United States v. Michael A. Horne

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 18, 2006

Nos. 05-14648 and 05-14950

THOMAS K. KAHN

________________________

CLERK

D. C. Docket Nos. 04-00592-CR-T-30-TGW

96-00036-CR-T-26-TBM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL A. HORNE,

Defendant-Appellant.

________________________

Appeals from the United States District Court

for the Middle District of Florida

_________________________

(September 18, 2006)

Before BIRCH, PRYOR and FAY, Circuit Judges.

PER CURIAM:

Michael Anthony Horne challenges his convictions and sentences for drug

trafficking and the unlawful possession of a firearm. We affirm.

I. BACKGROUND

On May 4, 2004, Detective Richard Murray applied for a warrant to search a

residence at 3314 East 5th Street Court in Bradenton, Manatee County, Florida. In

an affidavit, Murray stated that a confidential informant had bought nine pieces of

rock cocaine inside the residence during a controlled drug buy using $100 of

identified currency. Murray stated that he had ensured the confidential informant

possessed no contraband or money before he entered the residence, followed the

confidential informant to the residence and observed him enter, and met him at a

predesignated location after the buy, where Murray collected the drugs. A circuit

judge found that there was probable cause to believe that drug laws of Florida

were being violated within the residence and its curtilage and issued a search

warrant. The warrant permitted the police to search the residence, “its curtilage,

any vehicles located within the curtilage, and any and all persons found therein,

who are reasonably believed to be involved in the crime or crimes,” for illegal

drugs, drug money, and any other drug or drug trafficking paraphernalia.

On the morning of May 13, 2004, Murray observed Michael Anthony Horne

and another person, Kelvin Martin, arrive at the residence in a black Toyota

Avalon. Horne backed the car into the driveway and parked under the carport.

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Horne and Martin waited in front of the car for about twenty minutes until another

man, Terrance Johnson, arrived at the residence. The three men entered the

residence.

Police officers then executed the warrant and found Johnson, Horne, Martin,

and another person in the residence. After the officers secured the four men,

Murray “had [Horne] step outside to the rear of the residence so he wouldn’t be

present with everyone else, and [] read him his Miranda rights.” Horne said he

understood.

After Horne stated that he understood his rights, he asked Murray whether

they could step to the side a little farther from the door. Murray later testified, “It

was my impression that he didn’t want anyone to hear him talk to me.” Murray

agreed to move away from the door and then asked Horne, “What’s going on?”

After some initial discussion, Horne asked to speak with another detective, Derek

Pollock, who also was at the residence. Murray sent for Pollock and, during the

approximately two minutes it took for Pollock to arrive at the rear of the house,

Horne told Murray that he had “five ounces of coke in [] the back seat of his car.”

Meanwhile, Pollock had used a drug detection dog to search Horne’s car.

The dog alerted Pollock to a pouch hanging from the passenger seat headrest that

contained five bags of powder cocaine. Another officer, Patrick Bartholomew,

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saw a handgun between the driver’s seat and the center console of Horne’s car.

Horne later told Bartholomew that the gun was his and Johnson had paid him

$1000 to transport the cocaine.

The officers placed Horne in a police car with Johnson. The car contained a

hidden tape recorder that recorded what Horne and Johnson said. Horne said,

“That gun fucked me up boy,” and, “They fittin’ fuck me on that gun . . . . Man,

why did I even bring that shit with me, man why . . . Why?” Horne also said, “I

said all that shit was mine. He didn’t know it was in there. Had to let him go.

Couldn’t let him get fucked up like that.”

On December 8, 2004, a federal grand jury indicted Horne on one count

each of conspiracy to distribute and to possess with the intent to distribute cocaine,

21 U.S.C. §§ 846, 841(b)(1)(c), possession with the intent to distribute cocaine, 21

U.S.C. § 841(b)(1)(c); 18 U.S.C. § 2, possession with the intent to distribute

cocaine within 1000 feet of the real property comprising a public elementary

school, 21 U.S.C. §§ 841(a)(1) & (b)(1)(C), 860(a); 18 U.S.C. § 2, “knowingly

carry[ing] a firearm during and in relation to, and [] knowingly possess[ing] a

firearm in furtherance of, a violation of Title 21, United States Code, Sections

841(a)(1), 846 and 860(a), as alleged in Counts One, Two and Three above,” 18

U.S.C. § 924(c)(1)(A)(i) & (c)(2), and possession of a firearm as a convicted

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felon, 18 U.S.C. § 922(g)(1). The indictment stated that Horne committed the

offenses in the Middle District of Florida.

On January 21, 2005, an attorney, Scott McCluskey, was appointed to

represent Horne. On January 26, McCluskey moved for a continuance, which the

district court granted. McCluskey later withdrew as counsel and a new attorney,

Bryant Camereno, represented Horne. On March 2, Camereno moved for a

continuance and stated that he needed at least 30 days to prepare for trial. The

district court granted that continuance and scheduled the trial for the April

calendar.

On March 14, Camereno filed three motions to suppress evidence. One

motion sought to suppress “all statements made by the defendant in the presence

of law enforcement authorities.” Horne argued, in that motion, that his statements

were not voluntary under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602

(1966). Horne stated in that motion, “In all the confusion, the defendant has no

memory of Miranda being read to him and absent any proof that it was in fact read

to him, the United States bears the burden of proving it was read to him and that

his statements were made knowingly and voluntarily.” A second motion sought to

suppress the cocaine and firearm that the officers seized from Horne’s car on the

ground that the search warrant was not supported by probable cause and was

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overly broad. A third motion sought to suppress the cocaine and firearm and “any

statements made by the defendant” on the ground that there was no probable cause

to arrest Horne. Horne requested an evidentiary hearing in each motion. The

district court denied each motion without an evidentiary hearing.

On March 31, Camereno filed an emergency motion to continue trial.

Camereno explained that he had not had time to prepare for trial because he had

been busy preparing the motions to suppress and preparing for other trials, but

Camereno did not state how much more time he needed to prepare for trial. On

April 1, the district court denied that motion to continue and scheduled the trial for

April 18.

At trial, the government presented as evidence of Horne’s guilt the firearm

and cocaine that the officers found in Horne’s car, Horne’s statements to the

officers, Horne’s statements that were recorded by the hidden tape recorder in the

police car, and the testimony of several officers. In his closing argument, Horne’s

lawyer repeatedly challenged the evidence of Horne’s guilt. A jury convicted

Horne of the offenses charged.

Horne filed several motions for judgment of acquittal. In one motion,

Horne argued that the government had failed to prove that Horne committed the

alleged crimes in the venue of trial. Horne acknowledged that he had not raised

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that objection until after the close of evidence and after the district court had

instructed the jury, but argued it should be considered as timely. In three other

motions for judgment of acquittal, Horne challenged the sufficiency of the

evidence against him. The district court denied the motions for a judgment of

acquittal.

At sentencing, Horne objected to the presentence investigation report

because it did not recommend a two-level reduction in his base offense level for

acceptance of responsibility. Horne argued that he had cooperated with law

enforcement officials when he was arrested. Horne explained that he had

exercised his right to a trial to preserve his right to challenge the admission of

evidence against him. The district court found that Horne had not accepted

responsibility and sentenced Horne to 144 months of imprisonment.

II. STANDARD OF REVIEW

Several standards govern our review in this appeal. First, we review a

decision of a district court not to hold a hearing on the motions to suppress for

abuse of discretion. United States v. Cooper, 203 F.3d 1279, 1285 (11th Cir.

2000). Second, when we review the disposition of a motion to suppress, we

“review the district court’s findings of fact under the clearly erroneous standard,”

United States v. Gil, 204 F.3d 1347, 1350 (11th Cir. 2000), “construe those facts

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in the light most favorable to the party that prevailed in the district court,” United

States v. Gonzalez, 71 F.3d 819, 824 (11th Cir. 1996), and review “the district

court’s application of law to those facts de novo,” Gil, 204 F.3d at 1350. Third,

we review “the disposition of requests for trial continuances for abuse of

discretion,” United States v. Bowe, 221 F.3d 1183, 1189 (11th Cir. 2000), “and

specific, substantial prejudice,” United States v. Tokars, 95 F.3d 1520, 1531 (11th

Cir. 1996). Fourth, we review de novo the denial of a motion for a judgment of

acquittal notwithstanding the verdict. United States v. Garcia, 447 F.3d 1327,

1334 (11th Cir. 2006). “In considering a motion for the entry of a judgment of

acquittal, a district court ‘must view the evidence in the light most favorable to the

government, and determine whether a reasonable jury could have found the

defendant guilty beyond a reasonable doubt.’” United States v. Miranda, 425 F.3d

953, 959 (11th Cir. 2005) (quoting United States v. Sellers, 871 F.2d 1019, 1021

(11th Cir. 1989)). Fifth, we review a “district court’s determination of acceptance

of responsibility only for clear error.” United States v. Dodd, 111 F.3d 867, 870

(11th Cir. 1997).

III. DISCUSSION

Horne presents five arguments. First, Horne argues that the district court

abused its discretion by not holding evidentiary hearings when it denied three

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motions to suppress evidence. Second, Horne argues that the district court erred

by denying those three motions. Third, Horne argues that the district court abused

its discretion by denying his second motion to continue the trial. Fourth, Horne

argues that the district court erred by not granting a judgment of acquittal. Fifth,

Horne argues that the district court clearly erred by finding that Horne did not

accept responsibility for his offenses. We discuss each argument in turn.

A. The District Court Did Not Abuse Its Discretion by Not Holding Evidentiary

Hearings in Denying Three Motions to Suppress Evidence.

“A district court is not required to hold an evidentiary hearing on a pretrial

motion.” United States v. Beard, 761 F.2d 1477, 1480 (11th Cir. 1985); see

Cooper, 203 F.3d at 1285 (11th Cir. 2000). A district court “may refuse a

defendant’s request for a suppression hearing and motion to suppress if the

defendant fails to allege facts that, if proved, would require the grant of relief.”

United States v. Richardson, 764 F.2d 1514, 1527 (11th Cir. 1985); see United

States v. Harris, 914 F.2d 927, 933 (7th Cir. 1990). Horne’s arguments that the

district court abused its discretion by not holding an evidentiary hearing to resolve

his three motions to suppress fail.

The district court did not abuse its discretion by not holding an evidentiary

hearing regarding whether Horne’s post-arrest statements were voluntary under

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Miranda. Although a factual dispute would have existed as to whether Horne’s

statements were voluntary if Horne had asserted that the officers never read him

those rights, see, e.g., Oregon v. Elstad, 470 U.S. 298, 307, 105 S. Ct. 1285, 1292

(1985) (stating that a statement “otherwise voluntary within the meaning of the

Fifth Amendment must nevertheless be excluded from evidence” if the declarant

did not first receive the Miranda warnings), Horne failed to assert in his motion to

suppress post-arrest statements that he had not been read the Miranda rights.

Horne stated, “In all the confusion, the defendant has no memory of Miranda

being read to him and absent any proof that it was in fact read to him, the United

States bears the burden of proving it was read to him and that his statements were

made knowingly and voluntarily.” Horne was not entitled to suppression on the

ground that he had “no memory of Miranda being read to him,” and the record

reveals that Horne received the Miranda warnings, which renders harmless any

discretion the district court might have abused in not holding a hearing. See

United States v. Mena, 863 F.2d 1522, 1528 (11th Cir. 1989) (“Assuming the

district judge should have held a suppression hearing to determine whether [the

defendant’s] statements were voluntary, we find any error harmless.”).

The district court also did not abuse its discretion in not holding evidentiary

hearings regarding whether the search warrant lacked probable cause and was

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overly broad and whether probable cause existed to arrest Horne. Horne’s motions

presented issues of law, not fact. See, e.g., United States v. Allison, 953 F.2d

1346, 1350 (11th Cir. 1992) (stating that the “question of what amounts to

probable cause is purely a question of law”). Neither motion raised a disputed

issue of fact that required resolution in an evidentiary hearing. See Sablan v.

Dep’t of Fin. of Commonwealth of Northern Mariana Islands, 856 F.2d 1317,

1322 (9th Cir. 1988) (“Like a trial, the purpose of an evidentiary hearing is to

resolve disputed issues of fact . . . .”).

B. The District Court Correctly Denied the Motions to Suppress Evidence.

Horne argues the district court erroneously denied his three motions to

suppress evidence. One motion addressed whether Horne’s statements were

voluntary under Miranda, another motion challenged the validity of the search

warrant, and a third argued that probable cause did not exist to arrest Horne. We

discuss each motion in turn.

The district court correctly denied the motion that addressed whether

Horne’s post-arrest statements were voluntary under Miranda. Although a

statement that is “otherwise voluntary within the meaning of the Fifth Amendment

must nevertheless be excluded from evidence” if the declarant did not first receive

the Miranda warnings, Elstad, 470 U.S. at 307, 105 S. Ct. at 1292, the record

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shows that Horne received the Miranda warnings. Horne raises no other question

about whether his waiver was voluntary, knowing, or intelligent. See Miranda,

384 U.S. at 444, 86 S. Ct. at 1612 (stating that, to be valid, a waiver of the rights

under Miranda must be “made voluntarily, knowingly and intelligently”).

The district court also correctly denied the motion in which Horne

challenged the search warrant on the grounds that it lacked probable cause and

was overly broad. Horne argues that the controlled buy, which Murray described

in his affidavit, was insufficient to establish probable cause, but “[g]enerally, a

controlled buy, when executed properly, is a reliable indicator as to the presence

of illegal drug activity.” United States v. Sidwell, 440 F.3d 865, 869 (7th Cir.

2006). A “common sense view to the realities of normal life,” Wilson v. Attaway,

757 F.2d 1227, 1235 (11th Cir. 1985), leads to the conclusion that a residence

contains drugs when a person enters that residence with no drugs and exits

approximately one minute later with drugs, cf. Sidwell, 440 F.3d at 869

(concluding that a controlled buy established probable cause that a residence

contained drugs when a “confidential informant entered the building without

contraband” and “exit[ed] moments later” with cocaine). Horne’s other argument,

that the warrant was overly broad, also fails because the Fourth Amendment

requires a search warrant to “particularly describ[e]” only “the place to be

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searched” and “the persons or things to be seized.” U.S. Const. Amend. IV; see

United States v. Grubbs, ___ U.S. ___, ___, 126 S. Ct. 1494, 1500 (2006). The

warrant described the residence in detail and limited the search to drugs and drug

paraphernalia and parts of the premise and people involved in crime related to

drugs. The search warrant was valid.

The district court also correctly denied the motion in which Horne argued

that probable cause did not exist to arrest him. While he was detained during the

search of the residence, Horne told the officers that his car contained illegal drugs.

That statement provided probable cause to arrest Horne. Horne argues that that

statement was unlawfully obtained because he was unlawfully detained, but a

person may be detained during a search of a residence conducted pursuant to a

warrant based on probable cause. Michigan v. Summers, 452 U.S. 692, 705, 101

S. Ct. 2587, 2595 (1981). Because the search warrant was valid, Horne was

lawfully detained during the search and his statement provided probable cause to

arrest him.

C. The District Court Did Not Abuse Its Discretion by Not Granting Horne’s

Motion to Continue Trial.

Horne argues that the district court abused its discretion by not granting his

motion for a continuance. A denial of a continuance can violate the right of “a fair

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or reasonable opportunity to select the attorney of their choice” guaranteed to

defendants as a matter of due process, United States v. Bowe, 221 F.3d 1183, 1190

(11th Cir. 2000), but Horne suffered no violation of that right. The district court

granted the first motion to continue that Camereno filed, in which he stated that he

needed at least 30 days to prepare for trial. Camereno had approximately 1.5

months from that continuation to prepare for trial. The refusal of the district court

to grant Camereno more time to prepare for a trial that included evidence of a

search of one car and one home, a small amount of cocaine and one firearm, few

witnesses, and no complex expert testimony did not cause Horne substantial

prejudice.

In support of his argument, Horne cites United States v. Verderame, 51 F.3d

249 (11th Cir. 1995), in which we concluded “that the district court abused its

discretion in denying [] several motions for continuance and caused [the

defendant] to suffer substantial prejudice in presenting his defense,” id. at 252.

Verderame is impertinent to this appeal because that decision involved years of

investigation by the government, “charges of participation in two major drug

trafficking conspiracies,” id. at 251, and only “34 days between arraignment and

trial” to prepare a complex defense, id. at 252. Horne’s case was simple. The

district court did not abuse its discretion.

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D. The District Court Did Not Err by Not Granting a Judgment of Acquittal.

Horne argues, for three reasons, that the district court erred in failing to

grant a judgment of acquittal. First, Horne argues that his convictions should be

reversed because the government failed to prove venue. Second, Horne argues

that the evidence was insufficient to prove a conspiracy because, in the audio

recording of Horne admitting that the cocaine was his, “Johnson sounded

surprised that [the cocaine] was there,” and the evidence does not support an intent

to distribute the cocaine. Third, Horne argues that section 924(c) creates distinct

offenses, the indictment charged in one count two ways of violating section 924(c)

of Title 18 of the U.S. Code, and doubt exists as to whether the jury unanimously

convicted him “of an offense criminalized by Section 924(c).” These arguments

fail.

First, Horne waived his objection to venue by failing to raise that issue

before trial. “[A] defendant waives an objection to venue by failing to raise it

before trial, subject to the exception that objecting at the close of evidence is soon

enough if the indictment alleges an incorrect venue and the defendant was not

aware of that defect until the government presented its case.” United States v.

Greer, 440 F.3d 1267, 1271 (11th Cir. 2006). Horne did not qualify for the

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exception described in Greer because the indictment did not allege an incorrect

venue.

Second, Horne’s argument about the sufficiency of the evidence is baseless.

A jury is permitted to interpret evidence in more than one way. E.g., United States

v. Molina, 443 F.3d 824, 828 (11th Cir. 2006); Garcia, 447 F.3d at 1334.

Whatever “surprise” Johnson’s statement or tone of voice might suggest, it is not

enough to undermine the conclusion that a reasonable jury could have found

Horne guilty of conspiracy beyond a reasonable doubt. See Sellers, 871 F.2d at

1021. There was ample evidence that Horne intended to distribute the cocaine

found in his car.

Third, the jury instructions cured whatever defect might have existed in the

indictment. The district court instructed the jury that the indictment charged “two

separate ways” of violating section 924(c), the government was not required to

prove the defendant had violated that statute in both those ways, but the jury “must

unanimously agree with the way in which the defendant committed the offense.”

Because “[w]e presume the jury followed the trial court’s instructions,” United

States v. Brazel, 102 F.3d 1120, 1145 (11th Cir. 1997), there is no doubt that, even

if the indictment charged separate offenses rather than two ways of committing the

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same offense, the jury unanimously convicted Horne of “an offense criminalized

by Section 924(c).” The district court correctly denied a judgment of acquittal.

E. The District Court Did Not Clearly Err by Finding that Horne Had Not

Accepted Responsibility for His Offenses.

Horne argues that the district court clearly erred at sentencing by finding

that he had not accepted responsibility for his offenses. Although “a defendant

may clearly demonstrate an acceptance of responsibility for his criminal conduct

even though he exercises his constitutional right to a trial,” U.S.S.G. § 3E1.1 cmt.

n.2 (2005), that situation is “rare” and “may occur, for example, where a defendant

goes to trial to assert and preserve issues that do not relate to factual guilt,” id.

At his trial, Horne challenged his “factual guilt.” The district court did not err.

IV. CONCLUSION

Horne’s convictions and sentence are

AFFIRMED

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