United States v. Joe Louis Warren, Jr. , 349 F. App'x 393 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Oct. 14, 2009
No. 08-15080 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00089-CR-ORL-28DAB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOE LOUIS WARREN, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 14, 2009)
Before DUBINA, Chief Judge, EDMONDSON and FAY, Circuit Judges.
PER CURIAM:
Joe Louis Warren, Jr. appeals his conviction for possession of counterfeit
currency, in violation of 18 U.S.C. § 472. No reversible error has been shown; we
affirm.
On appeal, Warren argues that the district court abused its discretion when it
denied his motion to exclude evidence (tape-recorded conversations between
Warren and co-defendant Antonio Bernabe) that the government provided late, in
violation of the court’s scheduling order and Fed.R.Crim.P. 16. We will not
reverse a conviction based on a discovery violation unless defendant demonstrates
that the violation prejudiced his substantial rights: that he unduly was surprised and
did not have an adequate opportunity to prepare a defense or that the mistake had a
substantial influence on the jury. United States v. Rivera, 944 F.2d 1563, 1566
(11th Cir. 1991).
Here, the United States Secret Service (USSS) gave the government the
additional recording approximately one month after the discovery deadline and a
week before trial; and the government gave the recording to Warren the same day.
It explained that its failure to disclose timely the recording was caused by the
USSS’s inadvertence in omitting this recording from the others it had timely
provided. Warren fails to explain how this late disclosure prejudiced his ability to
2
present a defense. In fact, when the court asked Warren if he needed extra time to
prepare for trial or if he was at a disadvantage because of the late discovery,
Warren replied that he still was prepared to go to trial. On this record, we conclude
that Warren made no adequate showing of prejudice. See United States v.
Camargo-Vergara, 57 F.3d 993, 999 (11th Cir. 1995) (“the purpose of rule 16 is to
protect a defendant’s right to a fair trial rather than to punish the government’s
non-compliance”).1
Warren also challenges the district court’s refusal to strike a juror who
belatedly disclosed information about her son’s DUI conviction. Warren contends
the court’s refusal to remove the juror prevented him from receiving a fair and
impartial trial and, had the information been disclosed during jury selection, he
would have exercised a challenge against the juror. We review a district court’s
decision on whether to remove a sitting juror for abuse of discretion. United States
v. Register, 182 F.3d 820, 839 (11th Cir. 1999). And “[t]he trial court’s discretion
in removing a juror ‘is not to be disturbed absent a showing of bias or prejudice to
the defendant . . . or to any other party.’” United States v. Fajardo, 787 F.2d 1523,
1525 (11th Cir. 1986) (citation omitted).
1
Warren also characterizes the late disclosure of this evidence as a violation
of Brady v. Maryland, 83 S. Ct. 1194 (1963). But a Brady violation requires
suppression of exculpatory or impeachment evidence. And here, the government
did not deprive Warren of this evidence; it simply disclosed it late.
3
Here, although the juror disclosed her son’s prior DUI conviction after voir
dire, the juror stated expressly that her son’s experience would not interfere with
her ability to be a fair and impartial juror. In addition, certain jurors admitted
during voir dire to having DUI and drug convictions; but Warren exercised no
challenges against these jurors. And a DUI conviction was unrelated to the charge
for which Warren was on trial. Therefore, we discern no bias or prejudice that
warranted the juror’s removal; and the court abused no discretion.
Warren next argues that the district court erred when it refused to exclude
the testimony of USSS agent Roy Dotson about his identification of the counterfeit
currency because Dotson was not qualified to testify as an expert. Because Warren
did not object contemporaneously to the admission of Dotson’s testimony, we
review this claim only for plain error. United States v. Mendez, 117 F.3d 480, 485
(11th Cir. 1997).2
Under Fed.R.Evid. 702, if
specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if (1) the
testimony is based upon sufficient facts or data, (2) the testimony is
2
Under plain-error analysis, Warren must show that “(1) an error occurred;
(2) the error was plain; (3) it affected his substantial rights; and (4) it seriously
affected the fairness of the judicial proceedings.” United States v. Gresham, 325
F.3d 1262, 1265 (11th Cir. 2003).
4
the product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the case.
The trial judge is responsible for ensuring that an expert’s testimony rests both on a
reliable foundation and is relevant to the task at hand. Daubert v. Merrell Dow
Pharms., Inc., 113 S. Ct. 2786, 2795 (1993).
Warren has shown no error here. Dotson -- who had worked for the USSS
for five years investigating crimes involving possessing and passing counterfeit
currency and had received extensive training and experience in identifying
counterfeit currency -- explained in detail the methods he used in determining that
the currency at issue was counterfeit. In part, he compared the currency he
discovered in Bernabe’s car with genuine currency and noted differences in
texture, color, and printing features. Dotson’s experience and training qualified
him to give his opinion about the currency; and his testimony was both relevant
and reliable for the district court to allow its admission.
Finally, Warren argues that insufficient evidence existed to convict him and,
thus, the district court erred in denying his motion for judgment of acquittal. We
review de novo the denial of a motion for judgment of acquittal based on
sufficiency grounds, drawing all reasonable inferences in the government’s favor.
United States v. Evans, 473 F.3d 1115, 1118 (11th Cir. 2006).
To support a conviction under 18 U.S.C. § 472, the government must prove
5
(1) that the defendant passed or possessed counterfeit currency and (2) that he did
so with the intent to defraud. United States v. Guida, 792 F.2d 1087, 1095 (11th
Cir. 1986). To prove intent, the government must show that defendant knew the
currency was counterfeit. Id. The government can prove intent through
circumstantial evidence and “[s]urrounding circumstances may supply inferences
of knowledge which adequately prove intent.” Id. (citation omitted).
Here, co-defendant Bernabe testified (1) that Mel (the person identified as
the source of the counterfeit currency) brought Warren $20,000 in counterfeit notes
at the hotel Warren and Bernabe shared, (2) that Warren said he paid for the notes,
at least in part, with crack cocaine, and (3) that, at Warren’s urging, he and Warren
tried to sell the counterfeit currency, but were unable to do so. And Dotson
testified that Warren admitted to him that Mel brought Warren the counterfeit
currency and that Warren and Bernabe were supposed to sell it and pay Mel back
in real currency. Thus, through the testimonies of Bernabe and Dotson, the
government provided sufficient evidence for a reasonable jury to conclude that
Warren possessed the counterfeit currency with fraudulent intent.
AFFIRMED.
6