United States v. Augustin Olivier

270 F. App'x 950
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 26, 2008
Docket07-10709
StatusUnpublished

This text of 270 F. App'x 950 (United States v. Augustin Olivier) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Augustin Olivier, 270 F. App'x 950 (11th Cir. 2008).

Opinion

PER CURIAM:

Augustin Olivier appeals his convictions and 151-month sentences for (1) conspiracy to possess, with the intent to distribute, 50 grams or more of a mixture or substance containing a detectable amount of cocaine base, and a mixture or substance containing a detectable amount of cocaine hydrochloride, in violation of 21 U.S.C. § 846; and (2) possession, with intent to distribute, 50 grams or more of a mixture or substance containing a detectable amount of cocaine base, in violation of 21 U.S.C. § 841(a)(1).

On appeal, Olivier makes three arguments. First, he ai’gues that the district court erred by not sua sponte severing his and a codefendant’s trials, pursuant to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), when the government impeached the codefen-dant with her post-arrest statements, which also implicated him in the crime. Second, Olivier maintains that the evidence was insufficient to support his conviction. Finally, Oliver asserts that the district court clearly erred in applying a two-level enhancement, pursuant to U.S.S.G. § 2Dl.l(b)(l), because he did not possess the firearm discovered by law enforcement officers in connection with the crime.

I. Severance

Ordinarily, we review a district court’s Bruton rulings for an abuse of discretion, and subject “improperly admitted Bruton evidence to review for harmlessness beyond a reasonable doubt.” United States v. Turner, 474 F.3d 1265, 1275 (11th Cir.2007), pet. for cert. filed, (U.S. June 5, 2007) (No. 07-5686). However, if a defendant fails to raise a contemporaneous Bruton objection, the review is for plain error. See id. For us to correct an error under plain error review, there must be “(1) error, (2) that is plain and (3) that affects substantial rights. If all three conditions are met, [we] may then exercise ... discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. at 1276.

In Bruton, the Supreme Court held that a defendant’s Sixth Amendment right of confrontation was violated by the admission of a codefendant’s “powerfully incriminating extrajudicial statement,” and a district court’s instruction that the jury only consider the confession against the codefendant does not cure the violation. Bruton, 391 U.S. at 135-36, 88 S.Ct. at 1627-28. However, in Nelson v. O’Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971), the Supreme Court held that, as long as the codefendant is subject to cross-examination, there is no Confrontation Clause issue. Nelson, 402 U.S. at 627, 629-30, 91 S.Ct. at 1726-27; see also United States v. Arias-Izquierdo, 449 F.3d 1168, 1184-85 (11th Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 521, 166 L.Ed.2d 387 (2006); United States v. Clemons, 32 F.3d 1504, 1510-11 (11th Cir.1994).

In Arias-Izquierdo, the district court denied a defendant’s motion for severance following a law enforcement officer’s testimony that a codefendant, in post-arrest statements, informed officers that he had planned the crime and recruited “the other five.” Arias-Izquierdo, 449 F.3d at 1184. We held that the district court did not err in denying the motion because the codefen-dant testified at trial and was available for cross-examination. Id. at 1185. Likewise, in this case the codefendant was available for cross-examination, and thus, the dis *952 trict court did not plainly err by not severing Olivier’s and a codefendant’s trials.

II. Sufficiency of the Evidence

“We review the sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the government.” United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir.2005). A defendant’s conviction must be affirmed unless a jury could not, under a reasonable construction of the evidence, have found him guilty beyond a reasonable doubt. Id. “All reasonable inferences and credibility choices must be made in favor of the government and the jury’s verdict.” Id. “When a defendant does not move the district court for a judgment of acquittal at the close of the evidence, we may reverse the conviction only to prevent a manifest miscarriage of justice.” United States v. Bender, 290 F.3d 1279, 1284 (11th Cir.2002). “This standard requires the appellate court to find that the evidence on a key element of the offense is so tenuous that a conviction would be shocking.” Id.

“To sustain a conviction for conspiracy to possess cocaine with intent to distribute, the government must prove beyond a reasonable doubt that (1) an illegal agreement existed; (2) the defendant knew of it; and (3) the defendant, with knowledge, voluntarily joined it.” United States v. Hernandez, 433 F.3d 1328, 1333 (11th Cir.2005), cert. denied, 547 U.S. 1047, 126 S.Ct. 1635, 164 L.Ed.2d 346 (2006). The agreement forming the basis of the conspiracy can be proved “by circumstantial evidence, through ‘inferences from the conduct of the alleged participants or from circumstantial evidence of a scheme.’ ” United States v. Obregon, 893 F.2d 1307, 1311 (11th Cir.1990) (citation omitted). A jury may infer a defendant’s participation in a conspiracy from the circumstance. Hernandez, 433 F.3d at 1333. However, mere presence is insufficient to support a conviction for conspiracy, but the jury is permitted to consider presence as a probative factor in determining whether the defendant knowingly and intentionally participated in a criminal scheme. Id.

“To sustain a conviction for possession of a controlled substance with intent to distribute, the government must show that a defendant knowingly possessed the controlled substance with the intent to distribute it,” and possession may be proved through either actual or constructive possession. Id. “Constructive possession exists when a defendant has ownership, dominion, or control over an object itself or dominion or control over the premises or the vehicle in which the object is concealed. Intent to distribute may be inferred from the amount of [the drug] involved.” Id.

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Related

United States v. Jeremy Bender
290 F.3d 1279 (Eleventh Circuit, 2002)
United States v. Omar Rodriguez-Lopez
363 F.3d 1134 (Eleventh Circuit, 2004)
United States v. Arturo Hernandez
433 F.3d 1328 (Eleventh Circuit, 2005)
United States v. Alvenis Arias-Izquierdo
449 F.3d 1168 (Eleventh Circuit, 2006)
United States v. Mike Linh Pham
463 F.3d 1239 (Eleventh Circuit, 2006)
United States v. Trelliny T. Turner
474 F.3d 1265 (Eleventh Circuit, 2007)
Bruton v. United States
391 U.S. 123 (Supreme Court, 1968)
Nelson v. O'NEIL
402 U.S. 622 (Supreme Court, 1971)
United States v. Junior Hall, A/K/A Junior Tingle
46 F.3d 62 (Eleventh Circuit, 1995)
United States v. Clemons
32 F.3d 1504 (Eleventh Circuit, 1994)

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Bluebook (online)
270 F. App'x 950, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-augustin-olivier-ca11-2008.