United States v. Gerald Eugene Bennett

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

May 7, 2004

No. 03-11060 THOMAS K. KAHN

CLERK

D.C. Docket No. 02-00116-CR-CG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GERALD EUGENE BENNETT,

a.k.a. Woody,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Alabama

(May 7, 2004)

Before MARCUS and WILSON, Circuit Judges, and DUPLANTIER*, District

Judge.

DUPLANTIER, District Judge:

____________________

*Honorable Adrian G. Duplantier, United States District Judge for the Eastern District of Louisiana,

sitting by designation.

Gerald Eugene Bennett appeals from his convictions and sentence for drug

trafficking, unlawful firearms possession, and attempting to kill an official in the

performance of official duties with intent to interfere therewith. For the following

reasons we affirm his convictions and sentence.

BACKGROUND

On May 10, 2002, Leon Hicks attempted to pass a counterfeit $100 bill at a

retail store in Mobile County, Alabama. Suspecting that the bill was counterfeit, the

station clerk contacted the United States Secret Service and the Mobile County

Sheriff’s Office. After speaking with the station clerk, Secret Service Agent Joe Paul

identified the note as one involved in an ongoing counterfeiting investigation; he then

proceeded to the gas station to investigate further. When Paul arrived at the store,

deputies from the Mobile County Sheriff’s Office were questioning Hicks. They had

learned that Hicks had received the counterfeit bill from "Woody" at 8468 Dauphine

Island Parkway, in payment for providing "Woody" with anhydrous ammonia, a

necessary component in the manufacture of methamphetamine.

After confirming the location of the house where Hicks delivered the ammonia

and received the counterfeit bill, Deputy Marvin Walker of the Mobile County

Sheriff’s Office executed an affidavit in support of a search warrant for the house and

obtained a warrant authorizing a search for evidence of drug manufacturing and

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counterfeiting. Agent Paul, along with several deputies from the Mobile County

Sheriff’s Office then went to the Dauphine Island Parkway location to execute the

warrant.

After various deputies and Agent Paul were in position to execute the warrant,

sheriff’s deputy Eddie Blackwell rapped on the door of the house with his metal

flashlight several times and announced the presence of deputies from the sheriff’s

office. Deputies Marvin Walker and Roy Cuthkelvin were equipped with a battering

ram to open the door, if necessary. After announcing their presence, Deputy Walker

noticed movement of a towel covering the glass portion of the door. Deputy

Blackwell knocked again on the door and again announced the presence of sheriff’s

personnel. Deputy Walker noticed the towel flutter once again. At that point the

deputies battered down the door and entered the house with Deputy Cuthkelvin

leading the way. Immediately upon entering the house, Deputy Cuthkelvin was shot

from behind a blanket hanging in an interior doorway of the house. While some

officers moved Deputy Cuthkelvin to safety, others entered the house. Once the

individuals behind the blanket indicated that they wanted to surrender, Deputy Walker

pulled down the blanket, revealing Gerald Bennett, Chris Brannon and Elrod Miller.

The law enforcement officers then searched the house, seizing guns and numerous

items used in the manufacture and distribution of methamphetamine.

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A grand jury indicted Bennett, Miller and Brannon on one count each of

conspiracy to possess with intent to distribute and to manufacture 50 or more grams

of methamphetamine (21 U.S.C. §846)(Count 1), attempted manufacture of more than

50 grams of methamphetamine (21 U.S.C. §846, 18 U.S.C. §2) (Count 2), possession

with intent to distribute methamphetamine (21 U.S.C. §841(a)(1)) (Count 3), and

attempting to kill an official in the performance of official duties with intent to

interfere with such performance of official duties (18 U.S.C. §115) (Count 5).

Additionally, the grand jury indicted Bennett for one count of possession of a firearm

during drug trafficking crimes (18 U.S.C. §924(c)(1)) (Count 4), and later in a

superseding indictment added one count each of being a convicted felon in possession

of firearms (18 U.S.C. §922(g)(1)) (Count 6), being a drug addict in possession of

firearms (18 U.S.C. §933(g)(3)) (Count 7), and possessing an unregistered, sawed-off

shotgun (6 U.S.C. §5861(d)) (Count 8).

Brannon and Miller entered into plea agreements with the government. Bennett

proceeded to trial, and a jury convicted him on all counts. The district judge

sentenced Bennett to a 408-month term of imprisonment1 and a sixty-month term of

1

The district judge sentenced Bennett as follows: a 288 month term of imprisonment as

to Counts 1 and 2, a 240 month term of imprisonment as to Counts 3 and 5, a 120 month term of

imprisonment as to Counts 6, 7, and 8. The judge ordered each of those terms to run

concurrently. Additionally, the district judge sentenced Bennett to a 120 month term of

imprisonment on Count 4 to be served consecutive to the other sentences.

4

supervised release. Bennett appeals both his convictions and his sentence.

EVIDENTIARY ISSUES

A. Motion to Suppress

Bennett contends that the district court erred in denying his motion to suppress

the evidence seized from his home because the law enforcement officials who

executed the search warrant violated the "knock and announce" policy of 18 U.S.C.

§3109.2 Specifically, Bennett asserts that the officers failed to "announce" themselves

and the purpose of their visit before they breached the door of his home. In examining

the denial of a motion to suppress, we review the district court’s factual findings for

clear error and its application of the law to the facts de novo. United States v. Santa,

236 F.3d 662, 668 (11th Cir. 2000).

It is undisputed that the police knocked on the door of the house prior to

breaching the door. However, the record reveals that the testimony of the law

enforcement officers conflicted directly with the testimony of Bennett and the others

as to whether the police announced who they were prior to entering the house. When

evaluating the factual version of events "we should defer to the [fact finder’s]

2

Title 18 United States Code Section 3109 provides in pertinent part that:

The officer may break open any outer or inner door

or window of a house . . . to execute a search

warrant, if, after notice of his authority and purpose,

he is refused admittance. . . .

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determinations unless his understanding of the facts appears to be ‘unbelievable.’"

United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (quoting United

States v. Rivera, 775 F.2d 1559, 1561(11th Cir. 1985)), cert. denied, 537 U.S. 1114,

123 S.Ct. 850, 154 L.Ed.2d 789 (2003). The district judge credited the testimony of

the law enforcement witnesses that they knocked and announced their presence and

identity and that there was then movement in the house almost immediately. That

finding, based on facts which were not "unbelievable," is not clearly erroneous.

The warrant authorized a search for evidence of drug crimes. As we have

previously noted, "[g]uns and violence go hand-in-hand with illegal drug operations."

United States v. Hromada, 49 F.3d 685, 689 (11th Cir. 1995). Considering the close

relationship between guns and drug trafficking and the fact that, despite movement

in the house, no one answered the door after the knock, the officers acted reasonably

in breaching the door before it was opened. The district judge did not err in denying

the motion to suppress.

B. Motion in Limine

The district judge denied Bennett’s motion in limine seeking to exclude

testimony by Timothy Brown concerning his drug trafficking activities with Bennett

from December 2001 - January 27, 2002, concluding that the testimony was

6

admissible under Rule 404(b) of the Federal Rules of Civil Procedure.3 Bennett asserts

that the evidence was highly prejudicial and that, because it occurred approximately

four months prior to the unlawful conduct charged in the indictment, it is too remote

in time to be relevant. The indictment alleges that Bennett’s illegal activity occurred

"in or about early May, 2002, to and continuing through on or about May 10, 2002."

A district judge’s decision to admit evidence under Rule 404(b) of the Federal

Rules of Civil Procedure is reviewed for abuse of discretion. United States v.

Giordano, 261 F.3d 1134, 1140 (11th Cir. 2001). A tripartite test applies in analyzing

whether the district judge abused his discretion in admitting the challenged evidence:

First, the evidence must be relevant to an issue other than

the defendant’s character. Second, as part of the relevance

analysis, there must be sufficient proof so that a jury could

find that the defendant committed the extrinsic act. Third,

the evidence must possess probative value that is not

substantially outweighed by its undue prejudice, and the

evidence must meet the other requirements of Rule 403.

United States v. Miller, 959 F.2d 1535, 1538 (11th Cir. 1992) (en banc) (footnote and

internal citations omitted). Rule 403 of the Federal Rules of Evidence provides:

3

Rule 404(b) of the Federal Rules of Evidence provides in pertinent part that:

Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith. It

may, however, be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identify, or absence of

mistake or accident, . . . .

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"[a]lthough relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, waste of time, or needless presentation

of cumulative evidence."

Brown testified that at Bennett’s request he provided Bennett with anhydrous

ammonia to "cook" methamphetamine, that Bennett had a formula for creating the

drug, that he was present when Bennett "cooked" an ounce of methamphetamine at

Bennett’s house, that Bennett probably "cooked" methamphetamine two to three times

per week, and that he had seen Bennett use methamphetamine three to five times.

Brown also testified that Bennett had "about ten grams" of methamphetamine for him

which Brown never received because he was arrested prior to receiving it. Bennett’s

activities, as described by Brown, are the same type of conduct alleged in the

indictment, i.e., manufacturing methamphetamine.

Brown’s testimony is clearly probative of, and relevant to, establishing motive,

opportunity, intent, and knowledge. Moreover, activity occurring at most only four

months prior to the conduct charged in the indictment is not so remote from the

charged activity as to be irrelevant. Nor does the four-month lapse undercut the

probative value of the prior acts in establishing motive, opportunity, intent, and

knowledge. See United States v. Dickerson, 248 F.3d 1036, 1047 (11th Cir. 2001),

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cert. denied, 536 U.S. 957, 122 S.Ct. 2659, 153 L.Ed.2d 835 (2002). The district

judge did not err in denying the motion in limine.

MOTION TO SEVER

Bennett moved to sever trial on the count charging him as a convicted felon in

possession of firearms from trial on the remaining counts of the indictment, urging that

proof of his felony conviction would prejudice him before the jury with respect to the

other counts. The district judge denied the motion.

The denial of a motion to sever is reviewed for abuse of discretion. United

States v. Walser, 3 F.3d 380, 385 (11th Cir. 1993). "We will not reverse the denial of

a severance motion absent a clear abuse of discretion resulting in compelling prejudice

against which the district court could offer no protection." Id.

Federal Rule of Criminal Procedure 14, as it read at the time of Bennett’s

motion, provided that [i]f it appears that a defendant or the government is prejudiced

by a joinder of offenses . . . the court may order an election or separate trials of counts,

. . . ." Bennett has failed to carry the heavy burden of establishing that the denial of

the motion resulted in "compelling prejudice against which the district court could

offer no protection." United States v. Walser, 3 F.3d at 385. Several factors mitigated

any prejudice resulting from the refusal to bifurcate the trial. Because the parties

stipulated to the prior felony, the jury did not hear any details about the prior bad act,

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thereby minimizing the possibility that the jury would improperly consider the

evidence of the prior conviction when deliberating about the other felony charges. See

United States v. Miller, 255 F.3d 1282, 1289 (11th Cir. 2001). Additionally, the district

court reduced the potential for prejudice by instructing the jury:

The parties in this case have stipulated that the defendant is

a convicted felon. Therefore, it is not necessary for the

Government to offer additional proof on this element. You

are to consider that as a fact but only as to the charge in this

count of the indictment. You are not to consider this fact in

determining the guilt or innocence of the defendant in the

other counts of the indictment. You are to disregard that

fact in considering whether the defendant is guilty or not

guilty of the other counts.

We presume that a jury follows the instructions given to it by the district court. United

States v. Shenburg, 89 F.3d 1461, 1472 (11th Cir. 1996). There is no indication that

the jury failed to follow the quoted instruction.

In a related attack on his convictions, Bennett contends that the district judge

erred in refusing to allow his counsel to voir dire potential jurors as to whether they

could set aside their knowledge that he was a convicted felon in considering the

evidence on the counts in which that fact was not an element of the offense.

Specifically, Bennett sought to ask:

Can you, and each of you, when considering the evidence

on Counts One, Two, Three, Four, Five, Seven, and Eight

in this case, set aside your knowledge of the fact that the

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defendant is a convicted felon and consider only the other

evidence presented tending to prove that he committed the

acts charged in Counts One, Two, Three, Four, Five, Seven,

and Eight, in determining his guilt or innocence on those

counts? The reason I am asking this question is that the fact

that the Defendant is a convicted felon has absolutely

nothing to do with his guilt or innocence on Counts One,

Two, Three, Four, Five, Seven, and Eight. You cannot

consider in any way his status as a convicted felon when

considering the evidence on those counts.

Bennett urges that the proposed question seeks information concerning possible bias

and prejudice of the potential jurors and is not designed solely to assess whether a

potential juror was willing to follow the law as instructed by the district judge.

As with the denial of a motion to sever, we review the refusal to ask a proposed

voir dire question for abuse of discretion. See United States v. Chastain, 198 F.3d

1338, 1348 (11th Cir. 1999). It is well established that "[t]he voir dire conducted by

the trial court need only provide reasonable assurance that prejudice will be

discovered if present." United States v. Vera, 701 F.2d 1349, 1355 (11th Cir. 1983)

(internal quotation and citation omitted). Although the district judge did not inquire

as to specific grounds for prejudice, the court did ask whether:

any of you know anything – have any reason to believe

based on your personal experiences, your personal

philosophy, or religious belief or something about your past

experiences good or bad which may have some bearing on

your ability to serve as a juror in this case? I’d ask you to

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search your conscience and memory, and having done so, is

there anyone who knows of any reason whatsoever that

would cause you to question your ability to serve as a juror

in this case?

Prior to commencing the voir dire process, the district judge advised the jury venire

that Bennett was charged with, among other crimes, being a felon in possession of a

firearm. Because the prospective jurors were already aware that Bennett had a prior

felony conviction, the district judge’s general inquiry as to whether any of them had

any reason to question their ability to serve as jurors sufficed to provide "reasonable

assurance" that prejudice against the defendant based on his prior felony conviction

would be discovered if it was present. Id. Moreover, assuming arguendo that a juror

harbored prejudice against Bennett based on his prior conviction, as noted previously,

the district judge specifically instructed the jury to disregard Bennett’s prior felony

conviction in reaching a verdict on all counts of the indictment except the count

charging him as a convicted felon in possession of a firearm. Considering that

instruction, any error resulting from the district court’s failure to ask the requested voir

dire constitutes harmless error.

INSUFFICIENT EVIDENCE

Bennett contends that his conviction for violating 18 U.S.C. §115 must be

reversed because there is insufficient evidence to conclude that Deputy Cuthkelvin,

12

was a member of the class protected by the statute. Title 18 U.S.C. §115(a)(1)

provides in pertinent part:

(a)(1) Whoever–

(A) assaults, kidnaps, or murders, or attempts or conspires

to kidnap or murder, . . . a member of the immediate

family of a United States official, a United States judge, a

Federal law enforcement officer, or an official whose killing

would be a crime under section 1114 of this title; . . . .

...

with intent to impede, intimidate, or interfere with such

official, judge, or law enforcement officer while engaged

in the performance of official duties, or with intent to

retaliate against such official, judge, or law enforcement

officer on account of the performance of official duties

shall be punished . . . .

Title 28 U.S.C. §1114 makes it a crime to kill or attempt to kill:

any officer or employee of the United States or of any

agency in any branch of the United States Government

(including any member of the uniformed services) while

such officer or employee is engaged in or on account of the

performance of official duties, or any person assisting such

an officer or employee in the performance of such duties or

on account of that assistance. . . .

Bennett interprets §115(a)(1) to apply to acts directed against only members of

the family of the enumerated officials and not to acts against the officials themselves.

Taking the opposite view, the government interprets §115(a)(1) to include both the

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immediate families of the designated officials as well as the officials themselves. The

proper interpretation of §115(a)(1) is a question of first impression in this circuit.

We review the district court’s interpretation of the statute de novo. United

States v. Ettinger, 344 F.3d 1149, 1153 (11th Cir. 2003). "In interpreting the meaning

of a statute, it is axiomatic that a court must begin with the plain language of the

statute." United States v. Prather, 205 F.3d 1265, 1269 (11th Cir. 2000). Congress

included only one "or" in the series defining the individuals protected by the act: "a

member of the immediate family of a United States official, a United States judge, a

Federal law enforcement officer or an official whose killing would be a crime under

section 1114 of this title. . . ." (emphasis added). The use of a single "or" indicates

that the enumerated official following the "or", i.e., "an official whose killing would

be crime under section 1114 of this title," is simply the last group in the list identifying

the class of people whose families are protected by the statute and not a distinct group

of officials protected under the statute. Had Congress inserted a second "or" before

"a Federal law enforcement officer"4 then not only families of officials but also

4

The statute would then read: "Whoever assaults, kidnaps, or murders, or attempts or

conspires to kidnap or murder, or threatens to assault, kidnap, or murder a member of the

immediate family of a United States official, a United States judge, or a Federal law enforcement,

or an official whose killing would be a crime under section 1114 . . . shall be punished . . . ."

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officials themselves would be covered, as contended by the government.5

The government relies, in part, on the statute’s legislative history in urging that

the statute applies to the officials themselves. When a statute’s meaning is clear and

unambiguous, no further inquiry is necessary and "[t]he plain language is presumed

to express congressional intent and will control a court’s interpretation." United States

v. Fisher, 289 F.3d 1329, 1338 (11th Cir. 2002), cert. denied 537 U.S. 1112, 123 S.Ct.

903, 154 L.Ed.2d 786 (2003).

Because §115 protects only the families of the designated officials and not the

officials themselves, it is clear that there was insufficient evidence to support

Bennett’s conviction for violating §115. There is no evidence that Bennett engaged

in any prohibited behavior toward "a member of the immediate family" of any of the

designated officials. However, that conclusion does not mandate reversal of Bennett’s

conviction for attempting to murder Deputy Cuthkelvin.

Rule 7(c)(3) of the Federal Rules of Criminal Procedure provides that "[u]nless

the defendant was misled and thereby prejudiced, neither an error in a citation nor a

5

The Ninth Circuit utilized the same approach in concluding that §115(a) protected only

the family members of the enumerated federal officials. United States v. Gray, 809 F.2d 579,

582, vacated, 484 U.S. 807, 108 S. Ct. 54, 98 L.Ed.2d 18 (1987). Although the Supreme Court

granted certiorari in Gray and vacated the judgment on other grounds, we nonetheless find the

reasoning of the Ninth Circuit to be persuasive.

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citation’s omission is a ground to dismiss the indictment or information or to reverse

a conviction." Although Rule 7(c)(3) is most frequently cited in connection with

clerical or inadvertent errors in statutory citations, the rule is not restricted to such

errors. Citing Williams v. United States, 168 U.S. 382, 18 S.Ct. 92, 42 L.Ed. 509

(1897), the Advisory Committee Notes for subsection (c)(3), state that "[a] conviction

may be sustained on the basis of a statute or regulation other than that cited." In

Williams the Supreme Court held:

It is wholly immaterial what statute was in the mind of the

district attorney when he drew the indictment, if the charges

made are embraced by somestatute [sic] in force. . . . We

must look to the indictment itself, and, if it properly charges

an offense under the laws of the United States, that is

sufficient to sustain it, although the representative of the

United States may have supposed that the offense was

covered by a different statute.

Id. at 389, 18 S.Ct. at 94; see also United States v. Massuet, 851 F.2d 111, 115 (7th Cir.

1988) (conviction upheld where prosecutor intentionally cited inappropriate statute but

a non-cited statute proscribed the acts charged in the indictment). Such is the situation

involved here. Apparently, the government misread the statute and mistakenly

concluded that §115(a)(1) criminalized Bennett’s attempt to kill Deputy Cuthkelvin,

and therefore cited that statute in the indictment. Despite that mistake, the indictment

unambiguously alleges facts which constitute a crime. The indictment charges that

16

Bennett:

with malice aforethought, did unlawfully, willfully,

deliberately, maliciously and with premeditation attempt to

kill an official whose killing would be a crime pursuant to

Title 18, United States Code, Section 1114, to-wit (sic) by

shooting Mobile County Sheriff’s Deputy Roy Cuthkelvin,

who was assisting a federal law enforcement officer . . . in

the performance of official duties, with intent to impede,

intimidate and interfere with such law enforcement officer

while engaged in the performance of official duties, to-wit

(sic), the execution of a search warrant. . . . .

Section 1114 criminalizes an attempt to kill any person "assisting an officer or

employee of the United States" in the performance of official duties or on account of

that assistance." The indictment charges each element required to prove a violation

of §1114, and makes it clear, despite the statute cited, that the illegal act for which

Bennett was being prosecuted is the attempt to kill Deputy Cuthkelvin while he was

assisting Agent Paul during the execution of the search warrant. Nothing in the record

indicates that Bennett was misled about what activity was alleged to be illegal; nor is

there any indication that Bennett was prejudiced by the incorrect citation to §115.

The jury instructions fully explained the elements of §1114 which the government was

required to prove beyond a reasonable doubt.

Having concluded that the erroneous citation to §115(a) in the indictment does

not per se require reversal of the attempted murder conviction, we now examine

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whether there was sufficient evidence to convict Bennett of attempting to kill Deputy

Cuthkelvin in violation of §1114.6 We review a claim of insufficiency of the evidence

de novo. United States v. Delgado, 321 F.3d 1338, 1344 (11th Cir. 2003). In analyzing

a claim that the evidence was sufficient to support a conviction the "[e]vidence is

viewed in the light most favorable to the government, with all reasonable inferences

and credibility choices made in the government’s favor." Id. (internal quotation and

citation omitted).

Secret Service Agent Joseph Paul testified that he was conducting a federal

investigation into counterfeiting, that he was the only Secret Service agent in Mobile

available to execute the warrant, and that agency policy prohibited the execution of

warrant by an agent acting alone. In his official capacity Agent Paul participated in

executing the search warrant which authorized a search for, among other things,

"Items and Equipment used to Manufacture Counterfeit Currency." Bennett shot

Deputy Cuthkelvin while he, Agent Paul and other law enforcement officers were

attempting to execute the search warrant. The evidence is more than sufficient to

conclude that the government proved beyond a reasonable doubt that Deputy

6

Bennett’s brief specifically urges that there was insufficient evidence to prove that

Deputy Cuthkelvin was assisting a federal officer in the performance of his official duties as

required by 18 U.S.C. §115(a) and §1114.

18

Cuthkelvin was shot while assisting Agent Paul in the performance of his official

duties.

CALCULATION OF DRUG QUANTITY

The jury found that more than 50 grams of methamphetamine was involved in

each of Bennett’s drug trafficking convictions. Additionally, for purposes of

determining Bennett’s base offense level, the district judge attributed 403.8 grams of

methamphetamine to Bennett. Bennett challenges the drug quantity calculations on

several grounds:

• Monica Price, the government’s expert witness, was not qualified

to testify about the analysis of methamphetamine and theoretical

drug yield; and

• the district judge improperly considered the methamphetamine involved

in Bennett’s dealing with Timothy Brown to be relevant conduct for

purposes of determining Bennett’s total offense level.

A. Expert Witness

A district court’s decision to admit expert testimony is reviewed for abuse of

discretion. General Elec. Co. v. Joiner, 522 U.S. 136, 143,118 S.Ct.512, 517, 139

L.Ed.2d 508 (1997). Ms. Price earned a bachelor of science degree in

microbiology; that course of study included a number of courses in chemistry.

Additionally, after being hired by the Alabama Department of Forensics Ms. Price

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received seven months of training, including training in how to calculate the

theoretical yield of methamphetamine. Ms. Price is certified to investigate clandestine

laboratories and has attended various seminars, including DEA and forensic seminars.

Bennett argues that Ms. Price’s brief period of employment by the Department

of Forensics, less than two years, and the fact that she had only several months

experience actually "reporting cases" are insufficient to warrant a finding that she was

an expert in the analysis of methamphetamine and theoretical drug yield. Experience

is not the sole method of establishing an expert’s qualifications. Rule 702 of the

Federal Rules of Evidence7 permits an individual to qualify as an "expert" based on

knowledge, skill, experience, training or education. Thus, although Ms. Price’s actual

experience was limited, the district judge did not abuse his discretion in concluding

that based on her education and training she was an expert entitled to state her

opinion.

B. Relevant Conduct

In determining Bennett’s base offense level for sentencing purposes, the district

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Rule 702 provides in pertinent part that :

If scientific, technical, or other specialized knowledge will assist

the trier of fact to understand the evidence or to determine a fact in

issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify thereto in the form

of an opinion or otherwise . . . ."

20

judge held Bennett responsible for 403.8 grams of methamphetamine. Included in that

amount was 340.2 grams involved in the extrinsic offense testified to by Timothy

Brown and attributed to Bennett under the "relevant conduct" portion of U.S.S.G.

§1B1.3. We review that finding of fact for clear error. United States v. Jackson, 276

F.3d 1231, 1233 (11th Cir. 2001). Bennett asserts that his extrinsic activities with

Brown are not properly considered to be "relevant conduct" because the events were

too remote in time from the offense of conviction and were not part of a common

scheme or plan with the offense of conviction. "Relevant conduct" includes:

(1) (A) all acts and omissions committed, aided, abetted,

counseled, commanded, induced, procured, or willfully

caused by the defendant

...

that occurred during the commission of the offense of

conviction, in preparation for that offense, or in the course

of attempting to avoid detection or responsibility for that

offense.

"Relevant conduct" includes "all acts and omissions ‘that were part of the same course

of conduct or common scheme or plan as the offense of conviction." United States v.

Maxwell, 34 F.3d 1006, 1010 (11th Cir. 1994) (quoting U.S.S.G. §1B1.3(a)(2)). The

commentary to §1B1.3 indicates that "relevant conduct" is designed to take account

of "a pattern of misconduct that cannot readily be broken into discrete, identifiable

units that are meaningful for purposes of sentencing." U.S.S.G. §1B1.3, comment.

21

(backg’d.).

In determining whether the drug quantities testified to by Brown are attributable

to Bennett as "relevant conduct" we examine the "similarity, regularity, and proximity"

between Bennett’s counts of conviction and the extrinsic offenses testified to by

Brown. Maxwell, 34 F.3d at 1011. We consider "whether there are distinctive

similarities between the offense of conviction and the remote conduct that signal that

they are part of a single course of conduct rather than isolated, unrelated events that

happen only to be similar in kind." Id. (internal quotation and citation omitted). All

of the offenses in question are similar not only in that they involve methamphetamine

but also because Bennett’s role in each was the same, i.e., to locate a supplier for the

anhydrous ammonia and to "cook" the methamphetamine. The consistency in both the

drug and Bennett’s role favors a conclusion that there are "distinctive similarities"

between the offenses.

The proximity of the offenses further supports a conclusion that the offenses are

part of the same course of conduct. Unlike Maxwell, where the drug sales at issue

occurred more than a year apart, here only four to five months separated the offenses.

The offenses of conviction and the extrinsic offense constitute a single course of

conduct. Thus, the quantities of methamphetamine testified to by Bennett were

22

properly considered to be relevant conduct for the purpose of calculating Bennett’s

base offense level.

Bennett also urges that Brown’s testimony is unreliable and therefore the

quantities testified to by Brown should not be counted in determining the base offense

level. The district judge credited Brown’s testimony, as he was entitled to do. That

factual finding is not clearly erroneous.

ADDITIONAL SENTENCING ISSUES

A. Enhancement for Obstruction of Justice

Bennett appeals the district judge’s decision to enhance his offense level by two

levels for obstruction of justice, pursuant to U.S.S.G. §3C1.1.8 The obstruction of

justice enhancement applies when a defendant commits, suborns, or attempts to suborn

perjury. U.S.S.G. § 3C1.1, comment. (n. 4(b)). "Perjury" is "false testimony

concerning a material matter with the willful intent to provide false testimony, rather

than as a result of confusion, mistake, or faulty memory." United States v. Dunnigan,

507 U.S. 87, 94, 113 S.Ct. 1111, 1116, 122 L.Ed.2d 445 (1993).

8

U.S.S.G. §3C1.1 (2003) provides in pertinent part that "[i]f (A) the defendant willfully

obstructed or impeded . . . the administration of justice during the course of the . . . prosecution

. . . of the instant offense of conviction, and (B) the obstructive conduct related to (i) the

defendant’s offense of conviction and any relevant conduct; . . . increase the offense level by 2

levels."

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We review for clear error the district court’s factual finding that Bennett offered

perjured testimony at the hearing on the motion to suppress. United States v. Gregg,

179 F.3d 1312, 1316 (11th Cir. 1999). Special deference is accorded to the credibility

determination made by the district court. United States v. Banks, 347 F.3d 1266, 1269

(11th Cir. 2003).

The district judge rejected Bennett’s testimony at the suppression hearing that

he heard a knock on the door but did not hear the police announce their presence.

Bennett concedes that his challenged testimony is material but contends that it was not

false and that he had no willful intent to provide false testimony.

The district judge specifically found the cited testimony to be false: "I find it

incredulous that those inside could hear the knock but could not hear the announcement

of who these officers were." He further stated that he believed "that the defendant

manipulated his testimony to avoid responsibility for any knowledge that law

enforcement was entering the house." That finding establishes Bennett’s "wilful intent

to provide false testimony." The district judge did not clearly err in concluding that

Bennett’s testimony concerning his failure to hear the police announce their presence

qualified as perjury for purposes of U.S.S.G. §3C1.1. Because that testimony in and

of itself warrants the two level enhancement for obstruction of justice, it is unnecessary

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to address Bennett’s challenge to the district court’s other findings of false testimony

by Bennett.

B. Role in the Offense

Bennett asserts that the district judge erred in enhancing his total offense level

by three levels because there were five or more participants in the offense conduct.

Bennett concedes that in addition to himself, Elrod Miller, Christopher Brannon, and

Loren Hicks participated in the offense, but he contends that neither Timothy Brown

nor Shannon Montgomery participated in the offense conduct.

We review the district court’s determination of defendant’s role in the offense

for clear error. United States v. Garrison, 133 F.3d 831, 843 (11th Cir. 1998). U.S.S.G.

§ 3B1.1(b) provides a three-level increase in the offense level "[i]f the defendant was

a manager or supervisor (but not an organizer or leader) and the criminal activity

involved five or more participants or was otherwise extensive. . . ." In assessing a

defendant’s role in the offense, the elements and acts in the counts of conviction are

considered as well as all "relevant conduct" as defined in U.S.S.G. § 1B1.3. U.S.S.G.

Ch. 3, Pt. B, intro. comment.; see also United States v. Holland, 22 F.3d 1040, 1045

(11th Cir. 1994). In determining the scope of a defendant’s "relevant conduct" "the

court must consider, in addition to the criminal act itself, the individuals’ involvement

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in the events surrounding the criminal act." United States v. Holland, 22 F.3d at 1046

(internal quotation and citation omitted).

For the same reasons detailed previously, Timothy Brown’s activities in the

uncharged offenses are part of the same course of conduct as the offense of conviction

and therefore are properly considered to be "relevant conduct" in determining Bennett’s

role in the offense. That Brown was incarcerated throughout the period of the

conspiracy alleged in the indictment does not preclude his conduct from qualifying as

"relevant conduct." Because Brown’s activities constitute "relevant conduct," for the

purpose of determining Bennett’s role in the offense, Brown is properly considered to

be a participant in the offense of conviction. The district court did not err in

concluding that Bennett managed or supervised criminal activity involving five or more

participants.

C. Enhancement for Official Status

Bennett challenges the district judge’s application of U.S.S.G. § 3A1.2 in

calculating his offense level, contending that the evidence does not support the

conclusion that he knew Deputy Cuthkelvin’s official status prior to shooting him. As

already noted, the district court’s factual findings are reviewed for clear error. United

States v. Jackson, 276 F.3d at 1233.

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U.S.S.G. § 3A1.2 provides: "[i]f (1) the victim was (A) a government officer

or employee . . . and (2) the offense of conviction was motivated by such status,

increase by 3 levels." No extensive analysis of this claim is necessary. The district

judge did not err in concluding that Bennett perjured himself in testifying that he did

not hear the police announce their presence prior to entering his home to execute the

search warrant. For that reason, the district judge did not err in concluding that

Bennett knew of Cuthkelvin’s official status prior to shooting him.

AFFIRMED.

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