The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16410 ELEVENTH CIRCUIT
JANUARY 22, 2010
Non-Argument Calendar
JOHN LEY
________________________
ACTING CLERK
D. C. Docket No. 06-00033-CR-FTM-33-SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OLIVER DEVAUN O'SULLIVAN,
a.k.a. Devin Smith,
a.k.a. Devin Sullivan,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 22, 2010)
Before CARNES, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Oliver Devaun O’Sullivan appeals his conviction and 70-month sentence for
possession, and aiding and abetting possession, of between 100 and 1,000
kilograms of marijuana, with intent to distribute, in violation of 21 U.S.C.
§§ 841(a), (b)(1)(B)(vii). O’Sullivan was found guilty after a jury trial and now
challenges (1) the sufficiency of the evidence to support the conviction, (2) the jury
instruction that included a deliberate ignorance charge, (3) the admission of alleged
hearsay evidence, (4) the admission of evidence about a conspiracy, even though
he was acquitted of the conspiracy charge in an earlier trial, (5) the denial of a
minor role adjustment to his sentence, and (6) the denial of safety valve relief.
After careful review, we affirm.
I.
O’Sullivan contends that the evidence was insufficient to support a
conviction for knowing and willful possession and aiding and abetting possession
with the intent to distribute the marijuana. Specifically, he asserts that he never
saw or was told that his rental truck was being loaded with marijuana or that
anything illegal was occurring. He argues that he customarily rents trucks “off the
books,” that he was evasive after arrest only because his driver’s license had been
suspended, and that his telephone calls with others involved in the crime were
solely to get directions to the storage facility.
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“We review the sufficiency of evidence to support a conviction de novo,
viewing the evidence in the light most favorable to the government and drawing all
reasonable inferences and credibility choices in favor of the jury’s verdict.” United
States v. Taylor, 480 F.3d 1025, 1026 (11th Cir. 2007). “We will uphold a district
court’s denial of a motion for a judgment of acquittal if a reasonable trier of fact
could conclude the evidence established the defendant’s guilt beyond a reasonable
doubt.” Id.
To convict someone for possession with intent to distribute marijuana, the
government must prove beyond a reasonable doubt that the defendant knowingly
possessed the marijuana, either actually or constructively, and that he intended to
distribute it. United States v. Cruz-Valdez, 773 F.2d 1541, 1544 (11th Cir. 1985);
21 U.S.C. § 841(a)(1). Under an aiding and abetting theory, the government must
show that: (1) the substantive offense was committed by someone; (2) that the
defendant committed an act which contributed to and furthered this offense, and
(3) that the defendant intended to aid the commission of the offense. See United
States v. Arias-Izquierdo, 449 F.3d 1168, 1176 (11th Cir. 2006). Mere presence is
insufficient to convict a defendant under an aiding an abetting theory. United
States v. Diaz-Boyzo, 432 F.3d 1264, 1269 (11th Cir. 2005). However, essential
evidence of aiding and abetting a crime can be proved by circumstantial as well as
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direct evidence. United States v. Smith, 700 F.2d 627, 632–33 (11th Cir. 1983).
Because O’Sullivan does not dispute that he was in possession of the rental
truck, which contained more than 100 kilograms of marijuana, his argument is
limited to whether sufficient evidence established that he was a knowing or willful
participant in the crime. Viewing the evidence in the light most favorable to the
government, Taylor, 480 F.3d at 1026, there is ample evidence, direct and
circumstantial, in support of a conviction for aiding and abetting possession with
the intent to distribute marijuana. First, O’Sullivan arrived at the designated
location with a truck that he rented “under the table,” backed up the truck to the
correct storage unit, and handed Agent Paul Mangone a lock. Second, the jury
reasonably could have believed that the other participants would not have entrusted
O’Sullivan with the sole possession of $800,000 worth of marijuana without his
knowledge. See United States v. Quilca-Carpio, 118 F.3d 719, 721–22 (11th Cir.
1997) (“A reasonable jury could infer from the quantity of drugs seized that a
‘prudent smuggler’ is not likely to entrust such valuable cargo to an innocent
person without that person's knowledge.”). Third, O’Sullivan’s post-arrest conduct
of concealment and evasiveness, including his giving a false name and swallowing
a piece of paper, shows that he knew of his guilt.
O’Sullivan offers alternative explanations for his conduct, but the evidence
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need not “exclude every reasonable hypothesis of innocence” as long as “a
reasonable trier of fact could find that the evidence established guilt beyond a
reasonable doubt.” United States v. McDowell, 250 F.3d 1354, 1365 (11th Cir.
2001). A jury reasonably could infer from all of that evidence that O’Sullivan was
a willful and knowing participant in the crime. Sufficient evidence established that
O’Sullivan aided and abetted possession with intent to distribute marijuana
because he intentionally provided a delivery service to those who were committing
the substantive offense. See Arias-Izquierdo, 449 F.3d at 1176.
II.
O’Sullivan contends that the government’s deliberate ignorance argument
and the court’s corresponding jury instruction impermissibly lowered the burden of
proof to a negligence standard. He asserts that the instruction should not have been
given because no evidence showed that he purposefully avoided learning that he
was transporting marijuana.
As we have held before, “We need not decide whether the evidence justified
the deliberate ignorance instruction, because our decision in United States v. Stone,
9 F.3d 934 (11th Cir. 1993), says that it does not matter.” United States v.
Kennard, 472 F.3d 851, 858 (11th Cir. 2006). It does not matter because the error
of giving a deliberate ignorance instruction with no basis in the evidence will
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always be harmless. Id.; Stone, 9 F.3d at 937–38. We reject O’Sullivan’s
argument that the instruction effectively allowed the jury to convict him for
negligence. The instruction specifically cautioned the jury that it could not do so,
that more than negligence was required.
III.
O’Sullivan contends that the district court abused its discretion by admitting
into evidence certain statements by Valdoria Riddick, another participant in the
marijuana distribution scheme, because they were inadmissible hearsay, and their
admission violated the Confrontation Clause. Specifically, O’Sullivan challenges a
recording from February 17, 2006 of Riddick asking Agent Paul Mangone the
question, “Can I tell my buddy and get him to come?” and Agent Mangone’s
testimony that Riddick stated that his “buddy” had arrived at the location for the
marijuana transfer. O’Sullivan argues that these out-of-court statements refer to
him and that their admission into evidence deprived him of his right to confront
Riddick, in violation of the Sixth Amendment.1
We review a district court’s evidentiary rulings only for abuse of discretion.
1
O’Sullivan also argues that admission of the evidence of Riddick’s statements
constitutes Bruton error. See United States v. Bruton, 391 U.S. 123, 88 S. Ct. 1620 (1968). In a
joint trial, the admission of a codefendant’s extrajudicial confession that implicates the accused
violates the accused’s right to cross-examination under the Confrontation Clause. Id. at 126, 88
S.Ct. at 1622. However, O’Sullivan’s Bruton argument is misplaced because Riddick was not
O’Sullivan’s codefendant in a joint trial. See Cargill v. Turpin, 120 F.3d 1366, 1374 n.16 (11th
Cir. 1997) (distinguishing Bruton on those grounds).
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United States v. Perez-Oliveros, 479 F.3d 779, 783 (11th Cir. 2007). However, we
review de novo questions of constitutional law. United States v. Brown, 364 F.3d
1266, 1268 (11th Cir. 2004).
The statements were not hearsay because they merely gave context to Agent
Paul Mangone’s investigatory actions and were not offered to prove the truth of the
matter asserted. See, e.g., Cargill v. Turpin, 120 F.3d 1366, 1373 (11th Cir. 1997)
(statements not offered for their truth cannot be hearsay). The district court
specifically instructed the jury that the statements were being offered only to help
the jury understand the logical sequence of events. That instruction limited any
prejudicial impact, and we presume that the jury followed it. Stone, 9 F.3d at 940.
Further, “this Circuit has long recognized that statements by out of court witnesses
to law enforcement officials may be admitted as non-hearsay if they are relevant to
explain the course of the officials’ subsequent investigative actions and the
probative value of the evidence’s non-hearsay purpose is not substantially
outweighed by the danger of unfair prejudice caused by the impermissible hearsay
use of the statement.” United States v. Jiminez, 564 F.3d 1280, 1288 (11th Cir.
2009) (quotation marks, alteration, and citation omitted). Despite O’Sullivan
arguments to the contrary, Agent Paul Mangone’s actions over the course of the
entire day were “investigative” under Jiminez, because they were all part of his
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undercover investigation leading to the arrest of O’Sullivan and the other
participants. The district court was within its discretion to conclude that the
evidence was admissible.
Because the statements were not inadmissable hearsay, their introduction at
trial did not violate O’Sullivan’s rights under the Confrontation Clause. “There
can be no doubt that the Confrontation Clause prohibits only statements that
constitute impermissible hearsay.” Jiminez, 564 F.3d at 1288 (citing Crawford v.
Washington, 541 U.S. 36, 59 n.9, 124 S. Ct. 1354, 1369 n.9 (2004)).
IV.
O’Sullivan contends that the district court abused its discretion by admitting
evidence at trial of a conspiracy from which he had been acquitted, because such
evidence was irrelevant and its prejudicial impact outweighed its probative value.
We review evidentiary rulings only for abuse of discretion. United States v. Baker,
432 F.3d 1189, 1202 (11th Cir. 2005). “Even if an abuse of discretion is shown,
nonconstitutional evidentiary errors are not grounds for reversal absent a
reasonable likelihood that the defendant’s substantial rights were affected.” United
States v. Malol, 476 F.3d 1283, 1291 (11th Cir. 2007) (quotation marks and
citation omitted).
Federal Rule of Evidence 403 permits the exclusion of evidence if the
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probative value of that evidence “is substantially outweighed by the danger of
unfair prejudice.” Because it “permits a trial court to exclude concededly
probative evidence, Rule 403 is an extraordinary remedy which should be used
sparingly.” United States v. King, 713 F.2d 627, 631 (11th Cir. 1983). In a
criminal trial relevant evidence is inherently prejudicial; therefore, Rule 403 only
permits the exclusion of probative evidence when “unfair prejudice substantially
outweighs probative value.” Id.
Although the trial evidence regarding a conspiracy not involving O’Sullivan
was prejudicial, it was also probative because it was necessary to complete the
story of the crime and give the jury a context for understanding O’Sullivan’s
charged offense. Limiting the evidence to what happened on February 17, 2006
would have left the jury to speculate why 800 pounds of marijuana were being
transported in an isolated occurrence and how the investigation got to the point of
the arrests made that day. The district court’s determination that the prejudicial
impact of the evidence at issue did not substantially outweigh its probative value
was not an abuse of discretion. See id.
V.
O’Sullivan contends that, because he was “merely a transporter” of the
marijuana, the district court erred by not granting him a minor role adjustment
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pursuant to § 3B1.2(b) of the Sentencing Guidelines. A minor participant is any
participant “who is less culpable than most other participants, but whose role could
not be described as minimal.” U.S.S.G. § 3B1.2(b), comment. (n.5). We review a
district court’s minor role determination only for clear error. United States v. De
Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). O’Sullivan bears the burden
of proving his minor role by the preponderance of the evidence. Id. at 939.
In De Varon, we outlined two principles that guide the determination of
whether a minor role sentence reduction is warranted. De Varon, 175 F.3d at
940–44. First, the district court should evaluate the defendant’s role in the relevant
conduct for which he has been held accountable at sentencing. Id. at 940. Second,
the district court may compare the defendant’s culpability to that of other
participants in the relevant conduct. Id. at 944. The conduct of participants in any
larger criminal conspiracy for which the defendant is not charged is irrelevant to
that analysis. Id. The pertinent issue is whether the defendant was substantially
less culpable than his co-conspirators. United States v. Cacho, 951 F.2d 308,
309–10 (11th Cir. 1992). When considering the transportation of drugs, the
amount of drugs in a courier’s possession is a material factor in assessing the
courier’s level of participation. De Varon, 175 F.3d at 943.
The record demonstrates that the district court did not commit clear error.
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O’Sullivan might have been entitled to a minor role reduction if he had been
convicted of participating in the larger drug smuggling conspiracy, but he was
acquitted of that charge. The district court correctly limited its inquiry to
O’Sullivan’s role in the possession and distribution of the 800 pounds of marijuana
he possessed on February 17, 2006—the only crime he was held responsible for at
sentencing. See id. at 944. O’Sullivan was not a minor participant in that offense.
He was active in communication with Riddick’s driver through phone calls on the
day of the arrest, present when the drugs were being loaded into the truck, and was
to bear the responsibility of sole possession of the marijuana during its transport.
That active role, as well as the large drug amount involved, support the district
court’s finding that he was not a minor participant. See id. at 943.
VI.
Finally, O’Sullivan contends that the district court clearly erred by not
granting him safety-valve relief. The safety-valve provision of U.S.S.G. §
5C1.2(a) enables sentencing without regard to the statutory minimum for certain
offenses if five requirements are met. See United States v. Milkintas, 470 F.3d
1339, 1344 (11th Cir. 2006). The burden is on the defendant to show that he meets
all the criteria. United States v. Johnson, 375 F.3d 1300, 1302 (11th Cir. 2004).
The fifth requirement, and the only one at issue here, is that the defendant “has
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truthfully provided to the Government all information and evidence the defendant
has concerning the offense or offenses that were part of the same course of conduct
or of a common scheme or plan.” 18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5).
A district court cannot apply the safety valve if it determines the defendant
“withheld or misrepresented information.” United States v. Figueroa, 199 F.3d
1281, 1282–83 (11th Cir. 2000).
We review the district court’s factual determinations and subsequent denial
of safety-valve relief only for clear error. United States v. Cruz, 106 F.3d 1553,
1557 (11th Cir. 1997). We cannot find clear error unless the record leaves us “with
the definite and firm conviction that a mistake has been committed.” United States
v. White, 335 F.3d 1314, 1319 (11th Cir. 2003).
O’Sullivan argues that a defendant may qualify for safety-valve relief and
maintain his innocence at the same time. We need not decide that issue because
the district court did not clearly err in finding that O’Sullivan failed to qualify for
relief. Agent Kathryn Mangone testified that when O’Sullivan met with her, he
gave information inconsistent with the investigation, such as naming someone
named “Mikey” as arranging the delivery and claiming that “Patrick” was a
fictional person. She testified at sentencing that she did not believe that O’Sullivan
was truthful during their meeting, and the district court was entitled to find Agent
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Kathryn Mangone more credible than O’Sullivan. The district court did not clearly
err by denying O’Sullivan safety valve relief. See Milkintas, 470 F.3d at 45.
Upon review of the record and consideration of the parties’ briefs, we affirm
the district court’s decision in all respects.
AFFIRMED.
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