Filed: May 11, 2009
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Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT MAY 11, 2009 No. 08-10500 THOMAS K. KAHN CLERK D. C. Docket No. 07-60153-CR-JIC UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KEVIN CHUNG, SEAN GARRISON, BOBBY MARTIN, Defendants-Appellants . _ No. 08-14118 _ D.C. Docket No. 07-60153-CR-JIC UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BOBBY MARTIN, Defendant-Appellant. _ No. 08-14447 _ D.C. Docket No. 07-6
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT MAY 11, 2009 No. 08-10500 THOMAS K. KAHN CLERK D. C. Docket No. 07-60153-CR-JIC UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KEVIN CHUNG, SEAN GARRISON, BOBBY MARTIN, Defendants-Appellants . _ No. 08-14118 _ D.C. Docket No. 07-60153-CR-JIC UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BOBBY MARTIN, Defendant-Appellant. _ No. 08-14447 _ D.C. Docket No. 07-60..
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[DO NOT PUBLISH]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
MAY 11, 2009
No. 08-10500
THOMAS K. KAHN
CLERK
D. C. Docket No. 07-60153-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN CHUNG,
SEAN GARRISON,
BOBBY MARTIN,
Defendants-Appellants .
_______________
No. 08-14118
_______________
D.C. Docket No. 07-60153-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOBBY MARTIN,
Defendant-Appellant.
_________________
No. 08-14447
_________________
D.C. Docket No. 07-60153-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN CHUNG,
Defendant-Appellant.
Appeals from the United States District Court
for the Southern District of Florida
(May 11, 2009)
Before BIRCH, DUBINA and WILSON, Circuit Judges.
PER CURIAM:
Appellants Bobby Martin (“Martin”), Sean Garrison (“Garrison”), and
Kevin Chung (“Chung”), appeal their convictions on various counts of an eight-
count indictment returned by a federal grand jury in the Southern District of
Florida. The charges included conspiracy to obstruct, delay, and affect interstate
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commerce by means of robbery, in violation of 18 U.S.C. § 1951(a) (Count 1);
conspiracy to possess with intent to distribute at least five kilograms of cocaine, in
violation of 21 U.S.C. §§ 741(a), 846 (Count 2); attempt to possess with intent to
distribute at least five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a),
846 (Count 3); conspiracy to carry a firearm during and in relation to a crime of
violence and during and in relation to a drug trafficking crime, in violation of 18
U.S.C. §§ 924(c)(1)(A), (c)(1)(B), and (o) (Count 4); knowingly carrying a firearm
during and in relation to a crime of violence and during and in relation to a drug
trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A), (c)(1)(B), and 2
(Count 5); and possession of an unregistered firearm, in violation of 26 U.S.C. §§
5861(d), 5871 and 18 U.S.C. § 2 (Count 6).
Additionally, the grand jury charged Martin with possession of a firearm by
a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count 7), and charged
Garrison and Chung with possession of a firearm by an illegal alien, in violation of
18 U.S.C. § 922(g)(5) and 2 (Count 8). In Counts 1, 2, 3, 4, and 8, the grand jury
charged a fourth defendant, Dushaunn Morgan (“Morgan”), who is not a party in
these consolidated appeals. After trial, a jury convicted Martin on all seven counts
against him; convicted Garrison on Counts 1, 2, 3, 4, 5 and 8, but acquitted him on
Count 6; convicted Chung on Counts 1, 2, 4, and 8, but acquitted him on Counts 5
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and 6; and acquitted Morgan on all counts. After the district court pronounced
their sentences, all three defendants perfected their appeals.
I. BACKGROUND
This case involves a “reverse-sting” investigation during which the
defendants planned to rob a cocaine stash house. At trial, the government called
as witnesses, Special Agent Steven McKean (“Agent McKean”) and Special Agent
Pamela Bradley (“Agent Bradley”), both of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives (“ATF”). Agent McKean, who was instrumental in
running the reverse-sting operation which led to the defendants’ arrests, testified
about his undercover interactions with the defendants. The government also
presented audio and video recordings of Agent McKean’s meetings and telephone
calls with the defendants and photographs and physical evidence taken on the
night of their arrests. Agent Bradley authenticated the seized evidence and
photographs and testified regarding the characteristics of the seized firearms.
None of the defendants testified at trial. Through cross-examination of
Agent McKean, they attempted to establish that they had been entrapped, and the
district court instructed the jury on the entrapment defense. Chung called two
witnesses who testified that he had good character and frequently wore black
clothing.
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II. ISSUES
The following issues are presented for appellate review:
1. Whether sufficient evidence supported defendants’ convictions.
2. Whether the district court abused its discretion by refusing to strike the
jury venire, based on a claim that Martin’s shackles may have been visible to
prospective jurors, and that he was required to remain shackled during trial.
3. Whether the district court abused its discretion by denying Martin’s
motion for a new trial.
4. Whether the district court abused its discretion by denying Chung’s
motion for severance.
5. Whether the district court abused its discretion by denying Chung’s
motion for mistrial.
6. Whether any prosecutorial misconduct occurred and, if so, whether such
misconduct prejudiced Martin’s substantial rights.
7. Whether the district court erred in its sentencing rulings and whether the
defendants’ sentences were reasonable.
III. STANDARDS OF REVIEW
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Sufficiency of the evidence is a question of law reviewed de novo. United
States v. To, 144 F.3d 737, 743 (11th Cir. 1998). In reviewing such claims, the
court must view all of the evidence in the light most favorable to the government.
Id.
We review for abuse of discretion a district court’s decision to shackle a
defendant during trial. United States v. Mayes,
158 F.3d 1215, 1219 (11th Cir.
1998).
The district court’s denials of motions for a new trial based on newly
discovered evidence, for severance, and for a mistrial are all reviewed for abuse of
discretion. United States v. Noriega, 117 F.3d 1206, 1217 (11th Cir. 1997) (new
trial); United States v. Tapia,
59 F.3d 1137, 1141 (11th Cir. 1995) (severance);
United States v. Vallejo,
297 F.3d 1154, 1163 (11th Cir. 2002) (mistrial).
Improper prosecutorial statements are reviewed de novo and require
reversal only if the improper statements prejudiced a defendant’s substantial
rights. United States v. Delgado, 56 F.3d 1357, 1365 (11th Cir. 1995).
This court reviews the sentencing court’s determination of an aggravating or
a mitigating role for clear error. United States v. De Varon, 175 F.3d 930, 946
(11th Cir. 1999) (en banc). We review sentences imposed by the district court for
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reasonableness. Rita v. United States, 551 U.S. 338, ___,
127 S. Ct. 2456, 2459
(2007); United States v. Talley,
431 F.3d 784, 785 (11th Cir. 2005).
IV. DISCUSSION
After reviewing the extensive record in this case, reading the parties’ briefs,
and having the benefit of oral argument, we first conclude that sufficient evidence
supported all of the defendants’ convictions. Moreover, statements that the
planned robbery targeted Colombian cocaine from a Colombian organization that
would courier its cocaine from Florida to Atlanta demonstrated a sufficient
potential effect on interstate commerce to satisfy the Hobbs Act. United States v.
Orisnord, 483 F.3d 1169, 1177 (11th Cir. 2007), cert. denied, Polymice v. United
States,
128 S. Ct. 673 (2007).
We next conclude that the district court did not err in denying Martin’s Rule
29 motion for judgment of acquittal, and there was sufficient evidence for the jury
to reject Martin’s entrapment defense. Entrapment is an affirmative defense, and
the defendant has the initial burden of producing evidence of government
inducement of the crime. United States v. Quinn, 123 F.3d 1415, 1423 (11th Cir.
1997). As the district court instructed the jury, once the defendant shows
inducement, the burden shifts to the government to prove beyond a reasonable
doubt that the defendant was predisposed to commit the crime. United States v.
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Francis, 131 F.3d 1452, 1455–56 (11th Cir. 1997). Martin did not show
“inducement” because the record demonstrates that he agreed to commit a
dangerous robbery without hesitation or coaxing from Agent McKean or anyone
else. Moreover, the recorded meetings with Agent McKean showed Martin’s
predisposition to commit the planned robbery.
Furthermore, we conclude from the record that sufficient evidence existed
to support Martin’s conviction on Count 6. In order to convict Martin of
possessing an unregistered firearm, the government needed to demonstrate that
Martin knew that the weapon he possessed had characteristics that made it a
“firearm” under 26 U.S.C. § 5845(a) – i.e., that the Uzi had a barrel less than
sixteen inches. See United States v. Miller, 255 F.3d 1282, 1286 (11th Cir. 2001).
The government presented enough evidence for a reasonable jury to conclude that
Martin knew that the Uzi’s barrel measured less than 16 inches. The jury could
reasonably find that Martin knew the characteristics of the unregistered Uzi based
on his knowledge of the Uzi’s source, his role as the robbery’s leader, and the
obviousness of the Uzi’s shortened barrel.
We also conclude from the record that sufficient evidence existed to support
Garrison’s convictions on Counts 1-5. Garrison’s attendance at the meetings on
April 13 and June 5, 2007, clothing that he wore on June 5, his possession of a
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weapon on June 5, and his own statements demonstrated that he knew of, and
knowingly agreed to, the stash house robbery plan.
The record also demonstrates that sufficient evidence supported Chung’s
conviction. Chung’s participation on June 5, the clothing that he wore, the use of
his car, and his statements demonstrated that he voluntarily joined the robbery
plan. Furthermore, Chung had knowledge that the robbery targeted cocaine from
statements he heard on June 5.
Next, the district court did not abuse its discretion when it denied Martin’s
motion to strike the jury venire based on defense counsel’s speculation that
unidentified potential jurors may have seen Martin’s shackles. Defense counsel
could not identify any potential juror who he believed saw the shackles.
Moreover, of the 22 potential jurors who were seated in a position where the
shackles might have been visible, only six served on the jury. The U.S. Marshal,
who was standing two feet directly behind defense counsel, also informed the
court that he could not see the shackles, that jurors definitely could not see the
shackles while Martin was seated, and that jurors would only be able to see the
shackles if Martin was standing and the jurors looked directly at the shackles
while Martin entered and exited the courtroom. The Marshal added that he had
not observed anyone look in that direction all morning. Based on these
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statements, the district court found no evidence that any jurors had seen the
shackles. Even if, however, the denial of Martin’s motion was error, that error
was harmless given the unlikelihood that any impaneled juror saw the shackles,
the district court’s frequent instructions on the presumption of innocence, the
district court’s consistent admonishments to the jury to consider only the evidence
presented and to form no opinion concerning guilt or innocence until the close of
the evidence.
In our view, the district court did not abuse its discretion by denying
Martin’s motion for new trial because the “newly discovered evidence” did not
conflict with or undermine Agent McKean’s testimony and was otherwise
immaterial.
To succeed on a motion for new trial based on newly discovered
evidence, the movant must establish that: (1) the evidence was
discovered after trial; (2) the failure of the defendant to discover the
evidence was not due to a lack of due diligence; (3) the evidence is
not merely cumulative or impeaching; (4) the evidence is material to
issues before the court; and (5) the evidence is such that a new trial
would probably produce a different result.
United States v. Ramos, 179 F.3d 1333, 1336 n.1 (citations omitted). “Motions for
a new trial are highly disfavored.” United States v. Jernigan,
341 F.3d 1273, 1287
(11th Cir. 2003).
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We conclude that the district court did not abuse its discretion in denying
Martin a new trial based on newly discovered evidence of payments made to the
confidential informant (“CI”). The payments were not material because they were
made in connection with a completely different investigation pursuant to an
agreement made after the CI’s involvement and the instant case was complete.
Nor did the evidence impugn Agent McKean’s credibility; Agent McKean
testified truthfully within the context of this case.
Chung’s claim that the district court erred in denying his motion to sever is
meritless. Chung’s pretrial motion to sever was based solely on the theory that
introduction of his co-defendants’ post-arrest statements into evidence would
violate his Sixth Amendment confrontation rights under Bruton v. United States,
391 U.S. 123, 127–28,
88 S. Ct. 1620, 1623 (1968) (stating that a non-testifying
defendant’s post-arrest statement that facially inculpates his co-defendant violates
the co-defendant’s Sixth Amendment rights). In our view, there was no Bruton
error because none of the co-defendant’s post-arrest statements introduced into
evidence implicated Chung. See United States v. Taylor,
186 F.3d 1332, 1336
(11th Cir. 1999). Moreover, we deem it significant that the jury’s verdicts,
acquitting some defendants on some or all counts, demonstrated that the jury was
able to evaluate the evidence against each defendant separately.
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Chung also claims that the district court abused its discretion by denying his
motion for mistrial. Under the rule of Doyle v. Ohio, 426 U.S. 610,
96 S. Ct. 2240
(1976), the government may not use a defendant’s post-Miranda silence to
impeach him at trial. In deciding whether reversible Doyle error has occurred, we
consider the extent and frequency to which the government referred to a
defendant’s silence, whether the reference was used to impeach him, whether a
curative instruction was given, and the strength of the evidence against the
defendant.
Miller, 255 F.3d at 1285–86. A prompt curative instruction may cure a
Doyle error, and a new trial is only warranted if the improper comment was “so
pronounced as to permeate the entire atmosphere of the trial and not be cured by
an instruction.” United States v. Gabay,
923 F.2d 1536, 1541 (11th Cir. 1991).
Chung claims two instances of incurable Doyle error. Concerning the first
claim, the district court agreed with Chung and found that there was a Doyle error,
but denied Chung’s motion for mistrial, after giving a curative instruction.
Although we question whether the government’s second question even implicated
Doyle, we nevertheless conclude that the error was harmless because of the second
curative instruction given by the district court. Accordingly, we are persuaded
that Chung is entitled to no relief on the Doyle issue.
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We conclude from the record that neither Agent McKean’s cross-
examination testimony nor the government’s closing argument, contained
improper comments requiring a reversal of the defendant’s convictions.
Prosecutorial misconduct only merits reversal if the remarks
“(1) were improper and (2) prejudiced the defendants’[] substantive rights.”
United States v. Delgado, 56 F.3d 1357, 1368 (11th Cir. 1995).
We conclude from the record that the government did not make any
improper statements that prejudiced the defendants’ substantial rights. The
isolated remarks from the government’s closing argument, referring to a statement
by Morgan, were inartful responses to the defendants’ entrapment theory. Because
the defendant most likely to be prejudiced – Morgan – was acquitted on all counts,
there is no reasonable probability that the government’s remarks, if improper,
prejudiced the defendants.
Finally, we conclude that the district court committed no errors in its
sentencing rulings. Specifically, the district court did not commit clear error in
enhancing Martin’s sentence for an aggravating role. See U.S.S.G. § 3B1.1(c).
Additionally, the district court properly denied Chung a minor role reduction. We
also conclude that the district court’s imposition of Martin and Chung’s sentences
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was both procedurally and substantively reasonable given the seriousness of their
offenses and the need to deter future violations of the law.
For the foregoing reasons, we affirm the defendants’ convictions and
sentences.
AFFIRMED.
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