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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10254
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D.C. Docket No. 1:15-cr-20613-DMM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PATRICK JACQUES,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 1, 2017)
Before WILSON and ROSENBAUM, Circuit Judges, and TITUS, ∗ District Judge.
PER CURIAM:
∗
Honorable Roger W. Titus, United States District Judge for the District of Maryland,
sitting by designation.
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Patrick Jacques appeals his below-the-guidelines range sentence, imposed
after he was convicted by a jury for (1) possession of a firearm and ammunition by
a felon, (2) possession of a firearm in furtherance of a drug trafficking crime, and
(3) possession of a controlled substance with the intent to distribute. On appeal,
Jacques argues that his trial was plagued by several errors: insufficient evidence,
improperly admitted testimony, prosecutorial misconduct, and erroneous jury
instructions. Although he contends that any of these errors alone warrants relief,
Jacques claims that the multiple errors worked together, causing his trial to be
fundamentally unfair. Jacques also argues that the district court made a sentencing
error in designating him as a career offender. After a careful review of the parties’
briefs, the record, and with the benefit of oral argument, we affirm.
On September 24, 2014, Patrol Officer Edgar Rivera of the Miami Police
Department was on duty in the “Little Haiti” neighborhood of Miami when he
received an assault call. At the scene, he spoke to a woman who gave him a
description of her assailants. Officer Rivera was parked just a few blocks away
writing up his incident report when he received another assault call from the same
address; this time for shots fired. He drove the short distance back to the scene and
again spoke to the same woman, who now reported that a couple in a gray Nissan
with paper license plates had approached her and fired a gun at her. The woman
provided a description of the couple and a partial license plate number. Officer
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Rivera responded by issuing a “be on the lookout” (BOLO) notice for the alleged
assailants, the car, and the partial license plate number.
Nearby, Patrol Officer Reynold Philippe, who was also on duty in Little
Haiti, spotted a car and a couple matching the description of Officer Rivera’s
BOLO—a gray Nissan Altima with a female driver and a male passenger. Officer
Philippe, with the assistance of other officers, pursued the car and ordered its
occupants out. The female driver was identified as Marlene Phanor and the male
passenger was identified as Patrick Jacques. The car, which belonged to Phanor,
was searched at the scene. From it, the police recovered a small .32 caliber
handgun, 37 individual baggies of marijuana, and a pill bottle containing 10 rocks
of crack cocaine, all concealed in the trunk. Both Jacques and Phanor were
arrested and transported to the police station in separate vehicles.
At the station, Jacques was interrogated by Officer Philippe and two Bureau
of Alcohol, Tobacco, and Firearms (ATF) agents. During the interrogation, and
after waiving his rights, Jacques made several incriminating admissions and
statements. He admitted to being near or at the address where the incidents
occurred. He claimed that he was there arguing with a man whom he identified
only as “Peterson,” and Peterson’s girlfriend. Jacques said that Peterson shot at
him—not the other way around, as was reported by the woman that spoke to
Officer Rivera. Jacques also disclosed that he had been smoking marijuana that
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day and that he had some marijuana in the ashtray of the car, or on his person. But
he denied selling marijuana that day and he denied having ever sold crack cocaine.
Jacques, however, indicated that he had sold marijuana in the past and expressed
that, on that day, he had “at least like 175 weed.” Jacques also revealed that he had
knowledge of what he described as a “bomb” in the car. Moreover, while Jacques
initially denied knowing about the gun, he eventually divulged that he was the one
that put the gun in the trunk; he has always denied firing it.
At trial, no gunshot residue (GSR) or DNA evidence was presented because
the evidence had been destroyed. Officer Philippe testified as a lay witness
regarding the interrogation and Detective Wayne Tillman testified as an expert
based on his experience as an undercover narcotics officer. Detective Tillman
testified as to the street value of the crack cocaine and marijuana, as well as to the
packaging of the marijuana that was found in the car, opining that the substances
were intended for distribution. More specifically, Detective Tillman testified that
the 37 individual bags of marijuana recovered from the car were packaged in small
zip-lock baggies and that each bag would likely sell for $5 on the street—meaning
the amount of marijuana in the car was worth approximately $185.00. Detective
Tillman also testified to the meaning of the term “bomb,” explaining that it means
a container or bag with smaller amounts of drugs in it. Finally, Detective Tillman
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testified that the gun found in the car was frequently used by drug dealers because
it was small and easy to conceal.
Jacques was convicted. At sentencing, Jacques objected to his career
offender designation. His objection was overruled, and he was sentenced to 120
months’ imprisonment. He timely appealed.
Jacques’ various trial-related arguments fail because there were either no
errors at all or only harmless ones; and none of them worked together to create the
kind of fundamental unfairness needed to raise a cumulative effect of errors claim.
There also was no error in Jacques’ classification as a career offender. We briefly
discuss each argument in turn.
First, there was sufficient evidence to support Jacques’ conviction. His own
statement not only establishes that he had marijuana on the day that he was
arrested and that he frequently sold it, but it also places the gun in his possession.
Vacating a jury’s guilty verdict is appropriate only when no “reasonable
construction of the evidence” points to guilt beyond a reasonable doubt. United
States v. Wilson,
788 F.3d 1298, 1308 (11th Cir. 2015) (internal quotation marks
omitted). Given the evidence, the jury was not unreasonable in finding that
Jacques was guilty.
Second, the testimony by Officer Philippe regarding Jacques’ interrogation
was admissible. But even if some of it was admitted in error, it was harmless
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because Jacques was not prejudiced. Officer Philippe’s testimony was based on
his own personal perceptions from his participation in the interrogation. It was
also helpful to the jury. We have held that lay opinion testimony is admissible
when it is based on the witness’s personal knowledge or perceptions and is helpful
to the jury in determining an issue of fact. United States v. Rivera,
780 F.3d 1084,
1094 (11th Cir. 2015); United States v. Moran,
778 F.3d 942, 967 (11th Cir. 2015).
All the same, Officer Philippe’s testimony was duplicative of Detective Tillman’s
testimony; thus, if there was any error in admitting it, such error was harmless.
Third, Jacques challenges the prosecutor’s remarks during closing
arguments. While the prosecutor’s remark implying that the police only arrest
criminals was improper, it did not warrant reversal given that Jacques’ substantial
rights were not prejudiced. United States v. Lopez,
590 F.3d 1238, 1256–57 (11th
Cir. 2009) (explaining that a “reasonable probability [] that, but for the remarks,
the outcome of the trial would have been different” is necessary for reversal)
(internal quotation marks omitted). It was only one stray remark in a lengthy
closing argument and the jury likely would have convicted Jacques irrespective of
the remark. Jacques’ own statements made up the other evidence against him,
which was strong proof of his guilt.
Fourth, the district court did not abuse its discretion in refusing to give a
spoliation jury instruction, because we have yet to recognize whether a spoliation
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jury instruction is applicable in a criminal context and decline to do so here.
Because the law is unclear, there is no way to establish that Jacques’ instruction
was a correct statement of the law, meaning that the district court was not required
to give the instruction. United States v. Lanzon,
639 F.3d 1293, 1302 (11th Cir.
2011).
Finally, Jacques’ career offender designation was not erroneous. Regardless
of whether Florida burglary of an occupied dwelling is a crime of violence under
the enumerated clause, it is so under the residual clause. Beckles v. United States,
580 U.S. ___, ___,
137 S. Ct. 886, 890 (2017).
AFFIRMED.
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