United States v. Kenneth E. Morrison , 135 F. App'x 381 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 04-12466 U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
________________________ JUNE 16, 2005
THOMAS K. KAHN
CLERK
D.C. Docket No. 03-14043-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH E. MORRISON,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(June 16, 2005)
Before ANDERSON, HULL and WILSON, Circuit Judges.
PER CURIAM:
Kenneth E. Morrison appeals his conviction and sentence for conspiracy to
commit money laundering in violation of 18 U.S.C. § 1956(h). On appeal, he
challenges (1) the district court’s admission of evidence of his fiancee’s occupation
as a nightclub dancer; (2) the district court’s failure to include an “overt act” element
in the jury instructions; and (3) the district court’s denial of his request for a minor
role reduction. We affirm the district court’s decision.
I.
Morrison argues that the admission of his fiancee’s occupation on cross-
examination by the government was highly inflammatory, irrelevant, and prejudicial
because there exists a reasonable likelihood that the evidence affected his right to a
fair trial. He asserts that the admission was not harmless error because his substantial
rights were affected. He suggests that the admission of the evidence diminished his
credibility and enhanced the credibility of the government’s witness, upon which the
government’s case was based.
“We review a district court’s ruling on admission of evidence under the abuse
of discretion standard.” United States v. Maragh, 174 F.3d 1202, 1204 (11th Cir.
1999). “Limitations on the scope and extent of cross-examination are matters
expressly committed to the sound discretion of the trial judge and we review such
decisions only for a clear abuse of discretion.” United States v. Matthews, 168 F.3d
1234, 1244 (11th Cir. 1999).
2
To successfully challenge a verdict on the basis of a district court’s
incorrect evidentiary ruling, a party must follow a three-step process.
First, he must demonstrate either that his claim was adequately
preserved or that the ruling constituted plain error. Second, he must
establish that the district court abused its discretion in interpreting or
applying an evidentiary rule. Finally, he must establish that this error
affected a substantial right.
United States v. Stephens, 365 F.3d 967, 974 (11th Cir. 2004) (citations and
quotations omitted). “[A]n erroneous evidentiary ruling is a basis for reversal [and
substantial rights are violated] only if the defendant can demonstrate that the error
probably had a ‘substantial influence’ on the jury’s verdict.” Id. at 977. “This
standard requires that the error be subject to a ‘harmless error’ analysis.” Id. at 976
n.11. “This circuit has found even prejudicial nonconstitutional error harmless in
criminal cases in which the government has presented highly convincing, admissible
evidence of a defendant’s guilt, such as . . . audiotapes or videotapes of the defendant
engaging in or discussing the alleged criminal activity . . .” United States v. Hands,
184 F.3d 1322, 1329 (11th Cir. 1999) (citations omitted).
In United States v. Granville, we held that the district court did not abuse its
discretion by admitting evidence of Granville’s religion on cross-examination, noting
that (1) it was doubtful whether Granville suffered any significant harm because the
questions were a brief, isolated part of a four-day trial, the prosecutor never again
referred to Granville’s religion, Granville’s answers were not necessarily unfavorable
3
to him, and evidence of guilt was overwhelming; and (2) “any possible prejudice
might have been cured by a cautionary instruction[, and] Granville cannot now
complain [] because his counsel, perhaps with good reason, requested that none be
given.” 716 F.2d 819, 820-21 (11th Cir. 1983).
Morrison’s contention fails for several reasons. First, it was Morrison, on
direct examination, who first brought up his fiancee’s presence at Morrison’s meeting
with the prosecutor, making the prosecutor’s cross-examination regarding the fiancee
proper. Second, the record demonstrates that the prosecutor did not refer to the
fiancee’s occupation after the cross-examination. Third, Morrison has not shown
how evidence of the occupation significantly harmed or was unfavorable to him.
Finally, Morrison did not request a curative jury instruction. The district court did
not abuse its discretion by admitting evidence regarding Morrion’s fiancee’s
occupation.
II.
Morrison argues that the district court plainly erred by omitting the “overt act”
element in its jury instruction for conspiracy to commit money laundering because the
omission deprived him of a fair trial. At the time Morrison filed his briefs, the
Supreme Court had granted certiorari review of United States v. Hall, 349 F.3d 1320,
1321 (11th Cir. 2003)(holding “that proof of an overt act is not an essential element
4
under § 1956(h)”), but had not yet issued its opinion. Morrison understandably
sought to preserve the issue in the event Hall was reversed. Because Hall was
affirmed sub nom. Whitfield v. United States, __ U.S. __, 125 S.Ct. 687 (2005), we
now can say with certainty that the district court did not err, plainly or otherwise, by
omitting the “overt act” element from the jury instructions for conspiracy to commit
money laundering. Id. at __, 125 S.Ct. at 694.
III.
Morrison argues that the district court clearly erred by failing to grant him a
minor role reduction. He submits that he did not participate in any act of money
laundering and withdrew from the conspiracy before any money changed hands. He
contends that the district court did not measure his role against the relevant conduct
attributed to him in calculating his base offense level, and, had it done so, it should
have awarded him a minor role reduction. He further asserts that he played a minor
role in comparison to his codefendants, which the district court failed to consider.
“[A] district court’s determination of a defendant’s role in the offense is a
finding of fact to be reviewed only for clear error.” United States v. De Varon, 175
F.3d 930, 937 (11th Cir. 1999) (en banc). “[T]he ultimate determination of role in the
offense is also a fundamentally factual determination entitled to due deference and
not a legal conclusion subject to de novo review.” Id. at 938. The defendant has the
5
burden of establishing his minor role by a preponderance of the evidence. Id. at 939.
“[A] party is not required to reargue a general objection made after sentencing if the
argument in support of that objection has previously been presented to the sentencing
court and the reasons for the objection remain clear after the sentence is pronounced.”
United States v. Maurice, 69 F.3d 1553, 1557 (11th Cir. 1995).
The Sentencing Guidelines permit a two-point decrease of a defendant’s
offense level if the court finds the defendant was a “minor participant” in the crime.
U.S.S.G § 3B1.2(b). To determine whether a mitigating role reduction is warranted,
a district court “should be informed by two principles discerned from the Guidelines:
first, the defendant’s role in the relevant conduct for which [he] has been held
accountable at sentencing, and, second, [his] role as compared to that of other
participants in [his] relevant conduct.” De Varon, 175 F.3d at 940. In looking to
relevant conduct, “the district court must assess whether the defendant is a minor or
minimal participant in relation to the relevant conduct attributed to the defendant in
calculating [his] base offense level.” Id. at 941. “In making the ultimate
determination of the defendant’s role in the offense, the sentencing judge has no duty
to make any specific subsidiary factual findings.” Id. at 939. “So long as the basis of
the trial court’s decision is supported by the record and does not involve a
misapplication of a rule of law, we believe that it will be rare for an appellate court
6
to conclude that the sentencing court’s determination is clearly erroneous.” Id. at 945(emphasis in original).
In essence, Morrison argues that his role was minor because he withdrew from
the conspiracy prior to commiting any overt act. Morrison emphasizes that it was the
codefendants who picked up and processed the payments. At trial, Morrison
contended that he withdrew from the conspiracy at the latest when he missed the first
scheduled pick-up. After he missed the pick-up, Morrison told the other participants
in the scheme that he had “gotten lost”. At trial, Morrison argued that he had not
gotten lost and that he did not attend because he had decided to withdraw from the
conspiracy. Morrison played no role in subsequent laundering transactions.
The district court did not err by denying Morrison a minor role reduction.1
Morrison initiated the conspiracy in his conversations with an informant, introduced
a codefendant to an undercover agent, and took part in extensive discussions with the
agent regarding how the laundering scheme would operate. Although Morrison’s
codefendants ultimately laundered almost $500,000 and Morrison’s conduct appears
minor compared to theirs, Morrison was not held accountable for the money actually
laundered, but rather only for his substantial role regarding the first transaction. As
1
The government’s contention that Morrison waived any objection to the district
court’s articulation of reasons for denial of a minor role reduction is without merit. Morrison
objected in writing and orally.
7
the district court noted, Morrison’s attempt to argue at sentencing that he missed the
first pick-up because he had withdrawn from the conspiracy (and not because he got
lost, as he claimed at the time) is merely an attempt to revisit the merits determination
at the sentencing phase. The district court did not clearly err by denying Morrison
a minor role reduction.
AFFIRMED.
8