United States v. Taurus Javier Blackburn , 341 F. App'x 574 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12446 ELEVENTH CIRCUIT
________________________ AUGUST 12, 2009
THOMAS K. KAHN
CLERK
D. C. Docket No. 07-00250-CR-5-RDP-JEO
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TAURUS JAVIER BLACKBURN,
JEREMY TRAVON MALONE,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Northern District of Alabama
_________________________
(August 12, 2009)
Before CARNES and PRYOR, Circuit Judges, and STAGG,* District Judge.
PER CURIAM:
Taurus Javier Blackburn and Jeremy Travon Malone appeal their
*
Honorable Tom Stagg, United States District Judge for the Western District of
Louisiana, sitting by designation.
convictions for conspiracy to distribute and possess with intent to distribute
cocaine base (“crack cocaine”) pursuant to 21 U.S.C. §§ 841 and 846.
Additionally, Blackburn appeals his conviction for distribution of crack cocaine
pursuant to 21 U.S.C. § 841(a)(1). On appeal, Blackburn and Malone contend that
the evidence was insufficient to support their convictions. Blackburn further
contends that the district court abused its discretion by giving the jury an Allen 1
charge. Additionally, Malone contends that the district court abused its discretion
(1) in dismissing a prospective juror for cause for stating that he would require the
government to prove the defendants’ guilt to a mathematical certainty, (2) by
permitting testimony that six one-gallon bags of marijuana were discovered in
Malone’s apartment at the time of his arrest, and (3) by permitting testimony that
Malone escaped and fled after he was arrested.
I. Sufficiency of the evidence
We review challenges to the sufficiency of the evidence de novo, with the
evidence viewed in the light most favorable to the government. See United States
v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005). A defendant’s conviction must
be affirmed unless a jury could not, under a reasonable construction of the
evidence, have found him guilty beyond a reasonable doubt. See id. The
1
Allen v. United States, 164 U.S. 492, 17 S. Ct. 154 (1896).
2
sufficiency of the government’s evidence to convict Malone depends solely upon
its case-in-chief, as Malone did not present a defense. See United States v. Belt,
574 F.2d 1234, 1236-37 (5th Cir. 1978)2.
To convict a defendant for distribution of crack cocaine, the government
must prove that the defendant knowingly and intentionally distributed the crack
cocaine. See 21 U.S.C. § 841(a)(1). To convict a defendant for conspiracy to
possess with intent to distribute cocaine, the government must establish beyond a
reasonable doubt that (1) there was an illegal agreement to distribute crack cocaine,
(2) of which the defendant was aware, and (3) he knowingly and voluntarily joined
it. See United States v. Hernandez, 433 F.3d 1328, 1333 (11th Cir. 2005). The
illegal agreement prong requires the government to prove that the defendant came
to a “meeting of the minds” with someone else to achieve the unlawful result. See
United States v. Arbane, 446 F.3d 1223, 1229 (11th Cir. 2006). The agreement can
be proved by circumstantial evidence, including the conduct of the alleged
participants. See United States v. Obregon, 893 F.2d 1307, 1311 (11th Cir. 1990).
When the government uses circumstantial evidence, the jury’s verdict must
be supported by reasonable inferences, and not mere speculation. See United
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), we
adopted as binding precedent the decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
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States v. Charles, 313 F.3d 1278, 1284 (11th Cir. 2002). The evidence does not
have to exclude every reasonable hypothesis of innocence, as a jury is permitted to
choose between reasonable constructions of the evidence. See United States v.
Cruz-Valdez, 773 F.2d 1541, 1545 (11th Cir. 1985) (en banc). Additionally, a jury
may consider a defendant’s disbelieved testimony as substantive evidence of his
guilt, and when there is corroborative evidence of guilt, the defendant’s denial of
guilt may establish, by itself, elements of the crime. See United States v. Brown,
53 F.3d 312, 314-15 (11th Cir. 1995). This rule especially applies when the
element that must be proven is the defendant’s intent. See id. at 315.
Here, the evidence, when viewed in the light most favorable to the
government, was sufficient to support both Blackburn’s and Malone’s conspiracy
convictions. Contrary to Malone’s assertion, the government did not have to prove
that he possessed crack cocaine because he was not charged with possession of
crack cocaine but with conspiring to distribute and to possess with intent to
distribute crack cocaine. It is reasonable to infer that Blackburn and Malone
knowingly and voluntarily conspired and agreed to distribute and possess with
intent to distribute crack cocaine because (1) Malone mailed a package to
Blackburn, who mailed it back two days later filled with 82.37 grams of powder
cocaine, 50.53 grams of crack cocaine, and 12.1 grams of marijuana, (2) Blackburn
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was visibly nervous, used a false name and return address, and listed an inoperative
telephone number, (3) Blackburn and Malone talked several times during the
course of the package being shipped back and forth, including talking five times
over the phone on the date that Blackburn mailed the package back to Malone, and
(4) Malone used his and his mother’s computers to continually check on the
delivery status of the package. Additionally, it is reasonable to infer that
Blackburn would not have mailed $6,500 to $7,000 worth of drugs, including
50.53 grams of crack cocaine worth $2,500, to Malone unless Blackburn and
Malone had an agreement to possess the drugs with intent to distribute them. See
United States v. Quilca-Carpio, 118 F.3d 719, 722 (11th Cir. 1997) (stating that it
is reasonable to infer that drug smugglers are not likely to entrust the drugs to an
innocent person without the person’s knowledge). Further, the jury’s finding that
Blackburn’s testimony denying his guilt was false is substantive evidence that he
conspired with Malone to distribute and possess with intent to distribute crack
cocaine.
The evidence was also sufficient to establish that Blackburn knowingly
distributed crack cocaine by mailing the package, as (1) he was visibly nervous, (2)
he used a false name and address, (3) he listed an inoperative telephone number,
(4) he paid in cash, and (5) he taped the package so that all of the openings were
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covered. Again, because there is corroborative evidence of guilt, Blackburn’s
disbelieved testimony that he did not know the package contained drugs is
substantive evidence that he knowingly mailed the crack cocaine.
II. Allen charge
We review the giving of an Allen charge for an abuse of discretion. See
United States v. Woodard, 531 F.3d 1352, 1364 (11th Cir. 2008). A district court
abuses its discretion only if the charge was inherently coercive. See id. In
determining whether the charge was coercive, we consider the language used and
the totality of the circumstances surrounding the charge, including (1) whether the
jury was polled before the charge was given, and (2) the amount of time that
elapsed between the charge and the return of the verdict. See id. We have held
that the language of the pattern Allen charge is non-coercive. See id. In Woodard,
we held that the district court did not abuse its discretion in giving a pattern Allen
charge where there was no jury poll because (1) the court did not give the charge
until after the second time that the jurors informed the court that they were
deadlocked and (2) the jurors deliberated for four hours after the charge before
they returned a verdict. See id.The district court did not err by giving the Allen charge because the court
gave the pattern instruction after the jurors informed the court for a second time
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that they were deadlocked, and the jurors deliberated for a day after the charge was
given.
III. Striking of prospective juror for cause
We review the district court’s decision to strike a prospective juror for cause
for an abuse of discretion. See United States v. Brown, 441 F.3d 1330, 1356 (11th
Cir. 2006). A prospective juror can be impartial if he can set his personal opinions
aside and render a verdict based solely on the evidence. See United States v.
Simmons, 961 F.2d 183, 184 (11th Cir. 1992). Because the district court had the
opportunity to see and hear the juror, we must give deference to the district court’s
determination that the juror will be unable to apply the law faithfully. See Brown,
441 F.3d at 1357. There are few aspects of a jury trial where we are less inclined
to reverse a district court’s exercise of discretion than with regard to striking a
juror for cause. See United States v. Tegzes, 715 F.2d 505, 509 (11th Cir. 1983).
The district court determined that the juror in question could not put aside
his personal opinions and render a verdict based upon the evidence because the
juror (1) testified that he would have a problem with passing any sort of judgment
based upon circumstantial evidence and (2) stated several times that he would
require that guilt or innocence be established to a mathematical certainty. While
the juror did not speak up when the panel was asked as a whole if they would have
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trouble following the district court’s instructions, when the question was asked to
this juror personally, he stated that he would have trouble following the district
court’s instructions with regard to finding guilt based upon circumstantial
evidence.
After hearing and observing the juror, the district court did not abuse its
discretion in concluding that the juror would not be able to set aside his view that
guilt or innocence had to be established to a mathematical certainty. See Simmons,
961 F.2d at 184; Brown, 441 F.3d at 1357. Additionally, the district court was not
required to inquire further about the juror’s views because the juror stated clearly
that he would not be able to pass judgment based upon circumstantial evidence,
and the parties had a full opportunity to question the juror prior to the court’s
ruling.
IV. Evidence seized at the time of Malone’s arrest
We review evidentiary rulings for an abuse of discretion. See United States
v. Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006). Federal Rule of Evidence 404(b)
provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident. . . .
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Fed. R. Evid. 404(b). We apply a three-part test in determining whether prior bad
acts were admissible under Rule 404(b): (1) the evidence was relevant for a reason
other than for establishing the defendant’s character; (2) the probative value of the
evidence was not substantially outweighed by undue prejudice; and (3) there was
substantial evidence presented at trial that the defendant committed the prior act.
See United States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir. 2008). It is irrelevant
whether the defendant committed the other crimes that are introduced under Rule
404(b) after, rather than before, he committed the charged offense. See United
States v. Delgado, 56 F.3d 1357, 1365 (11th Cir. 1995). We do not need to
consider the third prong when the defendant does not challenge the sufficiency of
the evidence supporting the extrinsic act. See United States v. Matthews, 431 F.3d
1296, 1311 n.14 (11th Cir. 2005).
Malone argues that the district court abused its discretion by permitting
testimony that marijuana and drug paraphernalia were found in his apartment at the
time of his arrest because possession of marijuana was dissimilar to his charged
conspiracy to possess with intent to distribute crack cocaine. Malone contends that
the probative value of the evidence was substantially outweighed by the danger of
unfair prejudice, arguing that the extrinsic evidence was the only evidence that
suggested that he was involved with drugs.
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The officer’s testimony regarding the items found in Malone’s apartment
was introduced to establish Malone’s intent to enter into the conspiracy, and he
made his intent a material issue by pleading not guilty. See Ellisor, 522 F.3d at
1267; Matthews, 431 F.3d at 1310-11. While Malone is correct that there are
factual dissimilarities between the charged offense and the extrinsic evidence, the
required degree of similarities between the evidence and the charged offense was
low because the extrinsic evidence was introduced to establish intent in a drug
case. See Matthews, 431 F.3d at 1311; Delgado, 56 F.3d at 1366. Further, the
probative value of the extrinsic evidence was not substantially outweighed by
undue prejudice because the evidence was necessary for establishing intent. The
district court properly instructed the jurors that they could only consider the
evidence in determining whether Malone had the intent necessary to commit the
charged offense, not in deciding if he committed the underlying acts. See United
States v. Jernigan, 341 F.3d 1273, 1282-83 (11th Cir. 2003). Therefore, the district
court did not abuse its discretion by permitting evidence that six one-gallon bags of
marijuana were found in Malone’s apartment when he was arrested.
V. Evidence of Malone’s flight
We review the admission of flight evidence for an abuse of discretion, and
we will not reverse absent a showing of clear abuse. See United States v. Blakey,
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960 F.2d 996, 1001 (11th Cir. 1992). Evidence of flight is admissible to establish a
consciousness of guilt, and thereby the defendant’s guilt. See id. at 1000. The
probative value of such evidence diminishes “if the defendant has committed
several unrelated crimes or if there has been a significant time delay between the
commission of the crime or the point at which the accused has become aware that
he is the subject of a criminal investigation, to the time of flight.” Id. at 1000-01(citation omitted).
The interpretation to be drawn from a defendant’s flight should be made
with caution and based upon the facts of the particular case. See United States v.
Borders, 693 F.2d 1318, 1325 (11th Cir. 1982). The probative value of flight as
circumstantial evidence of guilt depends upon how confidently these four factual
inferences can be drawn: “(1) from the defendant’s behavior to flight; (2) from
flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of
guilt concerning the crime charged; and (4) from consciousness of guilt concerning
the crime charged to actual guilt of the crime charged.” Id. The more remote a
defendant’s flight is from the commission of an offense, the greater the likelihood
that the defendant’s flight resulted from something other than a consciousness of
guilt with regard to that offense. See United States v. Myers, 550 F.2d 1036, 1051
(5th Cir. 1977); Borders, 693 F.2d at 1326.
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Malone contends that the district court abused its discretion by permitting
evidence regarding his attempted escape and resistance to arrest because he did not
attempt to escape or resist arrest until after he was informed that officers were
obtaining a search warrant for his apartment, which he contends establishes that his
actions were based upon his fear that officers would find marijuana in his
apartment, not that he had a guilty conscience regarding the charged offense. The
government counters that the evidence was properly admitted because evidence of
flight is admissible to demonstrate guilt and the district court instructed the jury
that there might have been reasons for Malone’s flight that were fully consistent
with his innocence.
As this court has previously stated: “People, including jurors, realize that
while ‘[t]he wicked flee when no man pursueth,’ Proverbs 28:1 (KJV), they really
flee when law enforcement is looking for them.” United States v. Kennard, 472
F.3d 851, 855 (11th Cir. 2006). Malone fled shortly after he learned that he had
been indicted for the drugs found in the seized package charged in the conspiracy.
In addition, it appears Malone fled at the first available opportunity after he learned
about the federal charges. The testimony of the arresting officer during direct and
cross-examination only bolsters this conclusion:
Q: [W]hat, if anything, did you tell Mr. Malone as to why he was
being arrested?
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A: I advised Mr. Malone that he was being arrested for the incident
that had occurred the following -- the previous July and that he
was under arrest for trafficking in cocaine.
See Volume 4 at 396. As anyone in the “drug trade” would know, jail time for 50
grams of crack cocaine far exceeds that to be meted out for several pounds of
marijuana.3
Prior to the testimony of the officer, the court gave a limiting instruction to
the jury which stated that the similar act evidence could not be considered in
deciding if Malone committed the acts charged in the indictment but that the acts
could be considered for other very limited purposes. See Volume 4 at 393-394. In
the final jury instructions, the court informed the jury that (1) post-arrest conduct is
not, in itself, sufficient to establish guilt; (2) evidence of flight “may” -- not must --
be considered by the jury as evidence of consciousness of guilt and of guilt; (3) in
considering the evidence of flight, there may be reasons for the conduct which are
fully consistent with innocence; and (4) “[a] feeling of guilty does not necessarily
reflect actual guilt of a crime.” Volume 5 at 640. The district court did not abuse
its discretion when it admitted evidence of Malone’s flight.
AFFIRMED.4
3
The difference would be between an offense level of 32 versus an offense level of 16.
See U.S.S.G. § 2D1.1(Drug Quantity Table).
4
This case was originally scheduled for oral argument, but the panel unanimously
decided that oral argument was not necessary. See 11th Cir. R. 34-3(f).
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