United States v. James Tipton , 572 F. App'x 743 ( 2014 )


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  •                Case: 12-16515        Date Filed: 07/16/2014      Page: 1 of 15
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 12-16515
    ________________________
    D.C. Docket No. 6:11-cr-00302-CEH-TBS-2
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    JAMES TIPTON,
    Defendant - Appellant.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    ________________________
    (July 16, 2014)
    Before CARNES, Chief Judge, DUBINA, and SILER, * Circuit Judges.
    PER CURIAM:
    *
    Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit Court
    of Appeals sitting by designation.
    Case: 12-16515     Date Filed: 07/16/2014   Page: 2 of 15
    Appellant James Tipton appeals his conviction and sentence for conspiring
    to distribute and to possess with intent to distribute oxycodone, in violation of 21
    U.S.C. § 846. After reviewing the record, reading the parties’ briefs, and having
    the benefit of oral argument, we affirm Tipton’s conviction and his 168-month
    sentence.
    I. BACKGROUND
    Michael Snow lived in Kentucky and worked with Robbie Adams, who was
    an oxycodone broker for Juanita Hall. Adams introduced Snow to Hall. After this
    introduction, for approximately ten months, Snow regularly supplied Hall with up
    to 3,000-pill quantities of oxycodone. Snow moved to Florida. Hall was unable to
    obtain the 30-milligram oxycodone pills in Kentucky, so she suggested that she
    would purchase oxycodone directly from Snow. Hall continued to call Snow to
    purchase more oxycodone pills even after Snow’s arrest on drug charges in
    Florida.
    After being convicted of unrelated state drug offenses, Snow became a
    confidential informant (“CI”) with the Drug Enforcement Administration (“DEA”).
    Snow signed a cooperation agreement with the DEA and identified Hall as a drug
    dealer. Subsequently, Snow and Hall communicated via telephone and text
    messages to negotiate a deal for 2,000, 30-milligram oxycodone pills at the price of
    $15 per pill. Hall chose not to travel to Florida to secure the oxycodone pills
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    because her daughter was ill. She told Snow that Harold Durham (Tipton’s former
    father-in-law) and Tipton (whom Hall called “Jay”) would contact him to arrange a
    meeting for the transfer of the pills. Thereafter, Tipton, Durham, and Danny
    Winburn, the driver, traveled to Florida from Kentucky with the money to
    purchase the oxycodone. They also took fishing equipment with them to disguise
    the real nature of their trip.
    After several telephone calls between Snow and Tipton, the men eventually
    arrived at a hotel to meet with the oxycodone source, who was undercover agent
    Paul Roque. The police arrested the men and searched Tipton’s van, uncovering
    two boxes containing a total of $29,030.10 in cash. The currency was separated
    into $1,000 bundles and bound with rubber bands, which police acknowledge is a
    common way for drug dealers to transport cash.
    Tipton proceeded to trial, and a jury found him guilty of conspiracy to
    distribute and to possess with intent to distribute oxycodone, in violation of 21
    U.S.C. § 846. At the sentencing hearing, the government indicated that Tipton
    qualified as a career offender, and because of this, Tipton had an enhanced total
    offense level of 34 and a criminal history category of VI. This resulted in an
    advisory sentencing guideline range of 262 to 327 months’ imprisonment. The
    district court denied Tipton's motion for a downward departure but determined
    that, given the evidence of Tipton’s cognitive disorder and passive/dependent
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    personality, a below-guideline-range sentence of 168 months would be reasonable.
    Tipton timely perfected this appeal.
    II. ISSUES
    (1)    Whether the district court erred by denying Tipton’s motions for
    judgment of acquittal.
    (2)    Whether the district court abused its discretion by denying Tipton’s
    motions for new trial and dismissal of the indictment.
    (3)    Whether Tipton’s below-guidelines sentence is procedurally or
    substantively unreasonable.
    III. STANDARDS OF REVIEW
    Because Tipton moved for a judgment of acquittal at the end of the
    government’s case and after presentation of all of the evidence, we review the
    sufficiency of the evidence de novo, viewing the evidence in the light most
    favorable to the government and making all reasonable inferences and credibility
    choices in the government’s favor. United States v. Keller, 
    916 F.2d 628
    , 632
    (11th Cir. 1990).
    This court reviews for abuse of discretion the district court’s rulings on
    motions for a new trial. United States v. Thompson, 
    422 F.3d 1285
    , 1294-95 (11th
    Cir. 2005). Because Tipton did not object to some of the district court’s rulings
    until he filed his motion for new trial, we review those rulings for plain error only.
    United States v. Baker, 
    432 F.3d 1189
    , 1202–03 (11th Cir. 2005) (“Under the plain
    error standard, before an appellate court can correct an error not raised at trial,
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    there must be (1) error, (2) that is plain, and (3) that affects substantial rights.”
    (internal quotation marks and citation omitted)).
    This court reviews a sentence for reasonableness, United States v.
    Winingear, 
    422 F.3d 1241
    , 1244-45 (11th Cir. 2005), “under a deferential abuse-
    of-discretion standard,” Gall v. United States, 
    552 U.S. 38
    , 41, 
    128 S. Ct. 586
    , 591
    (2007).
    IV. ANALYSIS
    A. Sufficiency of the Evidence
    To prove a violation of 21 U.S.C. § 846, the government had to establish
    that two or more persons agreed to violate the narcotics laws and that Tipton
    knowingly participated in that agreement. See United States v. Baptista-Rodriguez,
    
    17 F.3d 1354
    , 1369 (11th Cir. 1994). A jury may infer participation in a
    conspiracy from the defendant’s concert of action with others. United States v.
    Calderon, 
    127 F.3d 1314
    , 1326 (11th Cir. 1997). Although mere association with
    conspirators and presence at the scene of a crime do not in themselves establish
    participation in a criminal conspiracy, a jury may properly consider both in
    conjunction with one another and with other facts to infer knowing and intentional
    participation in the conspiracy. United States v. Brantley, 
    68 F.3d 1283
    , 1288 n. 4
    (11th Cir. 1995). See also United States v. Cruz-Valdez, 
    773 F.2d 1541
    , 1546
    (11th Cir. 1985) (“A jury may find knowledgeable, voluntary participation from
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    presence when the presence is such that it would be unreasonable for anyone other
    than a knowledgeable participant to be present.”).
    Here, the record evidence demonstrates that, based upon her prior
    association with Snow, Hall had brokered a deal to supply Durham and Tipton
    with approximately 2,000, 30-milligram oxycodone pills for $32,000. To facilitate
    the deal, Hall had provided Snow with Durham’s cell phone number, and to ensure
    that Snow would feel comfortable consummating the deal in her absence, Hall told
    Snow that she had met Tipton during a prior drug deal. During the men’s drive to
    Florida, Snow had asked Tipton whether “you guys” were still going to Florida,
    and Tipton responded that they were. Also during the drive, Durham told Snow
    that “if we can get the right kind of deal going, we’ll pick up all you can get.” Hall
    also stated to Snow that Hall had been in contact with Durham and Tipton after
    their arrival in Florida to secure arrangements for a meeting place. Once the men
    arrived at the hotel, Snow entered the van, discussed the particulars of the deal, and
    confirmed that the defendants had the buy money. During Snow’s conversation
    with the men, Durham stated that “we’ve got the money stuffed up under the van
    in boxes.” Snow observed during the meeting that Tipton expressed neither
    surprise that a drug deal was underway nor any misgivings about the deal going
    forward. When they searched the van, the authorities found money inside.
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    Although the government’s evidence did not include statements from Tipton
    or his co-defendants directly implicating Tipton in the drug deal, the jury was
    entitled to find from the evidence presented that Tipton, Durham’s former son-in-
    law, was fully apprised of the particulars regarding the drug deal. See Cruz-
    
    Valdez, 773 F.2d at 1546
    . Moreover, the government proved at trial that Tipton
    previously had been convicted of conspiracy to distribute marijuana and a
    controlled substance, which is relevant to show his intent to enter into this
    conspiracy as well. See United States v. Cardenas, 
    895 F.2d 1338
    , 1344 (11th Cir.
    1990) (“Evidence of prior drug dealings is highly probative of intent to distribute a
    controlled substance, as well as involvement in a conspiracy.” (quoting United
    States v. Hitsman, 
    604 F.2d 443
    , 448 (5th Cir. 1979)).
    Tipton’s challenge to the sufficiency of the evidence includes an argument
    that, because Hall was a CI who allegedly had acted to thwart the purported
    conspiracy, the district court erred by admitting her statements as a co-conspirator
    under Federal Rule of Evidence (“Rule”) 801(d)(2)(E). The district court
    conducted a pretrial James 1 hearing to determine whether Hall’s statements
    qualified for admission pursuant to Rule 801(d)(2)(E). In our view, the district
    court did not abuse its discretion by admitting Hall’s statements because the
    government established the prerequisites for their admission under Rule
    1
    See United States v. James, 
    590 F.2d 575
    , 579–80 (5th Cir. 1975) (en banc) (holding
    that judge alone should determine admissibility of co-conspirator’s declarations).
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    801(d)(2)(E). Because we conclude from the record that sufficient evidence
    established that Tipton knowingly participated in the conspiracy to possess and
    distribute oxycodone, we hold that the district court did not err by denying
    Tipton’s motions for judgment of acquittal.
    B. Motions For New Trial and Dismissal and Evidentiary Rulings
    The district court did not abuse its discretion by denying Tipton’s motion for
    a new trial. At the James hearing, the government presented evidence to support
    the district court’s finding that Hall had not been an informant and supported the
    district court’s admission of her statements as co-conspirator statements under
    Rule 801(d)(2)(E). While it is true that Hall gave inconsistent statements to direct
    questioning regarding whether she had worked as an informant, the jury, as the
    sole arbiter of credibility, determined that she was not an informant, thus implicitly
    rejecting Tipton’s assertion to the contrary. That is the prerogative of the jury. See
    
    Calderon, 127 F.3d at 1325
    (determination concerning witnesses’ credibility is
    jury’s exclusive province). Thus, there was sufficient evidence for a reasonable
    jury to conclude that Hall had been a co-conspirator, along with Tipton, Durham,
    and Winburn, and not an informant. Assuming arguendo that Hall had been an
    informant, we would not reverse Tipton’s conspiracy conviction because Tipton’s
    prior association with Hall and his travel to Florida with Durham and Winburn,
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    despite his physical discomfort due to a boil on his body, was sufficient to establish
    that Tipton knowingly participated in the conspiracy.
    Tipton next argues that, at trial, the district court should have excluded
    Hall’s statements about the conspiracy to Snow because they were “testimonial”
    statements within the meaning of the Sixth Amendment and therefore barred by
    Crawford v. Washington, 
    541 U.S. 36
    , 68, 
    124 S. Ct. 1354
    , 1374 (2004). In United
    States v. Underwood, 
    446 F.3d 1340
    (11th Cir. 2006), this court held that
    statements made to an undercover informant in the course of an investigation were
    non-testimonial because the statements “clearly were not made under
    circumstances which would have led [the declarant] reasonably to believe that his
    statement would be available for use at a later trial.” 
    Id. at 1346.
    Because Hall’s
    statements to Snow, a CI, were non-testimonial and satisfied the requirements for
    admissibility of co-conspirator statements, we conclude the district court properly
    admitted them. 2
    While Tipton seeks to exclude Hall’s inculpatory statements about the
    conspiracy, he contends that her equivocal statements about her work as a CI
    should have been admitted under either Rule 804 or Rule 807. Rule 804 allows for
    2
    Tipton also contends that the district court erred in admitting Hall’s statements about the
    conspiracy after it found that Hall was not credible. Rule 801(d)(2)(E) provides that a statement
    offered against an opposing party that was made by the party’s co-conspirator during and in
    furtherance of the conspiracy is not hearsay. This rule does not require that the district court
    make a credibility determination before admitting the statement. That is for the jury to decide.
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    the admission of a hearsay statement against interest when it “is supported by
    corroborating circumstances that clearly indicate its trustworthiness.” Fed. R.
    Evid. 804(b)(3)(B). Similarly, under Rule 807, the hearsay statement may be
    admissible if it has “circumstantial guarantees of trustworthiness.” Fed. R. Evid.
    807(a)(1). However, the district court found that Hall was “completely
    unbelievable at this point,” and Tipton does not point to anything that refutes this
    finding. Accordingly, the district court’s exclusion of the statements under both
    rules was proper.
    Relying on Rule 806, Tipton next argues that the district court improperly
    excluded Hall’s statements that she had been an informant and that Tipton had not
    been involved in the drug conspiracy. Because Tipton did not rely on Rule 806 in
    the district court, we review this argument for plain error only. See 
    Baker, 432 F.3d at 1202
    –03. The district court did not violate Rule 806 because it was not
    applicable. However, assuming the district court abused its discretion by
    excluding Hall’s statements under Rule 806, Tipton has failed to show that the
    error affected his substantial rights such that he is entitled to relief. Tipton admits
    that the district court permitted him to elicit testimony that Hall had given
    inconsistent statements in response to the “direct question” about whether she had
    worked as an informant. The district court refused to admit Hall’s equivocal
    statements about her work as a CI under Rules 804 or 807, determining that the
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    statements lacked sufficient indicia of trustworthiness for admissibility. The
    district court’s exclusion of the evidence under either rule was not an abuse of
    discretion. See United States v. Jayyousi, 
    657 F.3d 1085
    , 1113–14 (11th Cir.
    2011).
    Tipton also alleges that the district court erred by denying his second motion
    for new trial and motion to dismiss the indictment. Not only is Tipton’s motion for
    new trial untimely, we conclude it is meritless. We also conclude he has waived
    review of his motion to dismiss the indictment because he failed to provide any
    authority in support of his argument. See Flanigan’s Enters. Inc. of Georgia v.
    Fulton Cnty, Ga., 
    242 F.3d 976
    , 987 n.16 (11th Cir. 2001).
    Tipton proffers a serious allegation that the district court violated his Sixth
    Amendment right to compulsory process by failing to issue a bench warrant or an
    order to show cause for Hall to appear at Tipton’s trial. Because Tipton failed to
    assert this argument in the district court, we review this contention for plain error
    only. See United States v. Douglas, 
    489 F.3d 1117
    , 1125 (11th Cir. 2007),
    abrogated on other grounds by United States v. Whatley, 
    719 F.3d 1206
    (11th Cir.
    2013). Tipton has failed to meet his burden under the plain error review standard.
    After the trial had begun, Tipton provided to the district court proof of service and
    a draft order to show cause. However, the district court never issued the order
    because Tipton’s request for it was inadequate and untimely. That determination
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    was not an abuse of discretion. Tipton’s Sixth Amendment claim also lacks merit
    because the Sixth Amendment guarantees a criminal defendant compulsory process
    only for obtaining witnesses in his favor. United States v. Valenzuela-Bernal, 
    458 U.S. 858
    , 867, 
    102 S. Ct. 3440
    , 3446 (1982). Here, Tipton fails to show that Hall’s
    testimony was material and favorable because he cannot state with certainty what
    her testimony would have contained.
    Tipton next argues that the district court erred by failing sua sponte to give a
    missing-witness jury instruction. Because Tipton failed to request such an
    instruction, we review this claim for plain error only. See United States v. Moore,
    
    525 F.3d 1033
    , 1048 (11th Cir. 2008). Because Tipton has failed to demonstrate
    entitlement to a missing-witness instruction, the district court did not plainly err by
    failing to give the instruction.
    Tipton argues that the district court erred by admitting evidence of his prior
    drug dealing because the evidence was relevant to his purported criminal
    propensity and was unduly prejudicial. He is wrong. Rule 404(b) prohibits the
    introduction of evidence of a defendant’s other crimes, wrongs, or acts to prove the
    character of the defendant, and to show that he acted in conformity with that
    character when he engaged in the charged criminal conduct. Such evidence may
    be admissible, however, for other purposes such as proof of motive, opportunity,
    intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
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    We conclude from the record that the district court conducted the proper balancing
    test and did not err in admitting the evidence of Tipton’s prior drug dealing.
    Moreover, the district court gave a limiting instruction which mitigated the risk of
    any unfair prejudice. See United States v. Edouard, 
    485 F.3d 1324
    , 1346 (11th
    Cir. 2007).
    Tipton complains that the district court erred by admitting Snow’s testimony
    that he had seen Tipton during a prior drug deal in Kentucky. To the extent that
    Tipton’s argument is that this was evidence of a prior bad act which should have
    been excluded under Rule 404(b), the district court did not plainly err in admitting
    it. Snow’s testimony regarding his prior contact with Tipton was intrinsic evidence
    of Tipton’s participation in the charged conspiracy. See 
    Edouard, 485 F.3d at 1344
    (“[E]vidence of criminal activity other than the charged offense is not
    “extrinsic” under Rule 404(b), and thus falls outside the scope of the Rule when it
    is . . . necessary to complete the story of the crime or . . . inextricably intertwined
    with the evidence regarding the charged offense.” (internal quotation marks and
    citation omitted)).
    Tipton has waived his argument that the prosecutor attempted to bolster
    witnesses by vouching for their credibility. Tipton likewise has waived review of
    his argument that the district court erroneously denied his discovery motions.
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    Finally, because we conclude there was no error in any of the district court’s
    evidentiary rulings, there can be no cumulative error. In sum, we affirm the district
    court’s dispositions on its rulings on motions and its evidentiary rulings.
    C.    Sentence
    Tipton argues that his 168-month, below guidelines sentence is procedurally
    unreasonable because the district court erred in calculating his advisory sentencing
    range. He also contends that his sentence is substantively unreasonable because
    the district court created an unwarranted disparity between his and his co-
    conspirators’ sentences. This court reviews a sentence for reasonableness.
    
    Winingear, 422 F.3d at 1244-45
    . We do so under a deferential abuse of discretion
    standard. Gall v. United 
    States, 552 U.S. at 41
    , 128 S. Ct. at 591. The party
    challenging the sentence bears the burden of proving unreasonableness. United
    States v. Talley, 
    431 F.3d 784
    , 788 (11th Cir. 2005).
    Based on our review of the record, we conclude that Tipton’s sentence is
    procedurally and substantively reasonable. The district court properly assessed
    Tipton’s role in the offense and criminal history score, granted Tipton a downward
    variance based upon his mental deficiencies and troubled upbringing, and created
    no unwarranted disparities between Tipton and his co-defendants’ sentences.
    Accordingly, because we see no merit in any of the arguments Tipton makes in this
    appeal, we affirm his conviction and his 168-month sentence.
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    AFFIRMED.
    15
    

Document Info

Docket Number: 12-16515

Citation Numbers: 572 F. App'x 743

Filed Date: 7/16/2014

Precedential Status: Non-Precedential

Modified Date: 1/13/2023

Authorities (20)

United States v. Elizabeth Marie Morse Thompson , 422 F.3d 1285 ( 2005 )

United States v. Moore , 525 F.3d 1033 ( 2008 )

United States v. Marvin Baker , 432 F.3d 1189 ( 2005 )

United States v. John Kevin Talley , 431 F.3d 784 ( 2005 )

United States v. Darin Underwood , 446 F.3d 1340 ( 2006 )

United States v. Pedro Cruz-Valdez, Reuben Martin-Gonzalez ... , 773 F.2d 1541 ( 1985 )

United States v. Scott A. Winingear , 422 F.3d 1241 ( 2005 )

United States v. Ronnie Lee Douglas, Jr. , 489 F.3d 1117 ( 2007 )

United States v. Juan Andres Cardenas , 895 F.2d 1338 ( 1990 )

United States v. Serge Edouard , 485 F.3d 1324 ( 2007 )

United States v. Riley Harrington Keller, Iii, Millard Lee ... , 916 F.2d 628 ( 1990 )

United States v. Alberto Calderon , 127 F.3d 1314 ( 1997 )

flanigans-enterprises-inc-of-georgia-dba-mardi-gras-v-fulton , 242 F.3d 976 ( 2001 )

united-states-v-patrick-d-brantley-aka-red-kenneth-l-rivers-aka , 68 F.3d 1283 ( 1995 )

United States v. Gerald Leslie Hitsman , 604 F.2d 443 ( 1979 )

United States v. Jayyousi , 657 F.3d 1085 ( 2011 )

United States v. Juan Baptista-Rodriguez, Ramon Calvo, and ... , 17 F.3d 1354 ( 1994 )

United States v. Valenzuela-Bernal , 102 S. Ct. 3440 ( 1982 )

Crawford v. Washington , 124 S. Ct. 1354 ( 2004 )

Gall v. United States , 128 S. Ct. 586 ( 2007 )

View All Authorities »