Filed: Mar. 26, 2012
Latest Update: Feb. 22, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT MARCH 26, 2012 No. 10-13418 JOHN LEY _ CLERK D. C. Docket No. 1:09-cr-20264-JLK-6 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FRANTZ STERLIN, Defendant-Appellant. _ No. 10-13676 _ D.C. Docket No. 1:09-cr-20264-JLK-7 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CHRIS VICTOR, a.k.a. “Fufa”, Defendant-Appellant. _ No. 10-13678 _ D.C. Docket No. 1:09-cr-202
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT MARCH 26, 2012 No. 10-13418 JOHN LEY _ CLERK D. C. Docket No. 1:09-cr-20264-JLK-6 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FRANTZ STERLIN, Defendant-Appellant. _ No. 10-13676 _ D.C. Docket No. 1:09-cr-20264-JLK-7 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CHRIS VICTOR, a.k.a. “Fufa”, Defendant-Appellant. _ No. 10-13678 _ D.C. Docket No. 1:09-cr-2026..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 26, 2012
No. 10-13418
JOHN LEY
________________________
CLERK
D. C. Docket No. 1:09-cr-20264-JLK-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANTZ STERLIN,
Defendant-Appellant.
________________________
No. 10-13676
________________________
D.C. Docket No. 1:09-cr-20264-JLK-7
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRIS VICTOR,
a.k.a. “Fufa”,
Defendant-Appellant.
________________________
No. 10-13678
________________________
D.C. Docket No. 1:09-cr-20264-JLK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUNIOR SYLVIN,
a.k.a. “Rah Rah”,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(March 26, 2012)
Before DUBINA, Chief Judge, MARCUS and FAY, Circuit Judges.
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PER CURIAM:
Appellants/Defendants Chris Victor, Junior Sylvin, and Frantz Sterlin
appeal their convictions and sentences for drug-related charges. After reading the
briefs of the parties, reviewing the record, and having the benefit of oral argument,
we affirm Appellants’ convictions and sentences.
I. BACKGROUND
A federal grand jury in the Southern District of Florida returned a 20 count
superseding indictment against Appellants and numerous co-defendants. The
Government charged Appellants with conspiracy to possess with intent to
distribute 500 grams or more of cocaine and five grams or more of cocaine base, in
violation of 21 U.S.C. §§ 846, and 841(a)(1), (b)(1)(B). The Government charged
Sylvin in three other separate conspiracies, all involving possession with intent to
distribute 500 grams or more of cocaine or 50 grams or more of cocaine base. The
Government also charged Sylvin with substantive counts of possession with intent
to distribute various amounts of cocaine and cocaine base, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(B), (b)(1)(C) and 18 U.S.C. § 2; possessing a firearm
and ammunition after previously having been convicted of a felony offense, in
violation of 18 U.S.C. § 922(g)(1); and carrying a firearm during and in relation to
a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). The
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Government charged Sterlin separately with substantive counts of possessing with
intent to distribute various amounts of cocaine base, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(B).
The district court severed the Appellants and the counts for trial. Victor,
Sylvin, Sterlin, and another co-defendant, Eric Taylor, proceeded to trial. The jury
found Victor and Sylvin guilty of every count on which they were tried, except the
jury found that the quantities of drugs involved in Victor’s offense were less than
500 grams of cocaine and less than five grams of cocaine base. The jury found
Sterlin and Taylor not guilty of conspiracy to possess with intent to distribute 500
grams or more of cocaine and five grams or more of cocaine base (Count 1).
Sterlin later proceeded to trial on the previously severed counts that charged him
with possession with intent to distribute various amounts of cocaine base (Counts
9–12). The jury returned guilty verdicts on each of the counts.
The district court sentenced Victor to 70 months’ imprisonment, three years
of supervised released and a special assessment of $100. Sylvin received a
sentence of 216 months’ imprisonment, five years of supervised release, and a
special assessment of $500. The district court sentenced Sterlin to 192 months’
imprisonment, five years of supervised release, and a special assessment of $400.
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II. ISSUES
1. Whether the evidence was sufficient to support Victor’s conviction for
conspiracy to possess with intent to distribute cocaine and cocaine base.
2. Whether the district court properly admitted certain intercepted text
messages into evidence.
3. Whether the district court properly refused Sterlin’s theory of defense
jury instruction.
4. Whether the district court erred in sentencing Victor and Sylvin.
III. DISCUSSION
A. Sufficiency of the Evidence
Victor challenges his conviction for conspiracy to possess with intent to
distribute cocaine and cocaine base, arguing that the evidence was not sufficient
for a rational jury to have found the essential elements of the crime beyond a
reasonable doubt. We review de novo whether there is sufficient evidence to
support a conviction, viewing the evidence in the light most favorable to the
government and drawing all reasonable factual inferences in favor of the jury’s
verdict. United States v. Beckles, 565 F.3d 832, 840 (11th Cir. 2009). We will not
reverse Victor’s conviction on the basis of insufficient evidence “unless no
rational trier of fact could have found the essential elements of the crime beyond a
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reasonable doubt.” United States v. US Infrastructure, Inc., 576 F.3d 1195, 1203
(11th Cir. 2009) (quoting United States v. Wright,
392 F.3d 1269, 1273 (11th Cir.
2004)).
To prove the conspiracy charge, the Government had to establish an
agreement between Victor and at least one another person to commit a crime, and
it had to demonstrate that Victor knowingly and voluntarily participated in the
agreement. See United States v. Ohayon, 483 F.3d 1281, 1292 (11th Cir. 2007).
We conclude from the record that the Government met its burden in this case.
The evidence presented at trial showed that Victor lived in a house that was
protected by iron bars and contained security cameras. The evidence also showed
that several drug purchases occurred at Victor’s residence and that Victor was
usually present during these drug transactions.1 Officers observed co-defendant
Sylvin leave from Victor’s residence, proceed to sell a confidential informant
cocaine, and return to Victor’s residence. The evidence also included numerous
telephone calls and text messages between Victor and Sylvin, during which the
two repeatedly referred to a commodity as “shit.” The Appellants spoke of the
1
Contrary to Victor’s contention that his mere presence at the residence did not establish his
guilt, the jury was entitled to infer from his presence at the residence during drug transactions that
he knowingly and voluntarily participated in the conspiracy. See United States v. Faust, 456 F.3d
1342, 1346 (11th Cir. 2006) (affirming a drug conviction on a constructive possession theory where
the government presented sufficient evidence for the jury to infer that the defendant lived at the
residence where the drugs were discovered).
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“shit” as being readily moved and stored, and they constantly assigned numerical
values to the “shit.” The jury reasonably inferred that Appellants were referencing
drugs in their conversations and text messages. Accordingly, we hold that the
Government presented sufficient evidence to support Victor’s conviction.
B. Introduction of Text Messages
Victor contends that the district court erred in allowing into evidence three
text messages found on his phone and Sylvin’s phone. He bases his challenge on
Federal Rule of Evidence 901. This court generally reviews the district court’s
evidentiary rulings for an abuse of discretion. United States v. Hoffman-Vaile, 568
F.3d 1335, 1340 (11th Cir. 2009). However, having reviewed the trial record and
finding no objection to the admission of the text messages, we review this
evidentiary ruling for plain error. United States v. Edouard,
485 F.3d 1324, 1343
(11th Cir. 2007). Under plain error review, the defendant must show: (1) an error,
(2) that is plain, (3) that affects substantial rights, and (4) that seriously affects the
fairness, integrity, or public reputation of judicial proceedings. United States v.
Arbolaez,
450 F.3d 1283, 1291 (11th Cir. 2006). Victor cannot demonstrate that
the district court plainly erred in admitting the text messages into evidence.
Under Rule 901, the authentication or identification requirement is satisfied
by “evidence sufficient to support a finding that the matter in question is what its
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proponent claims.” Fed. R. Evid. 901(a) (2011).2 The rule gives a non-inclusive
list of examples of authentication and identification that conform to the
requirements of the rule. The rule contains an example with regard to the
authentication of telephone conversations, but there is no mention of
authentication with regard to text messages from cellular telephones. Because
there is no specific rule with regard to the admission of text messages, we
conclude that the district court did not err in admitting them.
Moreover, the Government authenticated the text message recordings
through Agent Rainwater’s testimony, wherein he identified the phone numbers
and matched them with the numbers for Sylvin and Victor’s cell phones. The
Government also showed that the day after Victor received a text message from
Sylvin concerning his traffic stop and K-9 search, in which the police dog alerted
officers to drugs, Victor left a message on Sylvin’s phone asking Sylvin if the
police had found anything. Thus, the Government provided evidence to support a
finding that the evidence was what it purported to be—text messages between
Sylvin and Victor. The jury could infer that both of these individuals were authors
2
We note that some minor changes were made to this rule effective Dec. 1, 2011. See Pub.
L. No. 93-595.
8
of the messages from each one’s respective phone number. Accordingly, we
conclude that the district court did not err in admitting this evidence.
C. Theory of Defense Instruction
Sterlin contends that the district court abused its discretion by refusing to
instruct the jury on his theory of defense. Sterlin’s requested special jury
instruction read as follows: “Inadequate or incomplete investigation by the
prosecution may support an inference adverse to the prosecution which may be
sufficient to leave a reasonable doubt as to the defendant’s guilt.” (R. Vol. 22, p.
189.) For the basis of this requested instruction, Sterlin’s counsel noted that he
had cross-examined a government witness regarding the inadequacies of the police
investigation. At the charge conference, the district court denied the requested
instruction, finding that the instruction would, in essence, direct a verdict for the
defendant and that there was nothing in the record to substantiate the instruction.
(Id. at pp. 187–190.)
On appeal, Sterlin argues that he was entitled to the requested instruction
because his counsel’s cross-examination at trial established that the police videos
of the charged drug transactions either did not show that a drug transaction
occurred or that the videos were of poor quality. In addition, Sterlin claims that
the police did not conduct any forensic tests, such as fingerprint, DNA, or voice
9
analyses, did not take photographs of the drug transactions, and violated their own
protocol by not exercising proper control over their informant. We review the
district court’s denial of a requested jury instruction for an abuse of discretion.
United States v. Westry, 524 F.3d 1198, 1216 (11th Cir. 2008). We will not find
reversible error in this regard unless the proposed instruction was correct, the
instruction was not addressed in the charge actually given, and the failure to give
the requested instruction seriously impaired the defendant’s ability to present an
effective defense. United States v. Woodard,
531 F.3d 1352, 1364 (11th Cir.
2008).
Sterlin’s requested instruction did not have legal support or any basis in the
evidence. See United States v. Hedges, 912 F.2d 1397, 1405–06 (11th Cir. 1990)
(stating that requested instruction is not substantially correct unless it has both
legal support and some basis in the evidence). First, it did not embody a legally
cognizable defense. The law does not impose a requirement that the police
employ every investigative technique or forensic test available to them when they
conduct a criminal investigation. Second, the instruction was not factually correct.
The requested instruction overlooked the record evidence in each of Sterlin’s drug
transactions that police officers had an eyewitness officer observe Sterlin
exchange money for an object that the police later determined to be crack cocaine.
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Moreover, the district court addressed in its charge the requested instruction, to the
extent it referenced the Government’s burden. Lastly, the district court’s refusal to
give the requested instruction did not impair Sterlin’s ability to present an
effective defense. The record shows that during his closing argument, Sterlin
attacked the quality of the police investigation in the case and, in essence, argued
that there was no reliable evidence upon which the jury could find him guilty.
Accordingly, we conclude that there was no abuse of discretion in the district
court’s refusal to give the requested charge.
D. Sentencing
Victor and Sylvin both challenge the district court’s sentencing
determination of the drug amounts attributable to them. In addition, Sylvin
challenges the district court’s determination that he was an organizer or leader in
the charged offenses and, thus, entitled to an enhancement in his offense level.
We review for clear error the district court’s factual determination of a drug
amount for sentencing purposes. United States v. Rodriguez, 398 F.3d 1291, 1296
(11th Cir. 2005). The district court’s calculation of the drug amount attributable to
a defendant may be based on a preponderance of the evidence.
Id. Likewise, we
review for clear error the district court’s determination that a defendant’s role in
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the offense was that of organizer or leader. United States v. Barner, 572 F.3d
1239, 1253 (11th Cir. 2009).
1. Drug Amounts
On appeal, Victor contends that because the district court erroneously
allowed into admission the text messages allegedly between Sylvin and himself,
the quantity calculated from the numerical references in the text messages should
be removed from the district court’s calculation. Thus, at most, only 436 grams,
as opposed to 1,517 grams, should be attributable to him. Sylvin contends that the
district court should have attributed to him only the cocaine amount that he
physically possessed, which was 664.6 grams, not 6,987 grams of cocaine as
found by the district court.
The district court did not clearly err in its determinations regarding the drug
amounts attributable to each defendant. First, the district court determined that
Victor was responsible for 1,517 grams of cocaine based on nine different
communications Victor had with Sylvin during the charged conspiracy. The
district court also based its determinations on the other evidence presented at trial,
such as the 581 grams of cocaine seized from Sylvin’s vehicle and other testimony
that Victor’s residence served as a stash house for the drugs. In a conspiracy
conviction, the district court can hold a defendant responsible for the acts of others
12
that were reasonably foreseeable in connection with the conspiracy. See U.S.S.G.
§ 1B1.3(a)(1)(B); United States v. Andrews, 953 F.2d 1312, 1319 (11th Cir. 1992).
Next, the district court properly determined that Sylvin was responsible for 6,987
grams of cocaine, based on the different communications Sylvin had with Victor
and other co-defendants regarding drug deliveries and payments. The district
court also based its determination on the evidence presented at trial showing that
Sylvin carried large amounts of cocaine in his car and that he made a cocaine sale
to a confidential informant. Accordingly, there was no error in the district court’s
calculations regarding the drug amounts attributable to Victor and Sylvin.
2. Role in the Offense
Sylvin argues that the district court erred in applying a four-level
enhancement to his sentence because it found that he was an organizer or leader of
the conspiracy. See U.S.S.G. § 3B1.1(a) (requires the sentencing court to increase
a defendant’s offense level by four levels “[i]f the defendant was an organizer or
leader of a criminal activity that involved five or more participants or was
otherwise extensive”). A leadership or organizational role is marked by factors
that include “the exercise of decision making authority, the nature of participation
in the commission of the offense, the recruitment of accomplices, the claimed right
to a larger share of the fruits of the crime, the degree of participation in planning
13
or organizing the offense, the nature and scope of the illegal activity, and the
degree of control and authority exercised over others.” U.S.S.G. § 3B1.1, cmt. n.
4; United States v. Ramirez, 426 F.3d 1344, 1355 (11th Cir. 2005). All of these
factors do not have to be present in any one case; however, there must be evidence
that the defendant exercised some control, influence, or decision-making authority
over another participant in the criminal activity. United States v. Martinez,
584
F.3d 1022, 1026 (11th Cir. 2009).
There was no error in the district court’s application of the enhancement.
The record established Sylvin’s extensive criminal activity. Officers observed
Sylvin sell a confidential informant 83.4 grams of cocaine, and evidence
demonstrated that Sylvin sold substantial amounts of cocaine and crack cocaine to
at least three co-defendants. Officers conducted a traffic stop of Sylvin’s vehicle,
and a narcotics dog alerted the officers to a plastic panel in the rear passenger area
of the vehicle, where officers found a bag containing 581.2 grams of cocaine and a
loaded pistol. Investigators intercepted over 6000 phone calls from wiretaps of
Sylvin’s telephones. Thus, the district court properly determined that Sylvin’s
criminal activity was extensive.
Furthermore, the district court properly found that Sylvin had a leadership
role in the conspiracy. During his many communications with his co-defendants,
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Sylvin instructed others to look at “brick” for him, advised Victor where to hide
“the shit,” and sent customers to other co-defendants for drug purchases. These
communications indicate Sylvin’s assertion of control or influence over some of
his co-defendants during the drug conspiracy. Accordingly, we conclude that the
district court properly applied the sentence enhancement.
IV. CONCLUSION
Having found no merit to any of the challenges raised by Appellants, we
affirm their convictions and sentences.
AFFIRMED.
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