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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-10346 ________________________
D.C. Docket No. 8:12-cr-00205-EAK-MAP-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLIE L. GREEN, NATHANIEL HARRIS, JERRY W. GREEN, JR., NAPOLEON HARRIS, COREY DEONTA HARRIS, DEONTE JAMAL MARTIN,
Defendants-Appellants.
________________________
Appeals from the United States District Court for the Middle District of Florida ________________________
(August 11, 2020) Case: 17-10346 Date Filed: 08/11/2020 Page: 2 of 27
Before WILSON and GRANT, Circuit Judges, and HINKLE,* District Judge.
WILSON, Circuit Judge:
This appeal arises out of the convictions of Charlie Green, Napoleon Harris,
Nathaniel Harris, Jerry Green, Corey Harris, 1 and Deonte Martin—a group of
brothers, relatives, and friends who operated a drug-trafficking organization in
Bradenton, Florida. Members of the group used and carried guns; kidnapped, beat,
and murdered people; and tampered with witnesses of their crimes. Most of the
appellants were convicted of participating in a racketeering conspiracy under the
Racketeer Influenced and Corrupt Organizations (RICO) Act and a drug-
trafficking conspiracy, as well as gun crimes and other crimes. The appellants
raise various challenges related to their convictions, their sentences, and various
decisions the district court made throughout the pre-trial and trial process.
Two issues warrant special attention: whether RICO conspiracy qualifies as
a crime of violence under 18 U.S.C. § 924(c)—an issue of first impression in the
Eleventh Circuit—and whether Corey’s sentence is procedurally and substantively
reasonable. Because we hold that RICO conspiracy does not qualify as a crime of
* Honorable Robert L. Hinkle, United States District Judge for the Northern District of Florida, sitting by designation. 1 To avoid confusion, we refer to the appellants with the last names “Green” and “Harris” by their first names. 2 Case: 17-10346 Date Filed: 08/11/2020 Page: 3 of 27
violence under § 924(c), we vacate the appellants’ § 924(c) convictions and
sentences, and we remand to the district court for resentencing. And because we
determine that Corey’s sentence was procedurally unreasonable, we vacate his
sentence and remand for resentencing. We affirm as to the remaining issues.
BACKGROUND
Napoleon, Nathaniel, and Charlie are brothers. Together with friends and
relatives such as Corey, Jerry, and Martin, they made up a “crew” that, starting in
at least the mid-2000s, sold crack cocaine, powder cocaine, marijuana, heroin, and
other drugs throughout Bradenton, Florida. The appellants and others prepared,
packaged, and distributed drugs out of various trap houses, and members of the
crew sold drugs for and with each other, relying on an intertwined network of
sellers. To establish the crew’s dominance, further its drug-trafficking operation,
eliminate competition, and avoid prosecution, members of the crew shared and
used guns, vehicles, and cell phones; fled from law enforcement; and participated
in a myriad of violent acts, including kidnappings, attempted murders, and murders
spanning from April 2007 to August 2013.
The appellants were indicted for 28 counts of RICO conspiracy, conspiracy
to distribute controlled substances, using a firearm during and in relation to various
crimes of violence, and other related drug and firearm offenses. Following a trial,
a jury convicted each defendant on various counts. This appeal followed.
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DISCUSSION
I. RICO Conspiracy as a “Crime of Violence”
Napoleon, Nathaniel, Charlie, Jerry, and Martin were convicted of various
§ 924(c) counts for using, carrying, and discharging a firearm during and in
relation to the RICO conspiracy charged in Count One. They challenge their
convictions and the accompanying sentences under § 924(j), claiming that RICO
conspiracy is not a “crime of violence” under § 924. Section 924(c)(3) defines a
“crime of violence” as a felonious offense:
(A) [that] has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
18 U.S.C. § 924(c)(3). We typically refer to § 924(c)(3)(A) as the elements clause
and to § 924(c)(3)(B) as the residual clause. The Supreme Court recently
invalidated the residual clause as unconstitutionally vague. See United States v.
Davis, 588 U.S. __, 139 S. Ct. 2319, 2323–24, 2336 (2019). Therefore, we must
determine whether RICO conspiracy qualifies as a crime of violence under the
elements clause.
“We apply the categorical approach when determining whether an offense
constitutes a ‘crime of violence’ under the elements clause,” meaning “we look to
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whether the statutory elements of the predicate offense necessarily require, at a
minimum, the threatened or attempted use of force.” Brown v. United States, 942
F.3d 1069, 1075 (11th Cir. 2019) (per curiam). In Brown, this court evaluated
whether conspiracy to commit Hobbs Act robbery is a crime of violence under
§ 924(c)(3)’s elements clause. Id. at 1075–76. We noted, “The elements of
conspiracy center on a defendant’s agreement to commit a crime and do not
require the government to prove the elements of the underlying substantive crime
itself.” Id. at 1075. Applying the categorial approach to the elements of a
conspiracy to commit Hobbs Act robbery,2 we concluded that conspiracy to
commit Hobbs Act robbery does not qualify as a crime of violence under
§ 924(c)(3)’s elements clause. Id. We reasoned:
Neither an agreement to commit a crime nor a defendant’s knowledge of the conspiratorial goal necessitates the existence of a threat or attempt to use force. The same goes for the final element—a defendant’s voluntary participation that furthers the goal of committing Hobbs Act robbery—because a defendant’s voluntary participation may manifest itself in any one of countless non-violent ways.
Id.
RICO conspiracy is virtually indistinguishable from a conspiracy to commit
Hobbs Act robbery. “To establish a RICO conspiracy violation under 18 U.S.C.
2 The elements of a conspiracy to commit Hobbs Act robbery include: “(1) two or more people, including the defendant, agreed to commit Hobbs Act robbery; (2) the defendant knew of the conspiratorial goal; and (3) the defendant voluntarily participated in furthering that goal.” Brown, 942 F.3d at 1075. 5 Case: 17-10346 Date Filed: 08/11/2020 Page: 6 of 27
§ 1962(d), the government must prove that the defendants objectively manifested,
through words or actions, an agreement to participate in the conduct of the affairs
of the enterprise through the commission of two or more predicate crimes.” United
States v. Starrett, 55 F.3d 1525, 1543 (11th Cir. 1995) (per curiam) (emphasis
added) (internal quotation mark omitted). RICO conspiracy requires neither proof
of the commission of an overt act nor proof of an agreement to commit individual
predicate acts. Id.; see United States v. Pepe, 747 F.2d 632, 659 (11th Cir. 1984).
A RICO conspiracy thus differs from a regular conspiracy because it “may
encompass a greater variety of conduct.” Pepe, 747 F.2d at 659. So as with a
conspiracy to commit Hobbs Act robbery, the elements of a RICO conspiracy
focus on the agreement to commit a crime, which does not “necessitate[] the
existence of a threat or attempt to use force.” Brown, 942 F.3d at 1075. Therefore,
RICO conspiracy does not qualify as a crime of violence under § 924(c)(3).
Given the evolution of the law since the parties submitted their briefs, the
government conceded at oral argument that RICO conspiracy generally does not
qualify as a crime of violence under § 924(c). But the government made one
last-ditch effort, arguing that the appellants were convicted of a different crime—
“aggravated RICO conspiracy”—which, according to the government, does qualify
as a crime of violence. The argument is this: 18 U.S.C. § 1963(a), which
establishes statutory maximum sentences for § 1962 offenses, adds an element to a
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typical § 1962(d) violation where the violation is based on a racketeering activity
that carries a maximum penalty of life imprisonment. In other words, an individual
commits aggravated RICO conspiracy by (1) “objectively manifest[ing], through
words or actions, an agreement to participate in the conduct of the affairs of the
enterprise through the commission of two or more predicate crimes” (2) “for which
the maximum penalty includes life imprisonment.” Cf. §§ 1962(d), 1963(a);
Starrett, 55 F.3d at 1543.
Assuming without deciding that a distinct crime of aggravated RICO
conspiracy exists, there is nothing in the indictment or elsewhere to indicate that
these appellants were charged with and convicted of it. Neither the indictment nor
the jury instructions referenced § 1963(a)—and the first time the government
proposed that these appellants were charged or tried for a crime other than
conventional RICO conspiracy was after the briefs were filed, in a “supplemental”
authority letter. Thus, the indictment’s omission of any reference to aggravated
RICO conspiracy or § 1963(a) is not merely a “citation error” as contemplated by
Federal Rule of Criminal Procedure 7(c)(2). The government cannot salvage the
appellants’ § 924(c) convictions by reimagining the charged crimes. 3
3 Because the appellants were neither charged with nor convicted of aggravated RICO conspiracy, we need not decide today whether it exists or whether it qualifies as a crime of violence. 7 Case: 17-10346 Date Filed: 08/11/2020 Page: 8 of 27
II. Corey’s Sentence
Corey challenges his 120-year sentence as both procedurally and
substantively unreasonable. He argues that the district court procedurally erred by
failing to adequately explain its five-fold upward variance from the appropriate
guideline range. Further, he contends the district judge based the sentence on
clearly erroneous facts—namely, that Corey extended the overall conspiracy from
Bradenton into St. Petersburg and that he participated in the murder of Brenton
Coleman. He also claims his sentence is substantively unreasonable because it is
unjustly disproportionate to his codefendants’ sentences given his comparatively
minor role in the criminal activity.
We review the reasonableness of a sentence for abuse of discretion. United
States v. Irey, 612 F.3d 1160, 1186, 1188–89 (11th Cir. 2010) (en banc). “To be
upheld on appeal, a sentence must be both procedurally and substantively
reasonable.” United States v. Rodriguez, 628 F.3d 1258, 1264 (11th Cir. 2010).
We determine first whether the district court committed a “significant procedural
error,” and second whether the sentence was “substantively reasonable under the
totality of the circumstances.” United States v. Overstreet, 713 F.3d 627, 636
(11th Cir. 2013). A sentence can be procedurally unreasonable if the district court
improperly calculated the guideline range, failed to consider the 18 U.S.C.
§ 3553(a) factors, failed to adequately explain the sentence, or selected a sentence
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based on clearly erroneous facts. See Gall v. United States, 552 U.S. 38, 51
(2007).
When pronouncing a sentence, the sentencing court need only set forth
enough to demonstrate that it “considered the parties’ arguments and ha[d] a
reasoned basis for exercising [its] . . . decisionmaking authority.” United States v.
Carpenter, 803 F.3d 1224, 1232 (11th Cir. 2015). If the district court decides
“after serious consideration that a variance is in order,” it should provide
compelling and complete justifications sufficient “to allow meaningful appellate
review.” United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009) (internal
quotation marks omitted).
A district court’s factual findings at sentencing—including its findings
about conduct for which the defendant was acquitted—need only be supported by a
preponderance of the evidence. See United States v. Faust, 456 F.3d 1342, 1347–
48 (11th Cir. 2006). We review such findings for clear error, overturning a finding
only if a review of the evidence leaves us with “a definite and firm conviction a
mistake has been made.” United States v. Dimitrovski, 782 F.3d 622, 628 (11th
Cir. 2015). “Although review for clear error is deferential, a finding of fact must
be supported by substantial evidence.” United States v. Robertson, 493 F.3d 1322,
1330 (11th Cir. 2007). The district court may base factual findings on evidence
presented at trial, undisputed statements in the presentence report (PSR), or
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evidence presented at the sentencing hearing, and it may make reasonable
inferences from the evidence. See United States v. Chavez, 584 F.3d 1354, 1367
(11th Cir. 2009); United States v. Polar, 369 F.3d 1248, 1255 (11th Cir. 2004).
Corey pled guilty to three counts of distribution of cocaine base and was
convicted by the jury for one count of conspiracy to distribute and possess with
intent to distribute less than 50 kilograms of marijuana and less than 28 grams of
cocaine base. He was acquitted of the RICO conspiracy count and the § 924(c)
count regarding Coleman’s murder. 4 His PSR identified his total offense level as
40 and his criminal history category as IV, and it calculated his guideline range as
360 months to 1,440 months.5
At his sentencing hearing, Corey informed the court that he had reached an
agreement with the government and probation to modify the guideline range in the
PSR. He explained that if the court accepted the modified range, it would resolve
all but one of his objections to the PSR—namely, his objection to the PSR’s
references to his involvement in the Coleman murder despite his acquittal on that
charge. The court read the revisions into the record, noting that the total offense
level would be reduced to 34 and the resulting guideline range would be reduced to
4 Corey, Napoleon, Charlie, and Martin were charged § 924(c) violations regarding Coleman’s death. Only Martin was convicted. 5 Corey’s total offense level and criminal history category would ordinarily put the guideline range at 360 months to life, but because the statutory maximum for each of Corey’s counts is 30 years, his statutory maximum sentence is 1,440 months. See 21 U.S.C. § 841(b)(1)(C); U.S.S.G. § 5G1.2(d). 10 Case: 17-10346 Date Filed: 08/11/2020 Page: 11 of 27
210 to 262 months. The court confirmed that the agreement resolved all but one of
the objections to the PSR and gave Corey the opportunity to argue his outstanding
objection regarding the Coleman murder. The court overruled the objection,
adopted the guideline applications in the PSR, and then read the modification of
the total offense level and sentencing guideline into the record. Corey asked for a
downward variance from the agreed-upon guideline range, and the government
asked for a sentence at the high end of the 210-to-262-month range.
The district court sentenced Corey to 1,440 months’ (120 years)
imprisonment, consisting of 360-month terms to run consecutively for each of his
four counts of conviction. In support of the sentence, the court found that Corey
had extended the conspiracy to St. Petersburg and participated in the Coleman
murder. Regarding the Coleman murder, the court stated:
So I think the hold of that family in Bradenton was still strong with you, so strong that even though you left your cell phones in St. Petersburg, I think the testimony showed you came across that bridge, the Sunshine Skyway, and you didn’t come over for an evening of entertainment. You came over for a purpose, and I think there is enough evidence in the case—and I find specifically by a preponderance of the evidence that there is enough evidence in that case to support the sentence I’m about to give you.
In its Statement of Reasons, the district court indicated that it had
determined the guideline range to be 210 to 262 months, and it had imposed a
sentence above the guideline range. It also identified Corey’s role in the Coleman
murder as an aggravating factor supporting the variance. 11 Case: 17-10346 Date Filed: 08/11/2020 Page: 12 of 27
Four days later, the district court conducted a supplemental sentencing
proceeding. The court stated that it had treated the parties’ agreement as a joint
motion for a downward variance and rejected it. It explained it had brought the
parties back so Corey could address his other objections to the PSR—which had
not been discussed during the initial sentencing hearing—to prevent any waiver
issue on appeal. Corey responded that he thought the court had accepted the
agreed guideline range calculation but had chosen to impose an upward variance.
The government and probation indicated they had the same impression. Given the
court’s apparent recharacterization of the parties’ agreement, Corey’s counsel
sought clarification four times regarding the guideline range on which the court
relied in imposing the sentence. The court never directly answered the question; it
merely postulated, “If that’s what the record reflects to you, then it reflects that,”
while still suggesting that it treated the agreement as a request for a downward
variance. Corey never discussed his other objections to the PSR.
By failing to clarify the applicable guideline range, the district court
inadequately explained Corey’s sentence. At the initial sentencing hearing, the
district court appeared to accept the agreed-upon guideline range of 210 to 262
months before upwardly departing to impose the statutory maximum sentence of
1,440 months—a nearly 550% increase from the high end of the guideline range.
The Statement of Reasons reflected as much. But at the supplemental sentencing
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hearing several days later, the court suggested it had treated the parties’ agreement
as a motion for a downward variance that the court had denied. By never
clarifying the guideline range it had relied upon despite Corey’s repeated requests
for clarification, the district court left a conflicting, unresolved record as to Corey’s
applicable guideline range.
Further, although the applicable guideline range remained unclear, the
district court’s finding that Corey participated in the Coleman murder was clear—
and clearly erroneous. The district court found that Corey left his cell phones in St.
Petersburg when he crossed the Sunshine Skyway bridge to participate in the
Coleman murder on August 1, 2013, but the evidence demonstrates this would
have been impossible. Toll booth records showed that Corey traveled south on the
Sunshine Skyway bridge towards Manatee County at approximately 12:30 p.m.
Cell phone tower records for the two cell phones attributed to Corey showed that
both cell numbers utilized cell towers in Manatee County during the early
afternoon, between 1:56 p.m. and 2:23 p.m. The cell numbers then began utilizing
cell towers back in Pinellas County again about 2:54 p.m., including the use of a
cell tower in St. Petersburg at about 8:06 p.m.—within moments of Coleman’s
murder about 25 miles away.
If the cell phones remained at home while Corey traveled south over the
Sunshine Skyway at 12:30 p.m., they could not have been pinging cell towers in
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Manatee County between 1:56 p.m. and 2:23 p.m., and then in Pinellas County
from 2:54 p.m. to 8:06 p.m. In light of this stipulated cell phone evidence, the
evidence in the record does not substantially support the district court’s finding.
We are thus left with a firm conviction that the district court made a mistake by
finding that Corey left his cell phones at home and drove to Bradenton to commit
the Coleman murder.
Because the district court failed to adequately explain Corey’s sentence and
relied on a clearly erroneous fact, it imposed a procedurally unreasonable sentence.
III. All Remaining Issues
A. Suppression Issues
It goes without saying that the Fourth Amendment protects “[t]he right of
the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” Some of the appellants claim their Fourth
Amendment rights were violated, challenging the district court’s denial of their
motions to suppress. Nathaniel moved to suppress evidence gathered from
lawfully seized cell phones that law enforcement failed to return to him for four
years. Napoleon, Jerry, and Martin moved to suppress cell phone records
containing historical cell-site and real-time tracking data that law enforcement
acquired without a warrant but pursuant to state-court orders granted under Chapter
934 of the Florida Statutes, and consistent with the federal Stored Communications
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Act (SCA), 18 U.S.C. § 2703(d). When reviewing the denial of a motion to
suppress, we review the district court’s findings of fact for clear error and the
district court’s application of the law to fact de novo. United States v. Ramirez,
476 F.3d 1231, 1235 (11th Cir. 2007). We will address each suppression theory in
turn.
i. Nathaniel’s Cell Phones
Fourth Amendment protection does not extend to abandoned property.
United States v. Sparks, 806 F.3d 1323, 1341–42 (11th Cir. 2015), overruled in
part on other grounds by United States v. Ross, No. 18-11679, slip op. at 23 (11th
Cir. June 24, 2020) (en banc). We take an objective, common-sense approach to
assessing abandonment, focusing on whether the prior possessor “voluntarily
discarded, left behind, or otherwise relinquished his interest in the property in
question” in light of his “statements, acts, and other facts.” Id. at 1342.
Nathaniel argues that law enforcement violated his Fourth Amendment
rights by keeping his cell phone—which was lawfully seized incident to an arrest
for driving with a suspended license in 2010—for four years without returning it to
him. So, in his eyes, any evidence found on the phone after the federal
government took it and executed a search warrant on it should have been
suppressed as fruits of an unreasonable seizure.
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The district court found, however, that Nathaniel had abandoned his interest
in the phone. The record supports that finding. About 48 hours after Nathaniel’s
arrest, law enforcement authorized release of the phone. Nothing in the record
supports Nathaniel’s unsworn assertions that he sought to recover the phone before
the federal government seized it under a valid search warrant. See Travaglio v.
Am. Express Co., 735 F.3d 1266, 1270 (11th Cir. 2013) (“Statements by counsel in
briefs are not evidence.”). In other words, there is no evidence suggesting that
Nathaniel did or said anything over the course of four years to maintain his interest
in the phone. Thus, common sense indicates that Nathaniel “voluntarily discarded,
left behind, or otherwise relinquished his interest” in the phone. See Sparks, 806
F.3d at 1342. Because Nathaniel abandoned his interest in the phone, there was no
Fourth Amendment violation, and his motion to suppress was properly denied.
ii. Napoleon’s, Jerry’s, and Martin’s Cell Phone Data
A warrantless search is “per se unreasonable under the Fourth Amendment.”
United States v. Steed, 548 F.3d 961, 967 (11th Cir. 2008) (per curiam). The
Supreme Court recently held in Carpenter v. United States that the acquisition of
historical cell-site records is a search under the Fourth Amendment, so the
government must obtain a warrant to access such records. 585 U.S. __, 138 S. Ct.
2206, 2217–21 (2018).
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But evidence obtained in violation of the Fourth Amendment is not always
subject to exclusion. See Davis v. United States, 564 U.S. 229, 236 (2011). The
exclusionary rule is “a prudential doctrine created by the Supreme Court to compel
respect for the constitutional guaranty” and “deter future Fourth Amendment
violations.” United States v. Smith, 741 F.3d 1211, 1218 (11th Cir. 2013)
(alterations accepted) (internal quotation marks omitted) (quoting Davis, 564 U.S.
at 236). In other words, “[s]uppression is not an automatic consequence of a
Fourth Amendment violation,” but rather a “last resort, justified only where the
deterrence benefits of suppression outweigh the substantial social costs of ignoring
the reliable, trustworthy evidence bearing on guilt or innocence.” Id. (alteration
accepted) (internal quotation marks omitted); see Herring v. United States, 555
U.S. 135, 137 (2009). It follows that when officers act with “an objectively
reasonable good-faith belief that their conduct is lawful”—i.e., by acting in
reasonable reliance on a warrant, statute, or court order—the exclusionary rule
does not apply because there is little, if any, deterrence benefit in such
circumstances. See Davis, 564 U.S. at 238–39 (internal quotation marks omitted);
United States v. Leon, 468 U.S. 897, 918–22 (1984); United States v. Taylor, 935
F.3d 1279, 1289–90 (11th Cir. 2019), petition for cert. filed, (U.S. Feb. 6, 2020)
(No. 19-7581); United States v. Joyner, 899 F.3d 1199, 1204 (11th Cir. 2018) (per
curiam) (applying the good-faith exception to the exclusionary rule where the
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government obtained cell-site records pursuant to a court order issued under the
SCA pre-Carpenter).
Napoleon, Jerry, and Martin argue that because acquisitions of historical
cell-site data and real-time tracking data are searches under the Fourth
Amendment, the government’s warrantless apprehension of such information
related to their cell numbers violated the Fourth Amendment and warranted
exclusion. The government responds that the defendants lack standing to seek
suppression of the data because they never established ownership or possession of
the relevant cell phones, and regardless, the good-faith exception to the
exclusionary rule applies.
Assuming without deciding that the appellants have Fourth Amendment
standing, 6 the good-faith exception to the exclusionary rule applies here. The
officers reasonably relied on 2013 state-court orders issued under a Florida statute,
and consistent with the SCA, to acquire the defendants’ historical cell-site data and
real-time tracking data. As to historical cell-site data, there was no reason for
6 Fourth Amendment standing is prudential, not jurisdictional; therefore, we need not address it if we can affirm on the merits. See Byrd v. United States, 584 U.S. __, 138 S. Ct. 1518, 1530 (2018) (“The concept of standing in Fourth Amendment cases can be a useful shorthand for capturing the idea that a person must have a cognizable Fourth Amendment interest in the place searched before seeking relief for an unconstitutional search; but it should not be confused with Article III standing, which is jurisdictional and must be assessed before reaching the merits.”); see also Ross, slip op. at 14–15 (bringing the Eleventh Circuit in line with the Supreme Court’s precedent in Byrd).
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officers to believe the state-court orders were invalid under the Fourth
Amendment. At the time—five years before Carpenter was decided—there was
no reason for the officers to believe there was a reasonable expectation of privacy
to such records such that they would need a warrant supported by probable cause
to acquire them. Indeed, our court held in 2015 that no expectation of privacy to
such records existed. See United States v. Davis, 785 F.3d 498, 513 (11th Cir.
2015) (en banc), abrogated by Carpenter, 138 S. Ct. at 2217–19, 2221.
And as to real-time tracking data, the officers likewise reasonably relied on
the state-court orders because there was no reason for the officers to believe they
were invalid. The question of whether acquiring such information constitutes a
search was unanswered in 2013 and remains unanswered today. See id. (noting
that United States v. Jones, 565 U.S. 400 (2012) held that a GPS tracker placed on
a private vehicle was a search because the tracker was inserted on private property,
not necessarily because real-time tracking intrudes on a reasonable expectation of
privacy); Carpenter, 138 S. Ct. at 2220 (“We do not express a view on matters not
before us: real-time [cell-site location information] or ‘tower dumps’ . . . .”). So
again, there was no reason for officers to believe in 2013 that there was a
reasonable expectation of privacy to those records such that they would need a
warrant to acquire them. Because the officers reasonably relied on the state-court
orders, little to no deterrent effect would have flowed from excluding the historical
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cell-site and real-time tracking evidence. 7 The motions to suppress were properly
denied.
B. Peremptory Challenge
Martin argues the district court violated his jury-trial right by denying his
request to exercise a peremptory strike. We review the procedure adopted by the
trial court to regulate the parties’ exercise of peremptory challenges for abuse of
discretion. United States v. Isom, 88 F.3d 920, 923 (11th Cir. 1996) (per curiam).
A trial court has “wide discretion in supervising the selection of jurors and
regulating the exercise of peremptory challenges.” United States v. Bryant, 671
F.2d 450, 455 (11th Cir. 1982). The trial court can require defendants to jointly
exercise their peremptory challenges. See id.; Fed. R. Crim. P. 24(b).
At voir dire, the parties had agreed the defendants would jointly exercise
their peremptory challenges through Napoleon’s attorney. After the court had
empaneled the jury and moved to selecting alternates, Martin’s counsel attempted
to strike a juror seated on the regular panel. The court denied the requested strike.
The court did not abuse its discretion in doing so, as Martin’s requested strike was
made in contravention to the agreed voir dire procedure and after Napoleon’s
counsel had accepted the panel on the defendants’ behalf. See Bryant, 671 F.2d at
7 The appellants’ suggestion that the officers acted in bad faith by hiding their desire to track the appellants’ movements is not well taken. The applications plainly referenced an intent to use the requested records to locate the appellants. 20 Case: 17-10346 Date Filed: 08/11/2020 Page: 21 of 27
455 (finding no basis for defenant’s claim of prejudice in joint peremptory
challenge procedure where “[c]ounsel were informed prior to the beginning of voir
dire of the procedure to be used and voiced no objection”).
C. Evidence Admissions and Witness Testimony
The appellants also raise numerous issues concerning the admission of
certain evidence and witness testimony: (1) whether the district court abused its
discretion by admitting evidence of Jerry’s other alleged crimes and bad acts; (2)
whether the district court abused its discretion by admitting evidence that Jerry had
referred to himself on social media as a “two-time murder winner”; (3) whether the
district court abused its discretion by admitting into evidence statements that Irma
Gonzalez and Lashawn White overheard; (4) whether the district court plainly
erred by preventing Martin from impeaching government witness Dequayl
Williams about the witness’s supposed participation in dog fighting; (5) whether
the district court abused its discretion by denying Napoleon’s motion for mistrial
after the court permitted the introduction of Corey’s guilty plea during trial; and (6)
whether the district court plainly erred in failing to declare a mistrial following a
prosecutor’s allegedly improper remark about Martin during closing argument.
We review evidentiary rulings and the denial of a motion for mistrial for
abuse of discretion. United States v. Barsoum, 763 F.3d 1321, 1338, 1340 (11th
Cir. 2014). Where the appealing party failed to object at trial, we review for plain
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error. United States v. Charles, 722 F.3d 1319, 1322 (11th Cir. 2013); United
States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003). We review erroneous
evidentiary rulings for harmless error. Allstate Ins. Co. v. Swann, 27 F.3d 1539,
1543 (11th Cir. 1994).
Having reviewed the parties’ briefs and the record, we affirm the district
judge’s rulings. Any errors were harmless in light of the overwhelming evidence
supporting the jury’s verdicts. 8
D. Cumulative Error
Martin argues that the court’s denial of the use of available preemptory
challenges during voir dire, the denial of the opportunity to cross-examine
Williams, the admission of White’s hearsay testimony, and the prejudicial effect of
the government’s introduction of false testimony and improper remark during
closing argument, taken together, had “a more debilitating effect” when juxtaposed
against the dearth of evidence supporting his convictions. He thus claims that
cumulative error by the district court requires reversal of his convictions.
Under the cumulative-error doctrine, the court “will reverse a conviction
where an aggregation of non-reversible errors yields a denial of the constitutional
right to a fair trial.” United States v. Reeves, 742 F.3d 487, 505 (11th Cir. 2014).
8 As discussed below, the district court abused its discretion by admitting the hearsay testimony regarding street rumors White overheard, but this error was harmless. See infra n.9. 22 Case: 17-10346 Date Filed: 08/11/2020 Page: 23 of 27
We assess cumulative-error claims by “first considering the validity of each claim
individually, and then examining any errors that we find in the aggregate and in
light of the trial as a whole to determine whether the appellant was afforded a
fundamentally fair trial.” Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132
(11th Cir. 2012). But if overwhelming evidence supports the jury’s verdict such
that any errors had no “substantial influence” on the verdict, then even multiple
errors can be rendered harmless. See United States v. Baker, 432 F.3d 1189, 1223–
25 (11th Cir. 2005), abrogated on other grounds by Davis v. Washington, 547 U.S.
813, 822 (2006).
Here, Martin established no more than one error,9 which does not amount to
“the aggregation of ‘many errors’ that may require a reversal where the individual
errors do not.” See United States v. Ochoa, 941 F.3d 1074, 1106 (11th Cir. 2019).
Therefore, there was no cumulative error.
E. Sufficiency of the Evidence
Several appellants also challenge the sufficiency of the evidence supporting
their convictions. Nathaniel, Jerry, and Napoleon challenge their convictions for
9 The only error we identify is the admission of White’s testimony concerning street rumors she had heard that Martin and Eric Neri murdered Coleman. The government and the district court treated the testimony as admissible under Federal Rule of Evidence 801(d)(2)(E) based on the fact that White overheard the statements from co-conspirators, but the record demonstrates that White repeatedly clarified that she never overheard any of the co-conspirators attribute Coleman’s murder to Martin and Neri—she had only heard that through street rumors. This error was harmless, though, given the substantial evidence supporting the jury’s findings regarding Martin’s involvement in the Coleman murder. 23 Case: 17-10346 Date Filed: 08/11/2020 Page: 24 of 27
RICO conspiracy. Nathaniel, Jerry, and Corey challenge their convictions for drug
conspiracy. Jerry and Charlie challenge their § 924(c) convictions. Martin
challenges his felon-in-possession conviction as well as the jury’s special verdict
findings that he conspired to murder Coleman and did so. Jerry challenges the
jury’s special verdict finding that he murdered Carlos Jurado. Charlie also
challenges the jury’s special verdict findings that he kidnapped “T.S.,” murdered
Joseph Evans and Ceola Lazier, conspired to murder Coleman, and was
responsible for more than 100 kilograms of marijuana. And Nathaniel challenges
the reliability of the witness testimony supporting his convictions.
We review de novo a denial of a motion for judgment of acquittal on
sufficiency of the evidence grounds, viewing the evidence in the light most
favorable to the government and resolving all reasonable inferences and credibility
determinations in the government’s favor. United States v. Capers, 708 F.3d 1286,
1296 (11th Cir. 2013). The jury’s verdict must be affirmed unless no reasonable
trier of fact could have reached a conclusion of guilt beyond a reasonable
doubt. See United States v. Foster, 878 F.3d 1297, 1304 (11th Cir. 2018). We
review the denial of a Federal Rule of Criminal Procedure 33 motion for new trial
based on a jury verdict against the weight of the evidence for abuse of discretion.
See United States v. Hunt, 526 F.3d 739, 744 n.1 (11th Cir. 2008).
24 Case: 17-10346 Date Filed: 08/11/2020 Page: 25 of 27
The challenges to the § 924(c) convictions are moot given the vacatur of
those convictions. Having reviewed the parties’ briefs and the record, we affirm
the remaining convictions and findings as they are supported by more-than-
sufficient evidence. To the extent the appellants’ arguments challenge the
credibility of various witnesses, credibility determinations are exclusively within
the province of the jury. See United States v. Hernandez, 743 F.3d 812, 814 (11th
Cir. 2014) (per curiam). We may not revisit such determinations unless a witness’s
testimony is incredible as a matter of law, United States v. Thompson, 422 F.3d
1285, 1291–92 (11th Cir. 2005), and we have found no such testimony here.
F. Inconsistent Verdicts
Jerry, Charlie, and Napoleon assert that they are entitled to relief because of
inconsistencies in their verdicts. Jerry argues that his conviction for the § 924(c)
crime associated with Lazier’s death is inconsistent with his acquittal for Lazier’s
murder. Charlie argues that the jury’s special verdict finding that he conspired to
murder Coleman is inconsistent with his acquittals for Coleman’s murder and the
associated § 924(c) charge. Napoleon argues that the jury’s special verdict finding
that he kidnapped Calvin Barnes and his conviction for the § 924(c) violation
associated with Demetrius Cunningham’s murder are inconsistent with his
acquittal for Cunningham’s murder. He also argues that his conviction for
knowingly possessing ammunition for use in the attempted murders of “C.P.” and
25 Case: 17-10346 Date Filed: 08/11/2020 Page: 26 of 27
“C.S.” is inconsistent with his acquittals for those attempted murders and their
associated § 924(c) charges.
We review de novo whether inconsistent verdicts render a conviction
improper. United States v. Mitchell, 146 F.3d 1338, 1342 (11th Cir. 1998). That
being said, inconsistent jury verdicts are generally insulated from review because
“a jury may reach conflicting verdicts through mistake, compromise, or lenity,” but
“it is impossible to determine whose ox has been gored.” See United States v.
Powell, 469 U.S. 57, 68–69 (1984); United States v. Mitchell, 146 F.3d 1338, 1344
(11th Cir. 1998) (internal quotation marks omitted). Thus, “as long as the guilty
verdict is supported by sufficient evidence, it must stand, even in the face of an
inconsistent verdict on another count.” Mitchell, 146 F.3d at 1345.
Jerry and Napoleon’s challenges to their § 924(c) convictions are moot given
the vacatur of those convictions. But even assuming the other challenged guilty
verdicts are inconsistent, they must stand because—having reviewed the parties’
briefs and the record—we determine that sufficient evidence supports them.
CONCLUSION
For these reasons, we vacate Charlie Green’s, Napoleon Harris’s, Nathaniel
Harris’s, Jerry Green’s, and Deonte Martin’s § 924(c) convictions, and on that
26 Case: 17-10346 Date Filed: 08/11/2020 Page: 27 of 27
basis, their sentences. 10 We also vacate Corey Harris’s sentence as procedurally
unreasonable. We affirm on all other grounds, and remand to the district court for
further proceedings consistent with this opinion.
10 Charlie and Napoleon raise issues with their sentences, but because we vacate their sentences, those issues are moot.