United States v. Erica Jacovia Bryant , 618 F. App'x 586 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-13633
Non-Argument Calendar
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D.C. Docket No. 0:14-cr-60055-JIC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERICA JACOVIA BRYANT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 15, 2015)
Before WILSON, WILLIAM PRYOR, and JORDON, Circuit Judges.
PER CURIAM:
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Erica Jacovia Bryant (Bryant) appeals her jury conviction for presenting
false claims in violation of 18 U.S.C. § 287 and the district court’s imposition of a
twenty-seven-month prison sentence therefor. Upon review of the parties’ briefs
and the record on appeal, we affirm Bryant’s conviction and sentence for the
reasons set forth herein.
I.
Bryant first argues that the district court abused its discretion when it
excused a juror for cause over Bryant’s objection (1) because the juror said that she
could be fair and would be able to set aside a painful experience she had had with
fraudulent documents and (2) because the circumstances did not warrant her
dismissal.
A district court may excuse a juror and replace her with an alternate if, prior
to deliberations, the juror is “unable to perform” or “disqualified from performing”
her duties. Fed. R. Crim. P. 24(c)(1); see also United States v. Fajardo, 787 F.2d
1523, 1525 (11th Cir. 1986). “The decision to remove a juror and replace [her]
with an alternate is entrusted to the sound discretion of the trial judge ‘whenever
facts are presented which convince the trial judge that the juror’s ability to perform
[her] duty as a juror is impaired.’” Fajardo, 787 F.2d at 1525 (quoting United
States v. Smith, 550 F.2d 277, 285 (5th Cir. 1977)); see also United States v.
Augustin, 661 F.3d 1105, 1129 (11th Cir. 2011) (per curiam) (“A district court’s
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decision to remove a juror is reviewed for abuse of discretion.”). Absent a
showing of bias or prejudice to the defendant, we will not disturb the district
court’s decision. See United States v. De La Vega, 913 F.2d 861, 869 (11th Cir.
1990). “[P]rejudice includes discharge of a juror without factual support or for a
legally irrelevant reason.” Id. (internal quotation marks omitted). It is not
necessary that a defendant consent to the court’s replacement of a juror with an
alternate—“reasonable cause for the replacement” is all that is required. See
Fajardo, 787 F.2d at 1526.
Here, the district court did not abuse its discretion in excusing the subject
juror. The district court’s concern that the juror could not be fair and impartial in
Bryant’s case was reasonable, see id., based on the juror’s statements (1) that she
was never treated fairly by the justice system, including courts, lawyers, and law
enforcement, (2) that evidence of fraudulent documents likely to be introduced at
Bryant’s trial would be painful for her, and (3) that whether her past experiences
would affect her judgment would depend on what evidence was, in fact, presented
at trial. The juror’s ability to serve impartially was certainly “less than clear,” and
the district judge’s ultimate excusal of the juror was supported by a factual basis.
See De La Vega, 913 F.2d at 869. Moreover, Bryant failed to show how the juror’s
excusal was prejudicial to her—indeed, she conceded that the juror’s inclusion
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more likely would have favored the government. Accordingly, we affirm the
district court’s excusal of the juror and replacement with an alternate.
II.
Bryant next contends that the district court erred in admitting evidence of
her meeting with a tax preparer regarding a business tax return that was never filed,
arguing that this evidence had no probative value, was not relevant to her intent to
seek a false refund with respect to the individual tax return at issue, and thus did
not meet the Federal Rule of Evidence 404(b) test. See United States v. Ellisor,
522 F.3d 1255, 1267 (11th Cir. 2008) (discussing Rule 404(b) standard). Bryant
further argues that her meeting with the tax preparer was not “inextricably
intertwined” with the charged offense and that admitting evidence thereof was
harmfully prejudicial. See id. at 1269 (internal quotation marks omitted).
However, Bryant invited the alleged error and thus cannot challenge the admission
of this evidence on appeal.
The doctrine of invited error applies when a party “induces or invites” the
district court into committing error. See United States v. Silvestri, 409 F.3d 1311,
1327 (11th Cir. 2005) (internal quotation marks omitted). When a party invites
error, we are precluded from reviewing that error on appeal. See id. Although
Bryant argued below that the evidence of her meeting with the tax preparer was not
inextricably intertwined with the alleged offense, she conceded its admissibility
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under Rule 404(b) by (1) requesting a Rule 404(b) instruction from the court, (2)
introducing the evidence herself “to steal [the government’s] thunder,” and (3)
using the evidence to argue to the jury that she was not guilty. Thus, we affirm the
district court’s admission of evidence concerning Bryant’s meeting with the tax
preparer.
III.
Bryant next argues that the district court erred in denying her Rule 29
motion for judgment of acquittal because the government had failed to produce
evidence that a refund issued to Bryant by the Internal Revenue Service (IRS) was
caused by Bryant’s alleged false claim. See Fed. R. Crim. P. 29. According to
Bryant, the government had not concluded its investigation as to why the IRS
reissued a refund to her more than a year after the original refund check was
returned and a criminal investigation was initiated. Without such information,
Bryant contends, denial of her Rule 29 motion was in error.
Ordinarily, we review de novo the district court’s denial of a Rule 29
motion, viewing the evidence in the light most favorable to the government and
drawing all reasonable inferences in favor of the jury’s verdict. See United States
v. Vernon, 723 F.3d 1234, 1266 (11th Cir. 2013). However, because Bryant is
presenting her sufficiency of the evidence argument for the first time on appeal, we
review the district court’s decision for plain error. See United States v. Joseph, 709
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F.3d 1082, 1093, 1103 (11th Cir. 2013), cert. denied, 134 S. Ct. 1273 (2014). “To
establish plain error, a defendant must show there is (1) error, (2) that is plain, and
(3) that affects substantial rights.” United States v. Evans, 478 F.3d 1332, 1338
(11th Cir. 2007) (internal quotation marks omitted). If the defendant demonstrates
plain error has occurred, we may recognize the otherwise forfeited error, “but only
if the error seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. (alteration in original) (internal quotation marks omitted).
Under 18 U.S.C. § 287, it is unlawful to “make[] or present[] . . . to any
department or agency [of the United States], any claim upon or against the United
States, or any department or agency thereof, knowing such claim to be false,
fictitious, or fraudulent.” To sustain a conviction for making a false claim under §
287, the government must prove:
[1] That the defendant made or presented a false, fictitious, or
fraudulent claim to a department of the United States;
[2] That the defendant knew such claim was false, fictitious, or
fraudulent;
[3] That the defendant did so with the specific intent to violate the law
or with a consciousness that what he was doing was wrong.
United States v. Slocum, 708 F.2d 587, 596 (11th Cir. 1983).
Here, the district court did not plainly err in denying Bryant’s Rule 29
motion, despite the government’s failure to explain the basis for the IRS’s
reissuance of her refund. The cause of the reissuance was not necessary to the
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charge of false claims for which Bryant was convicted. Moreover, an IRS agent
testified that the IRS regularly issues refunds to taxpayers before verifying the
fraudulent nature of individual claims. Thus, it was not plain error to conclude that
it was possible for a reasonable jury to find Bryant guilty of false claims beyond a
reasonable doubt, even without knowing why the IRS decided to reissue the refund
to Bryant after the criminal investigation against her had ensued. Accordingly, we
affirm the district court’s denial of Bryant’s Rule 29 motion.
IV.
Finally, Bryant argues that the district court erred in imposing a higher
sentence than it had originally intended based solely on her maintaining her
innocence during her allocution. Bryant contends that this was an improper basis
upon which to sentence her to a longer term of imprisonment.
“[T]he familiar abuse-of-discretion standard of review . . . applies to
appellate review of sentencing decisions.” Gall v. United States, 552 U.S. 38, 46,
128 S. Ct. 586, 594 (2007). A court abuses its discretion in imposing a sentence if
it (1) fails to consider relevant factors that were due significant weight, (2) gives an
improper or irrelevant factor significant weight, or (3) commits a clear error of
judgment by balancing the proper factors unreasonably. See United States v. Irey,
612 F.3d 1160, 1189 (11th Cir. 2010) (en banc); see also United States v. Pugh,
515 F.3d 1179, 1191–92 (11th Cir. 2008). “The party challenging the sentence
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bears the burden of establishing that the sentence is unreasonable in light of the
record and the § 3553(a) factors.” United States v. Early, 686 F.3d 1219, 1221
(11th Cir. 2012).
We review de novo whether the district court considered an impermissible
sentencing factor. See United States v. Stanley, 739 F.3d 633, 652 (11th Cir.), cert.
denied, 134 S. Ct. 2317 (2014). Although the district court may not consider a
defendant’s exercise of her Fifth Amendment rights, it may consider her lack of
remorse, see id., and disrespect for the law, see 18 U.S.C. § 3553(a)(2)(A). We
have stated that where a defendant chooses to allocute at his sentencing hearing
without pressure from the court and repeatedly denies any wrongdoing, the court is
permitted to consider the defendant’s freely offered statements indicating a lack of
remorse in sentencing. See Stanley, 739 F.3d at 652. “Just as a jury weighs a
defendant’s testimony once he waives his Fifth Amendment privilege at trial, a
judge may consider a defendant’s freely offered allocution regarding remorse
during sentencing.” Id.
In the instant case, the district court did not err in considering Bryant’s lack
of remorse and her disrespect for the law evinced by her allocution in sentencing
her to a term of imprisonment at the higher end of the Guidelines range. Her (1)
repeated denial of guilt and blaming of others, (2) accusations against the court,
law enforcement, and the government, and (3) threats to continue “screaming” and
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“fight[ing]”, all of which were freely made during allocution, demonstrated a lack
of remorse, see id., and showed a disrespect for the law, see § 3553(a)(2)(A). The
district court expressly stated that it made its determination not on account of
Bryant’s maintaining her innocence but out of a motivation to promote respect for
the law. See id. The court also indicated that it gave due weight to the statements
of the parties, the presentence report and Advisory Guidelines, and the § 3553(a)
factors in determining Bryant’s twenty-seven-month sentence—which was within
the Guidelines and well below the statutory maximum. See 18 U.S.C. § 287; see
also United States v. Hunt, 526 F.3d 739, 745 (11th Cir. 2008) (“[W]e ordinarily
expect a sentence within the Guidelines range to be reasonable.” (internal
quotation marks omitted)).
Accordingly, the district court did not err in considering Bryant’s lack of
remorse and did not abuse its discretion in sentencing her to twenty-seven-months’
imprisonment.
AFFIRMED.
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