s conjecture, and reasonable doubt is not speculation. It’s not
conjecture.
(emphasis added).
However, in the third instance, the district court improperly overruled the
objection by McLendon’s counsel because the prosecution asked the jury to equate
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their own situation to Defendants’ respective situations. However, the court
properly instructed the jury on the burden of proof, and nothing in the record
indicates that the jury disregarded the court’s instructions. See Simon, 964 F.2d
at 1087 (“a prejudicial remark may be rendered harmless by curative instructions
to the jury”) (internal quotation marks and citations omitted). Accordingly, there
is no reason to think that the remarks prejudicially affected the substantial rights of
Defendants.
2. Improper Government Witness Testimony
We turn next to Defendants’ enumeration of incidents involving improper
government witness testimony.
(1) Agent Jackson “vouched” for the government during his testimony about
the “disappearance” of the sham cocaine when he stated: “I don’t know where it’s
at. . . . I’m sure the FBI has it in custody. We don’t let kilograms of cocaine walk
. . . I’m sure it could be provided.”
Defense counsel did not object at the time of the “improper vouching.” In
addition, defense counsel asked Agent Jackson about the whereabouts of the sham
cocaine six times (in one form or another), even after Jackson had already told
counsel that he himself did not know where the sham drugs were and that counsel
would have to direct that question to the case agent. This is not the kind of
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“improper vouching taint[ing] the trial” that we have held may constitute a
reversible error. See Eyster, 948 F.2d at 1207-08 (reversing based on the
prosecutor’s improper vouching for the credibility of a government witness).
(2) Det. Tyson testified that “you would never see money packaged in that
manner,” even though he acknowledged that his prior investigatory experience is
in drug trafficking, not money laundering. The court overruled defense counsel’s
objection on the basis of Tyson’s experience in other undercover drug deals. The
court then pointed out that the defense could cross-examine Tyson as to his
experience in money laundering operations. We find no error.
(3) Det. Tyson criticized defense counsel in front of the jury when counsel
questioned him about his statement to McLendon and Bryant that “this [is]
money.” Counsel finds the following statement by Tyson to be objectionable:
“[s]ee, what we have, ladies and gentlemen, the attorney is trying to say that –.”
A careful review of the transcript shows no improper criticism of the
defense counsel by the agent or by the court. Defense counsel objected to Tyson’s
statement as being “not responsive to the question.” When the court attempted to
clarify what the question was, defense counsel withdrew the question. There is no
error.
3. Erroneous Judicial Rulings
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Two of the three judicial rulings challenged by Defendants concern the
district court’s exclusion of Bryant’s post-arrest statements and the denial of
Mack’s motions to sever and for new trial and of McLendon’s motion for new
trial. We have previously found no abuse of discretion as to those two rulings as
discussed in Parts IV, V, and VI.
The final purportedly erroneous judicial ruling concerns the cross-
examination of Agent Jackson concerning Taurus Barron. Barron was an
unindicted police officer who was involved in escorting the transportation of sham
cocaine during the same period as Defendants. Defendants argue that the district
court restricted Jackson’s cross-examination concerning Barron’s purported
statements to other law enforcement officers that Barron was told he was escorting
money, not drugs.
We conclude that the district court did not improperly restrict Agent
Jackson’s cross-examination concerning statements made by Barron. The
transcript shows that defense counsel asked Jackson whether he knew that Barron
asserted that he was told the transportation involved cash. The government
objected on the grounds of hearsay. The court asked defense counsel whose
statements counsel wanted to introduce. Counsel stated that he was talking about
“the statement of the other police officers,” and Jackson confirmed that he was
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present at the time the statement was made.27 The court then inquired of the
prosecutor whether she had introduced a “statement of that agent,” to which she
responded that she had only introduced statements made by Jackson and Tyson.
After confirming with defense counsel that the statements he was attempting to
introduce were not Jackson’s or Tyson’s, but were in fact Barron’s, the court
sustained the hearsay objection. We find no abuse of discretion.
Defense counsel then proceeded to question Jackson about Jackson’s
knowledge concerning whether Barron had ever been charged in the case. Jackson
stated that he did not know because he did not conduct surveillance during the
operation and was not involved in any arrests in the case. The government
objected to that line of questioning because any additional answer Jackson could
have given would have been hearsay. The court properly sustained the objection.
In sum, most of the purported errors enumerated by McLendon are not
errors at all.28 The cumulative effect of the sole remaining error involving the
27
Despite defense counsel’s use of the plural form, it does appear that defense counsel
was referring to Barron’s statement concerning his knowledge, not that of other police officers.
28
This conclusion applies to the following additional incidents briefly mentioned by
Defendants. First, Defendants highlight the prosecutor’s comment in opening statement: “[I]f
anyone watches t.v., you see cocaine. It’s packaged in a brick form, kilogram square form,
wrapped in tape.” Although this comment was not proper, there was no objection, and no harm
was done.
Second, Defendants point to Agent Jackson’s testimony as to defendant Bryant’s “belief”
and “knowledge” concerning the drugs. As Defendants point out, however, the district court did
sustain the motion to strike as well as the ensuing objection by Bryant’s counsel, and the
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prosecutor asking the jury to put themselves in Defendants’ positions does not
come close to requiring a reversal.
VIII. Bryant’s Sentence
A. Standard of Review
We review the reasonableness of a sentence under an abuse of discretion
standard. United States v. Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013). The
abuse of discretion standard “allows a range of choice for the district court, so
long as that choice does not constitute a clear error of judgment.” Id. (internal
quotation marks and citation omitted).
B. Discussion
Bryant first argues that his 264-month total sentence is procedurally
unreasonable because the court denied his motion for a downward departure below
the applicable 248- to 295-month range based on the government’s sentencing
factor manipulation. He further argues that his total sentence is substantively
government discontinued the line of questioning concerning Bryant’s “belief” and “knowledge.”
Third, the government elicited testimony from Det. Tyson about the value of cocaine
without establishing any foundation for Tyson’s knowledge. Defense counsel did not object to
Tyson’s statement, and we find no error. See United States v. Costa, 691 F.2d 1358, 1361 (11th
Cir. 1982) (testimony from an experienced D.E.A. agent regarding the street value of cocaine is
not prejudicial error, even in light of the failure to qualify the agent as an expert).
Finally, Defendants object to the prosecutor’s attempt to clarify to whom Bryant was
referring when he told Jackson “[w]e’ve been in this thing together for —since we’ve been eight
years old.” Defense counsel’s objection was overruled. A close review of the transcript reveals
that the prosecutor’s question concerned Agent Jackson’s understanding of Bryant’s statement.
Thus, the district court did not err in overruling defense counsel’s objection.
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unreasonable because it is excessive.
The sole basis of Bryant’s procedural unreasonableness claim is that the
government engaged in sentencing factor manipulation when it conducted the
reverse-sting operation in an outrageous and reprehensible manner. Bryant
submits that the government’s conduct was outrageous because of the large
amount of sham cocaine that was used and the fact that the agents allowed Bryant
to complete a second run instead of arresting him after the first one.
We have never vacated a sentence based on alleged sentencing factor
manipulation. See United States v. Docampo, 573 F.3d 1091, 1097-98 (11th Cir.
2009) (reiterating that courts in this circuit have yet to “recognize[] a defense of
sentencing factor manipulation or [to] permit[] its application”) (citations
omitted); see also United States v. Ciszkowski, 492 F.3d 1264, 1271 (11th Cir.
2007) (listing examples of conduct held not to constitute sentencing factor
manipulation).
Bryant acknowledges that the authority in this circuit weighs heavily against
his position. Moreover, he concedes that the government’s conduct in this case
does not amount to sentencing manipulation under this circuit’s precedent. See
United States v. Sanchez, 138 F.3d 1410, 1414 (11th Cir. 1998) (the government’s
decision as to the drug quantity in a sting operation does not amount to sentencing
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manipulation); Ciszkowski, 492 F.3d at 1271 (the government did not engage in
sentencing manipulation when it provided a defendant with a silencer-equipped
firearm in a sting operation involving murder-for-hire, although the gun triggered
a mandatory 30-year minimum sentence where the gun or the silencer was not
completely unrelated to the criminal act). Nevertheless, Bryant argues that we
should reconsider our position and “set limits on how far the government may go
to create crimes and prosecute people.” Bryant cites no authority, nor can he, in
support of that argument, and he fails to explain why his case warrants such a
shift. Accordingly, his “procedural” challenge to his sentence is rejected.
Bryant’s 264-month total sentence is also substantively reasonable. It is
near the low end of the applicable 248- to 295-month total range, as well as the
low end of the underlying Sentencing Guidelines sentence. Thus, this court would
ordinarily expect the sentence to be reasonable. See United States v. Hunt, 526
F.3d 739, 746 (11th Cir. 2008) (a sentence falling within the Guidelines range is
not automatically presumed to be reasonable; however, such a sentence ordinarily
is expected to be reasonable). In addition, Bryant’s sentence is well below the
statutory maximum penalty of life imprisonment—another indication that it is
reasonable. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
Finally, the record shows that the district court considered the section
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3553(a) factors and the facts of the case, and declined to vary below the
Guidelines range, stating:
[a]fter having heard from all parties and having adopted the
guidelines. . . I don’t think a sentence below the guideline is
appropriate at all. So my question here is, where within the guidelines
between 188 and 235 months [on Counts 1-3] I should sentence the
defendant. I’m not going to go below the guidelines to 180 months,
because I don’t think it would be appropriate in the exercise of my
discretion.
But by the same token, the top of the guidelines with the other 60 months
would be 24 years and 7 months, I think that’s too much under the facts of
this case, and it doesn’t really serve the interest of society under 3553(a).
The seriousness of Bryant’s criminal conduct supports that decision: he
organized the transportation of large quantities of serious narcotics, and enlisted
police officers to assist him. Moreover, he did so as an active public servant
whose job was to protect the public, not to foster criminal elements within it. In
light of the foregoing, Bryant’s bare assertion that his guidelines-range sentence is
excessive is insufficient to demonstrate an abuse of discretion by the court.
Accordingly, the district judge did not abuse his discretion by denying Bryant’s
request for a downward variance, and Bryant’s sentence is affirmed.
IX. Conclusion
We affirm the district court’s denial of Defendants’ Rule 29 motions, and
affirm Defendants’ convictions. We also affirm the district court’s denial of
Mack’s motion to sever and of Mack’s and McLendon’s motions for new trial.
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We hold that the district court’s refusal to admit Bryant’s post-arrest statements
for impeachment purposes does not constitute plain error. We further find no
cumulative error warranting reversal. Finally, we affirm the district court’s denial
of Bryant’s request for a downward variance and affirm Bryant’s sentence.
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