United States v. Hubert

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 8, 1998
• Docket: 96-2822
• Status: Published

Opinion

United States Court of Appeals,

Eleventh Circuit.

No. 96-2822.

UNITED STATES of America, Plaintiff-Appellee,

v.

Dock Charles HUBERT, Defendant-Appellant.

April 8, 1998.

Appeal from the United States District Court for the Northern District of Florida. (No. 94-CR- 04063-ALL), William Stafford, District Judge.

Before BARKETT, Circuit Judge, and GODBOLD and GOODWIN,1 Senior Circuit Judges.

PER CURIAM:

The defendant, Dock Charles Hubert ("Hubert"), appeals the judgment of conviction, the

enhancement of his sentence for obstruction of justice, and the district court's order denying his

motion for a mistrial. We have jurisdiction to review the case under 28 U.S.C. § 1291. We affirm.

I.

On December 8, 1995, Hubert was found guilty by a jury on one count of conspiracy to

possess with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(A)(iii), and on three counts of possession with intent to distribute cocaine base in violation

of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii) and 18 U.S.C. § 2. Hubert filed a motion for a

mistrial, arguing that the government wrongfully introduced testimonial evidence of other criminal

acts allegedly committed by Hubert over a twenty-year span prior to the dates covered in the

indictment in order to attack Hubert's character. Hubert claimed that this evidence unduly

1 Honorable Alfred T. Goodwin, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by designation. prejudiced the jury and prevented him from getting a fair trial. The district court denied the motion

for a mistrial and entered a judgment of conviction against Hubert on all four counts. The district

court then sentenced Hubert to 300 months on each count, to run concurrently. This sentence was

based on a guideline range of 292-to-365 months for a Criminal History Category I and a Base

Offense Level of 38 which was enhanced to 40 for obstruction of justice because the district court

found that Hubert had lied when he testified during trial and during earlier court hearings.

II.

We first deal with Hubert's contention that the district court erred in not granting his motion

for a mistrial. The indictment covers only the period of July 1992 to July of 1993. During the trial,

however, the government elicited testimony from Richard Young about his prior drug dealings with

Hubert going all the way back to the early 1970's. Richard Young, who had already pled guilty to

his involvement in the charged conspiracy, testified that he and Hubert started using drugs in the

1970's; that he and Hubert had always been partners in drug dealing; that at one time he and Hubert

had an apartment together in Miami from which they sold marijuana and powder cocaine; that in

the late 1980's, Hubert supplied him with cocaine from time to time; that starting in 1990, Hubert

regularly sold him cocaine powder which he would then cook into crack cocaine; and that in 1991,

he and Hubert reaffirmed their drug dealing partnership, agreeing to a 50/50 split in profits.

The government claims that Richard Young's extensive testimony relating to his prior drug

dealings with Hubert was necessary to explain the circumstances of the charged crimes and to clarify

the relationship between Richard Young and Hubert. Hubert counters that the testimony was not

relevant to establishing the relationship he had with Richard Young because there was no dispute

that he and Richard Young had known each other and had been friends since childhood. Hubert

argues that the government did not use the elicited testimony to explain the circumstances of the charged crimes but rather to show that Hubert possessed a criminal character or otherwise had the

propensity to commit the crime with which he was charged.

After reviewing the record, we have to agree with Hubert that Richard Young's testimony

concerning drug activities prior to the 1991 alleged agreement was not necessary to show motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The

testimony cannot be called necessary to impeach Hubert because Hubert had not taken the stand at

the time Richard Young's testimony was offered. The testimony of events prior to the alleged

agreement in 1991, therefore, had no value except to prove a criminal disposition in violation of the

Federal Rule of Evidence 404(b). Accordingly, we hold that permitting the government to introduce

the challenged testimony was an abuse of discretion.

This holding, however, does not mandate a reversal. If a reviewing court finds that a district

court has abused its discretion in admitting evidence in violation of Rule 404(b), then its decision

to uphold the conviction is properly reviewed under a harmless error standard. See Fed.R.Crim.P.

52(a). After reviewing the record, we hold that the district court's admission of Richard Young's

testimony was harmless error. The evidence produced against Hubert at trial was substantial. Five

witnesses gave consistent testimony concerning Hubert's participation in the charged conspiracy to

possess cocaine base with intent to distribute. These witnesses also gave consistent testimony

concerning Hubert's actual possession of cocaine powder and cocaine base with intent to distribute

during the relevant time frame. Because any reasonable construction of the evidence would allow

a jury to find Hubert guilty beyond a reasonable doubt on all four counts, we affirm the conviction.

We conclude that the district court did not abuse its discretion in denying the motion for a mistrial.

United States v. Roper, 874 F.2d 782, 788 (11th Cir.1989) (internal citations omitted).

III. Next we deal with Hubert's contention that the district court erred in enhancing his sentence

for obstruction of justice2 based upon his testimony at trial and at two prior bond revocation

hearings. Upon reviewing the record, we hold that the two-level enhancement was proper. Perjury

under oath on material matters, not due to confusion or mistake, justifies such an increase. United

States v. Dunnigan, 507 U.S. 87, 93-94, 113 S.Ct. 1111, 1115-16, 122 L.Ed.2d 445 (1993). Hubert

may claim that the sentence enhancement impermissibly chills his constitutional right to testify but

this argument has been soundly rejected by both this Circuit and the Supreme Court. See United

States v. Lawrence, 972 F.2d 1580, 1580 (11th Cir.1992); Dunnigan, 507 U.S. at 96, 113 S.Ct. at

1117. Hubert may further object that the district court failed to make a sufficiently detailed finding

that he committed perjury and obstructed justice, but in the context of the record of the hearing,

detailed findings were not necessary and would have been redundant. The Pre-Sentence

Investigation Report, which the district court adopted, spelled out the perjurious statements and the

government elaborated on these perjurious statements during the sentencing hearing. More

importantly, Hubert did not request any particularized findings regarding the perjurious statements

at the sentencing hearing. Having failed to do so, Hubert cannot now complain to this court. See

United States v. Geffrard, 87 F.3d 448, 453 (11th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 443,

--- L.Ed.2d ---- (1996).

AFFIRMED.

2 Sentencing Guideline § 3C1.1 states in full: "If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the level by 2 levels." U.S.S.G. § 3C1.1.