UNITED STATES of America, Plaintiff-Appellee, v. Robert William GREEN, Defendant-Appellant.
No. 14-12830
United States Court of Appeals, Eleventh Circuit.
November 30, 2016
842 F.3d 1299
Chet Kaufman, Richard Michael Summa, Randolph Patterson Murrell, Federal Public Defender‘s Office, TALLAHASSEE, FL, Thomas S. Keith, Federal Public Defender‘s Office, PENSACOLA, FL, for Defendant-Appellant.
Robert William Green, TALLADEGA, AL, pro se.
Before JORDAN and JULIE CARNES, Circuit Judges, and ROBREÑO,* District Judge.
JULIE CARNES, Circuit Judge:
A jury convicted defendant Robert Green of being a felon in possession of a
A. Facts
In early 2013, Defendant was charged with various state offenses. While on pretrial release, Defendant wore a court-ordered GPS monitoring bracelet that reported his location to the Santa Rosa County Sheriff‘s Office. On April 3, 2013, the Sheriff‘s Office discovered that Defendant was no longer wearing the GPS bracelet. A week later, several officers went to the home of Jodi Simmons, where they believed they would find Defendant,1 to arrest him. Initially, Ms. Simmons denied that Defendant was inside, but she gave the officers permission to enter the trailer and search for him. When they entered the master bedroom, the officers discovered a man‘s camouflage jacket hanging on the bedpost. The jacket was a large jacket and Jodi Simmons was not a large person. On the floor next to the bed, and on the same side of the room as the closet, the officers observed a pair of men‘s shoes. On a nearby nightstand, the officers saw a firearm loaded with .22 caliber ammunition, two pipes of the type typically used to smoke methamphetamine, a camouflage bag, and a washcloth. The camouflage bag contained a digital scale, .6 grams of methamphetamine, .22 caliber ammunition, and empty plastic baggies of the type used to hold drugs or ammunition. On the floor of the bedroom, near the man‘s jacket and pair of shoes, the officers also found a blue bag containing tools and ingredients used to manufacture methamphetamine, as well as more .22 caliber ammunition. The blue bag contained an identification card in the blue bag that did not belong to Defendant or Simmons.
Confronting Simmons with their belief that Defendant was in fact in the trailer, Simmons said, “He went that way,” and pointed the officers back toward the master bedroom. An ATF agent who had accompanied the deputies to the trailer found Defendant hiding in the master bedroom closet under a pile of clothes. He was wearing no shoes.
Defendant resisted arrest and struggled with the officers, but eventually they were able to handcuff and place him in a patrol car. While Defendant was seated in the car, the ATF agent opened the car door and knelt down to speak to Defendant, reading to him Miranda rights and indicating that he wanted to talk to Defendant about the firearm that had been discovered. Defendant told him that he had only recently acquired the gun, having traded some methamphetamine for it. A local deputy, who had been summoned to transport Defendant to the jail, was standing at the back of the car at the time, but did not overhear the conversation between Defendant and the ATF agent. Several months later, when the same ATF agent transported Defendant from local custody to federal court on the present charge, Defendant volunteered to the agent that the firearm discovered in Simmons‘s trailer was not his, but that instead he owned only a BB gun.
B. Procedural History
The Government charged Defendant with being a felon in possession of a fire-
Also before trial, the Government notified Defendant that it planned to introduce Defendant‘s 2006 Florida conviction for being a felon in possession of a firearm or ammunition under Federal Rule of Evidence 404(b). Defendant moved in limine to exclude the evidence because the conviction resulted from a plea of nolo contendere. After a lengthy colloquy with counsel, the district judge denied Defendant‘s motion and admitted Defendant‘s prior conviction.
Nonetheless, pursuant to a request by defense counsel and a stipulation between the parties, the jury was informed only that Defendant had been convicted of possession of ammunition by a convicted felon and that the ammunition in question was shotgun shells. The district judge then gave the jury the standard cautionary instruction regarding Rule 404(b) evidence, explaining to them that they could not consider the above evidence to decide if Defendant had committed the acts charged in the indictment, but instead they must first find beyond a reasonable doubt from the other evidence whether Defendant had committed those acts. The court instructed that if the jury first found that Defendant had committed the charged acts, then it could consider the prior conviction to decide whether Defendant had the state of mind or intent necessary to commit the charged act.
At the close of the Government‘s case, Defendant moved for a judgment of acquittal. He argued that the Government‘s evidence was insufficient to show that he had actual or constructive possession of the firearm or ammunition. Regarding his confession, Defendant asserted that it was unreliable, uncorroborated by the other evidence, and therefore insufficient to establish constructive possession. The district judge denied Defendant‘s motion. The jury returned a guilty verdict.
The United States Probation Office prepared a Presentence Investigation Report (PSR). The PSR set an adjusted base offense level of 28. Based on a lengthy and violent criminal record, Defendant had 26 criminal history points.3 The PSR also recommended that Defendant be sentenced under the Armed Career Criminal Act (ACCA),
Defendant now appeals his conviction and sentence.
II. DISCUSSION
On appeal, Defendant argues that the district court erred by (1) denying his motion for a judgment of acquittal; (2) refusing to change the word “crimes,” in the indictment‘s reference to Defendant‘s prior convictions, to the singular “crime“; (3) admitting evidence of his 2006 conviction under Rule 404(b); and (4) sentencing him under the ACCA.
A. Judgment of Acquittal
Defendant argues that the district court erred by denying his motion for a judgment of acquittal. “We review de novo the denial of a motion for judgment of acquittal, viewing the evidence in the light most favorable to the government and drawing all reasonable inferences in favor of the jury‘s verdict.” United States v. Martin, 803 F.3d 581, 587 (11th Cir. 2015). “The issue is not whether a jury reasonably could have acquitted but whether it reasonably could have found guilt beyond a reasonable doubt.” Id. (quoting United States v. Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006)).
To prove that Defendant violated
The parties agree that Defendant did not have actual possession of the firearm or ammunition at the time the officers found him: Defendant was in the closet, and the gun and ammunition were nearby. “[But] [t]he government need not prove actual possession in order to establish knowing possession; it need only show constructive possession through direct or circumstantial evidence.” United States v. Beckles, 565 F.3d 832, 841 (11th Cir. 2009) (quoting United States v. Greer, 440 F.3d 1267, 1271 (11th Cir. 2006)). A defendant constructively possesses a firearm or ammunition if he (1) is aware of or knows of the firearm‘s or ammunition‘s presence and (2) has the ability and intent to exercise control over that firearm or ammunition. United States v. Perez, 661 F.3d 568, 576 (11th Cir. 2011) (per curiam). “However, a defendant‘s mere presence in the area of [an object] or awareness of its location is not sufficient to establish possession.” Beckles, 565 F.3d at 841 (quotation marks and citation omitted).
Here, a rational trier of fact could conclude that Defendant had both (1) knowledge of the presence of the firearm and ammunition in the bedroom where he was found and (2) the ability and intent to exercise control over the firearm and ammunition, as required to establish constructive possession. As to the first prong of the constructive possession test, the evidence reasonably permits an inference that Defendant knew that the firearm and ammunition were present in Simmons‘s bedroom. Defendant had spent significant
Regarding the second prong of the constructive possession test, the same facts recited above bolster an inference that Defendant had the ability and intent to control the gun and ammunition. The loaded gun was on a nightstand next to the bed where Defendant‘s shoes were placed; the bag containing ammunition and drug paraphernalia were nearby. As noted, Defendant admitted to Officer Brent Carrier that the firearm was his. Accordingly, a jury could reasonably infer that Defendant had previously exercised control over the seized firearm, and maintained the ability to continue to do so.
Defendant argues, however, that his admission was uncorroborated and therefore should not have been considered under United States v. Micieli, 594 F.2d 102, 107-09 (5th Cir. 1979).4 This argument is unpersuasive. Micieli repeats the familiar rule that “a confession [must] be corroborated in order to sustain a conviction; a defendant cannot be convicted solely on the basis of his own admission.” Id. at 108. The Micieli court emphasized, however, that “extrinsic evidence of a corroborative nature” can be used to establish the admission‘s credibility. Id.; see also Smith v. United States, 348 U.S. 147, 156 (1954) (“One available mode of corroboration is for the independent evidence to bolster the confession itself and thereby prove the offense through the statements of the accused.“). Here, as in Micieli, extrinsic evidence substantiates Defendant‘s admission that he engaged in a drugs-for-firearm transaction. As recited above, the circumstances surrounding his arrest suggest Defendant‘s connection to the firearm. Drug paraphernalia, methamphetamine, and .22 caliber ammunition were also in close proximity to Defendant. Thus, Defendant‘s admission was properly considered. In combination with all the other circumstantial evidence of Defendant‘s knowing possession of the firearm and ammunition, the jury could reasonably find constructive possession. Accordingly, the district judge correctly denied Defendant‘s motion for a judgment of acquittal.
B. The Indictment‘s Reference to Multiple Felonies
Because Defendant stipulated that he had a prior felony conviction, the district court removed from the indictment the list of Defendant‘s 12 prior felony convictions, before giving the indictment to the jury. Over Defendant‘s objection, however, the district court refused to change the word
On appeal, Defendant argues that the indictment‘s reference to “crimes” (plural, rather than singular) was prejudicial, because it allowed the jury to infer that Defendant had more than one felony conviction, and irrelevant, because a single felony would have satisfied the convicted-felon element of the
We review a district court‘s evidentiary rulings under an abuse of discretion standard. Aycock v. R.J. Reynolds Tobacco Co., 769 F.3d 1063, 1068 (11th Cir. 2014). “A district court abuses its discretion ‘if it applies an incorrect legal standard, applies the law in an unreasonable or incorrect manner, follows improper procedures in making a determination, or makes findings of fact that are clearly erroneous.‘” Id. (quoting Brown v. Ala. Dept. of Transp., 597 F.3d 1160, 1173 (11th Cir. 2010)). To the extent that the district court based its determination on an interpretation of the Federal Rules of Evidence, our review is de novo. Doe No. 1 v. United States, 749 F.3d 999, 1003 (11th Cir. 2014).
Defendant cites two cases in support of his argument that the district court abused its discretion in refusing to redact the indictment‘s references to Defendant‘s previous “crimes.” Defendant first points to Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), which, in the context of a trial on a
The second case Defendant relies on is United States v. Dortch, 696 F.3d 1104 (11th Cir. 2012). That decision is also helpful, but ultimately not controlling. In Dortch, the district court gave the jury an unredacted copy of the indictment, which listed several of the defendant‘s previously undisclosed felony convictions. Id. at 1110. On review, we held that even assuming the district court erred, any error was harmless. Id. at 1111. Because Dortch was limited to harmless error review, however, this Court did not decide whether it would have been error had the jury been informed only that the defendant had more than one conviction, without any elaboration on the nature of those convictions. Thus, even had we reached the merits in
Three of our sister circuits have addressed this issue. The Eighth Circuit has held that “it is not error to allow the government to introduce more than one conviction in a case where only a single conviction is necessary to make the case,” even when a defendant stipulates to having a felony conviction. United States v. Garner, 32 F.3d 1305, 1311 (8th Cir. 1994). Even more to the point at issue here, the Eighth Circuit has also held that a district court does not err by requiring that a defendant stipulate to the existence of “one or more felony offenses” “to avoid misleading the jury into believing [the defendant] had only one prior conviction.” United States v. Einfeldt, 138 F.3d 373, 376 (8th Cir. 1998) (explaining that “there was nothing unfair about the court‘s form of stipulation,” which was intended to avoid “mislead[ing] the jury as to [the defendant‘s] criminal history“). Thus, the Eighth Circuit presumably would allow a district court to submit to the jury an indictment that references a defendant‘s prior “crimes” despite the fact that the defendant stipulated to being a convicted felon.5
The Seventh Circuit has taken the opposite approach, cautioning that “indictments and evidence should not make the jury cognizant of any prior convictions beyond those necessary as an element of the offense.” United States v. King, 897 F.2d 911, 913 (7th Cir. 1990); accord United States v. Wilson, 922 F.2d 1336, 1339 (7th Cir. 1991) (“The indictment read to the jury, however, correctly listed only one of [the defendant‘s] three prior convictions.“). The Seventh Circuit suggested that the district court erred by “introducing evidence in the form of a stipulation that King had been convicted of felonies on three prior occasions.” King, 897 F.2d at 913. Evidence of one conviction was sufficient when the defendant had stipulated to having a prior felony. Id. Ultimately, however, the court upheld the defendant‘s conviction on harmless error review. Id. at 914.
The Fifth Circuit has taken a similarly dim view of allowing evidence of additional convictions when a defendant has stipulated to being a convicted felon. In United States v. Quintero, 872 F.2d 107, 111 (5th Cir. 1989), the defendant argued that the indictment‘s reference to his three prior convictions for “violent felonies” was prejudicial. In response, the Government argued that it was free to allege more than one prior felony conviction to establish that the defendant was a convicted felon for purposes of
Second, the indictment‘s reference to Defendant‘s previous “crimes” was, in Rule 403 parlance, cumulative, with the potential to unfairly prejudice Defendant. It was cumulative insofar as the word “crime” would have established the convicted-felon element of the
As discussed above, the Government presented significant circumstantial evidence that Defendant knowingly possessed a firearm and ammunition. To repeat, Defendant, who had violated a court order by removing his court-ordered GPS tracker device and who was obviously trying to evade the watchful eyes of law enforcement, had spent significant time at Simmons‘s home, which was the place where the firearm and ammunition were found. When law enforcement officers found him at Simmons‘s home, he was hiding, shoeless, in a closet in the same room where the loaded firearm was lying in plain sight on a nightstand, along with methamphetamine pipes and a camouflage bag containing ammunition, methamphetamine, and drug paraphernalia. In the same room, officers found a pair of men‘s shoes and a man‘s camouflage jacket. To cap all this off, Defendant subsequently admitted to having traded methamphetamine for the firearm in Simmons‘s home. Given all this evidence, we conclude that any reference to prior crimes, in the plural, was harmless.
Further, the sentence at issue in the indictment did not state that Defendant had previously committed 12 felonies; it simply said that he had been convicted of “crimes.” Nor did the indictment indicate
C. Use of Nolo Plea to Prove Rule 404(b) Prior Act
1. Background
Under
Evidence of a crime, wrong, or other act is not admissible to prove a person‘s character in order to show that on a particular occasion the person acted in accordance with the character. . . . This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident . . . .
Generally, “[w]e review for an abuse of discretion a district court‘s admission of evidence of a defendant‘s prior bad acts under Rule 404(b).” United States v. Holt, 777 F.3d 1234, 1266 (11th Cir. 2015).
Before trial, the Government notified Defendant that it planned to introduce, as prior act evidence pursuant to
We set out a three-part test for determining whether evidence of a prior bad act is admissible under Rule 404(b) in United States v. Miller, 959 F.2d 1535, 1538 (11th Cir. 1992) (en banc). The Miller test provides that such evidence is admissible if: (1) the evidence is relevant to an
On appeal, Defendant argues that his prior ammunition-possession conviction does not satisfy Miller‘s second or third prongs. As to his challenge of the third prong, we reject his contention that the probative value of this evidence is outweighed by the risk of unfair prejudice. As to the second prong, Defendant argues that because his 2006 Florida conviction for possession of ammunition by a convicted felon was entered based on a nolo plea, this conviction did not constitute proof sufficient to allow the jury to find it more likely than not9 that Defendant did, in fact, previously possess ammunition after having achieved felon status.
In support of his argument that a nolo conviction was not properly admissible to prove that he had actually possessed ammunition in the past, Defendant cited the district court to
(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:
(1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea;
(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or
(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.
Rule 803. Exception to the Rule Against Hearsay—Regardless of Whether the Declarant is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
(22) Judgment of a Previous Conviction. Evidence of a final judgment of conviction if:
(A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea;
Rule 410 speaks only of a nolo plea, not a conviction pursuant to a nolo plea, and, as discussed below, this omission has created uncertainty as to whether the latter is also excluded from admission by the rule. Further, as to the specific question presented in this appeal, we have no precedent deciding whether a criminal conviction pursuant to a nolo plea can be admitted to prove a prior act under Rule 404(b).
Non-published opinions, however, do not constitute precedent. See United States v. Izurieta, 710 F.3d 1176, 1179 (11th Cir. 2013); see also 11th Cir. R. 36-2 (“Unpublished opinions are not considered binding precedent, but they may be cited as persuasive authority.“). Therefore, we view the question before us as one of first impression. In deciding this question, we look first to precedent in which we have permitted consideration of a nolo conviction; then to what we have said in the few cases that have presented a question concerning the interaction between a nolo conviction and the federal rules of evidence; and finally to authority from sister circuits concerning this question.
2. Use of Nolo Convictions, Generally
When a defendant enters a nolo plea, whether in state or federal court, that plea typically results in the issuance of a judgment of conviction. Accordingly we refer to such convictions as “nolo convictions.” The meaning of the word “conviction” in a federal statute is a question of federal law unless Congress has provided otherwise. United States v. Mejias, 47 F.3d 401, 403 (11th Cir. 1995). As best we can determine, our Court has made no distinction between a conviction based on a nolo plea and one based on a guilty plea or a verdict of guilt after trial. Indeed, “[o]nce convicted, whether as a result of a plea of guilty, nolo contendere, or of not guilty (followed by trial), convictions stand on the same footing, unless there be a specific statute creating a difference.” United States v. Williams, 642 F.2d 136, 139 (5th Cir. Unit B 1981).
Our decision not to treat a nolo conviction any differently than a conviction based on a guilty plea or on a verdict of guilty has been applied in several contexts. For example, we have applied statutory sentencing enhancements that are triggered by particular types of convictions, regardless of whether the conviction was obtained via a nolo conviction or otherwise. See, e.g., Mejias, 47 F.3d at 404 (a Florida nolo conviction is a “conviction” within the meaning of
We have treated nolo convictions the same as other types of convictions for purposes of applying the Sentencing Guidelines. See, e.g., United States v. Anderson, 328 F.3d 1326 (11th Cir. 2003) (a Florida nolo plea qualifies as a “conviction” within the meaning of
In contexts not involving sentencing, we have also treated nolo convictions as we would any other conviction. See Qureshi v. INS, 519 F.2d 1174, 1175-76 (5th Cir. 1975) (deportation of an individual following a criminal conviction, under immigration statute calling for deportation based on this type of criminal conviction, was proper notwithstanding the fact that conviction was obtained by way of a nolo plea).
Finally, we have treated a nolo conviction as a conviction under
Defendant attempts to distinguish the above cases, however, arguing that each of them addressed a statute or a rule whose applicability was triggered by a prior conviction. Defendant argues that Rule 404(b), which permits admission of prior-acts evidence for the purpose of showing intent, knowledge, and the like, does not concern itself with whether the party whose intent is at issue was convicted based on his conduct. Rather that rule requires the proponent of the evidence to provide evidence sufficient to enable a jury to conclude, under a preponderance standard, that the party actually committed the act at issue. Stated another way, although a prior nolo criminal conviction may be used in certain contexts, that does not mean that this prior conviction may be admitted in evidence against the defendant for all purposes.
As to Rule 404(b) specifically, Defendant does not dispute that a conviction obtained following a guilty plea or trial verdict will meet the rule‘s requirement that the proponent of the evidence offer sufficient proof that the party against whom the evidence is offered did what he is alleged to have done. He does disagree, however, that one can properly infer from a nolo conviction that the party has committed the particular act in question, given the peculiar characteristics of such a conviction. As Defendant‘s objection focuses on the interaction of Rule 404(b) with a nolo conviction, we will turn to our limited case authority relating to that subject.
3. Our Precedent
Three of our earlier cases address related issues. In United States v. Morrow, 537 F.2d 120 (5th Cir. 1976), the former Fifth Circuit held that the Government cannot use a nolo plea to a fraud charge to prove a defendant‘s knowledge and intent in a subsequent criminal prosecution. Id. at 145. That case involved admission of a judgment of conviction, under Rule 404(b), that revealed the defendant‘s previous entry of a nolo plea. In finding error, we rested our decision on the fact that the defendant‘s prior plea of nolo contendere had been disclosed, and disclosure of such a plea is not allowed. Id. at 144-45. We explicitly stopped short of deciding what the outcome would have been had the document introduced been a judgment of conviction based on, but not disclosing, the fact of a nolo plea: “The instant case, thus, is not one where we must consider the propriety of the Government using only a conviction that is based on a nolo contendere plea. [The prior caselaw on which we rely expressed a] clear prohibition on the use of a plea of nolo contendere to show knowledge
Five years later, in United States v. Williams, 642 F.2d 136 (5th Cir. Unit B 1981), the former Fifth Circuit addressed the use, pursuant to
We further indicated that the distinction between a plea of nolo and a conviction based on a plea of nolo is not “inconsequential.” Id. at 139. Instead, “close examination shows, however, that there is a distinct and meaningful difference between the evidentiary use of a plea to a criminal charge and a conviction of a criminal charge.” Id. at 139. Focusing on what information a nolo plea conveys, we indicated that, for purposes of subsequent proceedings, it “admits nothing” and “is the same as a plea of not guilty.” Id. As to the distinction between a nolo plea and a nolo conviction, for Rule 609 purposes, we explained that the prosecutor could impeach the testifying criminal defendant by providing proof of the underlying conviction, but the prosecutor could not offer proof of the nature of the plea leading up to that conviction. Id. Finally, we noted that the difference between a nolo plea and a nolo conviction is further illustrated by “the stated policies” of
The last case in the trilogy is United States v. Wyatt, 762 F.2d 908 (11th Cir. 1985). In Wyatt, the district court admitted a judgment of conviction entered upon a plea of nolo contendere, along with extensive evidence proving the facts that served as a basis for that conviction. The defendant objected only to admission of the evidence of the underlying facts. On appeal, we agreed that admission of the underlying evidence was proper, holding that a conviction based on a nolo plea does not “insulate[] the underlying facts from admissibility under
As to whether there is a meaningful distinction between use of a nolo plea and use of a nolo conviction, the opinion does not clearly address that question, although it seems to suggest that there is. The discussion focuses on the plea, and its value as an admission, as a matter not permitted to be disclosed: “The government could not have used the nolo plea to ‘prove that [Wyatt] had admitted his guilt by his plea’ and thereby meet its initial burden of proving the defendant committed the act . . . . That would violate
The only firm take-away from the holdings in the above three cases is that (1) it is error for a court, for Rule 404(b) purposes, to admit evidence that the criminal defendant has previously entered a nolo plea as to the prior act in question; (2) it is not error to admit evidence proving the underlying facts of the purported Rule 404(b) act, even if that act was the subject of a nolo plea and conviction; and (3) a testifying criminal defendant may be impeached with evidence of a prior felony conviction that resulted from a nolo plea. Given the fact that the question before us is whether a nolo conviction can be used to satisfy Rule 404(b)‘s requirement of proof that a defendant committed the prior acts sought to be admitted under the rule, none of the above principles compel a particular outcome here.10
4. Out-of-Circuit Authority
Determining the circumstances under which a nolo conviction can be used as evidence in a federal court proceeding has been a work in progress, given the wording of Rule 410, which prohibits use of a nolo plea, but makes no mention of a nolo conviction. Cf. Sokoloff v. Saxbe, 501 F.2d 571, 574 (2d Cir. 1974) (“[T]he effect of a nolo plea is not governed entirely by logic; if it were, the plea might be abolished . . . . The only relevant question is what are the limitations which the law assures the accused that he will be entitled to invoke, if he files the plea. That is a mere question of what the courts have decided—one alternative is no more rational than the other . . . .“) (internal citation and quotation marks omitted).
We are aware of two courts of appeal that have considered the precise question before us. In United States v. Frederickson, 601 F.2d 1358 (8th Cir. 1979), where the defendant was charged with making a threat against the life of the President, the Eighth Circuit held that the district court did not err in admitting under Rule 404(b) the defendant‘s prior nolo conviction for making a false bomb threat. Id. at 1364. Rejecting the defendant‘s argument that a nolo conviction should not have been admitted, the court saw “no reason, for the purposes of admissibility under [Rule 404(b)], to distinguish between a judgment of conviction based on a plea of Nolo contendere and a judgment of conviction obtained in any other manner comporting with due process. It is well-settled that a
More recently, the Ninth Circuit has ruled to the contrary. In United States v. Nguyen, 465 F.3d 1128 (9th Cir. 2006), the court reviewed an appeal of a revocation of supervised release based on the federal offender‘s violation of a condition of release prohibiting the commission of any crimes. To prove that violation, the Government introduced two convictions that the defendant had sustained based on a nolo plea during his supervision. The court acknowledged that Rule 410 barred only the admission of nolo pleas, not the convictions resulting from them. Id. at 1131. Nonetheless, the court concluded that admission of the nolo conviction should also be precluded because to do otherwise would “produce[] an illogical result“: “Rule 410‘s exclusion of a nolo contendere plea would be meaningless if all it took to prove that the defendant committed the crime charged was a certified copy of the inevitable judgment of conviction resulting from the plea.” Id. As to
In Olsen v. Correiro, 189 F.3d 52 (1st Cir. 1999), the First Circuit echoed some of the same concerns articulated by the Ninth Circuit about the ramifications of a refusal to read Rule 410 as barring admission of a nolo conviction, just as it bars introduction of a nolo plea. Id. at 60 (the “reasons for excluding the nolo plea itself could well . . . be applicable to the conviction and sentence that result from the nolo plea“). Nonetheless, the court acknowledged that “[t]he evidentiary rules that exclude evidence of nolo pleas do not directly apply to the convictions and sentences that result from such pleas.” Id. at 58. Specifically, “[t]he text of [Rule 410] does not support Olsen‘s argument. Only the nolo plea itself is barred by the relevant language of the rule.” Id. at 59.
Ultimately, though, the court found it unnecessary to pick a winner in a contest between the policy goals and the text of Rule 410 because no policy goals were undermined by admitting Olsen‘s nolo conviction. Specifically, in the
Indeed, Rule 410‘s prohibition of the admission of a nolo plea notwithstanding, courts have permitted admission of a nolo conviction where the proponent seeks admission of the judgment to show the fact of conviction or to show something other than that the defendant was actually guilty of the crime to which he entered a nolo
5. Conclusion
From all this, we conclude the following. To have Rule 404(b) prior act evidence admitted, the proponent need only provide enough evidence for the trial court to be able to conclude that the jury could find, by a preponderance of the evidence, that the prior act had been proved.
The prosecutor can, of course, prove the prior act by calling witnesses to testify. Or, as is often the case when the act has become the subject of a conviction, the prosecutor can prove the act by introducing a certified judgment of conviction. Indeed, “[i]t is elementary that a conviction is sufficient proof that [the defendant] committed the prior act.” United States v. Calderon, 127 F.3d 1314, 1332 (11th Cir. 1997) (citing United States v. Arambula-Ruiz, 987 F.2d 599, 603 (9th Cir. 1993) (fact that the defendant was convicted of prior offense is sufficient proof that the defendant committed the prior act).)
Obviously, a conviction based on a verdict of guilty after a trial will suffice. A jury can convict only if it has found the defendant guilty beyond a reasonable doubt, which standard clearly exceeds the preponderance standard. Likewise, a conviction based on a guilty plea to the prior crime also suffices to meet Rule 404(b)‘s proof requirement. Calderon, 127 F.3d at 1332 (fact that a conviction was based on a guilty plea is inconsequential). Indeed, “a guilty plea is ‘more than a confession which admits that the accused did various acts.’ It is an ‘admission that he committed the crime charged against him.‘” Blohm v. Comm‘r, 994 F.2d 1542, 1554 (11th Cir. 1993) (internal citations omitted). Accord Finch v. Vaughn, 67 F.3d 909, 914 (11th Cir. 1995) (a guilty plea is an admission of criminal conduct as well as the waiver of the right to trial).
Accordingly, had Defendant‘s prior conviction been based on a plea of guilty, that would be the end of any discussion as to whether the Government had sufficiently proved the prior act. But Defendant‘s conviction was based on a nolo plea. And “[a] guilty plea is distinct from a plea of nolo contendere. A guilty plea is an ‘admission of all the elements of a formal criminal charge.’ A nolo contendere plea is instead a ‘consent by the defendant that he may be punished as if he were guilty and a prayer for leniency.‘” Blohm, 994 F.2d at 1554 (internal citations omitted).
In deciding the impact of Federal Rule of Evidence Rule 410 on the question before us, Rule 410 does not, as a textual matter, address a nolo conviction; instead,
Thus, Rule 410 is an uncertain basis on which to rest a determination that a nolo conviction is not admissible.
A final observation concerning analysis of this question: the Government was required to prove the prior act of possession of ammunition by Defendant by a preponderance of the evidence. It is conceivable that a state could require, as a precondition to acceptance of a nolo plea, a determination by the court that the State make a showing of defendant‘s guilt that would serve to satisfy the preponderance standard. The Government, however, has not made that argument generally, nor specifically argued that Florida law sets such requirements.11 Accordingly, our holding is based on what we must assume, at least for this case, to be a generic nolo conviction and it is limited to the specific issue
Translating all the above to this case, we conclude that for purposes of Rule 404(b), Rule 803(22) precludes use of the 2006 nolo conviction here to prove that Defendant actually possessed ammunition in 2006. Instead, the Government should have introduced evidence proving that Defendant so possessed ammunition on the date in question.13 Because it did not do so, there was insufficient evidence for the jury to be able to conclude that Defendant actually committed the prior act at issue.
6. Harmfulness of the Admission of the Nolo Conviction
Evidentiary errors are subject to review for harmlessness. United States v. House, 684 F.3d 1173, 1197 (11th Cir. 2012). A non-constitutional evidentiary error does not warrant reversal unless there is a reasonable likelihood that the error affected the defendant‘s substantial rights. Id. We look to whether the error had substantial influence and whether enough evidence supports the result apart from the error. Id. See also United States v. Phaknikone, 605 F.3d 1099, 1109 (11th Cir. 2010) (even if the district court abused its discretion, “[r]eversal is warranted only if the error resulted in actual prejudice because it had [a] substantial and injurious effect or influence in determining the jury‘s verdict.” (quotation marks and citation omitted)).
The Government argues that even if admission of the judgment showing Defendant‘s conviction for possessing ammunition should not have been admitted, any error was harmless. We agree. The GPS
We conclude there was ample evidence, independent of the Rule 404(b) conviction, to support a conclusion that Defendant was guilty of possessing the firearm and ammunition at issue. As to whether one could conclude that admission of this evidence had a substantial influence on the verdict, we conclude that it did not. The jury was necessarily aware that Defendant had a prior conviction because he had stipulated that he did. So the fact of a prior conviction was not news to jurors. As to the specific conviction introduced, it was a conviction based on Defendant‘s possession of shotgun shells seven years before the events underlying the present prosecution, not possession of ammunition for a handgun. Accordingly, while it is true that Defendant‘s present charge was also for possession of ammunition, along with possession of a firearm, his prior possession of shotgun shells was, in the scheme of things, relatively benign when compared to the other circumstantial evidence suggesting Defendant‘s constructive possession of the handgun located just a few feet from where he was found hiding and even closer to items of men‘s clothing that the jury could reasonably infer were his. One can reasonably conclude that all the circumstances described above were of far more significance to the jury in deciding whether Defendant constructively possessed the loaded firearm and ammunition at Simmons‘s trailer than was this 7-year old conviction for possessing shotgun shells.
Moreover, the court instructed the jury that it must first conclude that Defendant possessed the firearm and ammunition before it considered the Rule 404(b) evidence concerning his intent or lack of mistake. Finally, the 2006 conviction was not emphasized during trial or closing argument. When it was introduced, the court immediately gave a cautionary instruction as to the proper use of the evidence, which was repeated in the court‘s final instructions to the jury. As to the closing argument, the prosecutor acknowledged up front that the “whole issue” in the case was whether or not on April 10, 2013 Defendant “was in possession of that firearm and that ammunition.” The prosecutor made only one reference in his closing argument to the 2006 conviction, and the reference was not provocative, but rather tepid. The prosecutor indicated that the conviction for possession of ammunition did not suggest that “be-
For the above reasons, we conclude that admission of the 2006 conviction was harmless.
D. Armed Career Criminal Act Sentence
The Armed Career Criminal Act,
Defendant appeals his sentence under the ACCA, arguing that his two prior felony battery convictions are not “violent felonies” as defined by the ACCA. Defendant concedes, however, that his convictions for aggravated assault and resisting an officer with violence qualify as predicate offenses. This means that only one of Defendant‘s felony battery convictions must satisfy the definition of a “violent felony” under the ACCA.
We review de novo the issue of whether a prior conviction qualifies as a “violent felony” under the ACCA. United States v. Canty, 570 F.3d 1251, 1254 (11th Cir. 2009). Only the ACCA‘s enumerated offense clause and elements clause remain intact. See Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015) (striking down the ACCA‘s residual clause as unconstitutionally vague). At oral argument, the Government conceded that the district court may have relied on the residual clause at sentencing (which took place before Johnson) in determining that felony battery under
Under the elements clause, a crime constitutes a “violent felony” when it “has as an element the use, attempted use, or threatened use of physical force against the person of another.”
Defendant argues that neither of his felony battery convictions categorically qualifies as “violent felonies” under the elements clause of the ACCA. And the Supreme Court has held that Florida battery under
Nevertheless, even assuming that Florida battery under
The statutes for both battery under
Shepard documents are available for Defendant‘s third-degree felony battery conviction under
Significantly, the sentencing recommendation included a checked box that reads “[t]he arrest report which is a part of the court record filed with the clerk of the court is hereby incorporated by reference and agreed to by the defendant as a factual basis for the plea.” Id. at 9. Defendant‘s signature appears on the same page as the checked box and is directly below the following acknowledgment:
By signing this Sentencing Recommendation, I, the undersigned defendant in this case, agree that I have read and understand the contents of this document, and if represented by an attorney, that I have discussed with my attorney all of the ramifications or consequences of entering a plea of guilty or nolo contendere to these charges . . . and my attorney has not compelled or induced me to enter into this plea agreement by any force, duress, threats, pressure or promises.
Id.
The incorporated arrest report (a warrant including a sworn affidavit from the investigating police officer) described the events leading to Defendant‘s arrest as violent and not merely involving an intentional unwanted touching. It states that the injured victim told the officer that “a white male came from behind and hit him in the face . . . [and] continued to hit him and [that the victim] did not know why he was getting beat up.” D.E. 48-4 at 10. Two other witnesses identified the Defendant and confirmed that he was “hitting” the victim. See id.
Defendant has objected to the arrest report‘s description of the facts in the district court and on appeal. Specifically, he challenges whether the arrest report (or affidavit) is a Shepard-approved document. We are not, however, relying on an arrest report in isolation. Cf. United States v. Diaz-Calderone, 716 F.3d 1345, 1350 (11th Cir. 2013) (reviewing statements in a recording of a defendant‘s change-of-plea hearing rather than sworn police affidavits alone to determine whether the “arrest affidavit established a factual basis” for his plea of nolo contendere). Instead, we look to judicial records of Defendant‘s plea—a sentencing recommendation and a signed, written agreement that clearly indicate that the arrest form served (with Defendant‘s agreement) as the factual basis for his nolo plea.
As we have already pointed out, Florida is one of the few states that requires a factual basis for a nolo plea. This is important because although a defendant generally does not admit guilt by entering a nolo plea, Florida law requires an extra step. A Florida court must first “determine that the plea is voluntarily entered and that a factual basis for the plea exists.”
In this case, Defendant signed the sentencing recommendation in the presence of his attorney and has not given us any reason to doubt that he voluntarily entered his plea of nolo contendere to the third-degree felony battery offense under
In sum, Shepard documents show that Defendant was convicted under the “striking” element, and not the “actually and intentionally” touching element, of
III. CONCLUSION
For the reasons stated above, we AFFIRM Defendant‘s conviction and sentence.
JULIE CARNES
UNITED STATES CIRCUIT JUDGE