United States v. James Park , 386 F. App'x 965 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-13293 JULY 28, 2010
________________________ JOHN LEY
CLERK
D. C. Docket No. 07-20588-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES PARK,
a.k.a. Mobboy,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 28, 2010)
Before BLACK, WILSON and COX, Circuit Judges.
PER CURIAM:
James Park appeals his conviction and sentence for conspiracy to possess
with intent to distribute five kilograms or more of cocaine, in violation of 21
U.S.C. §§ 841 and 846. On appeal, Park raises the following issues: (1) whether
the district court erred by admitting evidence of prior drug trafficking between
Park and Nelson Aguilar, and Park’s subsequent possession of drugs in Georgia;
(2) whether the district court erred by denying Park’s motion for a mistrial after
Aguilar testified to the jury that Park would kill him if he could; (3) whether the
district court erred by denying Park’s motion for judgment of acquittal where
Park’s involvement amounted to mere presence and association with coconspirator
Tim Starks; (4) whether the district court erred by finding Park accountable for 15
kilograms of reasonably foreseeable cocaine where the only evidence concerning
Park related to 10 kilograms of cocaine; (5) whether the district court erred by
refusing to apply a two-level minor-role reduction; and (6) whether the district
court erred by refusing to give Park’s requested jury instruction concerning
interdependence of defendants in conspiracy cases.
After careful review of the record and the parties’ briefs, and having had the
benefit of oral argument, we affirm Park’s conviction and sentence.1
1
In his brief, Park also argued the district court erred by refusing to grant a new trial
based on a claim of newly discovered evidence. This argument fails both because it is without
merit and because it was not briefed to the district court.
2
I.
At trial, confidential informant Nelson Aguilar testified concerning his prior
drug dealings with Park’s coconspirators and with Park. The district court
admitted the evidence as inextricably intertwined, but gave the standard limiting
instruction concerning 404(b) evidence. The district court also admitted evidence,
accompanied by a limiting instruction, of Park’s possession of drugs in October
2007 in Georgia.
On appeal, Park contends Aguilar’s testimony was not supported by any
corroborating evidence and was offered only to show bad character. Park also
challenges the admission of evidence concerning his possession of drugs in
Georgia, which occurred after the conspiracy charged in the indictment.
Generally, evidence of other crimes committed outside of those charged is
not admissible. Fed. R. Evid. 404(b). Rule 404(b) permits the introduction of
such evidence only if (1) the evidence is relevant to an issue other than the
defendant’s character, (2) the act is established by sufficient proof to permit a jury
to find the defendant committed the extrinsic act, and (3) the probative value of
the evidence is not substantially outweighed by its undue prejudice. United States
v. Cancelliere, 69 F.3d 1116, 1124 (11th Cir. 1995). The standard for evaluating
the admissibility of a subsequent bad act under Rule 404(b) is identical to that for
3
determining whether a prior bad act should be admitted under this rule. United
States v. Jernigan, 341 F.3d 1273, 1283–84 (11th Cir. 2003).
Rule 404(b) does not apply where the evidence concerns the context,
motive, and set-up of the crime, or forms an integral and natural account of the
crime, or is necessary to complete the story of the crime for the jury. See United
States v. Fortenberry, 971 F.2d 717, 721 (11th Cir. 1992); see also United States
v. McLean, 138 F.3d 1398, 1402 (11th Cir. 1998) (prior drug dealing “inextricably
intertwined” where it explained the relationship between defendant and witness
and was needed to assess the witness’s credibility). Such “inextricably
intertwined” evidence may be excluded, however, if its probative value is
substantially outweighed by the danger of unfair prejudice under Fed R. Evid. 403.
Fortenberry, 971 F.3d at 721. The balance under Rule 403 should be struck in
favor of admissibility. Id.
The district court did not abuse its discretion by admitting Aguilar’s
testimony as inextricably intertwined.2 At trial, Park claimed he had spent only
minutes with coconspirator Tim Starks in Aguilar’s car “talking about people on
the street.” Thus, the evidence of Aguilar’s prior drug dealing with Tim Starks
2
A district court’s admission of evidence is reviewed for abuse of discretion. United
States v. Trujillo, 146 F.3d 838, 843 (11th Cir. 1998).
4
and Park was necessary to demonstrate their prior relationships and to explain the
context of their meeting on June 8, 2007. See id. The evidence gave meaning to
Park’s assurance that he could take up more of Aguilar’s business if Aguilar
stopped dealing with a competing drug dealer. Id. Thus, Aguilar’s testimony
concerning his prior dealings with Park and Park’s coconspirators was inextricably
intertwined with the evidence of the conspiracy.
The Rule 404(b) evidence concerning Park’s subsequent possession of
cocaine was also properly admitted. Park placed his intent at issue in this case by
maintaining he had not conspired with his co-conspirators to possess cocaine with
intent to distribute. Thus, that Park possessed cocaine four months later was
relevant to his intent and motive in his dealings with Aguilar and his
coconspirators. See Cancelliere, 69 F.3d at 1124. His possession of cocaine in
October was also established by sufficient proof to permit a jury finding that he
had committed the act: the trooper who had stopped Park for speeding testified
that Park had appeared extremely nervous and had difficulty answering simple
questions. Moreover, a trained narcotics dog alerted to the presence of cocaine in
Park’s automobile. Finally, there was no undue prejudice because the district
court issued a limiting instruction on the use of the evidence. Accordingly, the
district court did not abuse its discretion by admitting this Rule 404(b) evidence.
5
II.
Park contends the district court erred by denying his motion for a mistrial,
which was based on Aguilar’s response to a question. During his direct
examination, Aguilar explained a statement made regarding Park meant that Park
hated informants. The prosecutor then inquired, “And what are you?,” to which
Aguilar responded: “An informant. Oh, he would kill me if he would get a
chance.”
Park is entitled to a grant of mistrial only upon a showing of substantial
prejudice. See United States v. Chastain, 198 F.3d 1338, 1352 (11th Cir. 1999).
Substantial prejudice occurs when there is a “reasonable probability that, but for
the remarks, the outcome of the trial would have been different.” United States v.
Emmanuel, 565 F.3d 1324, 1334 (11th Cir. 2009) (citation omitted).
The district court, which was in the best position to evaluate the prejudicial
effect of the statement, did not abuse its discretion by denying Park’s motion for a
mistrial.3 Park has not shown he suffered substantial prejudice as a result of
Aguilar’s comment. The comment was unsolicited and there was no further
reference to the remark during trial. Moreover, there was strong evidence of
3
“We review a decision not to grant a mistrial for abuse of discretion.” Emmanuel, 565
F.3d at 1334.
6
Park’s participation in the conspiracy, including video recordings, audio
recordings, and cell phone records.
III.
Park challenges the sufficiency of the evidence presented against him.
Specifically, he argues his mere presence at one meeting and his agreement with
certain statements at that meeting were insufficient to support a finding that he
conspired with intent to distribute cocaine.
The evidence amply demonstrates Park’s participation in the conspiracy.4
Park and Tim Starks assured Aguilar they could sell all the cocaine Aguilar could
provide them, and they urged Aguilar to cut out another dealer so they could take
up his supply. Park also assured Aguilar the delivery location was safe, and
approved of the $19,500 per kilogram price tag. Aguilar testified he could not
have reached the agreement on those terms if Park had not been an active
participant in the negotiations. That Park was not present when Aguilar delivered
the cocaine does not absolve him—Park was nearby and was in contact with his
co-conspirators before and after the delivery, and Aguilar noted there was no
4
We review de novo the sufficiency of the Government’s evidence presented at trial.
United States v. LeCroy, 441 F.3d 914, 924 (11th Cir. 2006). This Court views the evidence in
the light most favorable to the Government, with all reasonable inferences and credibility choices
made in the Government’s favor. Id.7
reason for Park to be present at the delivery. Based on this evidence, the jury
reasonably concluded Park was an active participant in the conspiracy.
IV.
Park contends he was not responsible for 15 kilograms of cocaine because
that amount was not reasonably foreseeable from his membership in the
conspiracy. Rather, Park contends he should be held responsible for only ten
kilograms.
A defendant is accountable for co-conspirators’ conduct that was reasonably
foreseeable and within the scope of the criminal activity that the defendant agreed
to undertake. United States v. Westry, 524 F.3d 1198, 1219 (11th Cir. 2008). A
district court errs when it determines the foreseeable quantity of drugs “without
making the critical inquiry as to the scope of criminal activity undertaken by the
defendant.” United States v. Bush, 28 F.3d 1084, 1087 (11th Cir. 1994). In a
“reverse sting” operation, like here, “the agreed-upon quantity of the controlled
substance would more accurately reflect the scale of the offense because the
amount actually delivered is controlled by the government, not by the defendant.”
U.S.S.G. § 2D1.1 cmt. n.12.
8
The district court did not clearly err by holding Park accountable for 15
kilograms of cocaine.5 The district court properly limited the scope of Park’s
criminal activity to the June 8 meeting in which he participated and the subsequent
delivery resulting from the meeting. Furthermore, 15 kilograms was a foreseeable
amount of cocaine even though Park arrived at the June 8 meeting after Aguilar
discussed providing between 10 and 15 kilograms. Although Park did not witness
Aguilar’s statement regarding the amount of cocaine Aguilar could supply, Park
told Aguilar that he could handle enough cocaine for all of Overtown. Park even
convinced Aguilar to stop dealing with another dealer so Park and Tim Starks
could take his share. Based on these statements indicating Park could and wanted
to move large quantities of cocaine, Park could foresee that the conspiracy would
involve at least 15 kilograms.
V.
Park contends that he played only a minor role in the conspiracy and that his
sentence should have been reduced accordingly. Park claims he is less culpable
than his coconspirators because he was not present at the delivery of the cocaine,
and he did not order or pay for it.
5
This Court reviews determinations of drug quantities for clear error. United States v.
Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005). The Government bears the burden of proving
a disputed fact, such as drug quantity, by a preponderance of the evidence. Id.9
The district court may reduce an offense level by two points if a defendant
is only a minor participant in the offense. U.S.S.G. § 3B1.2(b). To determine if a
defendant is a minor participant, “the district court must measure the defendant’s
role against the relevant conduct for which [he] was held accountable at
sentencing.” United States v. Rodriguez De Varon, 175 F.3d 930, 945 (11th Cir.
1999) (en banc). If the first inquiry is not dispositive, “the district court may also
measure the defendant’s role against the other participants, to the extent that they
are discernable, in that relevant conduct.” Id.The district court did not clearly err when it denied Park’s request for a
minor role reduction.6 Aguilar testified that Park was an equal partner with Tim
Starks, and that Park’s participation in the meeting was integral to reaching an
agreement to deliver the cocaine. The district court was entitled to believe
Aguilar’s testimony. See United States v. Clay, 483 F.3d 739, 744 (11th Cir.
2007) (noting the district court is afforded substantial deference “in reaching
credibility determinations with respect to witness testimony”). The district court
reasonably found that Park was a key player in the cocaine delivery and that he
was no less culpable than coconspirator Greg Starks, who helped to set up the
6
“This Court has long and repeatedly held that 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.” Rodriguez
De Varon, 175 F.3d at 937.
10
meeting and collect the fake cocaine. See Rodriguez De Varon, 175 F.3d at 945.
Thus, Park failed to prove he was entitled to a minor role sentence reduction.
VI.
Park contends the district court erred by refusing to give his requested
theory of defense instruction. Park’s proposed instruction used “interdependence”
language to describe the concepts of mere presence or association.
The district court’s refusal to give the requested “interdependence”
instruction was not an abuse of discretion.7 The essence of the proposed
instruction was adequately set out in the district court’s instructions to the jury,
which outlined the concept of mere presence or association. Moreover, defense
counsel was able to argue to the jury in summation the theory encompassed in his
proposed instruction.
AFFIRMED.
7
The district court’s refusal to give a defendant’s requested jury instructions is reviewed
for abuse of discretion. United States v. Schlei, 122 F.3d 944, 969 (11th Cir. 1997).
11