United States v. Erica Jacovia BryantUnited States v. Erica Jacovia Bryant
Erica Jacovia Bryant (Bryant) appeals her jury conviction for presenting false claims in violation of
I.
Bryant first argues that the district court abused its discretion when it excused a juror for cause over Bryant‘s objection (1) because the juror said that she could be fair and would be able to set aside a painful experience she had had with fraudulent documents and (2) because the circumstances did not warrant her dismissal.
A district court may excuse a juror and replace her with an alternate if, prior to deliberations, the juror is “unable to perform” or “disqualified from performing” her duties.
Here, the district court did not abuse its discretion in excusing the subject juror. The district court‘s concern that the juror could not be fair and impartial in Bryant‘s case was reasonable, see id., based on the juror‘s statements (1) that she was never treated fairly by the justice system, including courts, lawyers, and law enforcement, (2) that evidence of fraudulent documents likely to be introduced at Bryant‘s trial would be painful for her, and (3) that whether her past experiences would affect her judgment would depend on what evidence was, in fact, presented at trial. The juror‘s ability to serve impartially was certainly “less than clear,” and the district judge‘s ultimate excusal of the juror was supported by a factual basis. See De La Vega, 913 F.2d at 869. Moreover, Bryant failed to show how the juror‘s excusal was prejudicial to her—indeed, she conceded that the juror‘s inclusion more likely would have favored the government. Accordingly, we affirm the district court‘s excusal of the juror and replacement with an alternate.
II.
Bryant next contends that the district court erred in admitting evidence of her meeting with a tax preparer regarding a business tax return that was never filed, arguing that this evidence had no probative value, was not relevant to her intent to seek a false refund with respect to the individual tax return at issue, and thus did not meet the Federal Rule of Evidence 404(b) test. See United States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir. 2008) (discussing Rule 404(b) standard). Bryant
The doctrine of invited error applies when a party “induces or invites” the district court into committing error. See United States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir. 2005) (internal quotation marks omitted). When a party invites error, we are precluded from reviewing that error on appeal. See id. Although Bryant argued below that the evidence of her meeting with the tax preparer was not inextricably intertwined with the alleged offense, she conceded its admissibility under Rule 404(b) by (1) requesting a Rule 404(b) instruction from the court, (2) introducing the evidence herself “to steal [the government‘s] thunder,” and (3) using the evidence to argue to the jury that she was not guilty. Thus, we affirm the district court‘s admission of evidence concerning Bryant‘s meeting with the tax preparer.
III.
Bryant next argues that the district court erred in denying her Rule 29 motion for judgment of acquittal because the government had failed to produce evidence that a refund issued to Bryant by the Internal Revenue Service (IRS) was caused by Bryant‘s alleged false claim. See
Ordinarily, we review de novo the district court‘s denial of a Rule 29 motion, viewing the evidence in the light most favorable to the government and drawing all reasonable inferences in favor of the jury‘s verdict. See United States v. Vernon, 723 F.3d 1234, 1266 (11th Cir. 2013). However, because Bryant is presenting her sufficiency of the evidence argument for the first time on appeal, we review the district court‘s decision for plain error. See United States v. Joseph, 709 F.3d 1082, 1093, 1103 (11th Cir. 2013), cert. denied, — U.S. —, 134 S.Ct. 1273, 188 L.Ed.2d 310 (2014). “To establish plain error, a defendant must show there is (1) error, (2) that is plain, and (3) that affects substantial rights.” United States v. Evans, 478 F.3d 1332, 1338 (11th Cir. 2007) (internal quotation marks omitted). If the defendant demonstrates plain error has occurred, we may recognize the otherwise forfeited error, “but only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. (alteration in original) (internal quotation marks omitted).
Under
[1] That the defendant made or presented a false, fictitious, or fraudulent claim to a department of the United States;
[2] That the defendant knew such claim was false, fictitious, or fraudulent;
Here, the district court did not plainly err in denying Bryant‘s Rule 29 motion, despite the government‘s failure to explain the basis for the IRS‘s reissuance of her refund. The cause of the reissuance was not necessary to the charge of false claims for which Bryant was convicted. Moreover, an IRS agent testified that the IRS regularly issues refunds to taxpayers before verifying the fraudulent nature of individual claims. Thus, it was not plain error to conclude that it was possible for a reasonable jury to find Bryant guilty of false claims beyond a reasonable doubt, even without knowing why the IRS decided to reissue the refund to Bryant after the criminal investigation against her had ensued. Accordingly, we affirm the district court‘s denial of Bryant‘s Rule 29 motion.
IV.
Finally, Bryant argues that the district court erred in imposing a higher sentence than it had originally intended based solely on her maintaining her innocence during her allocution. Bryant contends that this was an improper basis upon which to sentence her to a longer term of imprisonment.
“[T]he familiar abuse-of-discretion standard of review ... applies to appellate review of sentencing decisions.” Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). A court abuses its discretion in imposing a sentence if it (1) fails to consider relevant factors that were due significant weight, (2) gives an improper or irrelevant factor significant weight, or (3) commits a clear error of judgment by balancing the proper factors unreasonably. See United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc); see also United States v. Pugh, 515 F.3d 1179, 1191-92 (11th Cir. 2008). “The party challenging the sentence bears the burden of establishing that the sentence is unreasonable in light of the record and the § 3553(a) factors.” United States v. Early, 686 F.3d 1219, 1221 (11th Cir. 2012).
We review de novo whether the district court considered an impermissible sentencing factor. See United States v. Stanley, 739 F.3d 633, 652 (11th Cir.), cert. denied, — U.S. —, 134 S.Ct. 2317, 189 L.Ed.2d 195 (2014). Although the district court may not consider a defendant‘s exercise of her Fifth Amendment rights, it may consider her lack of remorse, see id., and disrespect for the law, see
In the instant case, the district court did not err in considering Bryant‘s lack of remorse and her disrespect for the law evinced by her allocution in sentencing her to a term of imprisonment at the higher end of the Guidelines range. Her (1) repeated denial of guilt and blaming of others, (2) accusations against the court, law enforcement, and the government, and (3) threats to continue “screaming” and “fight[ing]“, all of which were freely made
Accordingly, the district court did not err in considering Bryant‘s lack of remorse and did not abuse its discretion in sentencing her to twenty-seven-months’ imprisonment.
AFFIRMED.