United States v. Michael A. Horne , 198 F. App'x 865 ( 2006 )


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    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT           FILED
    ________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    SEPT 18, 2006
    Nos. 05-14648 and 05-14950
    THOMAS K. KAHN
    ________________________
    CLERK
    D. C. Docket Nos. 04-00592-CR-T-30-TGW
    96-00036-CR-T-26-TBM
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    MICHAEL A. HORNE,
    Defendant-Appellant.
    ________________________
    Appeals from the United States District Court
    for the Middle District of Florida
    _________________________
    (September 18, 2006)
    Before BIRCH, PRYOR and FAY, Circuit Judges.
    PER CURIAM:
    Michael Anthony Horne challenges his convictions and sentences for drug
    trafficking and the unlawful possession of a firearm. We affirm.
    I. BACKGROUND
    On May 4, 2004, Detective Richard Murray applied for a warrant to search a
    residence at 3314 East 5th Street Court in Bradenton, Manatee County, Florida. In
    an affidavit, Murray stated that a confidential informant had bought nine pieces of
    rock cocaine inside the residence during a controlled drug buy using $100 of
    identified currency. Murray stated that he had ensured the confidential informant
    possessed no contraband or money before he entered the residence, followed the
    confidential informant to the residence and observed him enter, and met him at a
    predesignated location after the buy, where Murray collected the drugs. A circuit
    judge found that there was probable cause to believe that drug laws of Florida
    were being violated within the residence and its curtilage and issued a search
    warrant. The warrant permitted the police to search the residence, “its curtilage,
    any vehicles located within the curtilage, and any and all persons found therein,
    who are reasonably believed to be involved in the crime or crimes,” for illegal
    drugs, drug money, and any other drug or drug trafficking paraphernalia.
    On the morning of May 13, 2004, Murray observed Michael Anthony Horne
    and another person, Kelvin Martin, arrive at the residence in a black Toyota
    Avalon. Horne backed the car into the driveway and parked under the carport.
    2
    Horne and Martin waited in front of the car for about twenty minutes until another
    man, Terrance Johnson, arrived at the residence. The three men entered the
    residence.
    Police officers then executed the warrant and found Johnson, Horne, Martin,
    and another person in the residence. After the officers secured the four men,
    Murray “had [Horne] step outside to the rear of the residence so he wouldn’t be
    present with everyone else, and [] read him his Miranda rights.” Horne said he
    understood.
    After Horne stated that he understood his rights, he asked Murray whether
    they could step to the side a little farther from the door. Murray later testified, “It
    was my impression that he didn’t want anyone to hear him talk to me.” Murray
    agreed to move away from the door and then asked Horne, “What’s going on?”
    After some initial discussion, Horne asked to speak with another detective, Derek
    Pollock, who also was at the residence. Murray sent for Pollock and, during the
    approximately two minutes it took for Pollock to arrive at the rear of the house,
    Horne told Murray that he had “five ounces of coke in [] the back seat of his car.”
    Meanwhile, Pollock had used a drug detection dog to search Horne’s car.
    The dog alerted Pollock to a pouch hanging from the passenger seat headrest that
    contained five bags of powder cocaine. Another officer, Patrick Bartholomew,
    3
    saw a handgun between the driver’s seat and the center console of Horne’s car.
    Horne later told Bartholomew that the gun was his and Johnson had paid him
    $1000 to transport the cocaine.
    The officers placed Horne in a police car with Johnson. The car contained a
    hidden tape recorder that recorded what Horne and Johnson said. Horne said,
    “That gun fucked me up boy,” and, “They fittin’ fuck me on that gun . . . . Man,
    why did I even bring that shit with me, man why . . . Why?” Horne also said, “I
    said all that shit was mine. He didn’t know it was in there. Had to let him go.
    Couldn’t let him get fucked up like that.”
    On December 8, 2004, a federal grand jury indicted Horne on one count
    each of conspiracy to distribute and to possess with the intent to distribute cocaine,
    
    21 U.S.C. §§ 846
    , 841(b)(1)(c), possession with the intent to distribute cocaine, 
    21 U.S.C. § 841
    (b)(1)(c); 
    18 U.S.C. § 2
    , possession with the intent to distribute
    cocaine within 1000 feet of the real property comprising a public elementary
    school, 
    21 U.S.C. §§ 841
    (a)(1) & (b)(1)(C), 860(a); 
    18 U.S.C. § 2
    , “knowingly
    carry[ing] a firearm during and in relation to, and [] knowingly possess[ing] a
    firearm in furtherance of, a violation of Title 21, United States Code, Sections
    841(a)(1), 846 and 860(a), as alleged in Counts One, Two and Three above,” 
    18 U.S.C. § 924
    (c)(1)(A)(i) & (c)(2), and possession of a firearm as a convicted
    4
    felon, 
    18 U.S.C. § 922
    (g)(1). The indictment stated that Horne committed the
    offenses in the Middle District of Florida.
    On January 21, 2005, an attorney, Scott McCluskey, was appointed to
    represent Horne. On January 26, McCluskey moved for a continuance, which the
    district court granted. McCluskey later withdrew as counsel and a new attorney,
    Bryant Camereno, represented Horne. On March 2, Camereno moved for a
    continuance and stated that he needed at least 30 days to prepare for trial. The
    district court granted that continuance and scheduled the trial for the April
    calendar.
    On March 14, Camereno filed three motions to suppress evidence. One
    motion sought to suppress “all statements made by the defendant in the presence
    of law enforcement authorities.” Horne argued, in that motion, that his statements
    were not voluntary under Miranda v. Arizona, 
    384 U.S. 436
    , 
    86 S. Ct. 1602
    (1966). Horne stated in that motion, “In all the confusion, the defendant has no
    memory of Miranda being read to him and absent any proof that it was in fact read
    to him, the United States bears the burden of proving it was read to him and that
    his statements were made knowingly and voluntarily.” A second motion sought to
    suppress the cocaine and firearm that the officers seized from Horne’s car on the
    ground that the search warrant was not supported by probable cause and was
    5
    overly broad. A third motion sought to suppress the cocaine and firearm and “any
    statements made by the defendant” on the ground that there was no probable cause
    to arrest Horne. Horne requested an evidentiary hearing in each motion. The
    district court denied each motion without an evidentiary hearing.
    On March 31, Camereno filed an emergency motion to continue trial.
    Camereno explained that he had not had time to prepare for trial because he had
    been busy preparing the motions to suppress and preparing for other trials, but
    Camereno did not state how much more time he needed to prepare for trial. On
    April 1, the district court denied that motion to continue and scheduled the trial for
    April 18.
    At trial, the government presented as evidence of Horne’s guilt the firearm
    and cocaine that the officers found in Horne’s car, Horne’s statements to the
    officers, Horne’s statements that were recorded by the hidden tape recorder in the
    police car, and the testimony of several officers. In his closing argument, Horne’s
    lawyer repeatedly challenged the evidence of Horne’s guilt. A jury convicted
    Horne of the offenses charged.
    Horne filed several motions for judgment of acquittal. In one motion,
    Horne argued that the government had failed to prove that Horne committed the
    alleged crimes in the venue of trial. Horne acknowledged that he had not raised
    6
    that objection until after the close of evidence and after the district court had
    instructed the jury, but argued it should be considered as timely. In three other
    motions for judgment of acquittal, Horne challenged the sufficiency of the
    evidence against him. The district court denied the motions for a judgment of
    acquittal.
    At sentencing, Horne objected to the presentence investigation report
    because it did not recommend a two-level reduction in his base offense level for
    acceptance of responsibility. Horne argued that he had cooperated with law
    enforcement officials when he was arrested. Horne explained that he had
    exercised his right to a trial to preserve his right to challenge the admission of
    evidence against him. The district court found that Horne had not accepted
    responsibility and sentenced Horne to 144 months of imprisonment.
    II. STANDARD OF REVIEW
    Several standards govern our review in this appeal. First, we review a
    decision of a district court not to hold a hearing on the motions to suppress for
    abuse of discretion. United States v. Cooper, 
    203 F.3d 1279
    , 1285 (11th Cir.
    2000). Second, when we review the disposition of a motion to suppress, we
    “review the district court’s findings of fact under the clearly erroneous standard,”
    United States v. Gil, 
    204 F.3d 1347
    , 1350 (11th Cir. 2000), “construe those facts
    7
    in the light most favorable to the party that prevailed in the district court,” United
    States v. Gonzalez, 
    71 F.3d 819
    , 824 (11th Cir. 1996), and review “the district
    court’s application of law to those facts de novo,” Gil, 
    204 F.3d at 1350
    . Third,
    we review “the disposition of requests for trial continuances for abuse of
    discretion,” United States v. Bowe, 
    221 F.3d 1183
    , 1189 (11th Cir. 2000), “and
    specific, substantial prejudice,” United States v. Tokars, 
    95 F.3d 1520
    , 1531 (11th
    Cir. 1996). Fourth, we review de novo the denial of a motion for a judgment of
    acquittal notwithstanding the verdict. United States v. Garcia, 
    447 F.3d 1327
    ,
    1334 (11th Cir. 2006). “In considering a motion for the entry of a judgment of
    acquittal, a district court ‘must view the evidence in the light most favorable to the
    government, and determine whether a reasonable jury could have found the
    defendant guilty beyond a reasonable doubt.’” United States v. Miranda, 
    425 F.3d 953
    , 959 (11th Cir. 2005) (quoting United States v. Sellers, 
    871 F.2d 1019
    , 1021
    (11th Cir. 1989)). Fifth, we review a “district court’s determination of acceptance
    of responsibility only for clear error.” United States v. Dodd, 
    111 F.3d 867
    , 870
    (11th Cir. 1997).
    III. DISCUSSION
    Horne presents five arguments. First, Horne argues that the district court
    abused its discretion by not holding evidentiary hearings when it denied three
    8
    motions to suppress evidence. Second, Horne argues that the district court erred
    by denying those three motions. Third, Horne argues that the district court abused
    its discretion by denying his second motion to continue the trial. Fourth, Horne
    argues that the district court erred by not granting a judgment of acquittal. Fifth,
    Horne argues that the district court clearly erred by finding that Horne did not
    accept responsibility for his offenses. We discuss each argument in turn.
    A. The District Court Did Not Abuse Its Discretion by Not Holding Evidentiary
    Hearings in Denying Three Motions to Suppress Evidence.
    “A district court is not required to hold an evidentiary hearing on a pretrial
    motion.” United States v. Beard, 
    761 F.2d 1477
    , 1480 (11th Cir. 1985); see
    Cooper, 
    203 F.3d at 1285
     (11th Cir. 2000). A district court “may refuse a
    defendant’s request for a suppression hearing and motion to suppress if the
    defendant fails to allege facts that, if proved, would require the grant of relief.”
    United States v. Richardson, 
    764 F.2d 1514
    , 1527 (11th Cir. 1985); see United
    States v. Harris, 
    914 F.2d 927
    , 933 (7th Cir. 1990). Horne’s arguments that the
    district court abused its discretion by not holding an evidentiary hearing to resolve
    his three motions to suppress fail.
    The district court did not abuse its discretion by not holding an evidentiary
    hearing regarding whether Horne’s post-arrest statements were voluntary under
    9
    Miranda. Although a factual dispute would have existed as to whether Horne’s
    statements were voluntary if Horne had asserted that the officers never read him
    those rights, see, e.g., Oregon v. Elstad, 
    470 U.S. 298
    , 307, 
    105 S. Ct. 1285
    , 1292
    (1985) (stating that a statement “otherwise voluntary within the meaning of the
    Fifth Amendment must nevertheless be excluded from evidence” if the declarant
    did not first receive the Miranda warnings), Horne failed to assert in his motion to
    suppress post-arrest statements that he had not been read the Miranda rights.
    Horne stated, “In all the confusion, the defendant has no memory of Miranda
    being read to him and absent any proof that it was in fact read to him, the United
    States bears the burden of proving it was read to him and that his statements were
    made knowingly and voluntarily.” Horne was not entitled to suppression on the
    ground that he had “no memory of Miranda being read to him,” and the record
    reveals that Horne received the Miranda warnings, which renders harmless any
    discretion the district court might have abused in not holding a hearing. See
    United States v. Mena, 
    863 F.2d 1522
    , 1528 (11th Cir. 1989) (“Assuming the
    district judge should have held a suppression hearing to determine whether [the
    defendant’s] statements were voluntary, we find any error harmless.”).
    The district court also did not abuse its discretion in not holding evidentiary
    hearings regarding whether the search warrant lacked probable cause and was
    10
    overly broad and whether probable cause existed to arrest Horne. Horne’s motions
    presented issues of law, not fact. See, e.g., United States v. Allison, 
    953 F.2d 1346
    , 1350 (11th Cir. 1992) (stating that the “question of what amounts to
    probable cause is purely a question of law”). Neither motion raised a disputed
    issue of fact that required resolution in an evidentiary hearing. See Sablan v.
    Dep’t of Fin. of Commonwealth of Northern Mariana Islands, 
    856 F.2d 1317
    ,
    1322 (9th Cir. 1988) (“Like a trial, the purpose of an evidentiary hearing is to
    resolve disputed issues of fact . . . .”).
    B. The District Court Correctly Denied the Motions to Suppress Evidence.
    Horne argues the district court erroneously denied his three motions to
    suppress evidence. One motion addressed whether Horne’s statements were
    voluntary under Miranda, another motion challenged the validity of the search
    warrant, and a third argued that probable cause did not exist to arrest Horne. We
    discuss each motion in turn.
    The district court correctly denied the motion that addressed whether
    Horne’s post-arrest statements were voluntary under Miranda. Although a
    statement that is “otherwise voluntary within the meaning of the Fifth Amendment
    must nevertheless be excluded from evidence” if the declarant did not first receive
    the Miranda warnings, Elstad, 
    470 U.S. at 307
    , 
    105 S. Ct. at 1292
    , the record
    11
    shows that Horne received the Miranda warnings. Horne raises no other question
    about whether his waiver was voluntary, knowing, or intelligent. See Miranda,
    
    384 U.S. at 444
    , 
    86 S. Ct. at 1612
     (stating that, to be valid, a waiver of the rights
    under Miranda must be “made voluntarily, knowingly and intelligently”).
    The district court also correctly denied the motion in which Horne
    challenged the search warrant on the grounds that it lacked probable cause and
    was overly broad. Horne argues that the controlled buy, which Murray described
    in his affidavit, was insufficient to establish probable cause, but “[g]enerally, a
    controlled buy, when executed properly, is a reliable indicator as to the presence
    of illegal drug activity.” United States v. Sidwell, 
    440 F.3d 865
    , 869 (7th Cir.
    2006). A “common sense view to the realities of normal life,” Wilson v. Attaway,
    
    757 F.2d 1227
    , 1235 (11th Cir. 1985), leads to the conclusion that a residence
    contains drugs when a person enters that residence with no drugs and exits
    approximately one minute later with drugs, cf. Sidwell, 
    440 F.3d at 869
    (concluding that a controlled buy established probable cause that a residence
    contained drugs when a “confidential informant entered the building without
    contraband” and “exit[ed] moments later” with cocaine). Horne’s other argument,
    that the warrant was overly broad, also fails because the Fourth Amendment
    requires a search warrant to “particularly describ[e]” only “the place to be
    12
    searched” and “the persons or things to be seized.” U.S. Const. Amend. IV; see
    United States v. Grubbs, ___ U.S. ___, ___, 
    126 S. Ct. 1494
    , 1500 (2006). The
    warrant described the residence in detail and limited the search to drugs and drug
    paraphernalia and parts of the premise and people involved in crime related to
    drugs. The search warrant was valid.
    The district court also correctly denied the motion in which Horne argued
    that probable cause did not exist to arrest him. While he was detained during the
    search of the residence, Horne told the officers that his car contained illegal drugs.
    That statement provided probable cause to arrest Horne. Horne argues that that
    statement was unlawfully obtained because he was unlawfully detained, but a
    person may be detained during a search of a residence conducted pursuant to a
    warrant based on probable cause. Michigan v. Summers, 
    452 U.S. 692
    , 705, 
    101 S. Ct. 2587
    , 2595 (1981). Because the search warrant was valid, Horne was
    lawfully detained during the search and his statement provided probable cause to
    arrest him.
    C. The District Court Did Not Abuse Its Discretion by Not Granting Horne’s
    Motion to Continue Trial.
    Horne argues that the district court abused its discretion by not granting his
    motion for a continuance. A denial of a continuance can violate the right of “a fair
    13
    or reasonable opportunity to select the attorney of their choice” guaranteed to
    defendants as a matter of due process, United States v. Bowe, 
    221 F.3d 1183
    , 1190
    (11th Cir. 2000), but Horne suffered no violation of that right. The district court
    granted the first motion to continue that Camereno filed, in which he stated that he
    needed at least 30 days to prepare for trial. Camereno had approximately 1.5
    months from that continuation to prepare for trial. The refusal of the district court
    to grant Camereno more time to prepare for a trial that included evidence of a
    search of one car and one home, a small amount of cocaine and one firearm, few
    witnesses, and no complex expert testimony did not cause Horne substantial
    prejudice.
    In support of his argument, Horne cites United States v. Verderame, 
    51 F.3d 249
     (11th Cir. 1995), in which we concluded “that the district court abused its
    discretion in denying [] several motions for continuance and caused [the
    defendant] to suffer substantial prejudice in presenting his defense,” 
    id. at 252
    .
    Verderame is impertinent to this appeal because that decision involved years of
    investigation by the government, “charges of participation in two major drug
    trafficking conspiracies,” 
    id. at 251
    , and only “34 days between arraignment and
    trial” to prepare a complex defense, 
    id. at 252
    . Horne’s case was simple. The
    district court did not abuse its discretion.
    14
    D. The District Court Did Not Err by Not Granting a Judgment of Acquittal.
    Horne argues, for three reasons, that the district court erred in failing to
    grant a judgment of acquittal. First, Horne argues that his convictions should be
    reversed because the government failed to prove venue. Second, Horne argues
    that the evidence was insufficient to prove a conspiracy because, in the audio
    recording of Horne admitting that the cocaine was his, “Johnson sounded
    surprised that [the cocaine] was there,” and the evidence does not support an intent
    to distribute the cocaine. Third, Horne argues that section 924(c) creates distinct
    offenses, the indictment charged in one count two ways of violating section 924(c)
    of Title 18 of the U.S. Code, and doubt exists as to whether the jury unanimously
    convicted him “of an offense criminalized by Section 924(c).” These arguments
    fail.
    First, Horne waived his objection to venue by failing to raise that issue
    before trial. “[A] defendant waives an objection to venue by failing to raise it
    before trial, subject to the exception that objecting at the close of evidence is soon
    enough if the indictment alleges an incorrect venue and the defendant was not
    aware of that defect until the government presented its case.” United States v.
    Greer, 
    440 F.3d 1267
    , 1271 (11th Cir. 2006). Horne did not qualify for the
    15
    exception described in Greer because the indictment did not allege an incorrect
    venue.
    Second, Horne’s argument about the sufficiency of the evidence is baseless.
    A jury is permitted to interpret evidence in more than one way. E.g., United States
    v. Molina, 
    443 F.3d 824
    , 828 (11th Cir. 2006); Garcia, 
    447 F.3d at 1334
    .
    Whatever “surprise” Johnson’s statement or tone of voice might suggest, it is not
    enough to undermine the conclusion that a reasonable jury could have found
    Horne guilty of conspiracy beyond a reasonable doubt. See Sellers, 
    871 F.2d at 1021
    . There was ample evidence that Horne intended to distribute the cocaine
    found in his car.
    Third, the jury instructions cured whatever defect might have existed in the
    indictment. The district court instructed the jury that the indictment charged “two
    separate ways” of violating section 924(c), the government was not required to
    prove the defendant had violated that statute in both those ways, but the jury “must
    unanimously agree with the way in which the defendant committed the offense.”
    Because “[w]e presume the jury followed the trial court’s instructions,” United
    States v. Brazel, 
    102 F.3d 1120
    , 1145 (11th Cir. 1997), there is no doubt that, even
    if the indictment charged separate offenses rather than two ways of committing the
    16
    same offense, the jury unanimously convicted Horne of “an offense criminalized
    by Section 924(c).” The district court correctly denied a judgment of acquittal.
    E. The District Court Did Not Clearly Err by Finding that Horne Had Not
    Accepted Responsibility for His Offenses.
    Horne argues that the district court clearly erred at sentencing by finding
    that he had not accepted responsibility for his offenses. Although “a defendant
    may clearly demonstrate an acceptance of responsibility for his criminal conduct
    even though he exercises his constitutional right to a trial,” U.S.S.G. § 3E1.1 cmt.
    n.2 (2005), that situation is “rare” and “may occur, for example, where a defendant
    goes to trial to assert and preserve issues that do not relate to factual guilt,” id.
    At his trial, Horne challenged his “factual guilt.” The district court did not err.
    IV. CONCLUSION
    Horne’s convictions and sentence are
    AFFIRMED
    17
    

Document Info

Docket Number: 05-14648, 05-14950

Citation Numbers: 198 F. App'x 865

Judges: Birch, Fay, Per Curiam, Pryor

Filed Date: 9/18/2006

Precedential Status: Non-Precedential

Modified Date: 8/2/2023

Authorities (24)

United States v. Dodd , 111 F.3d 867 ( 1997 )

United States v. Raymond Brann Allison , 953 F.2d 1346 ( 1992 )

United States v. Cooper , 203 F.3d 1279 ( 2000 )

United States v. Gil , 204 F.3d 1347 ( 2000 )

United States v. Bowe , 221 F.3d 1183 ( 2000 )

United States v. Adan Gil Miranda , 425 F.3d 953 ( 2005 )

United States v. Eliany Molina , 443 F.3d 824 ( 2006 )

E.J. Wilson, Dearest Davis, and Cassandra Linder, ... , 757 F.2d 1227 ( 1985 )

United States v. Charles William Beard , 761 F.2d 1477 ( 1985 )

United States v. Tokars , 95 F.3d 1520 ( 1996 )

United States v. Cesar Garcia , 447 F.3d 1327 ( 2006 )

United States v. Augustin Gonzalez , 71 F.3d 819 ( 1996 )

United States v. Pellegrino \"Paul\" Verderame, Billy ... , 51 F.3d 249 ( 1995 )

46-fed-r-evid-serv-240-10-fla-l-weekly-fed-c-621-united-states-of , 102 F.3d 1120 ( 1997 )

United States v. Gerald L. Sidwell , 440 F.3d 865 ( 2006 )

United States v. Rickey Lee Harris , 914 F.2d 927 ( 1990 )

United States v. Scott Richardson, Rafael Bruno Crespo-Diaz,... , 764 F.2d 1514 ( 1985 )

United States v. Theresa M. Sellers , 871 F.2d 1019 ( 1989 )

united-states-v-concepcion-mena-alfredo-brack-brack-nurberto , 863 F.2d 1522 ( 1989 )

john-r-sablan-angeline-f-sablan-v-department-of-finance-of-the , 856 F.2d 1317 ( 1988 )

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