United States v. Davie Julian Rodriguez , 713 F. App'x 815 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-15802
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-20577-KMM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVIE JULIAN RODRIGUEZ,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 5, 2017)
Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
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Davie Rodriguez was convicted of being a felon in possession of a firearm
and ammunition, in violation of 18 U.S.C. §§ 922(g)(1). He was tried, convicted,
and sentenced. After sentencing, a Florida state conviction that was both
introduced at Rodriguez’s trial and used to enhance his sentence was nolle prossed,
so this Court remanded for resentencing. On remand, Rodriguez moved for a new
trial based on the nolle prose, but the district court denied the motion and
sentenced Rodriguez to 78 months’ imprisonment. We consider two issues that
Rodriguez raises on appeal. First, he challenges the district court’s decision to
admit evidence of his Florida conviction at trial. Second, he argues the district
court erred in denying his motion for a new trial based on that conviction having
been nolle prossed. After careful review, we conclude that neither of the district
court’s rulings was error. Rodriguez raises four other challenges to his conviction
and sentence, but each of these challenges is foreclosed either by precedent 1 or
because he raised it for the first time in his reply brief. 2 United States v. Evans,
473 F.3d 1115, 1120 (11th Cir. 2006) (“[A]rguments raised for the first time in a
1
Rodriguez first argues that his possession of a firearm did not substantially affect
interstate commerce. But we have rejected this argument because the statute contains a
jurisdictional element that the government proved in this case. See United States v. McAllister,
77 F.3d 387, 389–90 (11th Cir. 1996). Second, he contends that the district court erred in
applying the “crime of violence” definition contained in the Sentencing Guidelines because a
recent amendment deleting that provision should be applied retroactively. We have recently
rejected this argument as well. See United States v. Martin, 864 F.3d 1281, 1283 (11th Cir.
2017).
2
In his reply brief, Rodriguez argues for the first time that his Florida convictions for
strong arm robbery and burglary of an unoccupied dwelling did not qualify as crimes of violence
under the Sentencing Guidelines.
2
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reply brief are not properly before a reviewing court.” (internal quotation marks
omitted)). We therefore affirm.
I. BACKGROUND
Officers of the Miami-Dade Police Department (“MDPD”) pulled over and
arrested Rodriguez for reckless driving. An arresting officer testified that during
the arrest Rodriguez spontaneously commented that he knew the officers were part
of the gang unit because of the cars they were driving. After the arrest, the same
officer noticed a firearm, later determined to be loaded, on the rear passenger
floorboard of Rodriguez’s vehicle on top of a piece of paper with Rodriguez’s
name printed on it. Upon checking Rodriguez’s record, the officers discovered
that he was a convicted felon and forbidden to possess a firearm and ammunition
under 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Prior to his trial for possession of a
loaded firearm, Rodriguez filed a motion in limine to exclude under Federal Rule
of Evidence 404(b) evidence of a prior Florida state conviction for felon-in-
possession of a loaded firearm and statements he made to police officers in relation
to his prior arrest, claiming that they were likely to prejudice the jury against him.
The district court denied his motion, determining that the evidence, testimony from
MDPD Detective Franco Cugge who had investigated Rodriguez’s prior case, met
the admissibility requirements of Rule 404(b) and that its probative value was not
substantially outweighed by the danger of unfair prejudice. Fed. R. Evid. 403.
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Cugge testified that during recorded statements Rodriguez made to him regarding
the prior felon-in-possession conviction, Rodriguez said that “he went to his
vehicle, he opened the trunk, he armed himself with a firearm, and possessed it.”
Trial Transcript, Doc. 108 at 122.3 Still, the district court delivered a cautionary
jury instruction to ensure that the evidence of Rodriguez’s prior conviction was
used only to demonstrate that he had the knowledge and intent to commit the
particular crime and not as proof of his character.
After his conviction on January 13, 2015, Rodriguez filed under Federal
Rule of Criminal Procedure Rule 33 a motion for a new trial based on newly
discovered evidence that his prior state felon-in-possession conviction had been
nolle prossed. The district court denied his motion for a new trial, stating that this
evidence did not meet all of the criteria to warrant a new trial, particularly that the
evidence be such that a new trial would probably produce a different result. The
district court also found an acquittal unlikely given other incriminating evidence
the government presented against Rodriguez. This is his appeal.
II. LEGAL STANDARDS
This Court reviews the district court’s evidentiary rulings for an abuse of
discretion. United States v. Miller, 959 F.2d 1535, 1538 (11th Cir. 1992). We
likewise review a district court’s denial of a motion for a new trial under Federal
3
“Doc.” refers to the numbered entry on the district court’s docket in this case.
4
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Rule of Criminal Procedure 33 for an abuse of discretion. United States v.
Hernandez, 433 F.3d 1328, 1332 (11th Cir. 2005). When employing an abuse-of-
discretion standard, we must affirm unless we find that the district court has made
a clear error of judgment or has applied the wrong legal standard. United States v.
DuBose, 598 F.3d 726, 731 (11th Cir. 2010).
III. DISCUSSION
A. The District Court Did Not Abuse Its Discretion in Admitting Evidence
of Rodriguez’s Prior Conviction.
The district court did not abuse its discretion in admitting the evidence of
Rodriguez’s prior conviction because that evidence was relevant to proving
Rodriguez’s knowledge that he possessed the firearm police found in his vehicle.
Rodriguez was willing to concede the fact of his prior felony conviction, so the
conviction need not have been admitted to prove that he was a felon. But he
disputed the government’s contention in the present case that he knew the firearm
was in the vehicle. The district court therefore admitted evidence of Rodriguez’s
prior conviction offered by the government to prove Rodriguez’s knowledge of the
presence of the firearm when committing the same crime a second time.
Rodriguez argues that the district court erred in admitting his prior conviction
because the government used the conviction to impugn Rodriguez’s character.
Rodriguez claims that the probative value of this evidence was substantially
outweighed by its undue prejudice. We disagree because the evidence was
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admissible under Federal Rule of Evidence 404(b). But even assuming
Rodriguez’s prior conviction was admitted in error, that error was harmless in light
of the other substantial evidence of guilt the government introduced at trial.
Evidence of a past crime is inadmissible when it is used to prove a person’s
character to show that the person acted in conformity with that character on a
particular occasion. Fed. R. Evid. 404(b)(1); see also Loper v. Beto, 405 U.S. 473,
483 (1972). However, evidence of a crime may be admissible for another purpose
under Rule 404(b)(2), such as proving motive, intent, or knowledge. Fed. R. Evid.
404(b)(2).
In this circuit, a court determines the admissibility of Rule 404(b) evidence
by applying the three-part-test we set forth in United States v. Jernigan, 341 F.3d
1273, 1280 (11th Cir. 2003):
First, the evidence must be relevant to an issue other than the
defendant’s character. Second, as part of the relevance analysis, there
must be sufficient proof so that a jury could find that the defendant
committed the extrinsic act. Third, the evidence must possess
probative value that is not substantially outweighed by its undue
prejudice, and the evidence must meet the other requirements of Rule
403.
Id. (internal quotation marks omitted). Under Rule 403, a court may nevertheless
exclude relevant evidence if its probative value is substantially outweighed by
danger of unfair prejudice, confusing the issues, misleading the jury, undue delay,
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wasting time, and/or needlessly presenting cumulative evidence. Fed. R. Evid.
403.
Here, the district court properly admitted evidence of Rodriguez’s Florida
conviction under Rule 404(b). First, Rodriguez’s state conviction was relevant to
proving his knowledge of the crime because in both cases Rodriguez was charged
with felony possession of a firearm. See Jernigan, 341 F.3d at 1277 (holding
evidence of prior offenses admissible to establish knowledge that weapon was
present because all offenses involved knowing possession of firearm). Second,
Rodriguez stipulated to the existence of his state conviction, which provided
sufficient proof for the jury to find that he committed that offense. 4 Third, the fact
that Rodriguez’s prior conviction was later vacated does not, as Rodriguez argues,
compel the conclusion that evidence of the offense conduct leading to that
conviction was more prejudicial than probative. Courts frequently admit evidence
of relevant offense conduct even when a defendant has been acquitted of or never
charged in connection with that offense. For instance, in Dowling v. United States,
493 U.S. 342, 352-53 (1990), a bank robbery case, the Supreme Court held that the
admission of testimony about a home invasion of which the defendant was
4
The district court acknowledged that because of this stipulation, the Government would
not have to offer evidence of Rodriguez’s prior conviction to prove that he was a felon ineligible
to possess a firearm. But evidence of that prior offense was still relevant to his knowledge of the
current offense.
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acquitted did not violate the “fundamental fairness” test of due process,
particularly due to the trial judge’s limiting instructions.
Rodriguez relies heavily on Loper v. Beto, in which the Supreme Court
overturned a district court’s admission of testimony from Loper about his criminal
history because the prosecution used Loper’s damaging statements to impeach his
credibility, but Loper is distinguishable. 405 U.S. at 474. Here, the district court
admitted the evidence of Rodriguez’s prior conviction to prove his knowledge of
the crime, given his prior conviction for the same crime. By contrast, the
testimony in Loper was admitted for the sole purpose of impeaching the
defendant’s credibility. Id. Also, here, in an effort to mitigate the potentially
prejudicial nature of Rodriguez’s prior conviction, the district court delivered a
limiting instruction to ensure that the jury considered Cugge’s testimony only for
the purpose of establishing Rodriguez’s knowledge of the crime—not to impeach
his character. We presume that juries follow the instructions given to them by the
court. See United States v. Stone, 9 F.3d 934, 938 (11th Cir. 1993). In addition,
the government deemphasized the evidence by redacting all but one of Rodriguez’s
five prior charges and by reiterating that the admitted charge was not intended to
prove his guilt by impeaching his character, but only to prove that he “knows what
a gun looks like.” Trial Transcript, Doc. 108 at 154. The district court therefore
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did not abuse its discretion in admitting evidence of Rodriguez’s prior state
conviction.
Moreover, any error in admitting evidence of Rodriguez’s prior conviction
was harmless. Improper admission of evidence merits a reversal only if the error
resulted in prejudice against the party because the evidence had a “substantial and
injurious effect or influence” in determining the jury’s verdict. See United States
v. Phaknikone, 605 F.3d 1099, 1109 (11th Cir. 2010) (internal quotation marks
omitted). Evidence admitted in violation of Rule 404(b) is considered to be
harmless error where there is other substantial evidence of the defendant’s guilt.
See United States v. Chavez, 204 F.3d 1305, 1317 (11th Cir. 2000).
Rodriguez contends that the district court’s admission of his prior state
conviction was “very powerful” and that a new trial “would have probably
produced an acquittal.” Appellant’s Br. at 18. Although evidence of a prior
conviction under the same circumstances may have strengthened the government’s
case against Rodriguez, in this instance there was substantial other evidence to
prove his knowledge of the circumstances surrounding his possession of the
firearm. Three officer witnesses testified regarding Rodriguez’s reckless and
evasive driving, as well as his knowledge that the officers belonged to a gang unit.
The firearm was within Rodriguez’s reach in the vehicle, and DNA testing of the
firearm revealed that that Rodriguez was more likely to have handled it than any
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other person. Any error in admitting evidence of Rodriguez’s prior conviction was
harmless in light of this other substantial evidence of his guilt.
B. Rodriguez Is Not Entitled to a New Trial Based on Newly Discovered
Evidence.
The district court did not abuse its discretion in denying Rodriguez’s motion
for a new trial because he did not show that a new trial probably would have
resulted in a different outcome. See United States v. Starrett, 55 F.3d 1525, 1554
(11th Cir. 1995). To succeed on a motion for a new trial based on newly
discovered evidence under Rule 33, the movant must establish that:
(1) the evidence was discovered after trial, (2) the failure of the
defendant to discover the evidence was not due to a lack of due
diligence, (3) the evidence is not merely cumulative or impeaching,
(4) the evidence is material to issues before the court, and (5) the
evidence is such that a new trial would probably produce a different
result.
Jernigan, 341 F.3d at 1287 (internal quotation marks omitted). The motion will
fail if the movant does not establish any one of the aforementioned elements, and
in such a situation the district court need not consider the other elements. Starrett,
55 F.3d at 1554. Therefore, if the movant has not persuaded the district court that
a new trial would probably result in an acquittal, the district court is under no
obligation to decide whether the evidence was used merely to impeach the
movant’s character. Id.10
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We reject Rodriguez’s argument that a new trial probably would result in an
acquittal because his prior conviction was nolle prossed. As we explained above, a
prior offense need not have resulted in a conviction to be admissible as proof in a
criminal trial, so evidence of Rodriguez’s prior possession of a firearm likely
would have been admitted anyway. Moreover, as we explained, there was other
evidence of Rodriguez’s knowledge such that he likely would have been convicted
even absent evidence of his prior offense. We therefore affirm the district court’s
denial of Rodriguez’s motion for a new trial.
IV. CONCLUSION
The district court did not err in admitting evidence of Rodriguez’s prior
conviction, nor did it err in denying Rodriguez’s motion for a new trial. First,
although evidence of a crime is inadmissible to demonstrate a person’s character,
the district court properly admitted the evidence of Rodriguez’s prior conviction
under Rule 404(b) for the purpose of proving his knowledge. Moreover, even if
the district court improperly admitted Rodriguez’s prior conviction, doing so was
harmless error because there was sufficient evidence to convict him without
evidence of the prior conviction. Second, Rodriguez did not meet his burden to
succeed on his motion for a new trial based on newly discovered evidence because
he failed to show that the newly discovered evidence, if admitted in a new trial,
would probably produce a different result. We affirm the district court’s decisions
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to admit evidence of Rodriguez’s prior conviction and to deny his motion for a
new trial.
AFFIRMED.
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