United States v. Demetrium Silas Shaw , 482 F. App'x 449 ( 2012 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 10-15178
Non-Argument Calendar
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D.C. Docket No. 8:09-cr-00251-JSM-MAP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEMETRIUM SILAS SHAW,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Middle District of Florida
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(July 13, 2012)
Before HULL, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Demetrium Silas Shaw appeals from his convictions and 240-month total
sentence for conspiring to possess with intent to distribute 50 grams or more of
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crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A)(iii) and 846, and
possessing with intent to distribute 50 grams or more of crack cocaine, in violation
of 21 U.S.C. § 841(a)(1) & (b)(1)(A)(iii). On appeal, Shaw argues that the district
court erred in denying his motion to suppress evidence seized as a result of a
search of his property because the affidavit underlying the search warrant
allegedly contained material misrepresentations and omissions. He next argues
that the court erred in denying his motion for a new trial based on newly
discovered evidence that one of the witnesses against him had made false
statements during his testimony. Finally, Shaw argues that he should have been
sentenced under the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220,
124 Stat. 2372 (2010), because he was sentenced after the Act’s effective date.
I.
“Review of a district court’s denial of a motion to suppress is a mixed
question of law and fact.” United States v. Delancy, 502 F.3d 1297, 1304 (11th
Cir. 2007). We review the district court’s factual findings for clear error and its
interpretation and application of the law de novo, construing all facts in the light
most favorable to the prevailing party. Id.For a search warrant to be valid, it must be supported by probable cause.
U.S. Const. amend. IV. “Probable cause to support a search warrant exists when
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the totality of the circumstances allow a conclusion that there is a fair probability
of finding contraband or evidence at a particular location.” United States v.
Brundidge, 170 F.3d 1350, 1352 (11th Cir. 1999). Accordingly, the search
warrant affidavit must “state facts sufficient to justify a conclusion that evidence
or contraband will probably be found at the premises to be searched.” United
States v. Martin, 297 F.3d 1308, 1314 (11th Cir. 2002) (quotation omitted).
“[T]he affidavit should establish a connection between the defendant and the
residence to be searched and a link between the residence and any criminal
activity.” Id.Search warrant affidavits are presumptively valid. Franks v. Delaware, 438
U.S. 154, 171, 98 S. Ct. 2674, 2684 (1978). However, a search warrant may be
voided and the fruits of the search excluded if the warrant affidavit contained
certain misrepresentations or omissions. Id. at 155-56, 98 S. Ct. at 2676. A
defendant must show that (1) “the alleged misrepresentations or omissions were
knowingly or recklessly made” and (2) “the result of excluding the alleged
misrepresentations and including the alleged omissions would have been a lack of
probable cause for issuance of the warrants.” United States v. Novaton, 271 F.3d
968, 986-87 (11th Cir. 2001).
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In this case, the record shows that undercover Deputies William Sims and
Demetrius Dixon purchased crack cocaine from Eddie Light on March 11, 13, 18,
and 31, 2009. During the March 11 sale, the deputies accompanied Light to
Shaw’s residence, where Light appeared to enter the side of Shaw’s house and
then returned with crack cocaine to sell to the deputies. During the March 13 buy,
the deputies observed Light walk in the direction of Shaw’s residence and then
return with crack cocaine. For the March 18 buy, deputies actually saw Light
enter Shaw’s house and return with drugs. On March 31, the deputies purchased a
larger quantity of crack cocaine from Light, although this transaction did not occur
at Shaw’s residence, nor did the deputies see Light come from Shaw’s residence.
On April 2, 2009, Deputy Sims obtained a search warrant for Shaw’s
residence and an arrest warrant for Shaw. In his affidavit for a warrant, Deputy
Sims said, inter alia, that he had witnessed Light actually enter Shaw’s residence
during the March 11 and 18 sales. Deputy Sims omitted all references to the
March 31 drug buy, which had not occurred at Shaw’s residence. The search of
Shaw’s residence and vehicles turned up 405.2 grams of crack cocaine, 76 grams
of cocaine powder, and 414 grams of marijuana, as well as scales, handguns, and
ammunition.
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During the hearing to suppress this evidence, Deputy Sims testified that he
had not actually witnessed Light enter Shaw’s house on March 11. Rather, Deputy
Sims had seen Light walk up the driveway towards the side of the house into an
area enclosed by a six-foot fence and containing a wheelchair ramp into Shaw’s
bedroom, then return shortly with the crack cocaine. Shaw argues that this
misstatement, combined with the failure to mention the March 31 drug buy,
renders the warrant void, and thus the fruits of the warrant should have been
excluded.
Deputy Sims admitted that it “was a poor choice of words” to say that Light
had actually entered Shaw’s house. However, there is no evidence that Deputy
Sims intended to mislead the magistrate judge with a “deliberate falsehood.”
Franks, 438 U.S. at 171, 98 S. Ct. at 2684. Even if the warrant contained exactly
what Deputy Sims saw, there still would have been probable cause to search
Shaw’s residence given the reasonable inference that Light indeed had gone into
the house on March 11, as well as the fact that the deputies had actually seen Light
enter Shaw’s residence during the March 18 buy.
Shaw also claims that omitting the March 31 drug buy rendered the warrant
void. That is, he argues that even though the deputies had no direct evidence that
the last drug purchase involved Shaw’s residence in any way, Deputy Sims still
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should have included it in his affidavit for a warrant to search Shaw’s residence.
Shaw argues that the March 31 buy tended to show that Light was getting cocaine
from a source other than Shaw’s residence. However, the existence of this final
purchase did not diminish the probable cause obtained during the previous
purchases where Light had been seen entering Shaw’s property and returning with
crack cocaine. The March 31 buy did not produce evidence that Light had been
obtaining the cocaine from a source other than Shaw. In other words, Shaw
cannot show that including the March 31 purchase in the affidavit would have
destroyed the probable cause from the previous cocaine purchases at Shaw’s
property. Novaton, 271 F.3d at 986-87.
Because the affidavit supporting the search warrant of Shaw’s property did
not contain misrepresentations or omissions that were knowingly or recklessly
made, and because there was probable cause that contraband would be found at
Shaw’s property, the district court did not err in denying Shaw’s motion to
suppress evidence seized during the execution of that warrant.
II.
We review a district court’s denial of an evidentiary hearing for an abuse of
discretion. United States v. Massey, 89 F.3d 1433, 1443 (11th Cir. 1996).
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A district court may grant a defendant’s motion for a new trial based on
newly discovered evidence if the motion is filed within three years after the
verdict and the interest of justice so requires. Fed. R. Crim. P. 33(a), (b)(1). A
new trial based on newly discovered evidence is warranted only if (1) the evidence
was discovered after trial; (2) the defendant exercised due care to discover the
evidence; (3) the evidence was not simply cumulative or impeaching; (4) the
evidence was material; and (5) the evidence’s nature was such that a new trial
would probably produce a different result. Weiss v. United States, 122 F.2d 675,
691 (5th Cir. 1941). “The failure to satisfy any one of these elements is fatal to a
motion for a new trial.” United States v. Lee, 68 F.3d 1267, 1274 (11th Cir. 1995)
(quotation omitted). “[T]he defendant bears the burden of justifying a new trial.”
United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (quotation omitted).
At Shaw’s trial, James Oner testified that he used to regularly buy cocaine
from Corey Dunn, who said that the drugs were provided by Shaw. After Shaw
was convicted, he moved for a new trial after discovering that Oner, in a call from
jail, allegedly said that he did not know Shaw and planned to testify against him to
reduce Oner’s own sentence. The district court denied this motion without a
hearing.
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A defendant is not entitled to an evidentiary hearing on a Fed. R. Crim. P.
33 motion for a new trial if “the acumen gained by a trial judge over the course of
the proceedings [made him] well qualified to rule on the [motion] without a
hearing.” United States v. Schlei, 122 F.3d 944, 994 (11th Cir. 1997) (citation
omitted). In United States v. Gates, 10 F.3d 765 (11th Cir. 1993), we held that the
district court erred in denying the defendant a hearing on his motion for a new trial
where his co-defendant made post-trial exculpatory statements. Id. at 767-68. In
United States v. Culliver, 17 F.3d 349 (11th Cir. 1994), we held that the district
court erred in granting the defendant’s motion for a new trial without first holding
an evidentiary hearing as requested by the government, where that motion was
based on newly discovered evidence of an apparent witness recantation. Id. at
350-51. Finally, in United States v. Jernigan, 341 F.3d 1273 (11th Cir. 2003), we
held that the district court did not abuse its discretion in denying the defendant’s
motion for a new trial without first conducting an evidentiary hearing because the
district court properly concluded that his claimed newly discovered evidence was
unlikely to have generated a different result at trial. Id. at 1287-89.
At most, the evidence proffered by Shaw merely tended to impeach Oner’s
testimony, which does not rise to the level for a new trial to be granted. United
States v. Thompson, 422 F.3d1285, 1294 (11th Cir. 2005). Additionally, other
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comments by Oner during the telephone call indicated that he actually was familiar
with Shaw, as Oner knew Shaw’s nickname and knew that he was a paraplegic.
Given this evidence, Shaw cannot show that a new trial probably would have
produced a different outcome, and the district court properly denied Shaw’s
motion for a new trial. Id.III.
We review de novo the legal question of whether the FSA applies to
defendants who had not been sentenced by the date of the FSA’s enactment. See
United States v. Olin Corp., 107 F.3d 1506, 1509 (11th Cir. 1997).
The Supreme Court has recently concluded that “Congress intended the Fair
Sentencing Act’s more lenient penalties to apply to those offenders whose crimes
preceded August 3, 2010, but who are sentenced after that date.” Dorsey v. United
States, No. 11-5683, 2012 WL 2344463, slip op. at 11 (U.S. June 21, 2012).
Shaw’s crack cocaine offenses occurred in March 2009, but he was not
sentenced until October 28, 2010—after the FSA went into effect. Accordingly,
we remand Shaw’s case to the district court for re-sentencing consistent with
Dorsey.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.1
1
Any pending motion is DENIED.
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