United States v. Ulysses Antwain Blackmon , 578 F. App'x 854 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-10576
Non-Argument Calendar
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D.C. Docket No. 3:12-cr-00048-CAR-CHW-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ULYSSES ANTWAIN BLACKMON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(August 22, 2014)
Before MARCUS, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Ulysses Antwain Blackmon appeals his conviction for conspiracy to possess
cocaine with intent to distribute, in violation of 21 U.S.C. §§ 846, 841(a)(1) and
(b)(1)(C). He argues that: (1) the district court erred by denying his motion to
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suppress evidence of cocaine; and (2) the district court abused its discretion by
denying his motion for a mistrial. After careful review, we affirm.
We apply a mixed standard of review to the denial of a motion to suppress,
reviewing factual findings for clear error and the application of law to those facts
de novo. United States v. Boyce, 351 F.3d 1102, 1105 (11th Cir. 2003). We
construe all facts in a light most favorable to the prevailing party. Id. We review
de novo a court’s determination of probable cause, Ornelas v. United States, 517
U.S. 690, 699 (1996), and constitutional errors, United States v. O’Keefe, 461 F.3d
1338, 1346 (11th Cir. 2006). We accept testimony deemed credible by the district
court unless it violates laws of nature or is so inconsistent that no reasonable
factfinder would accept it. United States v. Ramirez-Chilel, 289 F.3d 744, 749
(11th Cir. 2002). Finally, we review for abuse of discretion the denial of a motion
for mistrial. United States v. Chastain, 198 F.3d 1338, 1351 (11th Cir. 1999).
First, we reject Blackmon’s claim that the court should have suppressed
cocaine found during a consensual search of the vehicle he was riding in because
the officer lacked probable cause for the initial traffic stop. An officer is permitted
to conduct a warrantless investigatory stop when he has probable cause to believe a
traffic offense has occurred or reasonable suspicion of criminal activity. United
States v. Spoerke, 568 F.3d 1236, 1248 (11th Cir. 2009). This standard is met
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when an officer personally observes a traffic infraction. United States v. Harris,
526 F.3d 1334, 1338 (11th Cir. 2008).
In this case, the officer testified that he witnessed two traffic infractions
committed by the driver of the vehicle Blackmon was riding in, and the district
court concluded that the officer’s testimony was credible. Blackmon argues that
the officer could not have distinguished the tag light and failed to corroborate his
observation of a lane violation, but the officer’s testimony to the contrary was
deemed credible by the district court. Because the officer’s testimony was not so
inconsistent that no factfinder could reasonably accept it, the district court did not
err by concluding that the officer had probable cause to justify an investigative stop
or by denying Blackmon’s motion to suppress.
We also are unpersuaded by Blackmon’s claim that the district court abused
its discretion by denying his motion for a mistrial after a government witness
committed a Doyle 1 violation. A defendant’s due process rights are violated if the
prosecution attempts to use his silence after receiving a Miranda2 warning to
impeach him. Doyle, 426 U.S. at 619. A statement references the defendant’s
silence if “it was the prosecutor’s manifest intention to refer to the defendant’s
silence” or if the statement would naturally and necessarily be understood by the
1
Doyle v. Ohio, 426 U.S. 610 (1976).
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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jury to be a comment on the defendant’s silence. United States v. Dodd, 111 F.3d
867, 869 (11th Cir. 1997). A single statement about the defendant’s silence does
not show a manifest intent to reference the defendant’s silence when it is a direct
response to an open-ended question from defense counsel. Chastain, 198 F.3d at
1351-52.
As the record here shows, the government witness’s brief reference to
Blackmon’s refusal to submit to an interview was given in response to an open-
ended question on cross-examination. Furthermore, the witness’s statement -- that
he had “attempt[ed] to interview Mr. Blackmon” -- could not be understood
necessarily as a comment on Blackmon’s silence because it could also be
interpreted as a statement that the witness was unable to schedule an interview with
Blackmon. On this record, the district court did not err in concluding that such a
passing reference was not manifestly intended to reference Blackmon’s silence.
Therefore, the district court did not abuse its discretion by denying Blackmon’s
motion for a mistrial.
AFFIRMED.
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