NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 08-3002
UNITED STATES OF AMERICA
v.
CLYDE EDINBOROUGH, Jr.,
Appellant
On Appeal from the District Court of the Virgin Islands District Court No. 3-04-cr-00154-006 United States District Judge: The Honorable James T. Giles
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) May 3, 2010
Before: SMITH, CHAGARES, and JORDAN, Circuit Judges
(Filed: May 13, 2010)
OPINION
SMITH, Circuit Judge.
Clyde Edinborough, a cocaine supplier, was convicted of possession with intent to
1 distribute, in violation of 21 U.S.C. § 841. His conviction stemmed from a November
2003 seizure of cocaine at Miami International Airport. The cocaine was found in a bag
arriving from Cyril E. King Airport, located in St. Thomas, U.S. Virgin Islands. At trial,
the Government established that Edinborough contacted Danny Rawlins, a Cyril E. King
Airport worker who eventually worked as an informant for authorities, in November of
2003, to place cocaine on a plane headed to Miami International Airport. At that time,
Rawlins and other airport workers were surreptitiously moving drugs through Cyril E.
King Airport for profit. In exchange for money, they would pack cocaine-filled bags onto
airplanes for transport to the mainland United States.1
Edinborough raises seven challenges to his conviction.2 He argues that the District
Court erred by (1) admitting into evidence the roller bag containing cocaine that was
found on November 19, 2003, at Miami International Airport, (2) permitting hearsay
testimony, (3) denying his motion for a mistrial based on Rawlins’s contradictory
1 Because we write only for the parties, we will presume knowledge of the record. 2 Edinborough, citing Rule 28(i) of the Federal Rules of Appellate Procedure, also purports to adopt all issues raised within the trial and appellate briefs of his co- defendants. Rule 28(i) provides that “[i]n a case involving more than one appellant . . . any party may adopt by reference a part of another’s brief.” Fed. R. App. P. 28(i). But it does not excuse compliance with Rule 28(a), which requires that the “appellant’s brief . . . contain . . . a statement of the issues presented for review[.]” Fed. R. App. P. 28(a)(5). Edinborough’s blanket adoption of all the issues raised by his co-defendants, without any specification of the discrete issues to be adopted, does not satisfy Rule 28(a)(5)’s directive. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (rejecting attempt to adopt co-appellants’ arguments by a cursory reference in brief). As such, we conclude that he has abandoned and waived these unspecified, adopted issues. Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993).
2 testimony, (4) denying his motion for a directed verdict of acquittal, and (5) denying him
a new trial based on jury bias and juror misrepresentations during voir dire. On top of
these alleged errors, Edinborough further argues that (6) Rawlins committed perjury and
the Government engaged in prosecutorial misconduct, and (7) he was improperly
sentenced.3 The arguments presented are meritless and we will affirm the District Court’s
judgment.4
I.
Edinborough argues that the roller bag seized by authorities in Miami International
Airport on November 19, 2003, was improperly admitted at trial because it did not match
Rawlins’s description of the bag he gave to Mervin Dorival, the organizer of the cocaine
trafficking ring at Cyril E. King Airport, for shipment to Miami. Rawlins testified that
the cocaine was packed in a duffel bag when he gave it to Dorival for shipment to Miami,
yet the bag seized by authorities in Miami was a roller bag. On Rawlins’s direct
examination, the Government did not present the roller bag for his identification as the
bag he gave to Dorival. Instead, the Government had Special Agent Hector Quintana of
Immigration and Customs Enforcement, the agent who seized the bag in Miami, identify
3 In addition, Edinborough argues that the District Court erred by permitting the Government to read witness testimony during closing arguments and by unfairly favoring the Government during trial. After reviewing these claims and the record we conclude that they have no merit. 4 The District Court had jurisdiction under 18 U.S.C. § 3231 and 48 U.S.C. § 1612(a). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
3 the roller bag. After the roller bag was identified by Special Agent Quintana, the District
Court, over Edinborough’s objection that the bag was not relevant, admitted the bag into
evidence. Edinborough now argues that the roller bag was inadmissible because it was
not relevant; it was not connected to him through testimony. See Fed. R. Evid. 402.5 In
the alternative, he argues that the admission of the roller bag into evidence constituted a
variance.6
Edinborough’s challenge to the admission of the roller bag fails. The bag met the
low threshold for relevance because it, inter alia, contained cocaine, it was shipped from
Cyril E. King Airport, and its existence corroborated Rawlins’s testimony that cocaine
was shipped to Miami via Dorival. The Government’s decision to not have Rawlins
identify the roller bag and Rawlins’s testimony that the cocaine was in a duffel bag go to
the weight of Rawlins’s testimony and were not grounds for excluding the roller bag.
Accordingly, we conclude that the District Court did not abuse its discretion by admitting
the roller bag into evidence.
The variance argument also fails. A variance occurs “where the charging terms of
the indictment are not changed but when the evidence at the trial proves facts materially
different from those alleged in the indictment.” Daraio, 445 F.3d at 259. The indictment
5 “We review the District Court’s evidentiary rulings for abuse of discretion.” United States v. Williams, 458 F.3d 312, 315 (3d Cir. 2006). 6 We exercise plenary review over properly preserved claims of variance. United States v. Daraio, 445 F.3d 253, 259 (3d Cir. 2006).
4 does not specify the type of bag used to ship the cocaine, so there was no variance from
the indictment.
II.
Edinborough argues that Rawlins’s testimony about a tape-recorded conversation
he had with Edinborough contained hearsay.7 Edinborough neither identifies the alleged
hearsay statements nor provides an argument for why those statements are hearsay.
Instead, his argument is based solely on the premise that the tape-recorded conversation
itself was deemed hearsay by the District Court and not published to the jury. Based on
the record before us, it appears that this premise is incorrect. While permitting the
Government to question Rawlins regarding his conversation with Edinborough, the
District Court referenced the publication of tape-recorded conversations to the jury. Even
if the tape-recorded conversation was not published to the jury, Edinborough has not
explained why Rawlins’s testimony contained hearsay. Thus, we reject his argument.
III.
Next, Edinborough argues that he should have been granted a mistrial based on
Rawlins’s contradictory testimony during direct and redirect examination.8 On direct
7 Whether testimony is hearsay is a question of law over which we exercise plenary review. United States v. Lopez, 340 F.3d 169, 175 (3d Cir. 2003). 8 We review the denial of a motion for a mistrial for an abuse of discretion. United States v. Weaver, 267 F.3d 231, 245 (3d Cir. 2001). “[A] mistrial must not be declared without prudent consideration of reasonable alternatives.” United States v. Rivera, 384 F.3d 49, 56 (3d Cir. 2004).
5 examination by the Government, Rawlins said he met with Edinborough twice: once
during June or July of 2003 and again in November of 2003. On redirect examination,
Rawlins testified that he met with Edinborough in June and July of 2003. The
Government then asked Rawlins if he met with Edinborough any other time and Rawlins
testified that he met Edinborough a third time. At that point, the District Court held a
side-bar with the Government and defense counsel. During that side-bar, Edinborough’s
counsel pointed out that Rawlins’s testimony on redirect contradicted his testimony on
direct. In response, the District Court invited Edinborough’s counsel to challenge
Rawlins’s credibility based on that contradiction. The District Court then issued a
cautionary instruction to the jury instructing it to ignore Rawlins’s testimony that he met
Edinborough a third time. Edinborough’s counsel moved for a mistrial, stating that the
cautionary instruction was not enough to “unring the bell” with the jury. That motion was
denied.
After the District Court issued the cautionary instruction, the Government
proceeded with its questioning of Rawlins. Unfortunately for the Government, Rawlins’s
new testimony simply reiterated the contradiction identified by Edinborough’s counsel.
Rawlins stated that he met with Edinborough twice and repeated that the second meeting
was in July, instead of November. The District Court then held another side-bar, which it
began by stating to the Government:
At the risk of impeaching your own witness, I think you have to clarify -- . . . for the jury, for everybody, just what these months
6 were. They were two. And you may recall to him what he said on direct, if you have to. But we’re not going to leave it like this.
Edinborough’s counsel requested that the contradictory testimony be left as is. After
some back and forth between Edinborough’s counsel and the Government over whether it
should be permitted to continue questioning Rawlins, the District Court ultimately let the
contradictory testimony stand.
The District Court did not abuse its discretion in denying Edinborough’s motion
for a mistrial. See Weaver, 267 F.3d 231 at 245. Its decision to let the contradictory
testimony stand after permitting the Government one chance to cure the contradiction was
a reasonable alternative to a mistrial. See Rivera, 384 F.3d at 56. Edinborough benefitted
from the contradictory testimony because the contradictions undermined Rawlins’s
credibility. Indeed, Edinborough’s counsel requested that the contradictory testimony be
left as is and the District Court honored that request.
IV.
Edinborough also argues that Rawlins’s contradictory testimony constituted a
variance in the Government’s evidence and required a judgment of acquittal. According
to Edinborough, “there is no evidence of a drug transaction in November 2003 by the
plain and clear testimony of Rawlins on redirect stating [that] the last transaction occurred
in July 2003.” Edinborough’s argument fails to account for Rawlins’s testimony on direct
examination that there was a November 2003 transaction and Special Agent Quintana’s
7 testimony that he found drugs in a bag at Miami International Airport that had arrived
from St. Thomas on November 19, 2003. Any contradiction in Rawlins’s testimony went
towards his credibility and the probative value of his testimony. We see no indication of
a variance and we reject Edinborough’s argument.9
Edinborough argues that his trial was infected with jury misconduct and juror
misrepresentations during voir dire. Six months after Edinborough’s conviction he
moved for investigation into jury misconduct based on a letter submitted by an alternate
juror, Linda Maratea. Maratea alleged that Feldere Webster-Lee, a member of the jury
hearing Edinborough’s case, told her that Edinborough was a Prince Hall Mason, the
Prince Hall Masons were out of control and needed to be stopped, and other Prince Hall
Masons were prosecuted for a violent crime in the past but they were acquitted because
they were Prince Hall Masons.10
The jury misconduct issued boiled down to Maratea’s word against Webster-Lee’s
word, and the District Court did not find Maratea’s testimony credible. Webster-Lee’s
9 Edinborough also raises two related arguments, both of which fail. First, he claims that the duffel bag versus roller bag discrepancy was grounds for a judgment of acquittal. We disagree. Edinborough’s argument pertains to fact-finding and does not justify a judgment of acquittal. Second, he argues that contradictory evidence regarding the amount of cocaine he gave to Rawlins for shipment constituted a variance in the indictment. After reviewing the record, we conclude that there was no variance. 10 We review the District Court’s consideration of jury misconduct allegations for an abuse of discretion. United States v. Boone, 458 F.3d 321, 326 (3d Cir. 2006).
8 testimony, on the other hand, was credited by the District Court. In light of the District
Court’s diligent efforts in investigating the allegations of jury misconduct and its findings
based on that investigation, we conclude that the District Court did not abuse its
discretion in determining that there was no jury misconduct.
Edinborough’s claim that the District Court erred during voir dire likewise fails.
This argument is based on Webster-Lee’s purported knowledge of Edinborough and bias
against him. During the hearing investigating juror misconduct, Webster-Lee admitted
that she knew Edinborough “by seeing him,” but she also testified that she had no opinion
on his guilt during voir dire, she sought to answer every question during voir dire
truthfully, and she accorded Edinborough the presumption of innocence.
“To receive a new trial because of errors during voir dire, [an individual] must first
demonstrate that a juror failed to answer honestly a material question on voir dire, and
then further show that a correct response would have provided a valid basis for a
challenge for cause.” United States v. Hodge, 321 F.3d 429, 441 (3d Cir. 2003) (internal
quotation marks omitted). The Supreme Court has stated that voir dire is not easily
subject to appellate review and we should hesitate before second-guessing a district
court’s decisions regarding the impartiality of a juror:
Despite its importance, the adequacy of voir dire is not easily subject to appellate review. The trial judge’s function at this point in the trial is not unlike that of the jurors later on in the trial. Both must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions. In neither instance can
9 an appellate court easily second-guess the conclusions of the decisionmaker who heard and observed the witnesses.
Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) (citations omitted).
Webster-Lee’s knowledge of Edinborough, alone, would not have provided a valid
basis for a challenge for cause. “[M]erely knowing one of the defendants does not,
standing alone, constitute a sufficient showing of bias requiring excusal for cause.”
United States v. Calabrese, 942 F.2d 218, 224 (3d Cir. 1991). Moreover, the District
Court, after questioning Webster-Lee, determined that she was not biased against
Edinborough. Thus, Edinborough’s voir dire challenge fails.
VI.
Edinborough accuses Rawlins of perjury and the Government of prosecutorial
misconduct. We reject these accusations as unsupported by the record or legal authority.
Edinborough believes that contradictions between Rawlins’s testimony at
Edinborough’s trial and his testimony at the later trial of Roy Brewley, an individual
involved in the cocaine trafficking at Cyril E. King Airport, prove that Rawlins
committed perjury at Edinborough’s trial:
(1) At Edinborough’s trial, Rawlins stated that in July of 2003, Edinborough gave him “four keys” of cocaine to ship. At Brewley’s trial, Rawlins said Edinborough just gave him books as a trial run.
(2) At Edinborough’s trial, Rawlins said he received $1000 for assisting in the July 2003 smuggling. At Brewley’s trial, Rawlins said he received $500.
(3) At Edinborough’s trial, Rawlins said he received $1000 from Edinborough for assisting in the November 2003 shipment. At Brewley’s trial, Rawlins said he
10 received $2000 from Edinborough.
To establish a due process violation premised upon the Government’s knowing use
of perjured testimony, a defendant must show that (1) a Government witness committed
perjury, (2) the Government knew or should have known of the perjury, (3) the perjured
testimony went uncorrected, and (4) there is a reasonable likelihood that the false
testimony could have affected the verdict. United States v. Hoffecker, 530 F.3d 137, 183
(3d Cir. 2008). A witness commits perjury if he “gives false testimony concerning a
material matter with the willful intent to provide false testimony, rather than as a result of
confusion, mistake, or faulty memory.” United States v. Dunnigan, 507 U.S. 87, 94
(1993).
Edinborough’s perjury claim fails. First, there is no evidence that Rawlins’s
contradictory testimonies were the result of a willful intent to provide false testimony.
See id. The contradictions could have arisen from Rawlins’s “faulty memory.” See id.
Second, even assuming that Rawlins was lying, there is no evidence that the Government
knew he was lying at the time of Edinborough’s trial. See Hoffecker, 530 F.3d at 183.
The contradictions in Rawlins’s testimony were only evident after he testified in
Brewley’s trial. Third, the contradictions identified are largely irrelevant to the
allegations against Edinborough, and there is not a reasonable likelihood that the
allegedly false testimony affected the verdict. See id. Edinborough was not charged with
any crime for the July 2003 cocaine shipment; he was charged with only the November
11 2003 cocaine shipment. The single contradiction concerning the latter shipment was the
amount of money that Rawlins received and that has no meaningful bearing on the
verdict.
Edinborough also alleges that the Government engaged in prosecutorial
misconduct. His claim amounts to mere editorializing and he provides no legal authority
to support his argument. After reviewing the record, we conclude that the Government’s
actions did not rise to the level of prosecutorial misconduct.
VII.
Finally, Edinborough challenges his 120 month sentence of imprisonment. He
argues that the amount of cocaine he was found to have possessed for the purposes of
sentencing was incorrect.11 He claims that the July and November 2003 shipments should
not have been factored into his sentencing calculation because of deficiencies in the
evidence proving that those shipments occurred. As a preliminary matter, we note that
Edinborough did not submit a copy of the sentencing transcript for the record. Without
that transcript we cannot conclusively evaluate his vague accusation that his sentence was
based on clearly erroneous facts. Fed. R. App. P. 10(b)(2) (“If the appellant intends to
urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary
to the evidence, the appellant must include in the record a transcript of all evidence
11 We review factual findings pertaining to sentencing for clear error. United States v. Jimenez, 513 F.3d 62, 85 (3d Cir. 2008).
12 relevant to that finding or conclusion.”). Also, after reviewing the record, we reject
Edinborough’s accusation that the evidence connecting him to the July and November
2003 shipments was deficient. As such, we reject his claim.12
VIII.
In conclusion, Edinborough’s claims of error are meritless and we will affirm the
District Court’s judgment.
12 We also note that under any plausible sentencing guidelines calculation, Edinborough received a below-guidelines sentence. According to his PSR, he was responsible for 9 kilograms of cocaine and he acted as an organizer, resulting in an offense level of 34 and a guidelines range of 151 to 188 months. If his PSR was followed by the District Court, Edinborough received a sentence 31 months below the minimum recommended by the guidelines. If we look solely to his conviction, the five kilograms of cocaine for which he was convicted of possession with intent to distribute would give him an offense level of at least 32, which results in a guideline sentence of 121 to 151 months. U.S.S.G. § 2D1.1(c)(4) (establishing range of “[a]t least 5 KG but less than 15 KG of Cocaine” as level 32). He received one month less than the minimum recommended sentence for the amount of cocaine he was convicted of possessing. Finally, even Edinborough’s own sentencing guidelines calculation, provided in his written objections to the PSR, suggests a guidelines range of 121-151 months.