United States v. Ricky Germaine Atkins, 702 F. App'x 890

Background

Atkins, a mentor at a girls’ shelter, was convicted after a jury trial of one count of conspiracy to engage in sex trafficking of minors and two counts of sex trafficking of a minor for recruiting two shelter residents (L.P. and G.W.) into prostitution and participating in sexual acts with them.
Co-defendant Sandra Simon pled guilty and cooperated; Atkins proceeded to trial and was sentenced to 380 months’ imprisonment after conviction on all counts.
Atkins filed a pro se motion to suppress his cell phone while represented by the public defender; the court treated that pro se filing as withdrawn pending substitute counsel and set a pretrial-motions deadline of March 15, 2015.
Retained counsel filed a counseled motion to suppress the cell-phone search on the morning of trial (October 19, 2015); the district court denied it as untimely. The court later allowed counsel to argue the suppression claim on the merits but reiterated it would have denied it.
At trial, the court admitted (1) cell-phone evidence obtained after a 30-day delay in getting a warrant and (2) L.P.’s testimony that she performed oral sex on Atkins after returning to the shelter; the court also admitted a recorded police statement in which L.P. said G.W. “would be dead” if left behind, and gave a general limiting instruction on similar-acts evidence.
On appeal, Atkins challenged (a) denial of the suppression motion as untimely and admission of the cell-phone evidence, and (b) admission of the two contested victim statements and denial of a mistrial / failure to give a limiting instruction; the Eleventh Circuit affirmed.

Issues

Issue	Atkins’s Argument	Government’s Argument	Held
Timeliness of counseled motion to suppress cell-phone evidence	Motion was timely because no motions deadline was effectively set and a pro se suppression motion had been filed months earlier	Court set a March 15, 2015 deadline; pro se filing was treated as withdrawn pending counsel; counseled motion filed on trial day was untimely and no good cause shown	Denial as untimely affirmed; district court did not abuse its discretion
Admission of cell-phone evidence after 30-day delay in obtaining warrant	Suppression warranted because government unreasonably delayed securing a warrant	Delay evaluated under totality-of-circumstances; no plain error shown because record does not compel conclusion delay was unreasonable	Plain-error review; no plain error in admitting the phone evidence; affirmed
Admission of testimony that L.P. performed oral sex on Atkins after returning to shelter	Testimony was unfairly prejudicial and should have been excluded under Rule 403	Testimony was intrinsic/inextricably intertwined with charged conduct and probative of influence/intimacy; not substantially prejudicial	Admission appropriate as intrinsic evidence; Rule 403 not abused
Mistrial request over L.P.’s recorded statement that G.W. "would be dead" if left	Statement implied violent threat by Atkins and was unduly prejudicial; mistrial or exclusion required	Statement was ambiguous, did not implicate Atkins, and was offered to rehabilitate L.P.’s credibility; limited prejudice	Denial of mistrial affirmed; statement ambiguous and not substantially prejudicial

Key Cases Cited

United States v. Smith, 918 F.2d 1501 (11th Cir. 1990) (timeliness waiver of pretrial motions)
United States v. Lall, 607 F.3d 1277 (11th Cir. 2010) (good-cause exception to waiver of untimely motions)
United States v. Laist, 702 F.3d 608 (11th Cir. 2012) (totality-of-circumstances test for reasonableness of delay in obtaining warrant to search)
United States v. Echols, 577 F.2d 308 (5th Cir. 1978) (affirming denial of very-late suppression motion)
United States v. Richardson, 764 F.2d 1514 (11th Cir. 1985) (motion specificity requirement)
United States v. Troya, 733 F.3d 1125 (11th Cir. 2013) (intrinsic vs. extrinsic evidence and inextricably intertwined doctrine)