Filed: Apr. 08, 2011
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 10-10881 ELEVENTH CIRCUIT Non-Argument Calendar APRIL 8, 2011 _ JOHN LEY CLERK D.C. Docket No. 2:09-cr-00031-MEF-TFM-2 UNITED STATES OF AMERICA, lllllllllllllllllllll Plaintiff-Appellee, versus KELVIN SUMMERS, lllllllllllllllllllll Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Alabama _ (April 8, 2011) Before HULL, MARTIN and BLACK, Ci
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 10-10881 ELEVENTH CIRCUIT Non-Argument Calendar APRIL 8, 2011 _ JOHN LEY CLERK D.C. Docket No. 2:09-cr-00031-MEF-TFM-2 UNITED STATES OF AMERICA, lllllllllllllllllllll Plaintiff-Appellee, versus KELVIN SUMMERS, lllllllllllllllllllll Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Alabama _ (April 8, 2011) Before HULL, MARTIN and BLACK, Cir..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10881 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 8, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:09-cr-00031-MEF-TFM-2
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
KELVIN SUMMERS,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(April 8, 2011)
Before HULL, MARTIN and BLACK, Circuit Judges.
PER CURIAM:
Kelvin Summers appeals his convictions and 160-month sentence for
conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C.
§ 846, and distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1).
Summers asserts the district court erred when it: (1) permitted a Government
Confidential Source (CS) to refresh his recollection by listening to audio, and
viewing video evidence outside the presence of the jury; (2) denied Summers’
motion for judgment of acquittal, or in the alternative, new trial because there was
insufficient evidence to show a conspiracy to distribute crack cocaine; and (3)
applied a two-level role enhancement pursuant to U.S.S.G. § 3B1.1(c). We
address each issue in turn, and affirm Summers’ convictions and sentence.
I.
Summers first asserts the district court erred when it allowed a CS to refresh
his recollection by listening to audio recordings and viewing a videotape outside
the presence of the jury. He further claims the court’s actions “violated his rights
to a fair trial, confrontation and effective assistance of counsel as guaranteed
under the Sixth Amendment . . . and Rules 601 and 602 of the Federal Rules of
Evidence.”
We review a district court’s evidentiary rulings for an abuse of discretion.
United States v. Frank, 599 F.3d 1221, 1240 (11th Cir. 2010), cert. denied, 131 S.
2
Ct. 186 (2010). Claims of constitutional error are reviewed de novo. United
States v. Williams, 527 F.3d 1235, 1239 (11th Cir. 2008).
The district court did not abuse its discretion when it allowed the CS to
refresh his recollection using audio and video recordings outside the presence of
the jury. Our determination of this issue corresponds with Third Circuit precedent.
See United States v. American Radiator and Standard Sanitary Corp., 433 F.2d
174, 191 (3d Cir. 1970) (finding no abuse of discretion when the district court
allowed the use of tapes and earphones to refresh a witness’s memory).
Furthermore, the CS was competent to testify to what he independently
remembered after having his recollection refreshed. See Fed. R. Evid. 612; United
States v. Scott,
701 F.2d 1340, 1346 (11th Cir. 1983).
In addition, there was no violation of Summers’ Sixth Amendment right to a
jury trial and to confront the witnesses against him. First, because the audio and
video had not yet been admitted into evidence, the court did not err in allowing the
CS to refresh his recollection with those recordings outside the presence of the
jury. See Jenkins v. United States, 404 F.2d 873, 874 (5th Cir. 1968) (holding that
matters “properly taken up outside the presence and hearing of the jury . . . [do]
not affect an appellant’s right to a jury trial.”). Further, Summers had a full
opportunity to effectively cross-examine the witness about his memory lapse, his
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potential bias, his criminal history, and his recollection of the events in this case.
See United States v. Baptista-Rodriguez, 17 F.3d 1354, 1371 (11th Cir. 1994)
(“the Constitution is offended only when the defendant is denied the opportunity
effectively to attack the credibility of the prosecution’s witness[].”).1
II.
Summers next contends the district court erred in denying his motion for
judgment of acquittal because there was insufficient evidence to establish beyond
a reasonable doubt that he agreed to possess with intent to distribute crack
cocaine. Specifically, he claims there was no evidence showing he was near the
apartment where the drug deal occurred, or that the evidence introduced by the
Government clearly established his involvement in the drug conspiracy.
We review a district court’s denial of a motion for judgment of acquittal de
novo, applying the same standard used in reviewing sufficiency of the evidence.
United States v. Descent, 292 F.3d 703, 706 (11th Cir. 2002). In reviewing the
sufficiency of the evidence, we view “the evidence in the light most favorable to
the government,” resolving “any conflicts in favor of the government and
1
We decline to consider Summers’ ineffective assistance of counsel claim because he
raised it on direct appeal, and the district court has not had the opportunity to consider this issue
or develop a factual record. See United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002)
(“[w]e will not generally consider claims of ineffective assistance of counsel raised on direct
appeal where the district court did not entertain the claim nor develop a factual record.”).
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accept[ing] all reasonable inferences that tend to support the government’s case.”
Williams, 527 F.3d at 1244. We will affirm “a conviction if a reasonable trier of
fact could find that the evidence established guilt beyond a reasonable doubt.”
Id.
(quotation omitted).
To prove that a defendant conspired to possess crack cocaine with the intent
to distribute, the government must prove “that (1) an illegal agreement existed;
(2) the defendant knew of it; and (3) the defendant, with knowledge, voluntarily
joined it.” United States v. McDowell, 250 F.3d 1354, 1365 (11th Cir. 2001). The
government may prove the defendant’s participation in the conspiracy without
direct evidence if “a common purpose and plan may be inferred from a
development and collocation of circumstances.”
Id. (quotations omitted).
There was sufficient evidence for a reasonable jury to conclude beyond a
reasonable doubt that Summers knowingly agreed to possess with intent to
distribute crack cocaine. See Williams, 527 F.3d at 1244. The evidence showed
Summers sent the CS to an apartment where Summers’ co-conspirators were
waiting to sell crack cocaine under the terms to which Summers and the CS had
agreed. See
McDowell, 250 F.3d at 1365.
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III.
Lastly, Summers contends the district court erred in applying a two-level
sentence enhancement under U.S.S.G. § 3B1.1(c). Specifically, he claims the
evidence adduced at trial did not show he asserted control or influence over his co-
defendant Sylvester Vaughn.2
A § 3B1.1(c) enhancement is appropriate if the defendant asserted control or
influence over “at least one other participant in the crime.” United States v.
Glover, 179 F.3d 1300, 1302 (11th Cir. 1999). We have previously held that a
district court did not clearly err in giving a § 3B1.1(c) enhancement where a
defendant found a seller, set the price of the drug, and determined a time and
location. See United States v. Otero,
890 F.2d 366, 367 (11th Cir. 1989).
The district court did not err in applying the § 3B1.1(c) enhancement. The
court found that Summers directed his co-conspirators inside the apartment to sell
crack cocaine to the CS and this finding was not in clear error. Accordingly, we
affirm Summers’ convictions and sentence.
AFFIRMED.
2
We review “findings of fact for clear error” and the application of the Sentencing
Guidelines de novo. United States v. Gupta, 572 F.3d 878, 887 (11th Cir. 2009).
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