USA v, Jamila Takiyah Hunter ( 2018 )


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  •            Case: 18-12116   Date Filed: 12/21/2018   Page: 1 of 17
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 18-12116
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 4:17-cr-00048-MW-CAS-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    JAMILA TAKIYAH HUNTER,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Florida
    ________________________
    (December 21, 2018)
    Before WILLIAM PRYOR, HULL and JULIE CARNES, Circuit Judges.
    PER CURIAM:
    Case: 18-12116    Date Filed: 12/21/2018    Page: 2 of 17
    After a jury trial, Jamila Hunter appeals her conviction for possession with
    intent to distribute alpha-Pyrrolidinopentiophenone (“alpha-PVP”). On appeal,
    Hunter argues that the district court abused its discretion in admitting evidence of
    Hunter’s post-arrest possession, use, and distribution of alpha-PVP and recordings
    of Hunter’s jail phone calls about past drug activities. After review, we affirm.
    I. BACKGROUND FACTS
    A.    Alpha-PVP Importation Scheme
    The trial evidence showed that Hunter became involved in a scheme to
    import alpha-PVP from China for distribution in Florida. The ringleader, Travis
    Glasco, purchased the alpha-PVP on the “dark web” using the crypto-currency
    Bitcoin, recruited others to rent mailboxes in Tallahassee, Florida and other nearby
    cities, and then had the packages of alpha-PVP shipped to those mailboxes. The
    renters provided their mailbox keys to Glasco so that he and others could retrieve
    the packages. To protect the importation scheme’s participants, the packages were
    sent to a name similar, but not identical, to the mailbox renter’s name. Then the
    person picking up the package would write “return to sender” on it so that the
    person could deny any knowledge of the scheme if he or she was caught with the
    package.
    After successfully receiving a package, Glasco had others sell the alpha-PVP
    for him. In 2016, Glasco successfully purchased 20 one-kilogram packages for
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    $4,000 to $5,000 each, then sold each kilogram of alpha-PVP for approximately
    $100,000, and made almost $2,000,000 in total.
    Two of Glasco’s distributors were Tyrail Gallman and Charik James, both of
    whom knew Defendant Hunter. Gallman was Defendant Hunter’s drug supplier
    and recruited Hunter to rent a mailbox for the importation scheme. On August 31,
    2016, Defendant Hunter opened a mailbox in her name at a UPS Store in
    Tallahassee, Florida. Hunter was paid with drugs for the use of her mailbox. After
    Gallman brought Glasco the key, Glasco had packages sent to Defendant Hunter’s
    mailbox.
    On September 30, 2016, Glasco picked up the first package of drugs from
    Hunter’s mailbox himself. At Gallman’s request, Glasco also took a food stamp
    card sent to Defendant Hunter at the mailbox address. Gallman planned to hold the
    food stamp card as collateral because Defendant Hunter owed him money. In
    response, Hunter instructed employees at the UPS Store that no one else was
    permitted to open her mailbox. Consequently, Glasco could not pick up future
    packages sent to Defendant Hunter’s mailbox.
    James, another of Glasco’s distributors, lived in the same motel as
    Defendant Hunter, and the two had daily interactions involving drugs. Hunter told
    James that Gallman was her drug supplier, that she and Gallman had picked up
    packages before, and that she knew when a package was coming to her mailbox
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    because she received an email notifying her that a package had arrived. James said
    Hunter initially believed the packages coming to her mailbox were for Gallman.
    After Defendant Hunter learned that the packages actually belonged to Glasco, she
    wanted to get closer to Glasco and tried to get his phone number. Glasco,
    however, did not like Hunter and told James not to give his phone number to her.
    When Hunter texted James repeatedly, Glasco told James to stop dealing with her.
    On October 22, 2016, a second package from China arrived in Defendant
    Hunter’s mailbox. On October 24, 2016, Glasco picked up Hunter and James at
    their motel and took them with him to pick the package up. Defendant Hunter
    went into the UPS store and brought the package out. Afterward, they returned to
    the motel, where Glasco gave portions of the alpha-PVP to James and Defendant
    Hunter.
    Later, James learned that Defendant Hunter planned to pick up Glasco’s next
    package and keep the drugs for herself. James told Glasco about Hunter’s plan,
    and Glasco said this third package did not contain drugs. James warned Hunter not
    to pick up the package and advised her it did not contain drugs, but Hunter picked
    the third package up anyway. When Defendant Hunter opened the package and
    found a cell phone jammer, she brought the opened package to James, who took it
    to Glasco.
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    On November 8, 2016, the final package from China, addressed to “Jamal
    Hunter,” was delivered to Hunter’s mailbox. Unbeknownst to Glasco and the other
    participants in his scheme, Customs and Border Protection officials had intercepted
    the package, which tested positive for alpha-PVP. Agents set up a controlled
    delivery and waited for the pick up.
    Glasco drove Defendant Hunter and James to the UPS store. In the parking
    lot, Glasco gave Hunter and James some alpha-PVP, which they used in the car.
    While Glasco waited in his car, James and Hunter entered a nearby sporting goods
    store and purchased some shoes for Hunter’s daughter. James returned to Glasco’s
    car, and Hunter went into the UPS Store to retrieve the package. Once Defendant
    Hunter left the UPS Store with the package, agents intervened, seized the package,
    and arrested her. James was also arrested, but Glasco fled and was not
    apprehended until February 2017.
    B.    Indictment and Not Guilty Plea
    A grand jury charged (1) Glasco and others, including Defendant Hunter,
    James, and Gallman, with conspiracy to possess with intent to distribute alpha-PVP
    between August 31, 2016 and February 2, 2017, in violation of 21 U.S.C.
    §§ 841(a)(1), (b)(1)(C) and 846 (Count One); and (2) Glasco, James, and
    Defendant Hunter with possession with intent to distribute alpha-PVP on
    November 8, 2016, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C.
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    § 2 (Count Two). Although her codefendants pled guilty, Hunter proceeded to
    trial.
    C.       Pretrial Ruling on Rule 404(b) Evidence
    At a pretrial hearing, the district court ruled on the parties’ cross-motions in
    limine. Relevant to this appeal, the district court ruled admissible under Federal
    Rule of Evidence 404(b) the government’s evidence of Hunter’s post-arrest drug
    activity, including: (1) two positive drug tests for alpha-PVP; and (2) testimony
    from Victoria Burris, a cooperating witness, that Hunter had sold and shared with
    her alpha-PVP. The district court concluded that recordings of some of Hunter’s
    post-arrest jail phone conversations, in which she seemed to refer to her past
    experiences transporting and using drugs, also were admissible under Rule 404(b).
    D.       Trial and Conviction
    At Defendant Hunter’s two-day trial, Glasco and James testified as
    cooperating witnesses and, along with Special Agent Michael Harvill, outlined the
    events described above. In addition, the government presented evidence of
    Hunter’s post-arrest drug tests in November and December 2017, both of which
    were positive for alpha-PVP, and Victoria Burris’s testimony that on four or five
    occasions between March and November 2017 Defendant Hunter sold and gave
    her small quantities of alpha-PVP from Hunter’s “personal stash.” First after
    Burris’s testimony and again after the drug test evidence, the district court gave the
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    jury limiting instructions advising them that the similar acts evidence could not be
    considered to decide if Hunter committed the acts charged in the indictment, but
    could be considered to decide whether Hunter “had the state of mind or intent
    necessary to commit the crime charged . . . and whether [Hunter] committed the
    acts charged . . . by accident or mistake.”
    The government also published to the jury recordings of several of Hunter’s
    post-arrest jail phone calls, with corresponding transcripts.1 Because Hunter
    contested the accuracy of one of the government’s transcripts, the district court
    allowed her to submit a competing transcript.
    Relevant to this appeal, in one recording, Hunter discussed getting
    “something to smoke” with a man she and the other speaker call “Dirt.” Hunter
    said that she “took [Dirt] to go do something he had to do,” and after being asked
    several times to clarify what Dirt had to do, Hunter declined to answer and
    reminded the person on the phone that she was speaking to him on a jail telephone.
    Before the other relevant recording was published, the district court
    permitted Hunter to point out the disputed terms in government’s transcript and
    explain her position as to their meaning. Hunter stated that, rather than the
    government’s version, “going with Chill,” which was Gallman’s nickname, she
    actually said, “going to chill.” The government then played the recording, in
    1
    The district court permitted the government to publish two other jail phone call
    recordings that Hunter does not challenge on appeal.
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    which Hunter explained why she had not wanted to risk traveling from Florida to
    Texas on a previous occasion with her baby and being stopped and put “in jail out
    of state.” Hunter stated that “it’s almost impossible to go through Florida through
    Louisiana through Texas and come back and not get pulled over by . . . the DEA
    . . . when they see Florida tags coming all through them States with all them
    drugs.” Hunter went on to explain that she preferred to travel at night because she
    was less likely to be pulled over. According to the government’s transcript, Hunter
    then stated, “I’ve been doing this shit since 2005. Actually actually doing doing it.
    And actually just going with Chill.” Hunter added, “I know what to do and what
    you can get away with.”
    Defendant Hunter’s defense was that she was an unwitting participant in
    Glasco’s drug conspiracy and that the testimony of Glasco and James implicating
    her was not credible. Defendant Hunter testified that she opened the UPS Store
    mailbox as a favor to Gallman because he did not have the necessary identification
    to open one for himself. After a couple of months, however, Hunter decided to use
    the mailbox to receive food stamp and child support cards because she could not
    receive mail at her motel.
    Defendant Hunter admitted picking up three of Gallman’s packages but
    claimed she was never aware they contained drugs. When James’s girlfriend
    suggested to Defendant Hunter that Gallman and James were shipping drugs to the
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    mailbox, Hunter opened the first package, but found only electronic equipment.
    As for the second package, when Defendant Hunter saw that it was addressed to
    “Jamal Hunter,” she wrote “return to sender” on it and gave it unopened to James’s
    girlfriend to drop in a mailbox. Defendant Hunter denied telling the UPS Store
    that she was the only person who could pick up packages. Defendant Hunter also
    denied knowing Glasco, trying to get his phone number, getting some alpha-PVP
    from Glasco after picking up one of his drug packages, or trying to steal drug
    packages from him.
    According to Defendant Hunter, she met Glasco for the first time on the day
    of her arrest. Glasco picked Defendant Hunter up to take her to James and then
    drove them to the store so Hunter could buy shoes for her daughter. Because the
    UPS Store was next door, Defendant Hunter decided to check her mailbox for a
    child support card she was expecting. When she went inside, a UPS Store
    employee handed Defendant Hunter a package. Hunter admitted that she
    occasionally used alpha-PVP, and that after her arrest, she had smoked some
    alpha-PVP with Burris, but Hunter denied selling Burris drugs.
    Hunter also offered innocent explanations for her recorded jail phone calls,
    and she maintained that the excerpts of her conversations were taken out of context
    and misleading. In particular, Hunter explained that the first challenged phone call
    was with her boyfriend, who was “being jealous and nosey” about her riding in a
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    car with another man and she refused to explain what “Dirt” had to go do because
    she was “blowing [her boyfriend] off.”
    As for the other phone call, Hunter said she had family in Texas that she
    often visited, and she was explaining to her boyfriend, who had never travelled
    outside of Tallahassee, that she likely would have been pulled over with Florida
    tags and could have been arrested because she had a warrant at the time. Hunter
    maintained that when she said, “I’ve been doing this shit since 2005,” she was
    referring merely to travelling between Florida and Texas.
    After deliberating for over three hours, the jury indicated that it was unable
    to reach a unanimous verdict on either count. The district court issued a modified
    Allen charge. An hour later, the jury returned a unanimous verdict acquitting
    Hunter of the conspiracy charge in Count One but finding her guilty of the
    possession with intent to distribute charge in Count Two. The district court later
    imposed a 72-month sentence.2
    II. DISCUSSION
    A.    Standard of Review
    We review a district court’s evidentiary rulings for abuse of discretion.
    United States v. Matthews, 
    431 F.3d 1296
    , 1311 (11th Cir. 2005). A district court
    abuses its discretion when it “applies the wrong law, follows the wrong procedure,
    2
    Hunter does not appeal her sentence.
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    bases its decision on clearly erroneous facts, or commits a clear error in judgment.”
    United States v. Brown, 
    415 F.3d 1257
    , 1266 (11th Cir. 2005). Further, we will
    not reverse an erroneous evidentiary ruling if the error was harmless. United
    States v. Langford, 
    647 F.3d 1309
    , 1323 (11th Cir. 2011). An error is harmless if
    “sufficient evidence uninfected by any error supports the verdict, and the evidence
    did not have a substantial influence on the outcome.” 
    Id. (quotation marks
    omitted). Evidence admitted in violation of Rule 404(b) is considered harmless if
    there is other substantial evidence of the defendant’s guilt. See United States v.
    Chavez, 
    204 F.3d 1305
    , 1317 (11th Cir. 2000).
    B.    Rule 404(b) Three-Part Test for Admissibility
    Rule 404(b) forbids the admission of evidence of “a crime, wrong, or other
    act . . . to prove a person’s character in order to show that on a particular occasion
    the person acted in accordance with the character.” Fed. R. Evid. 404(b)(1).
    However, the same evidence “may be admissible for another purpose, such as to
    proving motive, opportunity, intent, preparation, plan, knowledge, identity,
    absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). This Court has
    previously observed that “Rule 404(b) is a rule of inclusion” and relevant Rule
    404(b) evidence “like other relevant evidence, should not lightly be excluded when
    it is central to the prosecution’s case.” United States v. Jernigan, 
    341 F.3d 1273
    ,
    1280 (11th Cir. 2003) (internal quotation marks omitted).
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    To be admissible under Rule 404(b), the evidence must (1) be relevant to an
    issue other than the defendant’s character; (2) be sufficiently proven to allow a jury
    to find that the defendant committed the extrinsic act; and (3) possess probative
    value that is not substantially outweighed by its risk of undue prejudice under
    Federal Rule of Evidence 403. 
    Matthews, 431 F.3d at 1310-11
    .
    As to the first prong, a defendant who pleads not guilty to a drug trafficking
    offense makes intent a material issue that imposes a substantial burden on the
    government, which it may prove using qualifying Rule 404(b) evidence absent
    affirmative steps by the defendant to remove intent as an issue. United States v.
    Zapata, 
    139 F.3d 1355
    , 1357-58 (11th Cir. 1998); see also United States v.
    Delgado, 
    56 F.3d 1357
    , 1365 (11th Cir. 1995). “[C]ircuit precedent regards
    virtually any prior drug offense as probative of the intent to engage in a drug
    conspiracy . . . .” 
    Matthews, 431 F.3d at 1311
    ; see also United States v. Butler,
    
    102 F.3d 1191
    , 1195-96 (11th Cir. 1997) (“[T]he logical extension of our current
    jurisprudence is to admit evidence of prior personal drug use to prove intent in a
    subsequent prosecution for distribution of narcotics.”).
    With respect to the second prong, there is sufficient proof of the defendant’s
    other act if a jury could find by a preponderance of the evidence that the defendant
    committed the act. United States v. Eduoard, 
    485 F.3d 1324
    , 1344 (11th Cir.
    2007). A defendant’s “own statement, admitting that he committed the act, even if
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    mere puffery, is sufficient to justify a jury finding that he committed the act.”
    United States v. Chilcote, 
    724 F.2d 1498
    , 1502 n.2 (11th Cir. 1984); United States
    v. Edwards, 
    696 F.2d 1277
    , 1280 (11th Cir. 1983).
    Under the third prong, to determine whether the probative value of the
    evidence is substantially outweighed by the danger of unfair prejudice, the district
    court considers all the circumstances of the extrinsic act, including “whether it
    appeared at the commencement of the trial that the defendant would contest the
    issue of intent, the overall similarity of the charged and extrinsic offenses, and
    temporal proximity between the charged and extrinsic offenses.” 
    Edouard, 485 F.3d at 1345
    . When the Rule 404(b) evidence goes to intent, rather than identity,
    less similarity between the charged and extrinsic acts is required, and a similarity
    in the overall purpose is enough. 
    Delgado, 56 F.3d at 1366
    .
    C.    Evidence of Hunter’s Post-Arrest Drug Use and Drug Sales
    The district court did not abuse its discretion in admitting evidence of
    Hunter’s post-arrest use and distribution of small quantities of alpha-PVP. As to
    the first prong, by pleading not guilty, Hunter put her intent at issue as to both
    charges. The selling of alpha-PVP to Burris and the charged offenses of
    conspiring to possess, and possessing, alpha-PVP with the intent to distribute
    involve the same state of mind. See 
    Edouard, 485 F.3d at 1345
    . While Hunter’s
    personal drug use did not require the same state of mind, this Court has held that
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    evidence of personal drug use outside the period of the alleged conspiracy is
    probative of intent to distribute or conspire to distribute drugs. See Matthews, 
    431 F.3d 1311
    ; 
    Butler, 102 F.3d at 1195
    . 3
    As to the second prong, the positive drug tests, Hunter’s admission that she
    used alpha-PVP and Burris’s testimony that Hunter both shared and sold her alpha-
    PVP were sufficient to allow the jury to find by a preponderance of the evidence
    that these acts occurred. See United States v. Barrington, 
    648 F.3d 1178
    , 1187
    (11th Cir. 2011).
    Turning to the third prong, the probative value of Hunter’s personal use and
    her sales to Burris of small quantities of alpha-PVP is not substantially outweighed
    by the risk of unfair prejudice. Hunter put up a “non-participant” defense,
    testifying that she was duped by James and Gallman and never knew that they
    were shipping alpha-PVP to her UPS Store mailbox. To refute Hunter and show
    that she knew all along that the packages contained alpha-PVP, the government
    relied primarily on the testimony of Glasco and James. Both witnesses had prior
    criminal histories and were key players in the drug importation scheme who faced
    stiff sentences. Both admitted testifying against Hunter in hopes of receiving
    3
    Although Hunter criticizes Butler and Matthews and asks us to “revisit this question,”
    we are bound by our prior precedent. See Smith v. GTE Corp., 
    236 F.3d 1292
    , 1303 (11th Cir.
    2001) (rejecting “any exception to the prior panel precedent rule based upon a perceived defect
    in the prior panel’s reasoning or analysis as it relates to the law in existence at that time”).
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    sentence reductions. Given these obvious credibility problems, the government’s
    need for additional relevant evidence of Hunter’s intent was significant.
    Hunter’s extrinsic acts involved the same drug–alpha-PVP–and, for the sales
    to Burris, the same intent to distribute. As for temporal proximity, Hunter’s post-
    arrest drug activity occurred within months to a year of her arrest. Importantly,
    too, the district court cautioned the jury, both when the evidence was admitted and
    again in the final jury charge, that they could consider the extrinsic acts evidence
    only to determine whether Hunter had the requisite state of mind and had not
    committed the charged acts by accident or mistake.
    In sum, we conclude that the district court did not abuse its discretion in
    admitting evidence of Hunter’s post-arrest drug activity because the evidence was
    relevant to show her intent to commit the charged crimes and was not unduly
    prejudicial.
    D.     Hunter’s Recorded Jail Phone Calls
    The district court did not abuse its discretion in admitting recordings and
    transcripts of Hunter’s jail phone calls under Rule 404(b). 4 In the first disputed
    recording, Hunter discussed precautions she had taken in the past to avoid
    detection by the DEA while driving between Florida and Texas. In the second,
    4
    Because we conclude the recordings were properly admitted under Rule 404(b), we do
    not address the government’s alternative argument that the recordings were inextricably
    intertwined with the charged drug conspiracy and thus outside the scope of Rule 404(b).
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    Hunter discussed getting “something to smoke” with “Dirt” and refused to
    elaborate on what Dirt had to do because she was speaking on a jail phone.
    First, to the extent these two phone calls demonstrated Hunter’s knowledge
    of and participation in prior drug deals, they were probative of her knowledge and
    intent to commit the charged crimes. 
    Matthews, 431 F.3d at 1311
    . Second,
    although Hunter’s statements were somewhat ambiguous, and Hunter disputed
    their meaning, the jury was free to disbelieve Hunter’s innocent explanations for
    them and to find by a preponderance of the evidence that her recorded statements
    were in fact oblique references to her past drug activity. See 
    Chilcote, 724 F.2d at 1502
    n.2; see also 
    Edwards, 696 F.2d at 1280
    . Third, the recordings were not
    unduly prejudicial considering their ambiguous nature and the district court’s
    repeated limiting instructions. See 
    Edouard, 485 F.3d at 1346
    . 5
    Further, any dispute as to the accuracy of one of the government’s
    transcripts was resolved by the district court’s ruling that Hunter could produce her
    own transcript and submit it to the jury. See United States v. Hogan, 
    986 F.2d 1364
    , 1376 (11th Cir. 1993) (explaining that the remedy for a party “skeptical of a
    transcript of a recorded conversation” is to prepare and submit his or her own
    5
    Alternatively, even if the two recorded phone calls were erroneously admitted, any error
    was harmless given the significant amount of uninfected evidence the government presented that
    supports the jury’s guilty verdict on Count Two. See 
    Langford, 647 F.3d at 1323
    .
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    transcript and to “put on evidence supporting the accuracy of [that] version or
    challenging the accuracy of the other side’s version”).
    III. CONCLUSION
    For all these reasons, the district court did not abuse its discretion in
    admitting evidence of Hunter’s post-arrest use and sale of alpha-PVP or the
    recordings of Hunter’s jail phone calls in which she seemingly discussed her past
    drug activities. Accordingly, we affirm Hunter’s conviction.
    AFFIRMED.
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