UNITED STATES of America, Plaintiff-Appellee, v. Randy Vana HAILE, Jr., Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Mark Anthony Beckford, Defendant-Appellant.
Nos. 10-15965, 11-10017
United States Court of Appeals, Eleventh Circuit.
June 29, 2012.
685 F.3d 1211
III.
For the foregoing reasons, we delay final judgment in this case until the Florida Supreme Court has had an opportunity to consider whether an insurer can require an insured to submit to an EUO as a condition precedent to recovery of PIP benefits under the Florida No-Fault Statute. Rather than attempting an Erie “guess” as to how the Florida Supreme Court would rule on this issue, we certify the following question to the Florida Supreme Court, pursuant to
Whether, under
FLA. STAT. § 627.736 , an insurer can require an insured to attend an EUO as a condition precedent to recovery of PIP benefits?
The answer to this question will assist this court in determining whether Nuñez was required to submit to an EUO prior to filing suit against Geico. To facilitate the resolution of this question, we direct the Clerk to transmit the entire record of this case, together with copies of the parties’ briefs, to the Florida Supreme Court. Of course, the Florida Supreme Court is in no way limited by our question and may consider the case as it sees fit.
QUESTION CERTIFIED.
Donald F. Samuel, Kristen Wright Novay, Garland Samuel & Loeb, PC, Atlanta, GA, for Defendant-Appellant in No. 10-15965.
Kendal Silas, Stephanie A. Kearns, Fed. Def. Program, Inc., Atlanta, GA, for Defendant-Appellant in No. 11-10017.
Before EDMONDSON, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Randy Vana Haile and Mark Anthony Beckford were convicted of conspiracy and attempt to possess with intent to distribute marijuana and cocaine and knowing possession of several firearms in conjunction with their drug-trafficking offenses. The district court sentenced Beckford and Haile to 438 months and 468 months of imprisonment, respectively. Beckford now appeals his conviction and sentence, and Haile appeals his sentence. After a thorough review of the record and the parties’ briefs, and with the benefit of oral argument, we affirm in part and reverse in part.
I.
Haile and Beckford were charged by superseding indictment with: conspiracy to possess at least 5 kilograms of cocaine and at least 1,000 kilograms of marijuana with intent to distribute, in violation of
At trial, several Drug Enforcement Administration (DEA) agents testified about the reverse-sting operation that led to the defendants’ arrest. The agents testified that a confidential informant (CI) provided information that Beckford, who lived in Atlanta, was seeking a marijuana supplier. At the DEA‘s request, the CI told Beckford about a man named Rodriguez, an undercover agent posing as a marijuana supplier.
Thereafter, the CI and Rodriguez met with Beckford in San Antonio.1 Rodriguez proposed a price of $300 per pound of marijuana, to which Beckford replied, “Yeah, yeah, yeah.” Beckford stated that he would take 1,000 pounds, “If it‘s good,” and that he would like the drugs to be delivered to the Jamaica Flava restaurant in Atlanta.
Before the meeting concluded, the CI asked Rodriguez, in front of Beckford, “Did you tell him about the white stuff?” Rodriguez said to Beckford, “I give you good price too.” Beckford responded, “I‘ll call you,” and the two exchanged telephone numbers. Later, on the phone, Beckford agreed to give Rodriguez a $25,000 security deposit for the marijuana and to meet with one of Rodriguez‘s associates, undercover agent Arrugueta, in Atlanta. At some point during the phone conversations, the two discussed guns. And the CI confirmed that Beckford had easy access to guns.
After Haile and Beckford left the meeting with Arrugueta, they spoke with Rodriguez, and the parties decided that Beckford and Haile would fly to San Antonio the next day to meet Rodriguez and discuss the marijuana deal. At the meeting, Rodriguez confirmed that he would deliver 500 pounds of marijuana, at a price of $300 per pound, to the Jamaica Flava restaurant in Atlanta.
Rodriguez again mentioned that he distributed cocaine, and Haile asked Rodriguez about the quality and quantity of cocaine Rodriguez distributed. Rodriguez offered to give Haile and Beckford a kilogram of cocaine for $23,000, and Haile replied, “Uh-hmm.”
Rodriguez then asked what kind of “nail gun,” which he and Beckford had spoken about earlier, Beckford had. Beckford replied, “It‘s a machine gun, AK.” Then Rodriguez asked, “you want white?” Haile responded that Rodriguez “could throw two or three” kilograms onto the marijuana load. Haile told Rodriguez, “if it‘s good, I‘d get it, like couple days probably.” Rodriguez agreed. At the conclusion of the meeting, Haile and Beckford gave Rodriguez the $25,000 deposit.
A few days later, Rodriguez spoke with Beckford by phone. Rodriguez said, “I got all [the] food you need for the store,” and, “I also bring... three sugar bag for, for your friend.” Beckford replied, “Yeah, ‘cause I got somebody waiting.” On the morning of the scheduled drug delivery, Rodriguez called Beckford and asked if he had the “power tool.” Beckford repeatedly stated, “I‘m working on it right now.”
That same day, Rodriguez and other DEA agents staged a U-Haul trailer containing hundreds of pounds of marijuana and several kilograms of cocaine at a hotel in Atlanta. Rodriguez met with Beckford and Haile in the hotel parking lot and permitted Haile to inspect the drugs. Rodriguez then asked Haile and Beckford how much money they could pay at that time. Beckford stated that he and Haile had access to $70,000 and could probably come up with more. Rodriguez said, “and the tool?” Haile asked in response, “Oh, you want the tools now?” Rodriguez said that he did, so the three continued to negotiate Haile and Beckford‘s payment of guns and money. Rodriguez asked, “you bring five gun?” And Beckford replied, “Yeah.” Then, Beckford and Haile left to obtain the rest of the payment.
Agents stationed at Jamaica Flava then observed several men loading large, heavy bags into the back of a truck registered to Beckford. Beckford and Haile drove the truck back to the hotel, but left the parking lot when they realized Rodriguez was not present. They drove to a nearby restaurant where DEA agents arrested them.
At the conclusion of the trial, counsel for the defendants moved for a judgment of acquittal on all counts. Defense counsel specifically argued that Count 4, which charged possession of a machine gun, failed to properly allege an offense because the indictment charged the defendants with knowing possession of firearms “during and in relation to and in furtherance of a drug trafficking crime.” (emphasis added). The district court denied the motion for judgment of acquittal, finding that the “during and in relation to” language was mere surplusage. The court struck that language from the indictment and later excluded “during and in relation to” from its jury instructions on Count 4.
Also in the motion for judgment of acquittal, defense counsel argued that the government‘s evidence was insufficient as a matter of law to establish that the defendants knew they possessed a machine gun. The court denied the motion, but included on the verdict forms a question asking the jury about the defendants’ knowledge of the gun‘s characteristics.
At the charge conference, Beckford‘s counsel requested that the court charge the jury on “outrageous government conduct” based on the defense‘s theory that the government ratcheted up the defendants’ charges through the sting operation. The court denied the request. Beckford‘s counsel also asked the district court to instruct the jury on the definition of “machine gun,” and the court agreed to do so. The court, however, did not instruct the jury on the definition, even though it had agreed the instruction was proper. The jury found both defendants guilty on all counts.
At sentencing, Beckford requested a reduction based on alleged sentencing factor manipulation, arguing that the government improperly increased the amount of drugs involved in the transaction. The district court denied his request. The court emphasized that Beckford and Haile were “the ones that had this machine gun,” the possession of which required a 30-year mandatory minimum sentence on Count 4.
The court ultimately sentenced Beckford to 438 months’ imprisonment, which was at the low end of his guidelines range. This included a mandatory 360-month sentence on Count 4; a 78-month sentence on each of Counts 1, 2, 3, and 7, to be served concurrently with one another; and a 60-month sentence on Count 6, possession of a firearm with an obliterated serial number, to be served concurrently with the other counts. The court sentenced Haile to 468 months’ imprisonment. This is the defendants’ appeal.
II.
Haile and Beckford both contend that: (1) Count 4, knowing possession of firearms in furtherance of a drug-trafficking crime, was not properly before the jury; and (2) even if Count 4 was properly submitted to the jury, the jury instructions for that charge were erroneous. Beckford also contests: (1) the sufficiency of the evidence in his case; (2) the district court‘s failure to give certain jury instructions; and (3) his 438-month sentence. We address each of these claims in turn.
Haile and Beckford contend that the
Section 924(c) states, “any person who, during and in relation to any crime of violence or drug trafficking crime... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime,” be subject to enhanced penalties enumerated in the statute.
Haile and Beckford argue that Count 4 in the indictment conflated the two triggers under
“Generally, an indictment is sufficient if it: 1) sets forth the elements of the offense in a manner which fairly informs the defendant of the charge against which he must defend and 2) enables him to enter a plea which will bar future prosecution for the same offense.” Belt v. United States, 868 F.2d 1208, 1211 (11th Cir. 1989). Minor deficiencies in an indictment do not automatically render it constitutionally deficient, Poirier, 321 F.3d at 1029, and, “[i]f an indictment specifically refers to the statute on which the charge was based, the reference to the statutory language adequately informs the defendant of the charge.” United States v. Fern, 155 F.3d 1318, 1325 (11th Cir.1998).
Here, Count 4 in the indictment specifically referred to
Haile and Beckford contend that striking the improper language was error because removal of the language lessened the government‘s burden of proof. We disagree. It was never the government‘s burden under
Haile and Beckford also argue that removal of the offending language was an impermissible amendment to the indictment because it broadened the charges upon which they could be convicted. But
B.
Haile and Beckford assert, in the alternative, that the district court committed reversible error by failing to instruct the jury that, to establish a conviction for machine-gun-possession, the jury must find that (1) the defendant possessed a machine gun and (2) knew the firearm was a machine gun when he possessed it. We review the court‘s instructions on a charge de novo. United States v. Richardson, 233 F.3d 1285, 1292 (11th Cir.2000).
Section 924(c)(1)(B)(ii) provides for a 30-year minimum sentence if the gun a defendant possessed was a machine gun. The district court accordingly instructed the jury that Count 4 required the jury to find that each defendant “knowingly possessed” each firearm, including the M-11 machine gun. Haile and Beckford contend that this instruction is insufficient because the jury was required to find, beyond a reasonable doubt, that the defendants knew the gun they possessed had the characteristics of a machine gun. Specifically, they argue that the Supreme Court‘s decision in United States v. O‘Brien, 560 U.S. 218, 130 S.Ct. 2169, 2180, 176 L.Ed.2d 979 (2010), makes such knowledge an element of the offense that the government must prove.
The defendants, however, misunderstand O‘Brien. In that case, the Supreme Court held that the fact that a firearm was a machine gun was an element of the
Indeed, this court has held that
C.
Beckford, but not Haile, contests the sufficiency of the evidence against him.
1. Entrapment
Beckford argued at trial that he was entrapped into committing the cocaine and firearm charges in the indictment. An entrapment defense consists of two elements: “(1) government inducement of the crime, and (2) lack of predisposition on the part of the defendant.” United States v. Brown, 43 F.3d 618, 623 (11th Cir.1995). Where, as here, the defendant argues and the jury rejects an entrapment defense, “our review is limited to deciding whether the evidence was sufficient for a reasonable jury to conclude that the defendant was predisposed to take part in the illicit transaction.” Id. at 622.
Here, the jury could reasonably conclude that Beckford was predisposed to engage in the charged conduct. Beckford actively sought a drug supplier, and, once he established rapport with Rodriguez, he and Haile discussed with Rodriguez and Arrugueta the possibility of a cocaine purchase and an exchange of guns for drugs. Although Rodriguez and Arrugueta initiated the conversations about cocaine and firearms, Beckford willingly discussed the topics and voluntarily agreed to purchase cocaine and to supply guns. The morning of his arrest, Beckford told Rodriguez he had “like six [guns] so far,” from which a reasonable jury could infer that Beckford was predisposed to possess guns. And he told Arrugueta that he wanted drugs, not money, in exchange for the guns, which shows that he actively proposed to make guns part of the transaction. This evidence, in the aggregate, was sufficient for the jury to reject Beckford‘s entrapment defense.
2. Firearm possession “in furtherance of” a drug-trafficking crime
Beckford next argues that the firearms attributed to him in Count 4 were not possessed “in furtherance of” the drug-trafficking crimes because, when police found them, they were stashed in bags in the truck or, in one instance, licensed and carried in the center console. According to Beckford, this indicates that the guns were not part of the drug sale.
“To establish that a firearm was possessed ‘in furtherance of’ a drug trafficking crime, the government must show some nexus between the firearm and the drug selling operation.” United States v. Molina, 443 F.3d 824, 829 (11th Cir. 2006) (internal quotation marks omitted). This nexus may be established by “accessibility of the firearm,” “proximity to the drugs or drug profits, and the time and circumstances under which the gun is found.” Id. at 829-30 (internal quotation marks omitted). The guns at issue here were in close proximity to the money Beckford intended to use to buy drugs and were brought to the drug purchase. The gun for which Beckford had a license was loaded in the center console, readily accessible from the front seat. The guns were
3. Possession of a firearm with an obliterated serial number
Lastly, Beckford argues that the evidence was insufficient for the jury to convict him of violating
It shall be unlawful for any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any firearm which has had the importer‘s or manufacturer‘s serial number removed, obliterated, or altered or to possess or receive any firearm which has had the importer‘s or manufacturer‘s serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.
We join our sister circuits in holding that a defendant‘s knowledge of the obliterated serial number is an element of the
The government did not admit any direct evidence of Beckford‘s knowledge of the obliteration. But generally, “[k]nowledge of defacement of the serial number may be inferred where the defendant has possessed the gun under conditions under which an ordinary man would have inspected [it] and discovered the absence of a serial number.” Sullivan, 455 F.3d at 261 (citing United States v. Moore, 54 F.3d 92, 101 (2d Cir.1995)). The government contends that Beckford had ample time to gain knowledge of whether the gun had an obliterated serial number.
We disagree. We are not persuaded that the evidence at trial was sufficient even to show that Beckford possessed the gun for a period of time during which an ordinary man would have discovered that the serial number was obliterated. Although the government established that Beckford discussed guns in general before the arrest and that agents found
The government essentially proved only that Beckford had constructive possession of the gun at the time of the arrest. But this constructive possession alone cannot be sufficient to establish Beckford‘s knowledge of the obliterated serial number because, if it was sufficient, the standard would eviscerate the knowledge element of
D.
Beckford next contests the district court‘s failure to instruct the jury on (1) the definition of a machine gun and (2) his defense of outrageous government conduct. We review the court‘s failure to give a requested instruction for an abuse of discretion. United States v. Carrasco, 381 F.3d 1237, 1242 (11th Cir.2004). The district court‘s decision not to give such an instruction is an abuse of discretion if: “(1) the requested instruction was a correct statement of the law, (2) its subject matter was not substantially covered by other instructions, and (3) ... the failure to give [the instruction] seriously impaired the defendant‘s ability to defend himself.” Id.
1. The definition of “machine gun”
At the charge conference, Beckford‘s counsel asked the court to define “machine gun” for the jury. The district court indicated that it would, but, in fact, never did. Beckford now argues that the district court erred in failing to give this instruction. As the government emphasizes, however, the parties agreed at trial that the gun in question was a machine gun. Both parties referred to the gun as machine gun throughout the trial, including in closing arguments. We need not address this issue because Beckford‘s concession at trial that the gun was a machine gun constitutes invited error and precludes review of this issue. See United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009) (noting that the doctrine of invited error is implicated when a party induces or invites the district court into making an error).
2. The defense of outrageous government conduct
Beckford also argues that the district court erroneously declined to instruct the jury on his theory that his criminal responsibility for the cocaine and firearm charges was limited due to outrageous government conduct. The proposed jury instruction read, in part, “[t]he defendant may be acquitted of any charges in the indictment if the jury determines that his offense conduct relating to that charge was the result of outrageous government conduct.” (emphasis added). The instruction cited United States v. Ciszkowski, 492 F.3d 1264, 1270 (11th Cir.2007).
In Ciszkowski, this court stated, “[o]utrageous government conduct occurs when law enforcement obtains a conviction for conduct beyond the defendant‘s predisposition by employing methods that fail to comport with due process guarantees.” Id. (emphasis added) (citing United States v. Sanchez, 138 F.3d 1410, 1413 (11th Cir.1998)). A court may remedy outrageous government conduct by dismissing an indictment or by reversing a conviction. Sanchez, 138 F.3d at 1413. But this court has never held that outrageous government conduct could constitute a defense for the jury to consider. Given the lack of binding precedent on whether a jury may
E.
Lastly, Beckford appeals his sentence on the grounds that the 360-month mandatory minimum sentence for possession of a machine gun constitutes cruel and unusual punishment and his 438-month total sentence is substantively unreasonable. We address these in turn.
1. Cruel and unusual punishment
At sentencing, Beckford‘s counsel objected to the length of Beckford‘s sentence, arguing that it was cruel, unusual, and disproportionate to Beckford‘s culpability. The district court overruled Beckford‘s objections, and we now review de novo whether Beckford‘s sentence violates the Eighth Amendment‘s prohibition on cruel and unusual punishment. United States v. Sanchez, 586 F.3d 918, 932 (11th Cir.2009).
The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
In assessing an Eighth Amendment challenge, we must determine whether the sentence imposed was grossly disproportionate to the offense committed and, if so, we “must then consider the sentences imposed on others convicted in the same jurisdiction and the sentences imposed for commission of the same crime in other jurisdictions.” United States v. Raad, 406 F.3d 1322, 1324 (11th Cir.2005) (internal quotation marks omitted). “[W]e accord substantial deference to Congress, as it possesses ‘broad authority to determine the types and limits of punishments for crimes.‘” Id. at 1323 (quoting Solem v. Helm, 463 U.S. 277, 290 (1983)). “[A] sentence which is not otherwise cruel and unusual does not become so simply because it is mandatory.” Id. at 1324 (alteration and internal quotation marks omitted).
Given the serious nature of possessing a machine gun in furtherance of drug-trafficking crimes, Beckford‘s 30-year statutory mandatory minimum sentence imposed under
2. Substantive reasonableness
In the alternative, Beckford contends that his 438-month sentence is substantively unreasonable because the district court (1) denied his request for a sentencing reduction based on sentencing factor manipulation and (2) sentenced him above the mandatory minimum of 420 months. “The reasonableness of a final sentence is reviewed only for an abuse of discretion.” United States v. Docampo, 573 F.3d 1091, 1096 (11th Cir.2009) (internal quotation marks omitted).
Beckford asserts that the government improperly pressured him to buy more drugs than he originally intended to purchase and to pay for the drugs with guns. The government responds that Beckford has not proved that the government‘s conduct was so outrageous as to warrant a downward adjustment.
“[S]entencing factor manipulation occurs when the government‘s manipulation of a sting operation, even if insufficient to support a due process claim, requires that the manipulation be filtered out of the sentencing calculus.” Ciszkowski, 492 F.3d at 1270. “[T]o bring sting operations within the ambit of sentencing factor manipulation, the government must engage in extraordinary misconduct.” Id. at 1271. If successful, a sentencing factor manipulation argument “would simply reduce the sentence applied to the defendant‘s misconduct.” Id. at 1270.
Although this court has recognized sentencing factor manipulation as an avenue for a sentence reduction, we have never applied it. Docampo, 573 F.3d at 1097-98. Instead, we have held that the use of a large amount of fictitious drugs by the government in a sting operation does not amount to sentencing factor manipulation. Sanchez, 138 F.3d at 1413-14. We have also held that the government‘s purchase of crack cocaine, rather than powder cocaine, from a defendant was not sentencing factor manipulation even though the purchase resulted in a longer sentence. United States v. Williams, 456 F.3d 1353, 1370-71 (11th Cir.2006), abrogated on other grounds by Kimbrough v. United States, 552 U.S. 85, 93 (2007). Further, we have held that the government did not engage in sentencing factor manipulation when a confidential informant provided a defendant with a firearm equipped with a silencer, the possession of which triggered a mandatory 30-year minimum sentence. Ciszkowski, 492 F.3d at 1269-71.
Based on this line of cases, we cannot say that the district court abused its discretion in declining to reduce Beckford‘s sentence on a theory of sentencing factor manipulation. Even though government agents initiated the conversation about the guns, it was Beckford and Haile who agreed to supply and who brought the guns to the transaction, just as the defendant in Ciszkowski accepted the gun with a silencer. Id. And, similar to Williams, although agents offered to supply the defendants cocaine in addition to marijuana, Beckford did not reject the offer or express any discomfort with the idea. 456 F.3d at 1370-71. We therefore decline to overturn the district court‘s decision regarding Beckford‘s claim of sentencing factor manipulation.
Beckford also argues, without specific citations in support, that his sentence is unreasonable because he was sentenced above the mandatory minimum of 420 months. But Beckford‘s sentence of 438 months is the lowest within-guideline sentence he could have received. See United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005) (emphasizing that sentences falling within the applicable guideline range are ordinarily expected to be reasonable). It is also well below the statutory maximum life sentence. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (considering the fact that a defendant‘s sentence falls below the statutory maximum as an indicator that the sentence
III.
For all of the reasons set forth above, we affirm Haile‘s conviction. We affirm Beckford‘s convictions on Counts 1-4 and 7, but we reverse on the Count 6 charge for knowing possession of a firearm with an obliterated serial number. We affirm Beckford‘s sentence and note that his sentence on Count 6 was to run concurrently with his sentence on the remaining counts, resulting in no change to the 438-month sentence that the district court imposed.
AFFIRMED in part and REVERSED in part.
John V. FURRY, as personal representative of the Estate and survivors of Tatiana H. Furry, Plaintiff-Appellant, v. MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, Miccosukee Tribe of Indians of Florida, d.b.a. Miccosukee Resort & Gaming, et al., Defendants-Appellees.
No. 11-13673
United States Court of Appeals, Eleventh Circuit.
June 29, 2012.