UNITED STATES OF AMERICA v. CHARLIE L. GREEN, NATHANIEL HARRIS, JERRY W. GREEN, JR., NAPOLEON HARRIS, COREY DEONTA HARRIS, DEONTE JAMAL MARTIN
No. 17-10346
United States Court of Appeals, Eleventh Circuit
November 25, 2020
D.C. Docket No. 8:12-cr-00205-EAK-MAP-4
981 F.3d 945
[PUBLISH]
Appeals from the United States District Court for the Middle District of Florida
Before WILSON and GRANT, Circuit Judges, and HINKLE,* District Judge.
We vacate our August 11, 2020 opinion, United States v. Green, et.al., 969 F.3d 1194 (11th Cir. 2020) and substitute the following in its place.
This appeal arises out of the convictions of Charlie Green, Napoleon Harris, Nathaniel Harris, Jerry Green, Corey Harris,1 and Deonte Martin—a group of brothers, relatives, and friends who operated a drug-trafficking organization in Bradenton, Florida. Members of the group used and carried guns; kidnapped, beat, and murdered people; and tampered with witnesses of their crimes. Most of the appellants were convicted of participating in a racketeering conspiracy under the Racketeer Influenced and Corrupt Organizations (RICO) Act and a drug-trafficking conspiracy, as well as gun crimes and other crimes. The appellants raise various challenges related to their convictions, their sentences, and various decisions the district court made throughout the pre-
Two issues warrant special attention: whether RICO conspiracy qualifies as a crime of violence under
BACKGROUND
Napoleon, Nathaniel, and Charlie are brothers. Together with friends and relatives such as Corey, Jerry, and Martin, they made up a “crew” that, starting in at least the mid-2000s, sold crack cocaine, powder cocaine, marijuana, heroin, and
The appellants were indicted for 28 counts of RICO conspiracy, conspiracy to distribute controlled substances, using a firearm during and in relation to various crimes of violence, and other related drug and firearm offenses. Following a trial, a jury convicted each defendant on various counts. This appeal followed.
DISCUSSION
I. RICO Conspiracy as a “Crime of Violence”
Napoleon, Nathaniel, Charlie, Jerry, and Martin were convicted of various
(A) [that] has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
“We apply the categorical approach when determining whether an offense constitutes a ‘crime of violence’ under the elements clause,” meaning “we look to whether the statutory elements of the predicate offense necessarily require, at a minimum, the threatened or attempted use of force.” Brown v. United States, 942 F.3d 1069, 1075 (11th Cir. 2019) (per curiam). In Brown, this court evaluated whether conspiracy to commit Hobbs Act robbery is a crime of violence under
Neither an agreement to commit a crime nor a defendant’s knowledge of the conspiratorial goal necessitates the existence of a threat or attempt to use force. The same goes for the final element—a defendant’s voluntary participation that furthers the goal of committing Hobbs Act robbery—because a defendant’s voluntary participation may manifest itself in any one of countless non-violent ways.
RICO conspiracy is virtually indistinguishable from a conspiracy to commit Hobbs Act robbery. “To establish a RICO conspiracy violation under
Given the evolution of the law since the parties submitted their briefs, the government conceded at oral argument that RICO conspiracy generally does not qualify as a crime of violence under
Assuming without deciding that a distinct crime of aggravated RICO conspiracy exists, there is nothing in the indictment or elsewhere to indicate that these appellants were charged with and convicted of it. Neither the indictment nor the jury instructions referenced
Corey challenges his 120-year sentence as both procedurally and substantively unreasonable. He argues that the district court procedurally erred by failing to adequately explain its five-fold upward variance from the appropriate guideline range. Further, he contends the district judge based the sentence on clearly erroneous facts—namely, that Corey extended the overall conspiracy from Bradenton into St. Petersburg and that he participated in the murder of Brenton Coleman. He also claims his sentence is substantively unreasonable because it is unjustly disproportionate to his codefendants’ sentences given his comparatively minor role in the criminal activity.
We review the reasonableness of a sentence for abuse of discretion. United States v. Irey, 612 F.3d 1160, 1186, 1188–89 (11th Cir. 2010) (en banc). “To be upheld on appeal, a sentence must be both procedurally and substantively reasonable.” United States v. Rodriguez, 628 F.3d 1258, 1264 (11th Cir. 2010). We determine first whether the district court committed a “significant procedural error,” and second whether the sentence was “substantively reasonable under the totality of the circumstances.” United States v. Overstreet, 713 F.3d 627, 636 (11th Cir. 2013). A sentence can be procedurally unreasonable if the district court improperly calculated the guideline range, failed to consider the
When pronouncing a sentence, the sentencing court need only set forth enough to demonstrate that it “considered the parties’ arguments and ha[d] a reasoned basis for exercising [its] . . . decisionmaking authority.” United States v. Carpenter, 803 F.3d 1224, 1232 (11th Cir. 2015). If the district court decides “after serious consideration that a variance is in order,” it should provide compelling and complete justifications sufficient “to allow meaningful appellate review.” United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009) (internal quotation marks omitted).
A district court’s factual findings at sentencing—including its findings about conduct for which the defendant was acquitted—need only be supported by a preponderance of the evidence. See United States v. Faust, 456 F.3d 1342, 1347–48 (11th Cir. 2006). We review such findings for clear error, overturning a finding only if a review of the evidence leaves us with “a definite and firm conviction a mistake has been made.” United States v. Dimitrovski, 782 F.3d 622, 628 (11th Cir. 2015). “Although review for clear error is deferential, a finding of fact must be supported by substantial evidence.” United States v. Robertson, 493 F.3d 1322, 1330 (11th Cir. 2007). The district court may base factual findings on evidence presented at trial, undisputed statements in the presentence report (PSR), or evidence presented at the sentencing hearing, and it may make reasonable inferences from the evidence. See United States v. Chavez, 584 F.3d 1354, 1367 (11th Cir. 2009); United States v. Polar, 369 F.3d 1248, 1255 (11th Cir. 2004).
Corey pled guilty to three counts of distribution of cocaine base and was convicted by the jury for one count of conspiracy
At his sentencing hearing, Corey informed the court that he had reached an agreement with the government and probation to modify the guideline range in the PSR. He explained that if the court accepted the modified range, it would resolve all but one of his objections to the PSR—namely, his objection to the PSR’s references to his involvement in the Coleman murder despite his acquittal on that charge. The court read the revisions into the record, noting that the total offense level would be reduced to 34 and the resulting guideline range would be reduced to 210 to 262 months. The court confirmed that the agreement resolved all but one of the objections to the PSR and gave Corey the opportunity to argue his outstanding objection regarding the Coleman murder. The court overruled the objection, adopted the guideline applications in the PSR, and then read the modification of the total offense level and sentencing guideline into the record. Corey asked for a downward variance from the agreed-upon guideline range, and the government asked for a sentence at the high end of the 210-to-262-month range.
The district court sentenced Corey to 1,440 months’ (120 years) imprisonment, consisting of 360-month terms to run consecutively for each of his four counts of conviction. In support of the sentence, the court found that Corey had extended the conspiracy to St. Petersburg and participated in the Coleman murder. Regarding the Coleman murder, the court stated:
So I think the hold of that family in Bradenton was still strong with you, so strong that even though you left your cell phones in St. Petersburg, I think the testimony showed you came across that bridge, the Sunshine Skyway, and you didn’t come over for an evening of entertainment. You came over for a purpose, and I think there is enough evidence in the case—and I find specifically by a preponderance of the evidence
that there is enough evidence in that case to support the sentence I’m about to give you.
In its Statement of Reasons, the district court indicated that it had determined the guideline range to be 210 to 262 months, and it had imposed a sentence above the guideline range. It also identified Corey’s role in the Coleman murder as an aggravating factor supporting the variance.
Four days later, the district court conducted a supplemental sentencing proceeding. The court stated that it had treated the parties’ agreement as a joint motion for a downward variance and rejected it. It explained it had brought the parties back so Corey could address his other objections to the PSR—which had not been discussed during the initial sentencing hearing—to prevent any waiver issue on appeal. Corey responded that he thought the court had accepted the agreed guideline range calculation but had chosen to
By failing to clarify the applicable guideline range, the district court inadequately explained Corey’s sentence. At the initial sentencing hearing, the district court appeared to accept the agreed-upon guideline range of 210 to 262 months before upwardly departing to impose the statutory maximum sentence of 1,440 months—a nearly 550% increase from the high end of the guideline range. The Statement of Reasons reflected as much. But at the supplemental sentencing hearing several days later, the court suggested it had treated the parties’ agreement as a motion for a downward variance that the court had denied. By never clarifying the guideline range it had relied upon despite Corey’s repeated requests for clarification, the district court left a conflicting, unresolved record as to Corey’s applicable guideline range.
Further, although the applicable guideline range remained unclear, the district court’s finding that Corey participated in the Coleman murder was clear—and clearly erroneous. The district court found that Corey left his cell phones in St. Petersburg when he crossed the Sunshine Skyway bridge to participate in the Coleman murder on August 1, 2013, but the evidence demonstrates this would have been impossible. Toll booth records showed that Corey traveled south on the Sunshine Skyway bridge towards Manatee County at approximately 12:30 p.m. Cell phone tower records for the two cell phones attributed to Corey showed that both cell numbers utilized cell towers in Manatee County during the early afternoon, between 1:56 p.m. and 2:23 p.m. The cell numbers then began utilizing cell towers back in Pinellas County again about 2:54 p.m., including the use of a cell tower in St. Petersburg at about 8:06 p.m.—within moments of Coleman’s murder about 25 miles away.
If the cell phones remained at home while Corey traveled south over the Sunshine Skyway at 12:30 p.m., they could not have been pinging cell towers in Manatee County between 1:56 p.m. and 2:23 p.m., and then in Pinellas County from 2:54 p.m. to 8:06 p.m. In light of this stipulated cell phone evidence, the evidence in the record does not substantially support the district court’s finding. We are thus left with a firm conviction that the district court made a mistake by finding that Corey left his cell phones at home and drove to Bradenton to commit the Coleman murder.
Because the district court failed to adequately explain Corey’s sentence and relied on a clearly erroneous fact, it imposed a procedurally unreasonable sentence.
III. All Remaining Issues
A. Suppression Issues
It goes without saying that the Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Some of the appellants claim their Fourth Amendment rights were violated, challenging the district court’s denial of their motions to suppress. Nathaniel moved to suppress evidence
i. Nathaniel’s Cell Phones
Fourth Amendment protection does not extend to abandoned property. United States v. Sparks, 806 F.3d 1323, 1341–42 (11th Cir. 2015), overruled in part on other grounds by United States v. Ross, No. 18-11679, slip op. at 23 (11th Cir. June 24, 2020) (en banc). We take an objective, common-sense approach to assessing abandonment, focusing on whether the prior possessor “voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question” in light of his “statements, acts, and other facts.” Id. at 1342.
Nathaniel argues that law enforcement violated his Fourth Amendment rights by keeping his cell phone—which was lawfully seized incident to an arrest for driving with a suspended license in 2010—for four years without returning it to him. So, in his eyes, any evidence found on the phone after the federal government took it and executed a search warrant on it should have been suppressed as fruits of an unreasonable seizure.
The district court found, however, that Nathaniel had abandoned his interest in the phone. The record supports that finding. About 48 hours after Nathaniel’s arrest, law enforcement authorized release of the phone. Nothing in the record supports Nathaniel’s unsworn assertions that he sought to recover the phone before the federal government seized it under a valid search warrant. See Travaglio v. Am. Express Co., 735 F.3d 1266, 1270 (11th Cir. 2013) (“Statements by counsel in briefs are not evidence.”). In other words, there is no evidence suggesting that Nathaniel did or said anything over the course of four years to maintain his interest in the phone. Thus, common sense indicates that Nathaniel “voluntarily discarded, left behind, or otherwise relinquished his interest” in the phone. See Sparks, 806 F.3d at 1342. Because Nathaniel abandoned his interest in the phone, there was no Fourth Amendment violation, and his motion to suppress was properly denied.
ii. Napoleon’s, Jerry’s, and Martin’s Cell Phone Data
A warrantless search is “per se unreasonable under the Fourth Amendment.” United States v. Steed, 548 F.3d 961, 967 (11th Cir. 2008) (per curiam). The Supreme Court recently held in Carpenter v. United States that the acquisition of historical cell-site records is a search under the Fourth Amendment, so the government must obtain a warrant to access such records. 585 U.S. __, 138 S. Ct. 2206, 2217–21 (2018).
But evidence obtained in violation of the Fourth Amendment is not always subject to exclusion. See Davis v. United States, 564 U.S. 229, 236 (2011). The exclusionary rule is “a prudential doctrine created by the Supreme Court to compel respect for the constitutional guaranty” and
Napoleon, Jerry, and Martin argue that because acquisitions of historical cell-site data and real-time tracking data are searches under the Fourth Amendment, the government’s warrantless apprehension of such information related to their cell numbers violated the Fourth Amendment and warranted exclusion. The government responds that the defendants lack standing to seek suppression of the data because they never established ownership or possession of the relevant cell phones, and regardless, the good-faith exception to the exclusionary rule applies.
Assuming without deciding that the appellants have Fourth Amendment standing,6 the good-faith exception to the exclusionary rule applies here. The
officers reasonably relied on 2013 state-court orders issued under a Florida statute, and consistent with the SCA, to acquire the defendants’ historical cell-site data and real-time tracking data. As to historical cell-site data, there was no reason for officers to believe the state-court orders were invalid under the Fourth Amendment. At the time—five years before Carpenter was decided—there was no reason for the officers to believe there was a reasonable expectation of privacy to such records such that they would need a warrant supported by probable cause to acquire them. Indeed, our court held in 2015 that no expectation of privacy to such records existed. See United States v. Davis, 785 F.3d 498, 513 (11th Cir. 2015) (en banc), abrogated by Carpenter, 138 S. Ct. at 2217–19, 2221.
And as to real-time tracking data, the officers likewise reasonably relied on the state-court orders because there was no
B. Peremptory Challenge
Martin argues the district court violated his jury-trial right by denying his request to exercise a peremptory strike. We review the procedure adopted by the trial court to regulate the parties’ exercise of peremptory challenges for abuse of discretion. United States v. Isom, 88 F.3d 920, 923 (11th Cir. 1996) (per curiam). A trial court has “wide discretion in supervising the selection of jurors and regulating the exercise of peremptory challenges.” United States v. Bryant, 671 F.2d 450, 455 (11th Cir. 1982). The trial court can require defendants to jointly exercise their peremptory challenges. See id.;
At voir dire, the parties had agreed the defendants would jointly exercise their peremptory challenges through Napoleon’s attorney. After the court had empaneled the jury and moved to selecting alternates, Martin’s counsel attempted to strike a juror seated on the regular panel. The court denied the requested strike. The court did not abuse its discretion in doing so, as Martin’s requested strike was made in contravention to the agreed voir dire procedure and after Napoleon’s counsel had accepted the panel on the defendants’ behalf. See Bryant, 671 F.2d at 455 (finding no basis for defenant’s claim of prejudice in joint peremptory challenge procedure where “[c]ounsel were informed prior to the beginning of voir dire of the procedure to be used and voiced no objection”).
C. Evidence Admissions and Witness Testimony
The appellants also raise numerous issues concerning the admission of certain evidence and witness testimony: (1) whether the district court abused its discretion by admitting evidence of Jerry’s other alleged crimes and bad acts; (2) whether the district court abused its discretion by admitting evidence that Jerry had referred to himself on social media as a “two-time murder winner”; (3) whether the district court abused its discretion by admitting into evidence statements that Irma Gonzalez and Lashawn White overheard; (4) whether the district court plainly erred by preventing Martin from impeaching government witness Dequayl Williams about the witness’s supposed participation in dog fighting; (5) whether the district court abused its discretion by denying Napoleon’s
We review evidentiary rulings and the denial of a motion for mistrial for abuse of discretion. United States v. Barsoum, 763 F.3d 1321, 1338, 1340 (11th Cir. 2014). Where the appealing party failed to object at trial, we review for plain error. United States v. Charles, 722 F.3d 1319, 1322 (11th Cir. 2013); United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003). We review erroneous evidentiary rulings for harmless error. Allstate Ins. Co. v. Swann, 27 F.3d 1539, 1543 (11th Cir. 1994).
Having reviewed the parties’ briefs and the record, we affirm the district judge’s rulings. Any errors were harmless in light of the overwhelming evidence supporting the jury’s verdicts.8
D. Cumulative Error
Martin argues that the court’s denial of the use of available preemptory challenges during voir dire, the denial of the opportunity to cross-examine Williams, the admission of White’s hearsay testimony, and the prejudicial effect of the government’s introduction of false testimony and improper remark during closing argument, taken together, had “a more debilitating effect” when juxtaposed against the dearth of evidence supporting his convictions. He thus claims that cumulative error by the district court requires reversal of his convictions.
Under the cumulative-error doctrine, the court “will reverse a conviction where an aggregation of non-reversible errors yields a denial of the constitutional right to a fair trial.” United States v. Reeves, 742 F.3d 487, 505 (11th Cir. 2014). We assess cumulative-error claims by “first considering the validity of each claim individually, and then examining any errors that we find in the aggregate and in light of the trial as a whole to determine whether the appellant was afforded a fundamentally fair trial.” Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012). But if overwhelming evidence supports the jury’s verdict such that any errors had no “substantial influence” on the verdict, then even multiple errors can be rendered harmless. See United States v. Baker, 432 F.3d 1189, 1223–25 (11th Cir. 2005), abrogated on other grounds by Davis v. Washington, 547 U.S. 813, 822 (2006).
Here, Martin established no more than one error,9 which does not amount to “the aggregation of ‘many errors’ that may require a reversal where the individual
errors do not.” See United States v. Ochoa, 941 F.3d 1074, 1106 (11th Cir. 2019). Therefore, there was no cumulative error.
Several appellants also challenge the sufficiency of the evidence supporting their convictions. Nathaniel, Jerry, and Napoleon challenge their convictions for RICO conspiracy. Nathaniel, Jerry, and Corey challenge their convictions for drug conspiracy. Jerry and Charlie challenge their
We review de novo a denial of a motion for judgment of acquittal on sufficiency of the evidence grounds, viewing the evidence in the light most favorable to the government and resolving all reasonable inferences and credibility determinations in the government’s favor. United States v. Capers, 708 F.3d 1286, 1296 (11th Cir. 2013). The jury’s verdict must be affirmed unless no reasonable trier of fact could have reached a conclusion of guilt beyond a reasonable doubt. See United States v. Foster, 878 F.3d 1297, 1304 (11th Cir. 2018). We review the denial of a
The challenges to the
F. Inconsistent Verdicts
Jerry, Charlie, and Napoleon assert that they are entitled to relief because of inconsistencies in their verdicts. Jerry argues that his conviction for the
We review de novo whether inconsistent verdicts render a conviction improper. United States v. Mitchell, 146 F.3d 1338, 1342 (11th Cir. 1998). That being said, inconsistent jury verdicts are generally insulated from review because “a jury may reach conflicting verdicts
Jerry and Napoleon’s challenges to their
CONCLUSION
For these reasons, we vacate Charlie Green’s, Napoleon Harris’s, Nathaniel Harris’s, Jerry Green’s, and Deonte Martin’s