United States v. Wilson Joseph , 156 F. App'x 180 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 28, 2005
No. 04-15705 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-60182-CR-KAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILSON JOSEPH,
a.k.a. Wilson Petit Frere-Joseph,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 28, 2005)
Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Wilson Joseph appeals his conviction and sentence for conspiracy to possess
cocaine with intent to distribute and attempt to possess cocaine with intent to
distribute. See 21 U.S.C. §§ 841, 846. Joseph raises three arguments on appeal:
(1) the district court abused its discretion by admitting into evidence transcripts of
recorded statements; (2) the district court abused its discretion by limiting Joseph’s
cross-examination of a government witness; and (3) the district court sentenced
Joseph in violation of United States v. Booker, ___ U.S. ___, 125 S. Ct. 738(2005). Because the district court did not abuse its discretion either by admitting
the transcripts or by limiting cross-examination, we affirm Joseph’s convictions.
Because any statutory Booker error committed by the district court was harmless,
we affirm Joseph’s sentence.
I. BACKGROUND
On July 26, 2003, William Sampsel, a confidential informant working for
the Drug Enforcement Administration, met with drug traffickers off the coast of
the Bahamas to arrange the transport of cocaine and marijuana into the United
States. Several men, possibly including Joseph, loaded Sampsel’s boat with the
drugs, and Sampsel was advised how to contact Joseph to drop off the drugs once
they were inside the United States. Sampsel turned over the drugs to the DEA, but
arranged the meeting with Joseph at the instruction of the DEA.
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Several days later, Sampsel met with Joseph at a restaurant in Hollywood,
Florida. The DEA taped their conversation, during which Sampsel and Joseph
arranged to exchange the drugs at a warehouse the following day. The DEA also
videotaped the meeting in the warehouse, and after Joseph began to load the
cocaine in his vehicle, the DEA arrested him. Joseph and Michele Jean Francois,
who was also present at the warehouse, were indicted on charges of conspiracy to
possess cocaine with intent to distribute, attempt to possess cocaine with intent to
distribute, and conspiracy to import cocaine into the United States.
At trial, the defendants moved to exclude from evidence transcripts of the
conversation at the restaurant and the meeting in the warehouse. They argued that
the transcripts were inaccurate and that they erroneously identified one speaker to
be Joseph. The district court denied the motion, but agreed to provide the
following jury instruction:
Ladies and gentlemen, in conjunction with any transcripts that
are admitted during the course of this trial, I’m going to read you an
instruction that I’ll ask you to follow with respect to any such
transcripts.
As you have heard, this particular transcript has been identified
as a typewritten transcript of the oral conversation that can be heard
on a tape which I presume is going to be later admitted into evidence.
....
This transcript also purports to identify the speakers engaged in
the conversation. When the transcript is actually offered into
evidence, I will admit it for the limited and secondary purpose of
aiding you in following the content of the conversation as you listen to
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the tape recording when it is played, and also to aid you in identifying
the speakers. However, you are specifically instructed that whether
the transcript correctly or incorrectly reflects the content of the
conversation or the identity of the speakers is entirely for you to
determine based upon your own evaluation of the testimony . . . you
will hear concerning the preparation of the transcript and from your
own examination of the transcript once it’s presented to you in
relation to your hearing the tape recording itself as the primary
evidence of its own contents. And, if you should determine that the
transcript is in any respect incorrect or unreliable, you should
disregard it to that extent.
Now, this is somewhat premature, because the tape hasn’t been
played yet and you don’t have the transcripts to review yet, but, in
anticipation of hearing them and seeing them and there is some
reference being made to them, you should consider all of the
testimony relating to the transcripts in conjunction with this
instruction.
Joseph objected to the phrasing of the jury instruction, but the district court
overruled the objection.
The defendants presented evidence relating to the methods of transcription
and the bias of the transcribers. Other speakers on the recordings testified that it
was Joseph’s voice on the tape, and Joseph cross-examined these witnesses.
Francois introduced into evidence an alternate transcript of the recording, but
Joseph chose not to offer his own. The district court repeated the jury instruction
on several occasions. Joseph testified that it was not his voice on the recordings.
Sampsel, the confidential informant, testified against the defendants. Joseph
and Francois sought to introduce seventeen civil judgments that had been entered
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against Sampsel during the 1990s on the ground that they were evidence of
fraudulent activity. The district court conducted voir dire to determine whether the
judgments were admissible under Federal Rule of Evidence 608(b) and ruled that
the judgments were inadmissible. During the hearing, Sampsel testified that he
entered bankruptcy in “the late nineties;” the defendants produced the bankruptcy
judgment, and it was dated in 1993. The defendants sought to cross-examine
Sampsel on this inconsistency in open trial. The district court ruled this line of
questioning inadmissible.
The jury acquitted Francois of all charges but convicted Joseph on the first
and second counts of the indictment. The PSI calculated an offense level of 38 and
an applicable guidelines range of 235-293 months. Joseph raised no factual
objection to the PSI but argued that the sentencing guidelines were unconstitutional
under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). The district
court overruled the objection and said it considered the guidelines to be mandatory.
The district court said it “believe[d] that a sentence at the upper end of the
guideline range is necessary in this case in view of what [it] consider[ed] the
defendant’s having perjured himself during the trial” but, “because of the high
guideline range, an [enhancement for] obstruction [of justice] wasn’t necessary in
order to punish the defendant for having engaged in that conduct during the trial.”
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II. STANDARD OF REVIEW
This Court reviews the admission into evidence of transcripts of tape
recordings for abuse of discretion. United States v. Wilson, 578 F.2d 67, 69-70
(5th Cir. 1978); see also United States v. Hogan, 986 F.2d 1364, 1376 (11th Cir.
1993). We review limitations on the scope of cross-examination for abuse of
discretion. United States v. Matthews, 168 F.3d 1234, 1244 (11th Cir. 1999). We
review preserved statutory Booker error for harmless error. United States v. Paz,
405 F.3d 946, 948 (11th Cir. 2005).
III. DISCUSSION
Joseph raised three arguments on appeal. First, he argues that the district
court abused its discretion in admitting into evidence transcripts of tape recorded
and videotaped meetings. Second, Joseph argues that the district court abused its
discretion in limiting his cross-examination of Sampsel, the confidential
government informant. Third, Joseph argues that the district court committed
statutory Booker error. We address each argument in turn.
A. The District Court Did Not Abuse Its Discretion By
Admitting the Transcripts into Evidence.
Joseph argues that the district court abused its discretion by admitting into
evidence transcripts of the conversation at the restaurant and the meeting in the
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warehouse. The procedure for challenging the accuracy of a transcript is well-
established in this Circuit:
Initially, the district court and the parties should make an effort
to produce an “official” or “stipulated” transcript, one which satisfies
all sides. If such an “official” transcript cannot be produced, then
each side should produce its own version of a transcript or its own
version of the disputed portions. In addition, each side may put on
evidence supporting the accuracy of its version or challenging the
accuracy of the other side’s version. Since the jury must always
reconcile the discrepancies in the transcript(s) against the recording
itself, the district court need not listen to the tape or decide whether a
transcript is accurate before the transcript is given to the jury and the
recording is played.
United States v. Hogan, 986 F.2d 1364, 1376 (11th Cir. 1993) (quoting United
States v. Wilson, 578 F.2d 67, 69-70 (5th Cir. 1978)). In the light of the
precedents, Joseph’s argument fails.
The district court made available to the defendants each of the remedial
procedures described in Hogan and Wilson. Francois proffered his own version of
the transcript. Joseph presented testimony that purported to undermine the
accuracy of the transcript. Both defendants cross-examined witnesses present
during the taped meetings. Joseph even testified on his own behalf and denied his
presence during the meetings. Moreover, the district court repeatedly instructed
the jury, “[S]hould [you] determine that the transcript is in any respect incorrect or
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unreliable, you should disregard it to that extent.” The district court did not abuse
its discretion by admitting the transcripts into evidence.
B. The District Court Did Not Abuse Its Discretion By
Limiting Cross-Examination of Sampsel.
Joseph argues that the district court abused its discretion in limiting cross-
examination of Sampsel. Joseph contends that he should have been permitted to
question Sampsel about false statements Sampsel made regarding the date of his
bankruptcy during voir dire, but this argument fails. Federal Rule of Evidence
608(b) provides, “Specific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness’[s] character for truthfulness, other than
conviction of crime as provided in rule 609, may not be proved by extrinsic
evidence.” Fed. R. Evid. 608(b). “They may, however, in the discretion of the
court, if probative of truthfulness or untruthfulness, be inquired into on
cross-examination of the witness [] concerning the witness’[s] character for
truthfulness or untruthfulness . . . .” Id. It is within the discretion of the district
court to “permit questioning about a witness’[s] prior bad acts on
cross-examination, if the acts bear on the witness’[s] character for truthfulness.”
United States v. Matthews, 168 F.3d 1234, 1244 (11th Cir. 1999). But, “[i]f the
witness denies the conduct, such acts may not be proved by extrinsic evidence and
the questioning party must take the witness’[s] answer, unless the evidence would
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be otherwise admissible as bearing on a material issue of the case.” Id. (citations
omitted).
On appeal, Joseph contends that it was an abuse of discretion for the district
court to bar Joseph from questioning Sampsel on his testimony during voir dire.
We disagree. Although Joseph correctly asserts that cross-examination on matters
“concerning the witness’[s] character for truthfulness or untruthfulness” is
permissible, Fed. R. Evid. 608(b), this does not end our inquiry. Federal Rule of
Evidence 403 permits the district court to exclude relevant evidence “if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury . . . .” Fed. R. Evid. 403. The
district court observed that it was not clear Sampsel “intentionally made a false
statement or whether he was mistaken.” Joseph could not introduce extrinsic
evidence, i.e., Sampsel’s voir dire testimony or the bankruptcy judgment, to prove
the inconsistency, and the district court concluded that questioning on that matter
would be of low probative value. Moreover, the district court permitted Joseph to
impeach Sampsel on other grounds, including a pending charge of driving under
the influence in Nevada. Because the discretion of the district court is “especially
broad when it comes to controlling cross-examination for impeachment purposes,”
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United States v. Van Dorn, 925 F.2d 1331, 1335 (11th Cir. 1991), we cannot say
limiting cross-examination on this issue was an abuse of discretion.
C. Any Statutory Booker Error Was Harmless.
Joseph argues that the district court committed statutory Booker error by
sentencing him under a mandatory guidelines scheme. The government concedes
that the district court committed statutory Booker error but argues that the error
was harmless. We agree with the government.
Statutory Booker error arises “when the district court misapplies the
Guidelines by considering them as binding as opposed to advisory.” United States
v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005). When the defendant has
preserved his objection to the constitutionality of the sentencing guidelines, we
review for harmless error. United States v. Mejia-Giovani, 416 F.3d 1323, 1326-
27 (11th Cir. 2005). The burden is on the government to show that the statutory
error was harmless, and that burden is to prove “that viewing the proceedings in
their entirety, . . . the error did not affect the sentence, or had but very slight effect.
If one can say with fair assurance that the sentence was not substantially swayed by
the error, the sentence is due to be affirmed even though there was error.” Id.(citing United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005)).
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The government has established harmless error. At the sentencing hearing,
the district court expressed its opinion that “[Joseph] obviously perjured himself
during trial,” and the district court described Joseph’s testimony as “incredible.”
The district court explained, “I didn’t seek an enhancement for obstruction [of
justice] when I saw the guidelines range, which I would have otherwise done since
your client obviously perjured himself during the trial.” The court concluded “a
sentence at the upper end of the guideline range is necessary in this case . . . and,
because of the high guideline range, an [enhancement for] obstruction [of justice]
wasn’t necessary in order to punish the defendant for having engaged in [perjury]
during the course of the trial.” Although the government only requested a mid-
range sentence of 247 months of imprisonment, the district court imposed a term of
276 months. Based on the statements made by the district court, see Mejia-
Giovani, 416 F.3d at 1326, and the sentence at the upper end of the guidelines
range, we conclude that any statutory Booker error was harmless.
IV. CONCLUSION
We affirm Joseph’s convictions and sentence.
AFFIRMED.
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TJOFLAT, Circuit Judge, dissenting:
The district court sentenced Joseph under a sentencing model that differs
materially from the model Booker creates. See United States v. Rodriguez, 406
F.3d 1261, 1281 (11th Cir. 2005) (Tjoflat, J., dissenting from denial of rehearing
en banc) (explaining the difference between sentencing pre-Booker and post-
Booker.) The difference in the two models is so fundamental, and so striking, that
the district judge in this case could not possibly have imagined what it would have
been like to sentence Joseph using the new, Booker model. Among other things,
the judge would have had to weigh, take appropriately into account, and make
findings regarding the four sentencing objectives set out in 18 U.S.C. § 3553(a)(2).
What evidence the parties, especially the defendant, may have presented touching
on these objectives we can hardly surmise, much less know. Finding harmless error
under these circumstances is, in my view, purely arbitrary.
I would vacate Joseph’s sentence and remand the case for resentencing.
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