United States v. Arkeem Wiltshire , 238 F. App'x 557 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 19, 2007
No. 06-14797 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-20776-CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARKEEM WILTSHIRE,
a.k.a. Arkeem Daniel,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 19, 2007)
Before TJOFLAT, ANDERSON and BARKETT, Circuit Judges.
PER CURIAM:
A Southern District of Florida jury found appellant guilty of four offenses
committed between September 1 and 15, 2002: Count 1, conspiracy to import
cocaine, in violation of 21 U.S.C. § 963; Count 2, conspiracy to possess with the
intent to distribute cocaine, in violation of 21 U.S.C. § 846; Count 3, importation
of cocaine, in violation of 21 U.S.C. § 952(a); and Count 4, possession with intent
to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). The district court
determined that the Guidelines called for prison terms in the 168-210 months’
range and sentenced appellant to concurrent prison terms of 180 months. He now
appeals his convictions and sentences.
The evidence adduced at appellant’s trial revealed the following smuggling
scheme and appellant’s participation in it. For some time prior to the September 1-
15, 2002 period indicated in the indictment, Edwin Murphy recruited “passengers”
to go aboard cruise ships headed for the Carribean Islands. The passengers were to
pick up cocaine after disembarking at a designated island and bring it back to the
ship. There, a member of the crew would take custody of the cocaine and stow it
until the ship stopped at Key West, Florida, where other “passengers,” whom
Murphy had recruited, would bring the cocaine to shore. In the case at hand,
Murphy recruited appellant and Ashley Thornton as passengers for one of these
cruises. They boarded a cruise ship at Port Canaveral, Florida, and when the ship
arrived at Saint Maarten, they disembarked and rendezvoused with the cocaine
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source. The source gave them 13.63 kilograms of cocaine, which they brought
back to the ship – thereby completing their assignment. When the ship
subsequently docked at Key West, Richard Fontenot, a Murphy recruit, who had
boarded the ship at Port Canaveral, Florida, thus replacing appellant and Thornton
in the smuggling venture, brought the cocaine ashore and was arrested.
Appellant seeks the reversal of his convictions and a new trial on the
following grounds: (1) the district court erred in denying his motion to suppress
statements he gave Immigration and Customs Enforcement agents following his
arrest on November 28, 2005; (2) the prosecutor’s examination of witnesses
(participants in Murphy’s smuggling scheme) about their plea agreements with the
Government essentially vouched for the witnesses and denied appellant a fair trial;
and (3) the court’s comments during the trial denied appellant a fair trial. We
consider these grounds in order, find no merit in any of them, and accordingly
affirm appellant’s convictions.
I.
The court properly denied appellant’s motion to suppress on the basis of the
magistrate judge’s thoroughgoing recommendation contained in his Report and
Recommendation of May 10, 2006.
II.
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Appellant contends that he was denied a fair trial because the prosecutor
engaged in misconduct by: (1) effectively vouching for witness Ashley Thornton
by generating sympathy for her; (2) vouching for other witnesses; (3) inferentially
criticizing him for exercising his right to trial through questioning other co-
conspirators; (4) inviting one witness to testify about his involvement in other
crimes which had nothing to do with him; and (5) causing one witness to infer that
he was dangerous. According to appellant, the cumulative effect of the above
conduct was to prejudice him before the jury.
Regarding Thornton, he says the prosecutor, in questioning her, should not
have brought out that she had a daughter, pled guilty knowing there was a ten-year
minimum mandatory sentence, and cooperated with the Government. In addition
to this, he points out that the prosecutor’s questions prompted a second witness to
testify that he pled guilty because he was guilty, was held accountable for all of the
drugs alleged in his indictment, and that he qualified for safety valve relief. The
prosecutor also prompted a third witness to testify that he was held accountable for
all of the drugs he smuggled into Key West, and then got Edwin Murphy to testify
that he pled guilty – because he was guilty and he hoped to receive a sentence
reduction for testifying – and had engaged in other criminal activity for which he
was not prosecuted. In appellant’s view, these comments cumulatively had the
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effect of criticizing appellant for exercising his right to trial.
Because the matter of prosecutorial misconduct involves mixed questions of
law and fact, we normally review these claims de novo. United States v. Noriega,
117 F.3d 1206, 1218 (11th Cir. 1997). However, the failure to object to statements
during trial “typically will cause this court to review the misconduct only for plain
error.” United States v. Wilson, 149 F.3d 1298, 1302 n.5 (11th Cir. 1998). Since
appellant did not object to any prosecutorial conduct that he now considers
vouching, we review the conduct for plain error. See United States v. Cano, 289
F.3d 1354, 1363-64 (holding that where an appellant failed to object based on the
ground which was raised on appeal, the appeal is reviewed for plain error).
When evaluating claims of prosecutorial misconduct, we examine the
context of the entire trial, including any curative instructions that were given, to
determine whether the prosecutor’s statements (1) were improper, and
(2) prejudicially affected the substantial rights of the defendant. Wilson, 149 F.3d
at 1301. It normally is considered improper to bolster a witness by vouching for
his credibility. United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir. 1991).
Vouching for a witness becomes improper if (1) the “jury could reasonably believe
that the prosecutor indicated a personal belief in the witness’ credibility,” placing
the government’s prestige behind the witness, or (2) the government alludes to
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evidence not in the record to support the witness’s testimony. Id. Improper
vouching will result in prosecutorial misconduct if it affects the defendant’s
substantial rights. Id. at 1206-07. “A defendant’s substantial rights are
prejudicially affected when a reasonable probability arises that, but for the
remarks, the outcome of the trial would be different.” Wilson, 149 F.3d at 1301(internal quotations and citation omitted). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Eyster, 948 F.2d
at 1207. Even if a prosecutor’s remark is prejudicial, a curative instruction may
render the remark harmless. United States v. Bailey, 123 F.3d 1381, 1400 (11th
Cir. 1997). Prosecutorial misconduct, therefore, will be the basis for reversal only
if, in light of the entire trial and any curative instructions, the misconduct
prejudicially affected the defendant’s substantial rights. United States v. Hasner,
340 F.3d 1261, 1275 (11th Cir. 2003).
A prosecutor is permitted to bring up questions relating to a guilty plea
where a co-defendant takes the witness stand. United States v. Griffin, 778 F.2d
707, 710 n.5 (11th Cir. 1985). Where a prosecutor questions witnesses regarding
the truth-telling portions of their plea agreement or brings out the fact that the
agreements stated they were subject to perjury, the prosecutor is not vouching.
Cano 289 F.3d at 1365-66. It is also “proper for the prosecution to rehabilitate the
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witness on direct examination if defense counsel attacks the witness’ credibility
during opening statement.” Id. at 1366.
In this case, we are satisfied that no vouching occurred. First, the prosecutor
was permitted to ask all codefendants about their guilty pleas because they took the
witness stand. Griffin, 778 F.2d at 710 n.5. Moreover, the prosecutor was
permitted to ask questions about perjury because we have explicitly stated that is
not vouching. Cano, 289 F.3d at 1365-66.
Appellant attacked Murphy and Thornton’s credibility, bringing in evidence
of Murphy’s other criminal activity in doing so, during his opening statement to
the jury. The prosecutor was permitted to rehabilitate those witnesses. Cano, 289
F.3d at 1366. Accordingly, all the questions appellant complains of were
permitted. At no time did the prosecutor indicate a personal belief in the
witnesses’ credibility, place the Government’s prestige behind a witness, or allude
to evidence not in the record.
The only remaining claims of prosecutorial misconduct are that the
codefendants’ statements about their guilty pleas implicitly criticized appellant for
going to trial, and that Thornton’s testimony made him look dangerous. The
record contradicts the latter contention because Thornton stated that she felt
comfortable with appellant, and her fear was the result of a third party’s comment.
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As for the former contention, the prosecutor was permitted to question all
codefendants about their guilty pleas. Griffin, 778 F.2d at 710 n.5. Appellant did
not object. His claim that this amounted to an implicit criticism of his choice to go
to trial, in the face of the fact that the prosecutor was permitted to ask the
questions, does not amount to error, much less plain error.
III.
Appellant contends that the judge inappropriately injected himself into trial
in such a fashion as to create the impression of dislike or disbelief in the appellant,
and partiality toward the Government. He points to the following events that took
place in the presence of the jury: (1) at one point, the court interrupted a cross-
examination to note that the question had been asked and answered and instructed
the attorney to move on to the next question; (2) a couple of minutes later, the
court told the attorney that the question was not relevant and to move on; (3) the
court remonstrated defense counsel by telling him that when the court sustains
something, “it didn’t happen,” and added a curative instruction to the jury, without
request from the prosecutor; (4) the court refused to admit a Government exhibit
tendered by defense counsel, telling him that it was not really his turn to offer
evidence; (5) the court told defense counsel about the difference between
Government and defense exhibits; (6) the court belittled defense counsel because
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of an inartful question; (7) the court told counsel to “move on” when counsel asked
if he could be heard on a Government objection; (8) the court chastised defense
counsel by stating “if I have already ruled, what in the world makes you think you
can ask it by using different words? Sustained. . . don’t ask it in a different way,
either”; (9) the court told the attorney to move on to another question, and that
details are not relevant; (10) the court called a sidebar conference when defense
counsel would not stop asking the question for which he had been remonstrated,
and told counsel that the next time he did it, he was going to be fined; and (11) the
court stated that the jurors were not suffering from Alzheimer’s. According to
appellant, the combined events were sufficient to prejudice the jury.
We “will not reverse a conviction unless the comments of the Trial Judge are
so prejudicial as to amount to a denial of a fair trial.” United States v. Morales,
868 F.2d 1562, 1576 (11th Cir. 1989) (quoting United States v. Preston, 608 F.2d
626, 636 (5th Cir. 1979). “Furthermore, a clear effect on the jury is required to
reverse for comment by the trial judge.” Id. (citations and internal quotations
omitted). There are three factors that weigh in favor of finding that the comments
of a trial judge are not reversible error. These factors are: “(1) the comments
‘occupied but a few seconds of a lengthy trial;’ (2) the comments ‘were directed to
the defense counsel rather than to the jury;’ and (3) the Trial Judge advised the jury
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to disregard any intimation by the court relating to the facts of the case. Preston,
608 F.2d at 636 (quoting United States v. Onori, 535 F.2d 938, 944 (5th Cir. 1976).
Here, all of the comments identified were very short. Moreover, as the
Government correctly points out, not all of them were directed at defense counsel.
Rather, the judge’s comments regarding moving on and Alzheimer’s were directed
at the prosecutor. Moreover, all of the judge’s comments were directed at the
attorneys and never at the jury. Additionally, this was a four-day trial. Over the
course of four days, the comments complained of only took up a few moments.
Finally, the judge advised the jury, both during opening statement and after closing
arguments, that the court had no opinion on the case and that the jury should
disregard everything it said except for the instructions on the law.
*****
Appellant contends that his sentences should be vacated and the case
remanded for a new sentencing hearing on the grounds that the court erred in not
properly considering the sentencing factors of 18 U.S.C. § 3553(a) and in not
articulating the reasons for appellant’s sentences. Appellant’s contention is
contradicted by the record. The court explicitly stated that it had considered all of
appellant’s stated arguments, the advisory sentence range prescribed by the
Guidelines, and the § 3553(a) sentencing factors. As for those, the court stated that
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it chose the sentences it gave for purposes of punishment and deterrence, two of
the § 3553(a) factors. We therefore find no basis for setting aside appellant’s
sentences and remanding the case for resentencing.
AFFIRMED.
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