United States v. Demetrius J. Hawkins , 268 F. App'x 824 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 6, 2008
THOMAS K. KAHN
No. 07-12336
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 06-00012-CR-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEMETRIUS J. HAWKINS,
TERRENCE CORNELIUS,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Middle District of Alabama
_________________________
(March 6, 2008)
Before CARNES, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Demetrius J. Hawkins and Terrence Cornelius, through counsel, appeal their
convictions for conspiracy to possess with the intent to distribute marijuana, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii), 846. On appeal, we consider
(1) whether the district court erroneously failed to grant Cornelius’s motion to
suppress his confession on the ground that the government failed to establish that
he had waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966); (2) whether the district court abused its discretion and
violated Hawkins’s Sixth Amendment right to confrontation by refusing to permit
continued cross-examination of a trial witness; (3) whether sufficient evidence
supported Cornelius’s conviction; and (4) whether Hawkins’s ineffective
assistance claim is cognizable on direct appeal.
I.
Cornelius argues that the district court admitted a statement he made to
federal agents in violation of his Fifth Amendment right against self-incrimination.
“We apply a mixed standard of review to the denial of a defendant’s motion to
suppress, reviewing the district court’s findings of fact for clear error and its
application of law to those facts de novo.” United States v. Lyons, 403 F.3d 1248,
1250 (11th Cir. 2005). Moreover, “all facts are construed in the light most
favorable to the prevailing party below.” United States v. Bervaldi, 226 F.3d 1256,
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1262 (11th Cir. 2000).
When a suppression issue is raised for the first time on appeal, we have
either declined to consider the issue, see United States v. Cooper, 203 F.3d 1279,
1284 n.2 (11th Cir. 2000), or have reviewed the issue for plain error, see United
States v. Young, 350 F.3d 1302, 1305 (11th Cir. 2003). We will, in our discretion,
correct plain error where there is (1) error, (2) that is plain, and (3) that affects
substantial rights, but only if (4) the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings. United States v. Arbolaez, 450 F.3d
1283, 1291 (11th Cir. 2006) (per curiam). The burden of proving prejudice rests
with the non-objecting defendant. See United States v. Olano, 507 U.S. 725, 735,
113 S. Ct. 1770, 1778, 123 L. Ed. 2d 508 (1993).
An accused has effectively waived his Miranda rights if he: (1) voluntarily
relinquished them as the product of a free and deliberate choice, rather than
through intimidation, coercion, or deception; and (2) made his decision with a full
awareness of both the nature of the right being abandoned and the consequences of
the decision to abandon it. United States v. Barbour, 70 F.3d 580, 585 (11th Cir.
1995). A waiver is effective where the “totality of the circumstances surrounding
the interrogation reveal both an uncoerced choice and the requisite level of
comprehension. . . .” Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141,
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89 L. Ed. 2d 410 (1986) (internal quotation marks omitted). Accordingly, “an
express written or oral statement of waiver of the right to remain silent or of the
right to counsel is usually strong proof of the validity of that waiver, but is not
inevitably either necessary or sufficient to establish waiver.” North Carolina v.
Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 1757, 60 L. Ed. 2d 286 (1979).
Upon review of the record, and upon consideration of the briefs of the
parties, we discern no reversible error. Although Cornelius contends that no
evidence was presented at the suppression hearing that he was Mirandized, it was
not an issue at the hearing and is not grounds for reversing on appeal. Even under
plain error review, we conclude that Cornelius’s substantial rights were not
affected. See Young, 350 F.3d at 1305. The evidence showed that he was advised
of his rights post-arrest and chose to make statements. Furthermore, sufficient
evidence supported his conviction even without his confession.
II.
Hawkins asserts that the district court’s improper limitation of the cross-
examination of co-defendant Troy Williams prevented the jury from accurately
judging Williams’s veracity, specifically concerning his criminal history. Williams
had prior convictions and was indicted as a conspirator, but he denied knowing
Cornelius or Hawkins.
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A district court has discretionary authority to limit cross-examination, and
review is for an abuse of discretion. United States v. Burke, 738 F.2d 1225, 1227
(11th Cir. 1984). Evidentiary objections that were not timely raised at trial are
reviewed for plain error. United States v. Edouard, 485 F.3d 1324, 1343 (11th Cir.
2007).
In reviewing issues under Federal Rule of Evidence 403, we view the
evidence “in a light most favorable to its admission, maximizing its probative
value and minimizing its undue prejudicial impact.” Id. at 1344 n.8 (internal
quotation marks omitted).
For the purpose of attacking the character for truthfulness of a
witness, (1) evidence that a witness other than an accused has been
convicted of a crime shall be admitted, subject to Rule 403, if the
crime was punishable by death or imprisonment in excess of one year
under the law under which the witness was convicted . . . .
Fed. R. Evid. 609. Relevant evidence is “evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Fed. R.
Evid. 401. Relevant evidence may be excluded, however, if its probative value is
substantially outweighed by, inter alia, considerations of undue delay, waste of
time, or needless presentation of cumulative evidence. Fed. R. Evid. 403.
Nevertheless, “Rule 403 is an extraordinary remedy, which should be used only
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sparingly, and the balance should be struck in favor of admissibility.” Edouard,
485 F.3d at 1344 n.8 (internal quotation marks and brackets omitted).
Because only Cornelius’s counsel objected to the limits placed on the cross-
examination of co-defendant Williams, Hawkins raises this issue for the first time
on appeal and review is for plain error. See Edouard, 485 F.3d at 1343.
Williams’s criminal record was analyzed during direct examination. Thus, to the
extent that Hawkins argues that he had specific questions to ask Williams that had
not been asked previously, the district court did not plainly err because Williams’s
criminal history had been sufficiently elicited. Accordingly, the district court did
not abuse its discretion when it refused to permit continued cross-examination at
trial regarding Williams’s criminal record.
III.
Hawkins contends that the district court’s refusal to admit the nature and
number of Williams’s convictions violated his Sixth Amendment right to
confrontation. Constitutional objections that are not timely raised, including
Confrontation Clause objections, are reviewed only for plain error. Arbolaez, 450
F.3d at 1291. Although a district court has discretionary authority to limit cross-
examination, it must permit sufficient cross-examination to satisfy the Sixth
Amendment’s Confrontation Clause. Burke, 738 F.2d at 1227. The Confrontation
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Clause is satisfied once sufficient information is elicited from a witness and the
jury “can adequately gauge the witnesses’ credibility.” Id. at 1227.
Because Hawkins did not raise a Confrontation Clause objection below,
review of this claim is for plain error as well. Arbolaez, 450 F.3d at 1291. The
number and nature of Williams’s past crimes were elicited during direct
examination, Cornelius’s counsel was permitted to cross-examine Williams, and
Hawkins has not specified how the absence of any additional information affected
his substantial rights. We thus conclude that Williams was sufficiently cross-
examined regarding his criminal history to enable the jury to adequately gauge his
credibility. Accordingly, Hawkins’s Sixth Amendment right to confrontation was
not violated.
IV.
Cornelius argues that the evidence was insufficient to support his conviction.
We review challenges to the sufficiency of the evidence in criminal cases de novo,
viewing the evidence in the light most favorable to the government. United States
v. Futrell, 209 F.3d 1286, 1288 (11th Cir. 2000).
“After the government closes its evidence or after the close of all the
evidence, the court on the defendant’s motion must enter a judgment of acquittal of
any offense for which the evidence is insufficient to sustain a conviction.” Fed. R.
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Crim. P. 29(a). The relevant question in reviewing the denial of a motion for
acquittal “is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). “A conviction must be upheld unless the
jury could not have found the defendant guilty under any reasonable construction
of the evidence.” United States v. Chastain, 198 F.3d 1338, 1351 (11th Cir. 1999).
“It is not necessary that the evidence exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except that of guilt.”
United States v. Faust, 456 F.3d 1342, 1345 (11th Cir.), cert. denied, 127 S. Ct.
615, 166 L. Ed. 2d 456 (2006). Credibility determinations are the sole province of
the jury and we may not revisit that question. Chastain, 198 F.3d at 1351.
In order to sustain Cornelius’s conspiracy conviction under 21 U.S.C.
§§ 841 and 846, the government must have offered sufficient evidence to prove
beyond a reasonable doubt that: (1) an illegal agreement existed to possess with
intent to distribute a controlled substance – here, identified as marijuana in the
indictment; (2) Cornelius knew of the agreement; and (3) Cornelius knowingly and
voluntarily joined the agreement. See United States v. Charles, 313 F.3d 1278,
1284 (11th Cir. 2002) (per curiam). Although the government was not required to
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prove that Cornelius knew every detail or participated in every stage of the
conspiracy, it must have established that he “knew the essential nature of the
conspiracy.” Id. (internal quotation marks omitted). The government was not
required to prove an overt act in furtherance of the 21 U.S.C. § 846 conspiracy.
United States v. Baker, 432 F.3d 1189, 1200 n.3 (11th Cir. 2005).
“The existence of an agreement may be proven by circumstantial evidence,
including inferences from the conduct of the alleged participants or from
circumstantial evidence of a scheme.” United States v. Silvestri, 409 F.3d 1311,
1328 (11th Cir. 2005) (internal quotation marks omitted). In fact, an entire
“[c]onspiracy may be proven by circumstantial evidence and the extent of
participation in the conspiracy or extent of knowledge of details in the conspiracy
does not matter if the proof shows the defendant knew the essential objective of the
conspiracy.” United States v. Gupta, 463 F.3d 1182, 1194 (11th Cir. 2006)
(internal quotation marks omitted), cert. denied, 127 S. Ct. 2446, 167 L. Ed. 2d
1132 (2007). Furthermore, the government is not required to “prove that each
conspirator agreed with every other conspirator, knew of his fellow conspirators,
was aware of all of the details of the conspiracy, or contemplated participating in
the same crime.” United States v. Browne, 505 F.3d 1229, 1274 (11th Cir. 2007).
Sufficient evidence supported Cornelius’s conviction. The evidence
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presented at trial against Cornelius included, among other evidence, co-conspirator
testimony, recorded telephone conversations between Cornelius and a co-
conspirator, DEA agent testimony that Cornelius and a co-conspirator engaged in
behavior consistent with the recorded telephone calls, and Cornelius’s post-arrest
statement that he was on his way to get at least twenty pounds of marijuana when
he was arrested. That evidence established beyond a reasonable doubt that an
illegal agreement existed to possess with intent to distribute marijuana and that
Cornelius not only knew of the agreement but knowingly and voluntarily joined it.1
V.
Finally, Hawkins argues for the first time on appeal that his trial counsel
provided ineffective assistance. “Claims of ineffective assistance of counsel
generally are not considered for the first time on direct appeal unless the record is
sufficiently developed.” United States v. Le, 256 F.3d 1229, 1241 (11th Cir.
2001). “When an ineffective-assistance claim is brought on direct appeal,
appellate counsel and the court must proceed on a trial record not developed
1
We likewise conclude that Cornelius’s claims that the two verdicts here were
inconsistent, and that Canady’s testimony was incredible as a matter of law, are meritless. See
United States v. Thompson, 422 F.3d 1285, 1291 (11th Cir. 2005) (holding that testimony is not
incredible as a matter of law merely because the witness has consistently lied, engaged in
criminal activities, and testified with the belief that he would benefit); United States v. Andrews,
850 F.2d 1557, 1561 (11th Cir. 1988) (en banc) (holding that inconsistent verdicts on separate
charges against a single defendant and also with respect to jointly tried co-defendants are not
grounds for setting the verdicts aside).
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precisely for the object of litigating or preserving the claim and thus often
incomplete or inadequate for this purpose.” Massaro v. United States, 538 U.S.
500, 504-05, 123 S. Ct. 1690, 1694, 155 L. Ed. 2d 714 (2003).
Although the transcripts of the first and second trials are included in the
record on appeal, the record has not been developed precisely for the object of
litigating an ineffective assistance of counsel claim. See Id. Accordingly, we will
not address this claim on direct appeal.
For the reasons set forth above, we affirm the convictions of Hawkins and
Cornelius.
AFFIRMED.
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