United States v. Carver , 422 F. App'x 796 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 6, 2011
No. 10-11599 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 2:08-cr-14003-JEM-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
TIMOTHY WAYNE CARVER,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 6, 2011)
Before HULL, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
This case arose when a grand jury issued a two-count superseding
indictment against Timothy Wayne Carver. Count One alleged, in part, that
Carver enticed and attempted to entice a minor to engage in sexual activity in
violation of 18 U.S.C. § 2422(b). Count Two alleged that Carver committed the
Count One offense while being required to register as a sex offender under Federal
or other law, in violation of 18 U.S.C. § 2260A. Carver pleaded guilty to Count
One, and a jury subsequently convicted him of Count Two.1 Carver now appeals
his conviction for Count Two.
I. Constitutionality
Carver first argues that the district court erred by denying his motion to
dismiss Count Two of the indictment, challenging the constitutionality of § 2260A
on four grounds. Section 2260A imposes an enhanced penalty on defendants who
commit certain enumerated offenses, including a violation of § 2242, and who
were required by either federal or state law to register as sex offenders. Carver
argues that § 2260A: (1) is unconstitutionally vague; (2) impermissibly delegates
legislative authority over federal sentences to state authorities; (3) violates his due
process and equal protection rights; and (4) creates an unconstitutional “status
offense.” We review de novo the constitutionality of statutes and questions of
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Carver initially pleaded guilty to Count One and was convicted of Count Two during a
bench trial. On appeal, we affirmed Carver’s conviction and sentence for Count One, but we
reversed and remanded on Count Two because Carver had not waived his right to a jury trial.
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statutory interpretation. United States v. Phaknikone, 605 F.3d 1099, 1107 (11th
Cir.), cert. denied, 131 S. Ct. 643 (2010).
A. Vagueness
The “vagueness” challenge is derived from the Fifth Amendment’s Due
Process Clause. United States v. Wayerski, 624 F.3d 1342, 1347 (11th Cir. 2010).
“It encompasses notions of fair warning such that people of common intellect may
understand a statute’s prohibitions and need not guess at its meaning.” Id. A
criminal statute violates due process when it does not “‘provide people of ordinary
intelligence a reasonable opportunity to understand what conduct it prohibits’” or
“‘authorizes or even encourages arbitrary and discriminatory enforcement.’” Id.(quoting Hill v. Colorado, 530 U.S. 703, 732, 120 S. Ct. 2480 (2000)). “There is a
strong presumption that statutes passed by Congress are valid.” Id.Section 2260A provides:
Whoever, being required by Federal or other law to register
as a sex offender, commits a felony offense involving a
minor under section [2242, et al.] shall be sentenced to a
term of imprisonment of 10 years in addition to the
imprisonment imposed for the offense under that provision.
Carver argues the phrase “being required by . . . other law to register as a sex
offender” is unconstitutionally vague. But Carver failed to argue that § 2260A
was unconstitutionally vague as applied to him. See id. (“Where, as in this case, a
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vagueness challenge does not involve the First Amendment, the analysis must be
as applied to the facts of the case.”).
The unambiguous language of the statute provided Carver with clear notice
that, during the time that Florida required him to register as a sex offender, he
would be subject to enhanced penalties for additional sex crimes. A person of
ordinary intelligence would understand that an offense is committed when (1) he
commits a specified federal offense involving a minor while (2) being required to
register as a sex offender by Federal or state law. Likewise, the statute provided
clear guidelines to law enforcement. Accordingly, we do not find the statute
impermissibly vague, and we reject Carver’s vagueness challenge.
B. Non-delegation
Pursuant to the non-delegation doctrine, “‘Congress manifestly is not
permitted to abdicate or to transfer to others the essential legislative functions with
which it is constitutionally vested.’” United States v. Ambert, 561 F.3d 1202,
1213 (11th Cir. 2009) (alteration omitted) (quoting Panama Ref. Co. v. Ryan, 293
U.S. 388, 421, 55 S. Ct. 241 (1935)). We find that Congress did not
impermissibly delegate its authority to the states in enacting § 2260A. The statute,
on its face, neither allows nor requires the states or other governmental bodies to
take action, and it does not grant them any powers. It merely acknowledges that
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jurisdictions outside the federal government have some authority to require
persons to register as sex offenders. It then dictates that if a person is required to
register by such a jurisdiction, he is then subject to enhanced punishment for a
violation of specific federal crimes. Accordingly, § 2260A does not violate the
non-delegation doctrine.
C. Due Process and Equal Protection
The Fifth Amendment’s Due Process Clause, as applied to the federal
government, incorporates the Fourteenth Amendment’s guarantees of equal
protection. Davis v. Passman, 544 F.2d 865, 868 (5th Cir. 1977). “We review the
constitutionality of statutes subjected to substantive due process challenge with a
high degree of deference to Congress: ‘where a statute does not discriminate on
racial grounds or against a suspect class, Congress’ judgment will be sustained in
the absence of persuasive evidence that Congress had no reasonable basis for
drawing the lines that it did.’” United States v. Tremble, 933 F.2d 925, 930 (11th
Cir. 1991) (quoting United States v. Holmes, 838 F.2d 1175, 1177 (11th Cir.
1988)). As an initial matter, Carver does not allege that § 2260A discriminates
based on race or against a suspect class, so the only question before us is “whether
there is a rational basis supporting Congress’ decision to incorporate varying state
categorizations” of what it means to be a sex offender required to register. See id.
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Here, Congress had a rational basis for enacting § 2260A, as it protects the
public by imposing additional punishment on recidivist sex offenders. See
Ambert, 561 F.3d at 1209 (holding that federal sex-offender registration
requirements are “rationally related to Congress’ legitimate goal in protecting the
public from recidivist sex offenders”). Moreover, the enhancement depends on a
bright-line categorization—whether a state or the federal government requires a
person to register as a sex offender—thereby putting registrants on notice that if
they are later convicted for an enumerated federal offense, then they will have
enhanced penalties. See id. at 931. We therefore find that § 2260A does not
violate Carver’s due process and equal protection rights under the Fifth and
Fourteenth Amendments.
D. Status offense
Carver next argues that § 2260A violates the Fifth, Eighth, Thirteenth, and
Fourteenth Amendments. He asserts that § 2260A unconstitutionally criminalizes
his status as a sex offender by creating a category of citizens who are punished
more severely than other citizens. While Carver alleges a violation of four
constitutional amendments, he relies mainly on Robinson v. California, 370 U.S.
660, 82 S. Ct. 1417 (1962) to support his claim. In Robinson, the Supreme Court
held that “a state statute violated the Eighth and Fourteenth Amendments’
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prohibition against cruel and unusual punishment because . . .” it made “the
‘status’ of narcotic addiction a criminal offense.” Robinson, 370 U.S. at 666–67.
Unlike the statute in Robinson, which criminalized a “status,” § 2260A does
not criminalize the status of being a sex offender. Like other recidivist statutes,
§ 2260A enhances the punishment for enumerated federal substantive offenses and
does not apply to anyone who has not committed any such offenses. Accordingly,
Carver’s argument fails.
II. Sufficiency of the Evidence
To convict Carver of Count Two—a violation of § 2260A—the Government
had to prove that Carver, while “being required by Federal or other law to register
as a sex offender, commit[ted] a felony offense involving a minor” under § 2422.
Carver pleaded guilty to a violation of § 2422 and also registered as a “sexual
offender” pursuant to Florida Statute § 943.0435. Carver argues, however, that he
was not a sex offender within the meaning of § 943.0435 and that even if he was,
his conviction cannot be sustained under § 2260A because: (1) Florida was
estopped from enforcing the statute against him; (2) § 943.0435 violates the ex
post facto clause; (3) Florida failed to follow the notification provisions of the Sex
Offender and Registration Notification Act, 42 U.S.C. § 16901 (“SORNA”); and
(4) the definition of “sexual offender” under § 943.0435 is not the same as that
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under federal law, specifically SORNA.
We review de novo the sufficiency of the evidence, viewing “the evidence
in the light most favorable to the government, with all reasonable inferences and
credibility choices made in the government’s favor.” United States v. Martinez, 83
F.3d 371, 374 (11th Cir. 1996). We also review de novo questions of statutory
interpretation. Phaknikone, 605 F.3d at 1107. When a defendant fails to raise an
issue in his motion for acquittal, we will reverse only if there is an error that is
“plain, affects [the defendant’s] substantial rights, and seriously affects the
fairness, integrity or public reputation of judicial proceedings.” United States v.
Snipes, 611 F.3d 855, 867 n.7 (11th Cir. 2010).
A.
The evidence was sufficient for a jury to reasonably conclude that Carver
was required to register under Florida law. Section 943.0435 requires anyone who
“[h]as been released on or after October 1, 1997, from the sanction imposed” for a
conviction pursuant to Florida Statute § 800.04 to register as a sex offender.
Carver stipulated that he was convicted of a violation of § 800.04. And
§ 943.0435 defines “sanction” to include parole and probation. Carver’s
contention that his sanctions post-1995 should be treated as penalties for his
probation violations, and not for his § 800.04 sex offense, are without merit.
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Accordingly, because Carver’s § 800.04 sanctions terminated on August 24, 2000,
Carver was subject to the statute’s registration requirements.
Carver’s estoppel argument is also meritless. As a matter of law, mere
inaction, i.e., failing to enforce a statute, cannot give rise to an estoppel claim
against a state. See United States v. McCorkle, 321 F.3d 1292, 1297 (11th Cir.
2003). And § 943.0435 does not violate the ex post facto prohibition because it is
nonpunitive. See Smith v. Doe, 538 U.S. 84, 105–06, 123 S. Ct. 1140 (2003)
(upholding the Alaska Sex Offender Registration Act against an ex post facto
challenge); Houston v. Williams, 547 F.3d 1357, 1364 (11th Cir. 2008) (holding
that a Florida sex offender registration statute did not violate the ex post
facto clause because it was “not punitive, but rather regulatory” in nature).
Carver’s arguments concerning SORNA also lack merit. First, assuming
SORNA’s notification requirements apply to the states, SORNA requires
notification “shortly before” the sex offender’s release from custody or
“immediately after the sentencing.” § 16917(a). Carver had first registered prior
to SORNA’s enactment. Moreover, the federal definition of “sex offender” is
irrelevant to Carver’s liability under § 2260A, which applies to individuals who
are required “by Federal or other law to register as a sex offender.” The phrase “or
other law” would be superfluous if the state registration laws, as argued by Carver,
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had to conform to SORNA. And even if SORNA’s definition of “sex offender”
were relevant to Carver’s liability under § 2260A, the elements of Carver’s
§ 800.04 offense would not need to include physical contact to qualify him as a
sex offender under the Act. See United States v. Dodge, 597 F.3d 1347, 1351–56
(11th Cir.) (en banc), cert. denied, 131 S. Ct. 457 (2010) (holding that a crime
whose elements and whose underlying conduct do not involve physical contact
qualify as a sex offense under SORNA).
Thus, the Government presented sufficient evidence that Carver was
required to register under Florida law.
B.
Carver next argues that the Government failed to prove the essential
elements of the § 2260A offense. We disagree. First, the Government sufficiently
proved that § 943.0435 required Carver to register as a sex offender. Contrary to
Carver’s argument, the Government was not required to prove the elements of
Carver’s § 800.04 sex offense in order to show that this conviction brought Carver
within the requirements of § 943.0435. To qualify as a sex offender under
§ 943.0435, a person is only required, in relevant part, to have been convicted
previously under § 800.04. See Fla. Stat. § 943.0435(1)(a). Thus, because Carver
stipulated to his previous § 800.04 conviction, the Government sufficiently proved
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this prong.
We also disagree with Carver’s contention that the Government failed to
prove that Carver was living in Florida and was not incarcerated at the time of the
Count One offense. During trial, Carver stipulated that he pleaded guilty and was
convicted of the Count One offense as set forth in the indictment. The indictment
stated that Carver committed the Count One offense in December 2007 “in St.
Lucie and Indian River Counties, in the Southern District of Florida, and
elsewhere.” The jury also knew that Carver last registered on November 21, 2007,
and a Government exhibit showed that, as of that date, Carver’s permanent address
was in Florida, he had no other permanent address, he was not on probation or
parole, and his next scheduled registration date was in May 2008. Accordingly,
even assuming that § 943.0435 applies only to those who reside in Florida and are
not incarcerated, the Government presented enough evidence for the jury to
reasonably infer that Carver did reside in Florida and was not incarcerated during
the commission of his Count One offense. See United States v. Henry, 920 F.2d
875, 877 (11th Cir. 1991) (noting that a jury may convict by drawing reasonable
inferences from circumstantial evidence, even if the evidence does not “exclude
every reasonable hypothesis of innocence”).
Finally, Carver argues that the Government did not offer any evidence that
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the Count One offense involved a minor, as required by § 2260A. This argument
has no merit—Carver expressly stipulated that he “was convicted via a plea
agreement of committing a felony offense involving a minor.” In sum, the
Government presented sufficient evidence at trial to sustain Carver’s conviction.
III. Jury Instructions
We review for abuse of discretion a court’s refusal to give a requested jury
instruction, and will find an error only “‘if the requested instruction is correct, not
adequately covered by the charge given, and involves a point so important that
failure to give the instruction seriously impaired the party’s ability to present an
effective case.’” United States v. Svete, 556 F.3d 1157, 1161 (11th Cir. 2009) (en
banc), cert. denied, 130 S. Ct. 1881 (2010) (quoting another source). We review
de novo “whether a jury instruction mischaracterized the law or misled the jury to
the prejudice of the defendant.” Id. “[W]e will not reverse a conviction on the
basis of a jury charge ‘unless the issues of law were presented inaccurately, or the
charge improperly guided the jury in such a substantial way as to violate due
process.’” United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000)
(quoting United States v. Arias, 984 F.2d 1139, 1143 (11th Cir. 1993)).
Carver challenges the court’s rulings regarding four jury instructions. He
first challenges the court’s refusal to give an instruction: (1) “as to venue”; (2)
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regarding “the use of the conjunctive (‘and’) in the allegations” of the superseding
indictment; (3) as to all the elements of the Count Two offense, including the
elements of the underlying sex offense in Count One; and (4) on how to evaluate
the applicability of § 943.0435 to his § 800.04 conviction. He also argues the
court’s instruction on the meaning of the term “knowingly” was unnecessary and
could have confused the jury.
Neither the court’s refusal to give certain instructions, nor the instructions
the court gave, was erroneous. First, the district court did not err by not
instructing the jury as to the Count One elements. Carver stood trial only for
Count Two and stipulated to his Count One conviction, so the jury did not have to
independently verify that his conduct violated § 2422(b). Second, the district
court committed no error regarding venue. The court instructed that an element of
the § 2260A offense was the commission of the Count One offense as set forth in
the superseding indictment. The indictment alleged that the Count One offense
occurred in the Southern District of Florida. Because the § 2260A offense was
predicated upon the Count One offense, the court adequately covered venue by
referencing Count One.
Third, Carver’s argument regarding the conjunctive “and” in the indictment
lacks merit. Carver points to two occurrences where the indictment alleged the
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elements in the conjunctive: (1) where it stated that the crime occurred “in the
Southern District of Florida, and elsewhere,” and where it stated, in Count One,
that Carver enticed a minor “and attempted to do so.” Regarding the location of
the crime, the jury could not have convicted Carver by finding that the crime
occurred “elsewhere,” and therefore, the district court’s omission in this respect
was not erroneous. As to actual versus attempted enticement, the Government
presented sufficient evidence both to establish venue and to show that Carver was,
in fact, located in Florida when he committed the Count One crime. Accordingly,
this omission did not prejudice Carver by misleading the jury.
We review Carver’s remaining challenges for plain error because he failed
to raise them in the district court. Prather, 205 F.3d at 1270. The court correctly
laid out the elements of § 2260A, and then defined “knowingly.” This was not an
error—Count One, a violation of which was an element of Count Two, used the
term “knowingly.” Thus, the district court was within its discretion to define the
term for the jury. And even assuming this was an error, it does not require reversal
because the inclusion of this definition did not confuse or mislead the jury to think
that to violate § 2260A, a person only has to believe that he is required to register
as a sex offender. Indeed, the court explained the relevant element of
§ 2260A—that the defendant “was required by Federal or other law to register.”
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And finally, given the evidence at trial, the jury did not need to engage in a
complicated statutory analysis to conclude that Carver qualified as a sex offender
under § 943.0435. Accordingly, because there was no error, much less plain error,
we affirm.
IV. Witness Testimony
Carver argues that the district court improperly permitted Carver’s
probation officer, Richard Ambrum, to provide a legal opinion that Carver was
required to register as a sex offender. According to Carver, Ambrum’s testimony
was improper lay witness testimony under Federal Rules of Evidence 701 and 702.
Carver argues that the district court never corrected the error because it did not
give a curative instruction.
We review all evidentiary questions for abuse of discretion. United States v.
Brown, 415 F.3d 1257, 1264–65 (11th Cir. 2005). Under Rule 701, the testimony
of a non-expert witness “is limited to those opinions or inferences which are (a)
rationally based on the perception of the witness, (b) helpful to a clear
understanding of the witness’ testimony or the determination of a fact in issue, and
(c) not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702.” Fed. R. Evid. 701. We will not reverse because of an
evidentiary ruling if the error was harmless. United States v. Khanani, 502 F.3d
151281, 1292 (11th Cir. 2007).
The district court did not err by admitting Ambrum’s testimony. Carver
stipulated that he registered at all times during Ambrum’s supervision. Further,
Ambrum’s testimony was based at least in part on his perception, since he
personally signed the registration responsibilities form with Carver. Ambrum
never provided an opinion on whether the registration statute, as a matter of law,
was properly applied to Carver. And on cross-examination, Ambrum admitted
that he had no legal training and was not holding himself out as an expert in the
construction or interpretation of Florida statutes. Carver’s counsel argued that the
registration requirement was incorrectly applied to Carver, and the court explained
that it was the jury’s responsibility to determine whether § 943.0435 required
Carver to register as a sex offender. Moreover, even if Ambrum’s testimony
constituted an expert opinion, Carver cannot show it had a “substantial influence
on the outcome of the case” as required for reversal, Khanani, 502 F.3d at 1292,
because there was a sufficient evidentiary basis—outside of Ambrum’s
testimony—that Carver was required to register. Accordingly, reversal is not
warranted on this issue.
V. Prosecutorial Misconduct
Carver argues that, in its closing argument, the Government impermissibly
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vouched for Carver’s § 800.04 conviction, the Count One conviction, and Carver’s
residence and location at the time Carver committed the Count One offense. He
also argues that the cumulative error doctrine requires reversal.
We review allegations of prosecutorial misconduct de novo, as they present
a mixed question of law and fact. United States v. Eckhardt, 466 F.3d 938, 947
(11th Cir. 2006).
To establish prosecutorial misconduct, “(1) the remarks
must be improper, and (2) the remarks must prejudicially
affect the substantial rights of the defendant.” A
defendant’s substantial rights are prejudicially affected
when a reasonable probability arises that, but for the
remarks, the outcome of the trial would have been
different. When the record contains sufficient independent
evidence of guilt, any error is harmless.
Id. (citations omitted). Moreover, if the district court gave a curative instruction,
“we will reverse only if the evidence is so prejudicial as to be incurable by that
measure.” United States v. Lopez, 590 F.3d 1238, 1256 (11th Cir. 2009), cert.
denied, 131 S. Ct. 413 (2010). When individual errors do not warrant reversal, we
will reverse if the cumulative effect of multiple errors deny the defendant a fair
trial. Id. at 1258. In addressing cumulative error, we “examine the trial as a whole
to determine whether the appellant was afforded a fundamentally fair trial.” Id.Having reviewed the record and the parties’ arguments, we find that the
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Government’s remarks were neither improper nor prejudicial. The remarks were
not “vouching,” which refers to attempts “to bolster the credibility of a
witness . . . .” Id. at 1256. None of the Government’s arguments were related to
the credibility of a witness, and most of the Government’s comments were made in
response to Carver’s attorney’s closing argument. For example, in closing
argument, Carver’s attorney argued that the Government failed to present expert
witnesses and that Carver was never convicted of assault in 1990. In its rebuttal,
the Government responded to these arguments, emphasizing that no expert
witnesses were necessary and that the Florida registration statute did not require a
conviction for assault—only a conviction for violating § 800.04.
Further, even assuming the Government’s remarks improperly suggested
that Carver’s plea to Count One conclusively established his residence and
location in Florida, the remarks did not result in substantial prejudicial impact
given the evidence presented at trial and the court’s curative instructions to the
jury. Accordingly, the comments do not warrant reversal, and we likewise decline
to reverse based on cumulative error.
VI. Jury Selection
We review de novo challenges to the constitutionality of the jury selection
process. United States v. Grisham, 63 F.3d 1074, 1077 (11th Cir. 1995). In order
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to establish a prima facie violation of the fair-cross-section requirement, the
defendant must show
(1) that the group alleged to be excluded is a distinctive
group in the community, (2) that representation of the
group in venires is not fair and reasonable in relation to the
number of such persons in the community, and (3) that the
underrepresentation is due to systemic exclusion of the
group in the jury-selection process. . . . To examine the
second element, we must compare the difference between
the percentage of the distinctive group among the
population eligible for jury service and the percentage of
the distinctive group on the [qualified jury wheel
(“QJW”)]. If the absolute disparity between these two
percentages is 10 percent or less, the second element is not
satisfied.
Id. at 1078–79.
Carver argues that his jury selection violated the Sixth Amendment’s fair-
cross-section requirement because the percentage of African Americans on the
jury venire was 2.5%. On appeal, Carver cites the 2009 Census data on the
African American population in the five counties from which the jury was chosen
(11.9%) and the percentage of African Americans within all the counties in the
Southern District of Florida (19%). Carver fails, however, to present evidence on
the percentage of African Americans that are eligible for jury service within those
boundaries. Moreover, Carver presents no evidence that the five-county area from
which the jury venire was chosen was gerrymandered to exclude African
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Americans. See Grisham, 69 F.3d at 1080. Thus, Carver has presented
insufficient evidence to establish a prima facie case of a fair-cross-section
violation.
AFFIRMED.
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