Case No. 03-16001-H
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
GREGORY WADE HEMBREE,
Appeal from the United States District Court
for the Northern District of Florida
INITIAL BRIEF OF
APPELLANT GREGORY WADE HEMBREE
John S. Mills William Mallory Kent
Mills & Carlin, P.A. Law Office of William Mallory Kent
Florida Bar No. 0107719 Florida Bar No. 0260738
865 May Street 24 N. Market Street, Suite 300
Jacksonville, Florida 32204 Jacksonville, Florida 32202
(904) 350-0075 (904) 355-1890
Facsimile (904) 350-0086 Facsimile (904) 355-0602
Attorneys for Appellant Gregory Wade Hembree
The Defendant desires oral argument. Oral argument should be granted because this appeal is non-frivolous, the dispositive issues have not been authoritatively decided, and the decisional process would be significantly aided by oral argument. Many of the Defendant’s arguments were not adequately developed in the record below and are raised here under the plain error standard. Indeed, a review of the record demonstrates that the Defendant’s trial counsel did not understand the factual and legal defenses supported by the Defendant’s own testimony. Accordingly, a dialog with the Court should be helpful in sorting through these issues.
Statement Regarding Oral Argument i
Table of Contents ii
Table of Citations vi
Statement of Jurisdiction x
Statement of the Issues 1
Statement of the Case 2
Pretrial Proceedings 2
The Opening Statements and the Defense of Withdrawal 6
The Trial Testimony 8
Nodie Lake 9
Greg Lake 11
Kelli Flowers 13
Nickolaos Malamos, M.D. 15
DEA Agent Michael Moon 16
The Defendant 17
The Government’s Closing Argument 22
The Jury Instructions and Verdict Form 23
The Jury’s Question and Verdict 26
Failure to Appear and Sentencing 26
Standard of Review 29
Summary of the Argument 29
Argument and Citations of Authority 33
I. The Conspiracy Conviction Should Be Vacated Due to a Series of Unpreserved Errors that Individually and Collectively Rise to the Level of Plain Error. 34
A. The Government and Court Constructively Amended the Indictment to Charge a Conspiracy for Simple Possession. 36
B. When the Jury Asked Its Question, the District Court Should Have Explained That the Statute of Limitations Barred Conviction Based Solely on the Defendant’s Admitted Conduct in 1996. 41
C. The District Court Should Not Have Allowed Ms. Flowers to Testify About What the Defendant, Who Was Her Husband, Told Her. 43
D. The District Court Should Not Have Allowed Evidence of the Defendant’s Drug Use. 44
E. The District Court Should Have Enforced Its Order Requiring a Bill of Particulars. 45
F. The District Court Should Have Given a Tillery Instruction Regarding Uncorroborated/Contradictory Testimony of Accomplices. 46
II. The Perjury and Drug Conspiracy Convictions Should Be Vacated Due to a Series of Unpreserved Errors Regarding the Perjury Count. 48
A. The Perjury Count Should Have Been Severed From the Drug Conspiracy Count. 48
B. Both Convictions Should Be Vacated Because the Trial Court Plainly Erred in Submitting the Materiality Element to the Jury on Counsel’s Stipulation and Without an Instruction Requiring Unanimity. 51
III. The Court Erred in Sentencing. 54
A. The Court Failed to Comply with U.S.S.G. § 1B1.1(d) and (e). 54
B. The Court Misapplied the Upward Departure Suggested in U.S.S.G. § 2J1.6, comment. (nn. 3 & 4) and the Application of the Consecutive Sentence Required Under 18 U.S.C. § 3146. 55
Certificate of Compliance 58
Certificate of Service 58
Bonner v. Pritchard, 661 F.2d 1206 (11th Cir. 1981)......... 37
*United States v. Sixty Acres inEtowah County, 930 F.2d 857 (11th Cir.1991)......... 52
Henderson v. Morgan, 426 U.S. 637, 96 S. Ct. 2253 (1976)......... 52
Montgomery v. Noga, 168 F.3d 1282 (11th Cir. 1999)......... 40
*Poole v. United States, 832 F.2d 561 (11th Cir. 1987)......... 51
Richardson v. United States, 526 U.S. 813, 119 S. Ct. 1707 (1999)......... 53
Stano v. Dugger, 921 F.2d 1125 (11th Cir. 1991)......... 33
State v. Allison, 595 A.2d 1089 (N.H. 1991)......... 46
*Stirone v. United States, 361 U.S. 212, 80 S. Ct. 270 (1960)......... 36
*Tillery v. United States, 411 F.2d 644 (5th Cir. 1969)......... 46, 47, 48
United States v. Adkinson, 135 F.3d 1363 (11th Cir. 1998)......... 53, 54
United States v. Andrews, 850 F.2d 1557 (11th Cir. 1988)......... 37
United States v. Armco Steel Corp., 255 F. Supp. 841 (S.D. Cal. 1966)......... 46
United States v. Bascaro, 742 F.2d 1335 (11th Cir. 1984)......... 38
United States v. Benavidez, 558 F.2d 308 (5th Cir. 1977)......... 40
United States v. Bosch, 505 F.2d 78 (5th Cir. 1974)......... 40
United States v. Brown, 872 F.2d 385 (11th Cir. 1989)......... 38
United States v. Butler, 102 F.3d 1191 (11th Cir. 1997)......... 45
United States v. Carroll, 582 F.2d 942 (5th Cir. 1978)......... 37, 40
*United States v. Dekle, 165 F.3d 826 (11th Cir. 1999)......... 38, 39
United States v. Diaz, 248 F.3d 1065 (11th Cir. 2001)......... 36
United States v. Drum, 733 F.2d 1503 (11th Cir.), cert. denied, 469 U.S. 1061, 105 S. Ct. 543 (1984)......... 50
United States v. Flom, 558 F.2d 1179 (5th Cir. 1977)......... 46
United States v. Gipson, 553 F.2d 453 (5th Cir. 1977)......... 54
United States v. Hall, 314 F.3d 565 (11th Cir. 2002)......... 29, 34, 36
*United States v. Hardy, 895 F.2d 1331 (11th Cir. 1990)......... 37, 38, 39
*United States v. Haywood, 280 F.3d 715 (6th Cir. 2002)......... 45
United States v. Jamar, 561 F.2d 1103 (4th Cir. 1977)......... 50
United States v. Joshi, 896 F.2d 1303 (11th Cir. 1990)......... 52
United States v. Kopituk, 690 F.2d 1289 (11th Cir.1982), cert. denied, 463 U.S. 1209, 103 S. Ct. 3542 (1983)......... 48
United States v. Lane, 474 U.S. 438, 106 S. Ct. 725 (1986)......... 50
United States v. Magluta, 198 F.3d 1265 (11th Cir. 1999)......... 56
United States v. Moeckly, 769 F.2d 453 (8th Cir. 1985)......... 50
United States v. Monzon, 869 F.2d 338 (7th Cir. 1989)......... 45
United States v. Morris, 988 F.2d 1335 (4th Cir. 1993)......... 44
United States v. Nelson, 574 F.2d 277 (5th Cir. 1978)......... 42
United States v. Ono, 918 F.2d 1462 (9th Cir. 1990)......... 45
United States v. Peel, 837 F.2d 975 (11th Cir. 1988)......... 37
United States v. Pollak, 364 F. Supp. 1047 (S.D.N.Y. 1973)......... 46
United States v. Prather, 205 F.3d 1265 (11th Cir. 2000)......... 36
United States v. Sanchez, 532 F.2d 155 (9th Cir. 1976)......... 51
*United States v. Singleton, 260 F.3d 1295 (11th Cir. 2001)......... 43
United States v. Werner, 620 F.2d 922 (2d Cir.1980)......... 48
United States v. Williams, 340 F.3d 1231 (11th Cir. 2003)......... 29
Williamson v. United States, 332 F.2d 123 (5th Cir. 1964)......... 47, 48
Wolfle v. United States, 291 U.S. 7, 54 S. Ct. 279 (1934)......... 43
18 U.S.C. § 3146......... 27, 55
18 U.S.C. § 3282(a) ......... 41
21 U.S.C. § 841(a)(1)......... 3, 4, 8
21 U.S.C. § 844(a)......... 39
21 U.S.C. § 846......... 39
28 U.S.C. § 1291......... x
28 U.S.C. § 1331......... x
Fed. R. App. P. 4(b)(1)(A)(i)......... ix
Fed. R. App. P. 26(a)(2)......... ix
Fed. R. Evid. 60......... 50
FEDERAL SENTENCING GUIDELINES
*U.S.S.G. § 1B1.1......... 54, 55
*U.S.S.G. § 2J1.6......... 55, 56
U.S.S.G. § 3E1.1......... 54
U.S.S.G. § 3D1.1......... 56
The district court had jurisdiction pursuant to 28 U.S.C. § 1331 (2001) because the indictment charged the Defendant with two federal offenses. This is an appeal of a final judgment of conviction and sentence; thus, this Court has jurisdiction pursuant to 28 U.S.C. § 1291 (2003).
The judgment was entered on November 4, 2003. (R1:73.) The Defendant timely filed his notice of appeal on November 17, 2003. (R1:74.) Excluding intermediate Saturdays, Sundays, and Veteran’s Day, the notice was timely filed eight days after the final judgment was entered. See Fed. R. App. P. 4(b)(1)(A)(i) (in absence of appeal by Government, defendant’s notice of appeal in a criminal case must be filed in the district court within ten days of entry of judgment being appealed); Fed. R. App. P. 26(a)(2) (intermediate Saturdays, Sundays, and legal holidays are excluded for calculating time periods of less than eleven days).
I. Whether the following actions by the district court and the Government in relation to the conspiracy count rise to the level of plain error:
A. The Government’s argument and the court’s instructions suggesting that a transfer of possession of cocaine constitutes possession with intent to distribute;
B. The court’s failure to instruct the jury in response to its question that the statute of limitations bars the Defendant’s conviction based solely on the trip to Miami in 1996;
C. The Government’s repeated questioning of Ms. Flowers about what the Defendant told her during the course of their marriage;
D. The Government’s emphasis on and evidence of the Defendant’s personal drug use;
E. The Government’s use of testimony that it claimed it could not procure in its response to the order requiring a bill of particulars; and
F. The court’s failure to instruct the jury that the uncorroborated testimony of an accomplice should be viewed with particular skepticism.
II. Whether the following actions by the district court in relation to the perjury count rise to the level of plain error:
A. Its failure to sever the perjury count from the conspiracy count;
B. Its allowance of a stipulation by counsel as to the essential element of materiality and its failure to instruct the jury that it must unanimously agree that at least one particular false statement was material.
III. Whether the district court erred in it establishing the Defendant’s sentence because it:
A. Refusing to apply an acceptance of responsibility reduction to the Defendant’s adjusted base offense level; and
B. Refusing to group the failure-to-appear conviction with the conspiracy and perjury convictions.
The Defendant appeals both his conviction and sentence for a drug conspiracy and perjury. Because many of the issues raised on appeal were not thoroughly developed by the Defendant’s trial counsel, a detailed account of the trial court proceedings is necessary.
The grand jury indicted the Defendant on July 17, 2002, on two counts. In Count One, the grand jury charged the Defendant with conspiring to possess with intent to distribute more than five hundred grams of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii) (1995). (R1:1:1.) The grand jury alleged that the conspiracy began “on or about January 1, 1997,” and lasted until “on or about December 1998.” (Id.) In Count Two, the grand jury charged the Defendant with perjury based on his testimony at the 1999 federal criminal prosecution of Gregory and Nodie Lake for conspiracy with intent to distribute cocaine and marijuana. (R1:1:2.)
Defendant’s trial counsel first appeared at the November 4, 2002, arraignment, at which the court set the case for trial on December 9, 2002. (R1:8, 10.) Five days after the arraignment, counsel was hospitalized for a four-day period during which he underwent an angiogram and received a heart stent. (R1:14:2.) He was not able to return to full-time work until November 18, 2002. (Id.) On that day, counsel moved for an extension of time to file pretrial motions, noting that between that date and December 4, 2002, he had four scheduled trials, an evidentiary hearing, and seven other hearings, plus the Thanksgiving holiday. (R1:14:2-3.) The court granted the motion and extended the pretrial motion deadline to November 26, 2002. (R1:15.)
Counsel filed no motions by that deadline, but on December 3, 2002 , he moved to continue the trial until January 6, 2003. (R1:16.) He noted that his entire caseload had been backed up or rescheduled due to his illness and that he had been in trial, hearing, or deposition for all but three days since his return to work. (R1:16:1.) He noted that he had court four out of five days for the week of December 2, plus depositions in a child sexual battery case. (Id.) He also had lab work and a doctor’s appointment set for the following week. (Id.) He noted that he and the Government had been trying to resolve the conspiracy count on statute of limitations grounds, that they were exchanging discovery, and that he anticipated filing a motion for a bill of particulars. (R1:16:1-2.) The court granted the motion on December 4, resetting the trial for January 6, 2003. (R1:17.)
On December 5, 2002, counsel filed a motion for bill or particulars with regard to the conspiracy count. (R1:19.) The Defendant complained in the motion that the indictment “does not allege with whom he conspired, how he conspired, nor does it allege any specific overt or predicate acts.” (R1:19:2.) He asserted that “any criminal activity, any criminal conspiracy, any [sic] Defendant’s alleged participation in any criminal conspiracy, if any, terminated prior to January 1, 1997” and was therefore barred by the statute of limitations. (Id.) He also indicated that he could not “prepare a defense of alibi because the Defendant has no knowledge of any specific dates or acts or activities that he purportedly did during the time frame alleged” in the conspiracy count. (Id.)
By order dated December 9, 2003, the court granted the motion and ordered the Government to “provide particulars as to the dates of the defendant’s participation with respect to the applicable statute of limitations.” (R1:20.)
On December 12, 2002, the Government served the Defendant with its response to the court’s order. (R1:21.) The Government stated that it was “unable to provide with any particularity the dates of the defendant’s participation other than to allege . . . that his participation [in the conspiracy] continued past [January 1, 1997] and the conspiracy continued through and into calendar year 1998.” (R1:21:3.) The Government stated that it had advised the Defendant that the alleged coconspirators were Gregory and Nodie Lake. (R1:21:3.) It further stated that its lead case agent, DEA Special Agent Michael Moon, had interviewed the Lakes and the Defendant’s ex-wife Kelli Flowers and that all three had advised Agent Moon of the Defendant’s “continued participation in the conspiracy charged throughout the time of Kelli [Flowers’] pregnancy culminating in the birth of their daughter on July 21, 1997.” (R1:21:3-4.) Finally, it stated:
The government is unable to provide specifics pursuant to the Court order of particular dates of the defendant’s participation during the two year time frame charged in the indictment based on the lack of any government witnesses’s [sic] ability to provide that information or dates with any specificity beyond the benchmarks of Kelli [Flowers’] pregnancy as relied upon by the defendant himself.
A week before the trial began, the Defendant filed a notice of alibi, in which he stated his intent to introduce evidence “that he was not involved in any charged criminal conduct at any location with any testifying government witness or other person involved in Count 1 of the indictment between January 1, 1997, and December 31, 1998.” (R1:23:1-2.) He further stated that he would “present evidence that he was at any other location at times and places alleged by the government witnesses, which at this point in time are unknown to both the government and the Defendant.” (R1:23:2.)
Before the jury was seated for opening statements at the trial, the court asked the Defendant’s trial counsel whether a notice of alibi was appropriate with respect to a conspiracy charge. (R9:7.) Counsel responded:
The court granted our request for a bill of particulars, but [the Government] could not give us any dates, times or places. Alibi would traditionally be available for defense as to specific date and time. Just to not to run afoul of any technical objection, he would have gone back and tried to reconstruct his life for two years. I don’t know of any other defense other than alibi, to say that you did not go to certain places at certain times. It’s not – it’s certainly not traditional alibi, but I don’t have that additional time, date and place to work with either, Judge.
In its opening statement, the Government advised the jury that it would present substantial evidence that the Defendant had a history of drug use and abuse of prescription drugs, and it reviewed this evidence at great length. (R9:23-25, 29-30.)
Moving on to the legal theories of the case, the Government advised the jury that it “anticipate[d] Mr. Hembree may try to raise a defense that I was not involved in this conspiracy after July of 1997, thus the government didn’t indict me in time, so I’m home free.” (R9:39.)
The Defendant’s trial counsel confirmed in his opening statement that the Government’s prediction was “correct, that is the defense, defense of withdrawal from a conspiracy, and the fact that the government cannot meet it’s burden of showing that they brought a prosecution within the statute of limitations.” (R9:41.) He further stated that the Defendant would testify that he had been involved in transporting cocaine for Mr. Lake in the mid-1980’s until Mr. Lake was convicted and sentenced on drug charges and that he was involved in two subsequent drug deliveries with Mr. Lake in the mid-1990’s after Mr. Lake’s release. (R9:42-43.)
First in 1994, he agreed to and did transport a cooler full of marijuana from Florida to South Carolina as a favor to Mr. Lake, who felt that the Defendant “owed him” because Mr. Lake never “ratted [the Defendant]] out” in relation to the 1980’s drug dealings. (R9:43.) Second in 1996, the Defendant agreed to and did transport 500 grams of kilo from Miami to Mr. Lake in the Florida panhandle. (R9:46.) Some of the marijuana the Defendant had transported in 1994 had gone missing, and Mr. Lake asked the Defendant to make the 1996 delivery “to clear the slate.” (Id.)
The Defendant’s counsel summarized the defense with regard to the anticipated evidence as follows:
The government must bring you evidence that, first of all, a conspiracy even existed. I believe the testimony will show that there was no conspiracy. This was simply an association of people that knew one another over the years and did drugs together. Sometimes Mr. Hembree got drugs from Mr. Lake, but small amounts for personal consumption. And that the only two things he ever did in the way of going and procuring and transporting drugs were the two instances with the marijuana, and in 1996, the half kilo of cocaine, all of which is outside the government's five-year window, outside of that window that the law says they can be prosecuted.
Counsel further announced that the Defendant would admit that he perjured himself at the Lakes’ trial, but would raise the defense that the Lakes coerced him into doing so. (R9:41, 50-51.)
The only physical evidence offered by the Government was the indictment in the Lakes’ prosecution and a partial transcript reflecting the Defendant’s testimony at the Lakes’ trial. (R10:3-4; Gov’t Exhs. 1 & 2.) Other than that, the Government relied solely on the testimony of four witnesses: Gregory and Nodie Lake, Kelli Flowers, and Dr. Nickolaos Malamos. The Defendant also offered no physical evidence. He relied on his own testimony and also called Agent Moon as a witness. Particularly because the various witnesses often offered conflicting testimony, the relevant testimony of each witness is summarized in the order in which they testified.
At the time of her testimony, Mrs. Lake had completed about three years of a 130-month federal sentence for conspiracy to possess with intent to distribute cocaine and marijuana. (R5:2-3.) She testified on behalf of the Government in the hope of receiving a reduction in her sentence pursuant to Rule 35, Federal Rules of Criminal Procedure. (R5:42-43.) Mrs. Lake testified that she was brought back to Escambia County on November 27, 2002, and met with the prosecuting attorney and Agent Moon in preparation for the Defendant’s trial. (R5:43-44.)
She had a history of using cocaine, prescription pain medication, and marijuana together with Mr. Lake and the Defendant. (R5:17.) From around 1994 through late 1998, Mr. and Mrs. Lake became highly addicted to the opiate Dilaudid, which is a Schedule II narcotic similar to morphine, Demerol, and OxyContin. (R5:49-553; R8:18-19.) It is a highly potent medication prescribed for severe pain. (R8:19.) It is abused for its euphoric effects, and it also causes mental impairment, including memory loss. (R8:36.) The Lakes’ addiction got to the point where they had to inject themselves intravenously every day with ten to twenty-five pills worth of the drug. (R5:50-51.) They did not quit until late 1998 or 1999, with the assistance of methadone. (R5:51.) She testified that the Defendant used Dilaudid with the Lakes on occasion, but his usage “was nothing like” that of the Lakes. (R5:20.)
Mrs. Lake testified generally that the Defendant and Mr. Lake sold cocaine together in the Destin, Florida area. (R5:21-22.) Between the two of them, Mr. Lake was the one “calling the shots.” (R5:39.) She was sure that the Defendant’s participation continued after the birth of his daughter. (R5:61.) She specifically testified that on two occasions she met the Defendant in Miami where they picked up cocaine for the Defendant to bring back and sell with Mr. Lake. (R5:23.)
The first trip took place sometime in July of 1997. (R5:65, 70-71.) Mrs. Lake flew to Miami and was picked up by a man named Barry Nelson, a/k/a “B.” (R5:24.) On their way to the condominium of another man referred to as “Marco,” they stopped at a drug store, purchased syringes, and she injected herself with Dilaudid. (R5:68, 79.) The Defendant met them at Marco’s condominium, where the Defendant and Mrs. Lake were shown a half kilogram of cocaine, but they determined that it was of poor quality. (R5:24-25.) Marco told them he would find them better cocaine, so they checked into a motel, instead of returning home. (R5:25-27.)
While they were in South Florida during this trip both she and the Defendant used their cellular phones. (R5:64.) After a couple of days, they met Marco again and received a new half kilogram of cocaine that was acceptable. (R5:28-29.) Mrs. Lake and the Defendant drove back to North Florida in the Defendant’s older model Mercedes. (R5:26, 29-31, 66, 67.) Mrs. Lake testified that she knew that the Defendant’s daughter had already been born by this time because, shortly after their return on this first trip, she remembers seeing the Defendant bathing his daughter in a tub in the kitchen sink. (R5:70, 81-82.)
The second trip occurred a couple of months later in August or September of 1997. (R5:70.) Mrs. Lake flew down to Miami and met the Defendant, who had driven down in a car rented by Mr. Lake. (R5:32, 72.) They picked up a baggie of cocaine from Marco, Mrs. Lake flew back, and the Defendant drove back to North Florida with the cocaine. (R5:32-33.) The Defendant brought the cocaine to the Lakes’ house where he and Mr. Lake cut and packaged it for sale. (R5:33-34.)
At the time of his testimony, Mr. Lake had completed almost three-and-a-half years of a 310-month federal sentence for conspiracy to possess with intent to distribute cocaine and marijuana and possession of a firearm by a convicted felon. (R6:2-3.) He had previously been convicted for distribution of cocaine in the mid-1980’s and served a fifteen-year sentence. (R6:4.) Like his wife, he testified on behalf of the Government in the hope of receiving a reduction in sentence pursuant to Rule 35, Federal Rules of Criminal Procedure. (R7:34.) He had arrived in Escambia County for the trial on December 6, 2002, and discussed with the prosecutor and Agent Moon the specific details of the charges against the Defendant, such as the times when the Defendant transported cocaine for him, during the month before trial. (R7:33.)
Mr. Lake admitted that, like his wife, he had been addicted to Dilaudid and used the drug with his wife as “a steady every day type of thing.” (R7:12-13.) He testified that they went through ten to twenty pills every one-and-a-half to three days. (R7:12.) Indeed, it was his need to support this addiction that led him to distribute cocaine. (R5:14.)
He testified that he obtained the cocaine from Miami from a man named Jeff Baker, who went by the alias “Marco Marciano,” and a man called “B.” (R6:11.) Mr. Lake had his wife fly the money down to Miami to pay for the drugs and sent the Defendant to bring the drugs back so that Mrs. Lake would not have to be in the car while the drugs were being transported back north. (R6:15-17.) Mr. Lake testified that the Defendant’s involvement with Mr. Lake’s cocaine distribution ended sometime in 1997 (R6:26; R7:19), but he was sure that the Defendant had made at least one trip to bring back cocaine from Miami after the birth of his daughter. (R6:26.)
Mr. Lake recalled three separate occasions when the Defendant went to Miami to get cocaine for him. (R7:14, 25-26, 28, 31, 48.) First, he remembered that the Defendant brought cocaine back from Miami sometime in 1996, although he could not remember the details. (R7:6.) Second, the Defendant made a trip in July 1997. (R6:26; R7:7.) Finally, he remembered the last trip was in September 1997. (R6:26; R7:6-7.)
He specifically remembered telling Agent Moon about this September 1997 trip during the week before the Defendant’s trial because he remembered that it was during the beginning of football season. (R7:27-29.) Mr. Lake testified that on this trip, Mrs. Lake and the Defendant had to stay for three days because the cocaine that was first presented to them was of poor quality. (R7:7.) He learned of this problem when Mrs. Lake called him on her cellular telephone. (R6:17-18.) After acquiring half a kilogram of acceptable cocaine, they drove back together. (R6:18; R7:7.) He distinctly remembered this trip. (R7:30-31.)
During his testimony, Mr. Lake described the conspiracy for which he was convicted. (It was at this trial that the Defendant allegedly perjured himself as charged in the second count.) Mr. Lake testified that the conspiracy that was the subject of that trial involved the Lakes’ dealings with a man named Dan Ruble and had nothing to do with the Defendant. (R7:24-25, 26-27.)
Kelli Flowers, the Defendant’s ex-wife, testified against the Defendant under a grant of immunity from the Government. (R3:2, 30, 58.) The Defendant and Ms. Flowers married in March 1997, and their daughter was born on July 22, 1997. (R3:4-5.) The Defendant filed for divorce from Ms. Flowers in 1998. (R3:45, 56.) The Department of Children and Families (“DCF”) had removed their daughter from Ms. Flowers’ custody two years before the trial and placed her with the Defendant. (R3:29, 56-57.) Ms. Flowers lost custody because she failed multiple urinalysis tests. (R3:66.) About a month before the trial began, she sued the Defendant to regain custody. (R3:64.)
Much of her testimony was based on things that the Defendant had told her during their marriage. (See, e.g., R3:42-43, 62-63, 65.) She testified that throughout the year of her marriage to the Defendant, he was selling cocaine. (R3:45.) She testified that she saw Mr. Lake and the Defendant cutting cocaine at her house (R3:12), but Mr. Lake has specifically denied that he ever did. (R6:31.)
Ms. Flowers testified that the Defendant continued to distribute cocaine after their daughter was born. (R3:71.) For example, she testified that in late 1998 or 1999, the Defendant was gone for four days on a trip to Miami to pick up cocaine. (R3:28-29, 33-34.) She called him at his motel and Mrs. Lake answered the phone, which made Ms. Flowers very upset. (R3:28-29.)
She testified that the Defendant traveled to Miami for cocaine many times in 1997 and 1998 – up to four times a month. (R3:31-33.) He would call her on his cellular phone while he was down south picking up cocaine. (R3:13.) She had wired money through Western Union to a man named Marco in South Florida. (R3:27.) She further testified that he made several trips for cocaine to Miami, Orlando, and Plant City in 1998, including one trip to Orlando on which she and her daughter accompanied the Defendant. (R3:22-24.)
She further testified that she saw and even helped the Defendant sell and deliver “eightballs” of cocaine to people in the Destin area, including a friend of theirs named Dr. Malamos. (R3:66-67.) She testified that this continued into 1999. (R3:67-68.)
She also testified that she had been cooperating with the Government for two years. (R3:57-58.) Before the grand jury proceedings, she had told the Government the names of people to whom he was selling cocaine, and she told them about the trip to Orlando sometime in 2001. (R3:59-60.)
At the time of his testimony, Dr. Malamos was serving a federal sentence for writing illegal prescriptions for narcotics. (R8:2-3.) Like the Lakes, he testified against the Defendant in the hope of having his sentence reduced. (R8:21-22.)
Dr. Malamos testified that he had been a close friend of the Defendant and that the two frequently ingested cocaine together. (R8:8, 28.) The Defendant was a legitimate patient of Dr. Malamos, although Dr. Malamos also wrote the Defendant some illegitimate prescriptions for the pain medicine Lortabs. (R8:11-12, 29-30.) Indeed, Dr. Malamos had written prescriptions for narcotics to several people with whom he used cocaine. (R8:11-12.) He testified that he purchased eightballs of cocaine from the Defendant on occasion, including after the birth of the Defendant’s daughter. (R8:8-9, 17, 48.)
The Defendant’s first witness was Agent Moon, the DEA agent assigned to the Panama City office who worked on the prosecutions of the Lakes and the Defendant. (R4:2-3.) He explained that the Government had investigated and prosecuted the Lakes for a conspiracy to bring cocaine and marijuana from Houston, Texas. (R4:4-5.) As part of his investigation of the Lakes, Agent Moon executed a search warrant of Mr. Lake’s house where he took “all types of business records, tax records that were maintained that appeared for tax purposes, records pertaining to his businesses, rental properties, most any type of financial record that we could take or identify.” (R4:3-4.) He also found phone records, motel and airline reservations, and money transfer orders. (R4:5.) Some of the money transfers were made to Miami. (R4:8.) The flight records included flights for Mrs. Lake to Miami, but they did not match up with her alleged trips with the Defendant in July and September 1997. (R4:9, 16.)
Agent Moon admitted that none of this evidence implicated the Defendant and indeed, the Government had no physical evidence against the Defendant. (R4:10-11.) It had never even attempted to subpoena the Defendant’s cellular phone or home phone records. (R4:10.) Agent Moon was aware that the Government did have several pages of the Defendant’s medical records showing that Dr. Malamos provided legitimate medical care and prescriptions to the Defendant, but he knew that these documents had not been turned over to the Defendant. (R4:13-14.)
Agent Moon testified that approximately three weeks before the trial, he had obtained from the Lakes specific details of their testimony, including the time frames of Mrs. Lake’s alleged trips to Miami with the Defendant. (R4:15, 22-23.) Pursuant to DEA policy, these interviews were not recorded. (R4:19.) He had interviewed Ms. Flowers in March 2001, and she told him then that she and her daughter had accompanied the Defendant on a trip to pick up cocaine in Orlando. (R4:28.)
The Defendant is a licensed general contractor and land developer in Northeast Florida. (R2:3.) The Defendant admitted that he had “pretty heavy involvement” in trafficking cocaine in the mid-1980’s with Mr. Lake. (R2:66.) At the time, the Defendant was living in Houston, Texas, and would drive to Central Florida to pick up cocaine from Mr. Lake in odd amounts, but never more than a half kilogram. (R2:13-15, 63-64.) The Defendant stopped his involvement when one of Mr. Lake’s associates was arrested on federal drug charges. (R2:14-15, 65-66.) About a year later, Mr. Lake himself was arrested and convicted. (R2:15.)
In late 1995 or 1996, not long after Mr. Lake finished his sentence, the Lakes and the Defendant were living in the Destin area, and Mr. Lake asked the Defendant to transport a 48-quart cooler full of marijuana from South Florida to Charleston, South Carolina. (R2:19-20, 67.) Mr. Lake told the Defendant that the Defendant “owed him” for not telling the authorities about the Defendant’s involvement in the 1980’s cocaine trafficking. (R2:69-70.) Mr. Lake was “adamant” that the Defendant make the delivery so that they would be even. (R2:70.)
The Defendant acquiesced, and Mr. Lake paid the Defendant’s expenses for the trip, but did not pay him anything beyond that. (R2:20, 70.) When he arrived in South Carolina, the person to whom he was supposed to deliver the marijuana refused to accept it because it was of poor quality. (R2:21.) After advising Mr. Lake by phone, the Defendant left the drugs in a rented storage unit and drove back to Florida. (R2:21.) Mr. Lake later informed the Defendant that a substantial amount of the marijuana was missing from the storage unit and that Mr. Lake had been forced to cover the cost of the missing drugs. (R2:22.)
Around June of 1996, Mr. Lake told the Defendant that the Defendant again “owed” him, this time because Mr. Lake had to cover for the missing marijuana. (R2:30.) He stated that the Defendant could make it up by driving to Miami and returning with some cocaine. (R2:30.) The Defendant agreed and drove to Miami in a car rented by Mr. Lake. (R2:30-31, 71.) As requested by Mr. Lake, the Defendant went to a condominium owned by a person named Marco Marciano and picked up a half kilogram of cocaine. (R2:30-33.) He brought the cocaine back to Mr. Lake’s house and helped Mr. Lake break it up and cut it. (R2:33, 74-76.)
The Defendant testified that this was the only time that he picked up cocaine for Mr. Lake. (R2:30-31.) He denied that Mrs. Lake ever went with him anywhere to pick up cocaine. (R2:31.) He testified that it was not until late 1998 that he even got the Mercedes that Mrs. Lake claimed he drove to Miami in 1997. (R2:73-74.) He admitted that Ms. Flowers may have accompanied him when he purchased small amounts of cocaine for personal use, but never a large amount as she had testified. (R2:31.) He testified that the Lakes and Ms. Flowers had lied when they testified about trips to pick up drugs in 1997 and 1998. (R2:96-98.)
He testified that when he learned that Ms. Flowers was pregnant with their daughter in December 1996 or January 1997, he decided to quit “doing everything.” (R2:37-38.) Although he consistently testified that he did not make any more trips to pick up large amounts of cocaine after 1996, he admitted that he did still “party” on occasion after his daughter was born. (R2:42.) He defined “partying” as using small amounts of cocaine with his friends, such as Dr. Malamos. (R2:59.)
The Defendant specifically admitted that he had used cocaine with Dr. Malamos since the birth of his daughter. (R2:40, 83-84.) When he was partying with friends, they would purchase eightballs of cocaine. (R2:59.) They would pool their money together and he would go buy the cocaine from the Lakes. (R2:60-61.) Normally, he and his friends would ingest the cocaine when he returned, although he admitted that he sometimes would pick up an extra eightball for one of the friends to take home. (R2:61-62.) He admitted that he had helped Dr. Malamos purchase eightballs, but only in the course of partying. (R2:62.) He was not selling cocaine to Dr. Malamos and he specifically denied every having Ms. Flowers deliver eightballs to Dr. Malamos. (R2:62.) The only time he ever got cocaine for other people was in the course of partying. (R2:63, 78.)
On cross-examination, the prosecutor engaged in the following line of questioning about whether this constituted unlawful distribution:
Q. Well, has – has your attorney shared with you the definition of distribution for federal law enforcement purposes and what the jury will hear down the road?
A. Yes, sir.
Q. The transfer of possession from one person to another –
A. Yes, sir.
Q. – with or without any financial remuneration?
A. Yes, sir. That’s correct.
Q. So you were transferring cocaine from one person to another?
A. Yes, sir.
Q. You don’t deny that?
A. No, sir.
(R2:78-79.) The Defendant’s counsel made no objection. Indeed, the only objection that counsel made during the entire trial was that the Government was asking leading questions during its cross-examination of Agent Moon. (R4:39.)
The Defendant also testified relating to the perjury count. He admitted that he had testified in the Lakes’ trial that he did not know whether they used or distributed drugs, had never seen drugs at their home, had never received drugs from them, and had never consumed drugs at their home. (R2:53-56, 95.) The Defendant further admitted that these statements were all false. (R2:53-56, 95.) He testified that he lied at the Lakes’ trial because he was afraid that Mr. Lake would harm him or his family if he told the truth. (R2:46-47, 50.)
Finally, the Defendant testified that he divorced Ms. Flowers because she had continued in a downward spiral of drug and alcohol abuse and would be gone for days at a time. (R2:42-43.) In their divorce settlement, they agreed to shared custody subject to monitoring by DCF. (R2:43-44.) After six or seven months, DCF took the child away from Ms. Flowers altogether on an emergency basis and placed them with the Defendant. (R2:44.) The family court ultimately gave the Defendant full custody, allowing Ms. Flowers only supervised visitation. (R2:44.) As soon as his criminal trial date was set, the Defendant received notice that Ms. Flowers was seeking to regain custody. (R2:44-45.) The hearing was set for two months after the criminal trial. (R2:45.)
In its closing argument, the Government returned to its emphasis on the Defendant’s drug use:
So Greg Lake, Nodie Lake both tell you how the defendant was involved with them in this downward spiral, the ever-increasing use of drugs, prescription pain medications, which he admitted he's getting, too. Dilaudids, which he says, oh, well, you know, I snorted one maybe one time, but that's it. He denied shooting up. You heard his wife say, yeah. You ever try Dilaudids? Yeah, one time. Tell me about it, Kelli. Well, what happened was he took the pill, mashed it up, mixed it up, and then he shot me in the hip. How did you like it, Kelli? Didn't. Got sick as a dog. The last time I ever had any Dilaudid. And who administered that to you, Kelli Hembree? (Pointing) My ex husband sitting right over there.
The Government also argued that the Defendant’s admission that he picked up eightballs for he and his friends to use constituted the offense of distribution of cocaine:
Remember the charge, conspiracy to possess with intent to distribute cocaine. And I said, well, now, you understand the definition of distribution, don’t you? Remember I asked him, I said, you know, distribution is the transfer of possession from one person to another with or without any financial interest in it. He’s distributing cocaine by his own testimony after the statute of limitations, which I’m gonna get to in this case.
* * *
He’s admitted to you he was involved [sic] a conspiracy to possess with intent to distribute cocaine. He’s admitted to you on the stand that he did it after his child was born. . . . July the 22nd, 1997 is the benchmark. If he was involved in direct distribution of eightballs after that date, then he’s guilty as charged. The withdrawal, this statute of limitations doesn’t apply because he is still doing it.
The Defendant’s counsel made no objections to the Government’s closing argument.
The court instructed the jury on the definition of “intent to distribute” as follows: “To possess with intent to distribute simply means to possess with intent to deliver or transfer possession of a controlled substance to another person, with or without any financial interest in the transaction.” (R1:11; R11:64.)
The only jury instruction regarding the purchase of small amounts of cocaine for personal use was as follows:
A person who buys a small quantity of a controlled substance for personal use does not thereby become a conspirator. However, a person may become a member of a conspiracy without full knowledge of all of the details of the unlawful scheme or the names and identities of all of the other alleged conspirators. So if a defendant has a general understanding of the unlawful purpose of the plan and knowingly and willfully joins in that plan on one occasion, that is sufficient to convict that defendant for conspiracy, even though the defendant did not participate before, and even though the defendant played only a minor part.
The court gave the following instructions regarding the defense raised by the Defendant:
The defendant has raised the affirmative defense of withdrawal from the conspiracy prior to July 17, 1997. Once a conspiracy is formed, under the law it continues as long as its purposes have neither been abandoned nor accomplished or until some affirmative showing has been made that the conspiracy has terminated.
Each conspirator is presumed to be a participant for the entire duration of the conspiracy unless the conspirator can overcome that presumption by withdrawal. For statute of limitations purposes, a conspiracy is within the limitations period if any activity by any conspirator in furtherance of the conspiracy extends into the limitations period.
For purposes of this case the limitation period runs from July 17, 1997 to the date of the return of the indictment. A member of a conspiracy remains in the conspiracy unless he can show at some point he completely withdrew from the conspiracy. A partial or temporary withdrawal is not sufficient. The defense of withdrawal requires the defendant to make a substantial showing that he took some affirmative step to terminate or abandon his participation in the conspiracy. In other words, the defendant must demonstrate some type of affirmative action which disavowed or defeated the purpose of the conspiracy. This would include, for example, voluntarily going to the police or other law enforcement officials and telling them about the plan; telling the other conspirators that he was withdrawing and did not want to have anything more to do with the conspiracy; or taking similar action inconsistent with the object of the conspiracy and which was communicated in a way reasonably likely to reach the other members of the conspiracy. Merely doing nothing or just avoiding contact with the other members would not be enough to constitute withdrawal under the law.
The defendant cannot be found guilty of the conspiracy if he withdrew from the conspiracy more than five years before the indictment was returned. The indictment in this case was returned on July 17th, 2002. Thus, the government must prove beyond a reasonable doubt both that the conspiracy continued at least until or after July 17th, 1997, and that the defendant did not withdraw from the conspiracy prior to that date.
The verdict form contained the following note regarding the withdrawal defense:
The defendant has raised the affirmative defense of withdrawal from the conspiracy prior to the expiration of the statute of limitations. To find the defendant guilty of this conspiracy offense, you must all further find beyond a reasonable doubt that the defendant did not withdraw from the conspiracy prior to July 17th, 1997.
(R1:26; R11:73.) The form asked the jurors to pick between two choices: (a) “Did withdraw prior to July 17, 1997,” and (B) “Did not withdraw prior to July 17, 1997.” (R1:26; R11:73.)
Defendant’s trial counsel made no objections to the above-referenced instructions and verdict form. (R11:4-5, 8-9, 75.)
During its deliberations, the jury submitted the following question court: “If the defendant never withdrew from the conspiracy, does the statute of limitations date apply?” (R11:77.) While consulting with counsel, the court suggested that he would give the following answer to the jury: “only as set out in the last sentence on Page 15 of the instructions.” (R11:78.) The Defendant’s counsel responded, “I don’t know any objection to make to that. That’s what it says.” (R11:79.) The referenced sentence in the jury instruction was as follows:
Thus, the government must prove beyond a reasonable doubt both that the conspiracy continued at least until or after July 17th, 1997, and that the defendant did not withdraw from the conspiracy prior to that date.
Just over an hour after the court answered the jury’s question, the jury returned a guilty verdict on both counts. (R1:26.) The court ultimately denied the Defendant’s motion for new trial and entered a judgment of conviction on both counts. (R1:53, 73.)
The Defendant’s sentencing in the underlying case in which he had been convicted of perjury and conspiracy to distribute cocaine was scheduled for March 28, 2003. [R57] The Defendant failed to appear and a bench warrant was issued for his arrest. [R59] Thereafter, the Defendant, who had fled to Mexico, made arrangements through counsel to voluntarily surrender. [Sent. Tr. 45-47] The Defendant was taken into custody at the Houston International Airport upon his arrival from Mexico on August 31, 2003. [PSR 4,8]
The Defendant was then indicted for failure to appear in violation of 18 U.S.C. § 3146 on September 16, 2003. [PSR 5] The Defendant pled guilty without benefit of a plea agreement October 3, 2003 at his first appearance in the Northern District of Florida. [PSR 5] The court consolidated both the underlying indictment and the failure to appear indictment for sentencing October 31, 2003. [R71]
The Defendant objected to the PSR’s failure to accord acceptance of responsibility for the failure to appear, and although the court agreed he had accepted responsibility for the failure to appear, the court overruled the objection and overruled the defense objection that the total offense level determined after grouping the failure to appear with the underlying offenses, should be reduced two levels for that acceptance. [Sent. Tr. 33-45]
The court determined under U.S.S.G. § 2J1.6, comment. (notes 3 and 4) that due to the Defendant having engaged in other obstructive conduct in addition to his failure to appear (that is, false testimony at his trial), that an upward departure of an additional two levels was required. [Sent. Tr. 53, 59] The court grouped the underlying offense and the failure to appear and determined the applicable total offense level to be level 28, after accounting for a two level upward departure for the additional obstructive conduct, producing a sentencing range of 78-97 months. [Sent. Tr. 41-43; 59]
The court initially imposed a sentence of 80 months on count one in the underlying indictment, and 60 months on count two, to run concurrently to one another, followed by a 12 month sentence for the failure to appear, to run consecutive to the sentences in the underlying case. [Sent. Tr. 58-59]
The Defendant objected that the court was double counting the obstruction to give both an upward departure and a consecutive sentence – that is, consecutive to a sentence already determined based on the grouped offenses. [Sent. Tr. 62-67; 71-72] The Defendant argued that the court should determine the range for the total offense level, including the upward departure, then divide that range into two sentences. The court instead thought it was required to impose a sentence within the range for the total offense level for the underlying case, then determine the range for the failure to appear, and impose a sentence within that range consecutive to the sentence on the underlying case. [Sent. Tr. 62-68; 71-72] The court overruled the Defendant’s objection stating that it could not impose a sentence on the underlying indictment lower than the low end of the range for the total offense level unless there was a downward departure, for which there was no basis. The court did revisit the sentence on the underlying indictment, however, and reduced it to 78 months, the bottom of the range for the total offense level but retained the consecutive 12 month sentence for the failure to appear. [Sent. Tr. 68-72]
The Defendant’s trial counsel failed to preserve any error at trial for review on appeal, so the standard of review for all of the issues raised with regard to the convictions is plain error. E.g., United States v. Hall, 314 F.3d 565, 566 (11th Cir. 2002). Under this standard, the Defendant must demonstrate that (1) the district court erred, (2) the error was plain or obvious, (3) the error affected the Defendant’s substantial rights in that it was prejudicial, and (4) the error “seriously affects the fairness, integrity or public reputation of the judicial proceedings.” Id.
For the sentencing hearing, the Defendant retained new counsel who preserved two asserted errors, both of which involve the district court’s misapplication of the sentencing guidelines to the undisputed facts. They are therefore reviewed de novo. United States v. Williams, 340 F.3d 1231, 1239 (11th Cir. 2003).
The Defendant challenges the convictions for conspiracy and perjury and his sentence. His trial counsel was utterly ineffective and incompetent throughout the trial and failed to object to any of a long series of improper tactics by the Government and errors by the trial court. While the plain error standard is difficult to satisfy, it is satisfied here on multiple issues. The evidence against the Defendant was extremely close and certainly not “overwhelming,” so the errors are much more likely than normal to have affected the Defendant’s substantial rights.
First, with regard to the conspiracy conviction, the court plainly erred in allowing the Government to constructively amend the indictment to charge a conspiracy for simple possession. Despite clear binding precedent to the contrary, the Government argued forcefully that the Defendant’s admitted “transfers of possession” of cocaine for personal use constituted possession with intent to distribute. The court failed to instruct the jury on the distinction between possession with intent to distribute and simple possession.
Second, the court failed to answer the gist of the jury’s question about the statute of limitations. The jury’s question implied that it had made two preliminary findings of fact: (1) the Defendant’s only misconduct predated the statute of limitations date, but (2) the Defendant did not satisfy the test for withdrawal. The main evidence of pre-statute of limitations misconduct was the Defendant’s admission that he agreed to and did make a single drug run for Mr. Lake in 1996. Because this single conspiracy clearly ended prior to the statute of limitations date, the court erred in not instructing the jury that if this was the only evidence of a conspiracy, the jury should acquit.
Third, the court should not have allowed Ms. Flowers to testify at length about what the Defendant told her during the course of their marriage. This testimony was clearly protected by the marital privilege.
Fourth, the court should not allowed the prejudicial bad character evidence of the Defendant’s prior drug use. Under the circumstances of this case, this evidence was relevant only for the improper of proving bad character.
Fifth, the court should have enforced its order requiring a bill of particulars. In its response to the order, the Government represented that it had no evidence of regarding the dates of the Defendant’s alleged conspiratorial acts, but then at trial it offered substantial evidence of the dates. The court should have precluded this testimony.
Sixth, the court should have instructed the jury to regard the testimony of the Lakes and Ms. Flowers with particular skepticism because they were admitted accomplices and their testimony was uncorroborated and wildly inconsistent.
The perjury conviction also suffered from plain errors. As an initial matter, the court never should tried the perjury count with the conspiracy count. The two counts bore no logical or temporal relationship. The Defendant was prejudiced because he had to testify to defend himself on the conspiracy count, even though that forced him to admit to his false statements in the Lakes’ trial.
The court also erred in accepting trial counsel’s stipulation that the false statements were material. Because this was the Defendant’s only viable defense, the court should have required the Defendant to affirmatively demonstrate his consent and knowing waiver of this defense. Moreover, the court failed to instruct the jury that it had to unanimously find that one or more particular statements were material.
With regard to the Defendant’s sentence, his new counsel preserved two errors requiring reversal. First, the court erred in failing to comply with the dictate of U.S.S.G. § 1B1.1 that the court reduce the adjusted offense level determined after grouping of the related indictments, by two levels for the Defendant’s acceptance of responsibility on one of the two indictments.
Second, the court failed to comply with the dictate of U.S.S.G. § 2J1.6, comment. (n.3) by not determining the sentence for both grouped indictments within the range determined by the total offense level for the grouped counts and grouped indictments, but instead determining only the sentence for the underlying indictment based on the range derived from the total offense level for both indictments. This had the effect of double counting the upward departure the court imposed under U.S.S.G. § 2J1.6, comment. (n.4).
The Defendant’s convictions should be overturned because he was denied a fair trial in several regards. The Defendant fully recognizes that he raises a large number of issues on appeal and that it is truly rare for a district court to make so many errors in a single trial. This is an extraordinary case, however, in large part because the district court had no help from the Defendant’s trial counsel in ensuring that the Defendant receive a fair trial. The only objection counsel made throughout the trial was to the leading nature of the Government’s questions on cross-examination. (R4:39.)
With no diligent defense attorney raising objections, the Government went overboard in this case to obtain a conviction. While the district court’s errors detailed below may result from the court not being presented with well-framed issues on which to rule, the court nonetheless had a duty to step in and reign in the Government to ensure that the Defendant received a trial. See Stano v. Dugger, 921 F.2d 1125, 1158-64 (11th Cir. 1991) (“When a trial judge receives notice of a circumstance or event implicating the fairness of a proceeding before the court, he assumes a responsibility to intervene in order to preserve the proceeding's fairness. If the trial judge fails to discharge this duty, then he becomes causally responsible for the error and its effects.”) (Tjoflat, J., dissenting). While appeals predicated on plain error rarely succeed, the nature and number of clear errors in this trial demand close review by this Court and, as argued below, a reversal of the Defendant’s convictions on both counts. Part I documents the numerous plain errors that led to the conspiracy conviction under Count One. Part II addresses two plain errors infecting the perjury conviction under Count Two. Finally, Part III argues that even if the convictions were allowed to stand, the district court committed two errors, which were preserved, in establishing the sentence.
As detailed below, the trial court committed several clear errors relating to the conspiracy count. Because the Defendant’s trial counsel did not preserve any of the errors by objecting, the Defendant must demonstrate that they individually or collectively rise to the level of plain error. E.g., Hall, 314 F.3d at 566. Before addressing each alleged error, a brief review of the serious weaknesses in the Government’s case should assist the Court.
First, the Government presented no documentary evidence of the Defendant’s participation in the alleged conspiracy. The Government’s witnesses testified about rental cars, airplane trips, money transfers, storage unit rentals, cellular phone calls, and long distance phone calls. (E.g., R3:13, 27, 28; R5:32, 72-73; R6:17-18; 20.) Even though all of these events create paper trails, the Government did not have a single document to corroborate the conspiracy charge. (R4:10-11.)
Second, each of the Government’s witnesses had substantial motivations to lie. The Lakes and Dr. Malamos faced long federal sentences and admitted that they were testifying for the purpose of obtaining reductions in their sentences. (R5:42-43; R7:34; R8:21-22.) Moreover, the Lakes were participants in the conspiracy charged against the Defendant (indeed, Mr. Lake was clearly the leader of the conspiracy (R2:21; R5:39)), but they were never charged.
Ms. Flowers had lost custody of her child due to her drug problems (R3:29, 56-57, 66), and this case presented a golden opportunity to get her child back. Indeed, as soon as the Defendant’s case was set for trial, she initiated proceedings in the family court to get her daughter back. (R2:44-45; R3:64.) She had to know that the Defendant’s conviction would greatly improve her chances. Moreover, she was given immunity from prosecution in exchange for her testimony. (R3:2, 30, 58.)
In making these observations, the Defendant is not asking this Court to reweigh the evidence and find him innocent. Indeed, this Court has held that the uncorroborated testimony of an accomplice may be sufficient to sustain a conspiracy conviction. United States v. Diaz, 248 F.3d 1065, 1093-94 (11th Cir. 2001). The point is that the evidence of guilt was far from overwhelming. See Hall, 314 F.3d at 566 (“In most cases, a determination of whether error affects a substantial right turns upon whether it affected the outcome of the proceedings.”) (citing United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1778 (1993)); United States v. Prather, 205 F.3d 1265, 1271 (11th Cir. 2000) (declining to find plain error because there was “overwhelming evidence” of guilt). The paucity and dubious nature of the evidence against the Defendant should be kept in mind when considering whether the following errors, collectively or individually, rise to the level of plain error.
Given the weaknesses in the Government’s evidence, the jury would have been well within reason in discounting that evidence altogether and believing the Defendant’s version of events instead. Unfortunately for him, however, the jury likely still would have convicted him because the Government and the Court effectively amended the indictment to charge a conspiracy for simple possession in addition to conspiracy to possess with intent to distribute.
Because a criminal defendant has a constitutional right to be tried only on charges brought by the grand jury, see generally Stirone v. United States, 361 U.S. 212, 217-19, 80 S. Ct. 270, 273-74 (1960), this Court and its predecessor have held that it is plain error to allow the Government to constructively amend the indictment. United States v. Andrews, 850 F.2d 1557, 1559 (11th Cir. 1988); United States v. Carroll, 582 F.2d 942, 944-45 (5th Cir. 1978). A constructive amendment occurs when the Government’s proof and argument or the jury instructions allow the jury to convict the defendant for a crime that was not charged in the indictment. United States v. Peel, 837 F.2d 975, 979 (11th Cir. 1988).
On cross-examination of the Defendant, the Government emphasized the Defendant’s testimony that he obtained eightballs of cocaine to party with his friends, including Dr. Malamos. (R2:61-62, 78-79, 84.) It asked him if he had discussed the definition of distribution with his counsel and strongly implied that the Defendant’s admitted conduct constituted distribution. (R2:78-79.) In its closing argument, the Government argued that the Defendant’s admissions were sufficient by themselves to sustain a conviction. (R11:22-23, 27.)
The law does not support the Government’s position. This Court has emphasized that in the war on drugs, “the Court must be careful to maintain the distinction, created by Congress in the statute, between distribution and personal drug abuse.” United States v. Hardy, 895 F.2d 1331, 1333-34 (11th Cir. 1990) (citing Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 801-966 (1982)); see also United States v. Brown, 872 F.2d 385, 390 (11th Cir. 1989) (“The conspiracy alleged here was not a conspiracy to possess cocaine; it was rather a conspiracy to distribute cocaine or to possess with intent to distribute.”). A series of sales of small amounts of cocaine for personal use do not constitute distribution. See United States v. Dekle, 165 F.3d 826, 829-30 (11th Cir. 1999) (“When two parties are charged with agreeing to distribute drugs, evidence that the parties understood their transactions to do no more than support the buyer’s personal drug habit is antithetical to a finding of conspiracy.”); Brown, 872 F.2d at 390 (reversing conviction for insufficient evidence where the defendant purchased between one-quarter and one-third of an ounce of cocaine several times); United States v. Bascaro, 742 F.2d 1335, 1359 (11th Cir. 1984) (“It is well settled that the existence of a simple buyer-seller relationship alone does not furnish the requisite evidence of a conspiratorial agreement.”).
Even where the buyer shares the drugs with friends, distribution is still not proven. Dekle, 165 F.3d at 830; Hardy, 895 F.2d at 1334. For example, in Hardy, this Court reversed a conviction based on insufficient evidence of intent to distribute where the evidence demonstrated: “1) that [the defendant] regularly hosted parties attended by drug users and suppliers; 2) that he frequently consumed cocaine; 3) that he helped [another person] purchase an eight of an ounce of cocaine for their joint personal use; and 4) that he gave a small amount of cocaine to a house guest on one occasion.” Id.
Contrary to the Government’s argument (R2:78-79; R11:22-23) and the trial court’s instructions (R11:64), mere “intent to deliver or transfer possession of a controlled substance to another person, with or without any financial interest in the transaction” (R11:64) does not equal intent to distribute. See id. (“[T]he testimony offered at trial concerning [the defendant’s] transfer of a small amount of cocaine to a guest in his home cannot support the conclusion, beyond a reasonable doubt, that [the defendant] had entered into an agreement to distribute cocaine.”). Even repeated transfers do not establish distribution without more:
While we have held “that agreement may be inferred when the evidence shows a continuing relationship that result[ed] in the repeated transfer of illegal drugs to the purchaser,” the cases in which we have done so involved typical drug transactions intended for resale and the generation of proceeds.”
Dekle, 165 F.3d at 830.
The only crime that the Defendant’s admitted conduct constituted was simple possession or, since Ms. Flowers and the Lakes appear to have been involved as well, conspiracy to possess. See 21 U.S.C. §§ 844(a), 846 (1997). Because the Defendant was not indicted for this crime, the Government’s proof and argument impermissibly amended the indictment. Counsel’s failure to realize this error notwithstanding, reversal is required under the plain error doctrine. Carroll, 582 F.2d at 944 (“Although errors that are constitutional in nature may not be plain error per se, ‘there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless . . . .’ The right of a defendant to be tried under an indictment presented solely by a grand jury is one such right.” (citations omitted)).
In addition to allowing the indictment to be constructively amended, the district court also committed plain error in not properly instructing the jury on the distinction between distribution and transfers for personal use. See United States v. Benavidez, 558 F.2d 308, 310 (5th Cir. 1977) (reversing under plain error standard were court failed to instruct on a defense “fairly raised” by the defendant’s testimony even though counsel did not request instruction); United States v. Bosch, 505 F.2d 78, 81-83 (5th Cir. 1974) (reversing under plain error standard where court did not properly instruct on elements of conspiracy to possess marijuana with intent to distribute). The test is whether “the instruction will mislead the jury or leave the jury to speculate as to an essential point of law.” Montgomery v. Noga, 168 F.3d 1282, 1294 (11th Cir. 1999). The trial court committed just this kind of plain error in instructing the jury, “To possess with intent to distribute simply means to possess with intent to deliver or transfer possession of a controlled substance to another person, with or without any financial interest in the transaction.” (R1:11; R11:64.)
Even if the jury did not convict based on the Defendant’s admitted simple possession, it still might have convicted him based on his testimony alone. The Defendant admitted that he agreed to and did drive to Miami in 1996 to pick up a half kilogram of cocaine, bring it back to Destin, and prepare it for sale with Mr. Lake. (R2:30-33, 71, 74-76.) Unlike his admitted conduct after the birth of his daughter, this conduct likely did constitute the charged crime of conspiracy to possess with intent to distribute.
The jury’s question strongly suggests that it convicted him based on this admitted cocaine run. It asked, “If the defendant never withdrew from the conspiracy, does the statute of limitations date apply?” (R11:77.) This question implies that the jury had made two basic findings of fact: (1) the Defendant did not satisfy the test for withdrawal, and (2) the Defendant’s only conduct occurred before the statute of limitations date of July 17, 1997. See 18 U.S.C. § 3282(a) (1997) (providing five-year statute of limitations). The Defendant’s testimony that he agreed to drive to Miami for Mr. Lake to bring back a half kilogram of cocaine in 1996 and that when he arrived with the cocaine he helped Mr. Lake cut and package it for sale was the only evidence of the Defendant’s involvement in cocaine distribution. (R2:30-33, 71, 74-76.)
The trial court answered the jury’s question by indicating that the statute of limitations would apply “only as set out in the last sentence on Page 15 of the instructions.” (R11:78.) This sentence provided:
Thus, the government must prove beyond a reasonable doubt both that the conspiracy continued at least until or after July 17th, 1997, and that the defendant did not withdraw from the conspiracy prior to that date.
(R1:25:15; R11:68.) This answer missed the point of the jury’s question altogether because the question presupposed that the Defendant did not withdraw and that the jury was concerned with the Defendant’s admission that he agreed to the 1996 trip. Because there was no evidence that the Defendant’s agreement to make this single trip constituted his agreement to participate in an ongoing enterprise to distribute cocaine for period continuing beyond that trip, much less beyond July 17, 1997.
The jury should have been instructed that if it found that the Defendant did not participate in or agree to the distribution of any cocaine beyond the cocaine he procured in 1996, then it should find the Defendant not guilty in light of the statute of limitations. While the Defendant’s counsel clearly should have requested such an instruction, the jury’s question demonstrates that the failure to give this instruction likely resulted in the Defendant’s conviction; thus, the failure constituted plain error. See United States v. Nelson, 574 F.2d 277, 282 (5th Cir. 1978) (reversing for plain error where trial court erroneously answered jury’s question on critical issue).
Perhaps the most damning testimony came from Ms. Flowers, the Defendant’s ex-wife. The Government elicited substantial testimony from Ms. Flowers about what the Defendant told her while they were married. Information privately disclosed between husband and wife in the confidence of the marital relationship is privileged. United States v. Singleton, 260 F.3d 1295, 1297-98 (11th Cir. 2001). The privilege is personal to the spouse making the communication and the privilege survives the termination of marriage. Id. at 1297-98 & n.2. Marital communications are presumed to be confidential. Wolfle v. United States, 291 U.S. 7, 14, 54 S. Ct. 279, 280 (1934).
In violation of the privilege, the Government elicited the following testimony by Ms. Flowers based on what the Defendant had told her during their marriage: (1) details of his drug use (R3:6); (2) he was going to South Florida to get cocaine (R3:9, 35, 43); (3) he was selling drugs (R3:11); (4) he was taking drugs to the Lakes (R3:13); (5) he lied at the Lakes’ trial and told her so in a very matter of fact way (thus rebutting his affirmative defense claim of coercion and duress, that he perjured himself because he was threatened) (R3:26); (6) the Defendant never told her that he was being threatened by Mr. Lake and that that was the reason he had to perjure himself (R3:29); and (7) the Defendant knew of Mr. Lake’s drug storage facility (R3:62-63). Similarly, in its opening statement, the Government told the jury, “You are gonna hear [Ms. Flowers] tell you that her husband told her – after he came over and testified, he came back and was laughing about how he committed perjury in federal court.” (R9:38.)
It was plain error to allow this repeated, prejudicial violation of the marital privilege. Cf. United States v. Morris, 988 F.2d 1335, 1341-43 (4th Cir. 1993) (holding that prosecutor’s improper comment on defendant’s invocation of privilege to prevent testimony from spouse “had substantial influence on outcome of case” where spouse “was a critical witness, had intimate knowledge of the defendant’s affairs, was the most important corroborative witness that he had, and that the case depended wholly, or almost so, on credibility”)
The Government made the Defendant’s personal drug use a prominent feature of the trial in its opening statement (R9:23-25, 29-30), the presentation of its case (e.g., R2:58, 77-80, 83, 91; R3:9, 17-18; R6:13-14, 22, 24; R11:11-12, 46-47), and during its closing argument (R11:23). This bad character evidence, of course, had no legal relevance to the charge of conspiracy to distribute cocaine and should have been excluded under Rule 404(a), Federal Rules of Evidence. United States v. Haywood, 280 F.3d 715, 723 (6th Cir. 2002); United States v. Ono, 918 F.2d 1462, 1465 (9th Cir. 1990); United States v. Monzon, 869 F.2d 338, 344-45 (7th Cir. 1989).
The Government’s only purpose in featuring this evidence was to prejudice the jury against the Defendant. Cf. United States v. Butler, 102 F.3d 1191, 1195-96 (11th Cir. 1997) (allowing such evidence when purpose is to prove intent). It was plain error to allow the Government to run riot in this fashion. The court had a duty to intervene and insure that the Defendant receive a fair trial.
The testimony provided by the Lakes, Ms. Flowers, and Dr. Malamos provided exactly the specific information that the Defendant sought in his motion for a bill of particulars and that the trial court ordered the Government to provide. (R1:19:2) While they did not testify to exact dates, they provided ranges and events narrowing the time frame down significantly. (R3:22-24, 28-29, 31-34, 59-60; R5:65, 70-71; R6:26; R7:6-7.) They also testified that they provided this information to the Government before trial. (R3:57-60; R5:43-44; R7:27-29, 33.)
Accordingly, the record developed at trial clearly demonstrates that the Government’s response to the order requiring a bill of particulars was neither sufficient nor made in good faith. The Government stated that is was “unable” to provide any dates “other than to allege” that the Defendant’s participation in the conspiracy count “continued through and into calendar year 1998.” (R1:21:3.) This was clearly false. The Government’s sand-bagging prejudiced the Defendant’s ability to prepare his defense because he had no idea of what specific time frames for which he needed to provide an alibi. (R1:19:2; R1:23:2; R9:7-8.) The trial court should have enforced its order either by excluding the testimony of the Lakes, Ms. Flowers, and Dr. Malamos. See United States v. Pollak, 364 F. Supp. 1047, 1050 (S.D.N.Y. 1973); United States v. Armco Steel Corp., 255 F. Supp. 841, 846 (S.D. Cal. 1966); State v. Allison, 595 A.2d 1089, 1091-93 (N.H. 1991). When confronted with similar facts, this Court’s predecessor reversed a conviction on appeal by reasoning:
With no notice in writing or in open court before the jury entered the picture, this maneuver was basically unfair and highly prejudicial. In the absence of curative action it cannot and will not be countenanced, more especially in a criminal prosecution.
United States v. Flom, 558 F.2d 1179, 1186 (5th Cir. 1977).
The Government’s case rested exclusively on the testimony of the Defendant’s alleged accomplices in crime. Their testimony was utterly uncorroborated by any documentary evidence or testimony by a disinterested witness. Moreover, their testimony with regard to the critical issue of whether and when the Defendant engaged in distribution-related activity after July 17, 1997 was wildly inconsistent. In such circumstances, this Court’s predecessor has held that it is plain error for the trial court to fail to give a cautionary instruction “that accomplice testimony should be received with caution and viewed with skepticism. Tillery v. United States, 411 F.2d 644, 646 (5th Cir. 1969). The court noted:
Such an admonition was direly needed in this case. Accomplice testimony should always be scrutinized carefully by the jury because of its inherent untrustworthiness. This is especially true when the witness has manifested his unreliability by making previous conflicting statements concerning his knowledge of the crime. When the accomplice testimony constitutes the only damning evidence against a defendant, the exigency for a cautionary instruction is even more compelling.
Id. 411 F.2d at 646-47; see also Williamson v. United States, 332 F.2d 123, 131 (5th Cir. 1964) (“[C]riminals can, and frequently do, tell a straightforward consistent story which has the ring of truth all the more so because it is a confession of the soul. But law is in step with human nature when it ordinarily recognizes that testimony from this course has to be scrutinized most carefully.”).
The court recognized that the failure to give such an instruction without a request by the defendant will not always be harmful error, much less plain error. Tillery, at 647. Because the evidence was close in that case, however, the court found plain error. Id. at 648. It relied on a prior decision finding plain error in similar circumstances:
In the final analysis, it is not the parties who determine the charge the judge gives to the jury. The obligation rests squarely on the shoulders of the trial judge. Of course the system of time- tested rules of procedure can rightfully expect competent counsel to request appropriate charges or object to affirmative errors or significant omissions. But there are occasions, and this Court recognizes them year by year, in which the trial court's erroneous action has such immediate and significant consequence that it must be noticed as plain error. We think the omission of the charge on accomplice testimony was plain error, and the only way to eradicate it is to grant a new trial.
Williamson, 332 F.2d at 132-33 (footnote omitted).
Because the evidence was so close in this case, the trial court’s failure to give a Tillery instruction constitutes plain error.
The perjury and cocaine conspiracy charges were not properly joined. Rule 8(a) allows joinder of offenses against a single defendant that “are of the same or similar character,” even if they do not arise out of the same series of acts or transactions. United States v. Kopituk, 690 F.2d 1289, 1312 (11th Cir.1982), cert. denied, 463 U.S. 1209, 103 S. Ct. 3542 (1983). “Similar” character means “[n]early corresponding; resembling in many respects; somewhat alike; having a general likeness.” United States v. Werner, 620 F.2d 922, 926 (2d Cir.1980) (quoting Webster's New International Dictionary (2d ed.)).
The conspiracy and perjury counts fail this test. The conspiracy was alleged to have occurred between January 1, 1997 and December 1998 and involved a relatively small quantity of cocaine, without any allegation of weapons or firearms. The perjury was alleged to have been committed on December 8, 1999, a year after the conclusion of the alleged cocaine conspiracy. The perjury was in connection with an unrelated matter, a conspiracy involving the Lakes’ distribution of large quantities of cocaine and marijuana from January 1, 1996 through September 23, 1999, and included the possession of firearms. (Gov’t Exh. 1.) The Defendant was not a coconspirator in the Lake conspiracy. (R7:24-27.) The offenses charged in the two counts are therefore dissimilar in both time and character.
Charges may be joined if they are part of a common scheme or plan. Fed. R. Cr. P. 8(a). The Defendant committed the alleged perjury, however, in the Lakes’ conspiracy trial a year after the conclusion of the conspiracy charged in the Defendant’s case and hence by definition was not part of a common scheme or plan. The Government’s own charging document alleged that the Defendant’s conspiracy ended a year before the Lakes’ trial. (R1:1:1.) Likewise, the Defendant was not named as a coconspirator in the Lakes’ indictment. (Gov’t Exh. 1.) Nor did the Government’s indictment of the Defendant allege that an object of his conspiracy was to hide or conceal the Lakes conspiracy or to present perjured testimony in the Lake trial.
The improper joinder resulted in a substantial and injurious effect on the jury's verdict entitling the Defendant to a new trial. United States v. Lane, 474 U.S. 438, 449, 106 S. Ct. 725, 732 (1986). The joinder put the Defendant in the position of not being able to take the witness stand on his own behalf on the conspiracy charge without admitting he had committed perjury. Once the Defendant admitted perjury, his credibility was, of course, substantially compromised. If the charges had been severed, no evidence of the perjury could have come in on the drug count. Fed. R. Evid. 608.
Had the perjury related to the investigation or prosecution of the drug conspiracy charged in count one, it might have been permissible to join the two. Cf. United States v. Moeckly, 769 F.2d 453, 464-465 (8th Cir. 1985) (proper to join perjury before grand jury with substantive drug conspiracy that grand jury was investigating); United States v. Jamar, 561 F.2d 1103, 1105-06 (4th Cir. 1977) (perjury charge was properly joined with charges of unlawful possession and uttering of a stolen United States treasury check, where the perjury occurred in a preliminary hearing on the possession and uttering charges). Because there was no connection, however, joinder was plain error. See United States v. Drum, 733 F.2d 1503, 1508 (11th Cir.), cert. denied, 469 U.S. 1061, 105 S. Ct. 543 (1984) (recognizing that failure to sever two counts may rise to the level of plain error); United States v. Sanchez, 532 F.2d 155, 157-58 (9th Cir. 1976) (reversing conviction under plain error doctrine based on failure to sever).
The trial court committed plain error regarding the requirement that the government prove that the Defendant’s false statements were material to the Lakes’ prosecution. The court erred in two ways: (1) accepting a stipulation by counsel as to this element, and (2) failing to instruct the jury that it must unanimously find that a particular statement was material.
First, the only evidence of materiality was defense counsel’s stipulation that the five false statements were material. (R10:3.) The Defendant himself did not, and the court failed to engage in any colloquy with the Defendant to assure that the Defendant understood the significance of the stipulation and agreed with it. Nonetheless, the court instructed the jury that this element had been satisfied by stipulation. (R10:3-4.)
Counsel may make a strategic decision to stipulate to “trivial and easily proven matters,” Poole v. United States, 832 F.2d 561, 564 (11th Cir. 1987), but this stipulation was neither trivial nor to a matter easily proven. This stipulation was outside the authority of counsel, and it was plain error for the court to accept the stipulation. Although an attorney has the right to make tactical decisions regarding trial strategy, the determination to plead guilty or not guilty is a matter left completely to the defendant. The Due Process Clause does not permit an attorney to admit facts that amount to a guilty plea without the client’s consent. Henderson v. Morgan, 426 U.S. 637, 644-45, 96 S. Ct. 2253, 2257 (1976); see also id. at 650, 96 S. Ct. at 2260 (White, J., concurring) (guilty plea cannot be sustained “solely on the consent of the defendant's agent – his lawyer").
Moreover, this Court has held, “The consent of an attorney may not bind a defendant where there is evidence of fraud or gross incompetence by the attorney.” United States v. Joshi, 896 F.2d 1303, 1307 n.2 (11th Cir. 1990) (citing United States v. Stewart, 700 F.2d 702, 704 (11th Cir.1983), and Winters v. Cook, 489 F.2d 174, 178 (5th Cir.1973)). The myriad of plain errors in this case to which defense counsel failed to object demonstrate gross incompetence.
Unless he declined to testify (which would have unfairly prejudiced him on the conspiracy charge), the Defendant’s only defense to the perjury charge was that his testimony in the Lakes trial was not material. By allowing the Defendant to stipulate to this element without any showing of a voluntary relinquishment of a known right, the trial court committed plain error.
The perjury conviction was also the result of plain error because the indictment’s allegation of multiple false statements was submitted to the jury on a general verdict without requiring the jury reach a unanimous verdict on any of the five statements. Indeed the instructions only further confused the issue, because the court stated that the second element of the offense was “that such testimony was false in one or more of the ways charged concerning some material matter.” (R1:25:16; R11:68.) This instruction led the jury to believe that if any one of the five statements were materially false then it could find the Defendant guilty.
Due Process requires that a jury reach a unanimous verdict on the offense that is charged. Richardson v. United States, 526 U.S. 813, 817-18, 119 S. Ct. 1707, 1710 (1999). Given five alleged false statements and the judge’s instruction that the jury could convict if it found the testimony false “in one or more” of the ways charged, the jury was actively invited to mix and match what it thought were materially false statements to arrive at a guilty verdict. This was plain error under this Court’s precedents.
In United States v. Adkinson, the same district court judge presided over a bank fraud trial where different acts were alleged to be fraudulent. 135 F.3d 1363, 1377-78 (11th Cir. 1998). Even though the defendant did not request an instruction and even though the judge instructed the jury that “any verdict you reach . . . must be unanimous,” this Court held that it was reversible, plain error for the court to fail “to instruct the jury that they must unanimously agree on the acts constituting the defendant’s scheme.” Id. at 1378 (citing United States v. Gipson, 553 F.2d 453, 458 (5th Cir. 1977)). Adkinson requires reversal of the perjury conviction.
The PSR failed to make any provision for the Defendant’s acceptance of responsibility for the failure to appear indictment. The Defendant objected and the trial court agreed that the Defendant should receive acceptance of responsibility for the failure to appear but not for the underlying offenses. The trial court recognized that the Defendant had accepted responsibility under U.S.S.G. § 3E1.1 for his failure to appear. Nevertheless, the trial court refused to apply an acceptance of responsibility reduction to the adjusted base offense level for the grouped offenses.
The Defendant objected that because the offenses were grouped, he was entitled to the reduction for acceptance of responsibility against the adjusted offense level resulting from the grouped offenses.
The Defendant pointed the court to U.S.S.G. § 1B1.1(d) and (e), which sets forth the mandatory application instructions for the guidelines. U.S.S.G. § 1B1.1(c), (d) and (e) require that the court apply the grouping rules to determine the total offense level then apply acceptance of responsibility.
The trial court refused to follow the application instructions of 1B1.1, and instead simply denied acceptance of responsibility. This refusal was error.
The court determined that the total offense level for all three counts under both indictments - after grouping and after all adjustments and after its upward departure - was 78-97 months. The court mistakenly thought it had to impose the sentence on the underlying indictment within that total offense range. The court thought that 18 U.S.C. § 3146’s requirement of a consecutive sentence required the court to determine the failure to appear sentence under the guideline range for a failure to appear, then impose that failure to appear guideline range sentence consecutive to the sentence on the underlying indictment, that is, starting at a point no lower than the low end of the range for the total offense level determined under the application of the guideline principles for both cases as provided under U.S.S.G. § 2J1.6, comment. (nn. 3 & 4).
The Defendant objected that this was a misapplication of U.S.S.G. § 2J1.6, comment. (n.4). The Defendant argued that the court was directed to determine the total sentencing range on the entire sentencing package, then break that range into two components, one for the underlying offense(s) and the other for the failure to appear. Neither component need be a sentence which by itself fell within the overall range, so long as both cumulatively resulted in a number within the total offense range. See United States v. Magluta, 198 F.3d 1265, 1280-1281 (11th Cir. 1999), vacated in part on rehearing, 203 F.3d 1304 (11th Cir. 2000) (“We agree with Magluta that the district court may have committed an error by not following the application note  to § 2J1.6.”).5 On rehearing this Court ordered the district court to follow U.S.S.G. § 2J1.6, comment. (n.3), as amended. 203 F.3d at 1305.
The 1998 commentary amendment made clear that the district court is not to calculate a separate guideline range for the failure to appear and impose a consecutive sentence using that range, but instead is to simply group the two cases together and account for the failure to appear by including an obstruction adjustment in the grouped offense calculation. This additional obstruction enhancement provides the incremental consecutive punishment that the statute mandates. But the total sentence under the sentencing package for both the underlying sentence and the consecutive failure to appear sentence is only required to fall within the range determined under the grouping rules of U.S.S.G. § 3D1.1-3D1.5.
To account for cases such as the Defendant’s where there is other obstructive conduct in addition to the failure to appear, the commentary provides that an upward departure may be warranted. U.S.S.G. § 2J1.6, comment. (n.4). However, the district court in effect double counted the obstructive conduct on the underlying case and the obstructive conduct arising from the failure to appear by first engaging in an upward departure for the additional obstructive conduct increasing the offense level for the grouped offenses an additional two levels, then imposing sentence on the underlying indictment only at the low end of this already upwardly departed total offense level range, and then on top of that, independently calculating the offense level for the failure to appear indictment and imposing that sentence consecutive to the sentence already imposed. This too was error to be corrected on remand should the judgment not be vacated.
For the foregoing reasons, the final order of the district court should be reversed and the Defendant’s convictions and sentence should be vacated.
John S. Mills William Mallory Kent
Mills & Carlin, P.A. Law Office of William Mallory Kent
Florida Bar No. 0107719 Florida Bar No. 0260738
865 May Street 24 N. Market Street, Suite 300
Jacksonville, Florida 32204 Jacksonville, Florida 32202
(904) 350-0075 (904) 355-1890
Facsimile (904) 350-0086 Facsimile (904) 355-0602
Attorneys for Appellant Gregory Wade Hembree
I hereby certify that this brief complies with the type-volume limitation of Rule 32(a)(7), Federal Rules of Appellate Procedure, in that it contains 13,819 words (including words in footnotes) according to Microsoft Word 2002, the word-processing system used to prepare this brief.
I hereby certify that a copy of the foregoing has been sent by U.S. mail to Curtis Dunn, Esq., and Randall Joseph Hensel, Esq., Assistant United States Attorneys, 21 East Garden Street, Suite 400, Pensacola, Florida 32501 this 25th day of March, 2004.
CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT
In compliance with Local Rule 26.1-1, the undersigned certifies that the following is a complete list of all trial judge(s), attorneys, persons, associations of persons, firms, partnerships, or corporations that have an interest in the outcome of this particular case or appeal, and includes subsidiaries, conglomerates, affiliates and parent corporations, including any publicly held company that owns 10% or more of the party’s stock, and other identifiable legal entities related to a party.
Hon. Frances H. Stacy, U.S. Magistrate Judge
Hon. Roger Vinson, Chief U. S. District Court Judge
Curtis Dunn, Esq., Assistant United States Attorney
Randall Joseph Hensel, Esq., Assistant United States Attorney
Drew S. Pinkerton, Esq. (trial counsel for Defendant)
Ronald W. Johnson, Esq. (post conviction trial counsel for Defendant)
William Mallory Kent, Esq. (post conviction trial counsel for Defendant)
John S. Mills, Esq. (appellate counsel for Defendant)
Gregory Wade Hembree
John S. Mills
 Shortly after the trial, the Defendant retained new counsel and his trial counsel’s representation terminated. (R1:39 (joint motion for substitution of counsel); R1:42 (order granting motion).)
 An “eightball” is a small packet of cocaine weighing an eighth of an ounce (approximately three and a half grams). (R5:35; R6:29.)
 This was the conspiracy for which the Lakes were convicted, and it was at this trial that the Defendant allegedly perjured himself as charged in the second count. (R7:24-25, 26-27.)
 Mr. Lake gave consistent testimony and explained that he had to pay over $20,000 for the missing drugs. (R7:16, 37-38.)
 Ironically, the court sustained this lone objection. (R4:39.)
 The conspiracy for which they had been convicted had nothing to do with the Defendant and instead involved distributing cocaine and marijuana they brought in from Texas. (R4:4-5; R7:2, 30, 58.)
 This Court has adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981. Bonner v. Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981).
 This is not surprising because the Defendant offered no evidence that he did anything to thwart the conspiracy or to affirmatively inform his co-conspirators that he was withdrawing.
 The factual issue in this case was not lack of intent, but whether the Defendant made any trips to Miami for the Lakes after July 17, 1997.
 Any strategic choice by counsel to stipulate to materiality was fatally ineffective because the Defendant had no other defense. Counsel’s assertion of the lone affirmative defense of coercion had no evidentiary foundation. The defense requires proof of a threat of immediate harm, which is a “rigorous” requirement in which “fear of future bodily harm to one's self or to others will not suffice.” United States v. Sixty Acres in Etowah County, 930 F.2d 857, 861 (11th Cir.1991). The Defendant simply had no evidence to meet this rigorous test.
5 This Court concluded, however, that it was not plain error in Magluta’s case.