Case: 12-15091 Date Filed: 06/26/2014 Page: 1 of 17
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 12-15091 Non-Argument Calendar ________________________
D.C. Docket No. 1:89-cr-00602-WJZ-11
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES MALONE,
Defendant-Appellant.
________________________
No. 12-15092 Non-Argument Calendar ________________________
D.C. Docket No. 1:90-cr-00260-WJZ-1 Case: 12-15091 Date Filed: 06/26/2014 Page: 2 of 17
JAMES MALONE, a.k.a. Martin James Malone,
Appeals from the United States District Court for the Southern District of Florida ________________________
(June 26, 2014)
Before CARNES, Chief Judge, JORDAN and FAY, Circuit Judges.
PER CURIAM:
James Malone, a former fugitive who was extradited back to the United
States in 2012, was convicted on one count of conspiring to import five or more
kilograms of cocaine and one count of failing to appear for trial. The district court
sentenced him to a 240-month mandatory minimum prison term on the drug
conspiracy count and a consecutive 22-month term on the failure to appear count.
He now challenges his total sentence, raising four arguments on appeal.
2 Case: 12-15091 Date Filed: 06/26/2014 Page: 3 of 17
I. Facts
In 1989 a federal grand jury indicted Malone, along with various
codefendants, on one count of conspiring to import at least five kilograms of
cocaine, in violation of 21 U.S.C. § 963, and one count of importing at least five
kilograms of cocaine, in violation of 21 U.S.C. § 952(a). Malone and several of
his codefendants went to trial, which began on January 4, 1990, and lasted for 21
days. On January 29, 1990, Malone did not show up for trial and a bench warrant
was issued for his arrest. At that point, closing arguments and jury deliberations
were the only stages of trial yet to be completed, and the trial continued in
Malone’s absence. The jury returned a general verdict two days later, acquitting
Malone on the substantive importation count but finding him guilty on the drug
conspiracy count. The court did not have the jury return a special verdict finding
how much cocaine was involved in the drug conspiracy. In any event, because
Malone was not in custody, the district court was unable to sentence him on the
drug conspiracy conviction at that time.
Malone was declared a fugitive from justice, and he was charged with failing
to appear for trial, in violation of 18 U.S.C. § 3146(a). Twenty-two years later, in
February 2012, he was arrested in Ecuador and extradited back to the United
States. A federal public defender was appointed to represent Malone, and in April
3 Case: 12-15091 Date Filed: 06/26/2014 Page: 4 of 17
2012 he pleaded guilty to the failure to appear charge. 1
Over the course of two sentence hearings, the district court determined
Malone’s advisory sentence under the United States Sentencing Guidelines. He
was assigned a base offense level of 30 under U.S.S.G. § 2D1.1(a)(5) based on his
1990 conviction for conspiring to import cocaine. Because he fled during his trial,
Malone received a 2-level enhancement under § 3C1.1 for obstruction of justice.
Finally, he received a 4-level reduction under § 3B1.2(a) because he had been a
minimal participant in the drug conspiracy. With an adjusted offense level of 28
and a criminal history category of II, Malone’s initial guidelines range was 87–108
months imprisonment.
However, a dispute arose at the first sentence hearing about whether
Malone’s actual advisory sentence should be 240 months imprisonment under
U.S.S.G. § 5G1.1(b). Under that guidelines provision, when a defendant is subject
to a statutory minimum sentence that is higher than his guidelines range, the
statutory minimum becomes the defendant’s advisory sentence. And under 21
U.S.C. § 960(b)(1)(B), any person with a prior felony drug conviction who is later
convicted of conspiring to import five or more kilograms of cocaine is subject to a
1 Following his disappearance, Malone had also been charged with failing to comply with the conditions of his bond, in violation of 18 U.S.C. § 401(3), but that charge was dismissed pursuant to the plea agreement. 4 Case: 12-15091 Date Filed: 06/26/2014 Page: 5 of 17
240-month mandatory minimum sentence. Because Malone had been convicted of
a felony drug offense before his 1990 conviction, he would be subject to this
statutory minimum sentence if the conspiracy for which he was convicted in 1990
involved five or more kilograms of cocaine.
Malone contended that it would be unconstitutional to apply the statutory
minimum because without a finding of drug quantity he would not be subject to a
mandatory minimum sentence, see 21 U.S.C. § 960(b), and the jury in his 1990
trial had not made any finding about the amount of cocaine involved in the
conspiracy for which he had been convicted. The government responded that the
district court could determine whether the statutory minimum applied by relying on
the evidence about drug quantity that was presented at trial. The district court
recessed the hearing to allow the government to check the transcripts of the 1990
trial.
At the second sentence hearing, the government presented portions of the
trial transcript to show the quantity of drugs that were attributable to Malone.
Among other things, the government presented two stipulations that had been
signed by Malone and his codefendants and then entered into evidence at their
trial. The first stipulation provided that 537.5 kilograms of cocaine were seized
from the J.J. Lorick, a boat that several of the conspirators had commissioned to
5 Case: 12-15091 Date Filed: 06/26/2014 Page: 6 of 17
bring cocaine from the Bahamas to Miami. The second stipulation provided that
39.75 kilograms of cocaine had been seized from a golf bag that Malone had
indisputably transported in his car from the marina in Miami where the J.J. Lorick
had offloaded its illicit cargo. Based on those two stipulations and other evidence,
the district court at the second sentence hearing found “by a preponderance of the
evidence that . . . 40 kilograms of cocaine [were] attributed [to] Mr. Malone, but at
the very least five kilograms.” As a result, the court concluded that the statutory
minimum sentence was triggered, and it sentenced Malone to 240 months
imprisonment on the drug charge. It also imposed a 22-month, consecutive
sentence on the failure to appear charge. See 18 U.S.C. § 3146(b) (providing that
any term of imprisonment imposed on a failure to appear conviction must be
served “consecutive to the sentence of imprisonment for any other offense”).
II. Discussion
Malone challenges his sentence on four grounds. First, he contends that the
district court violated his right to a jury under the Sixth Amendment, as interpreted
in Alleyne v. United States, — U.S. —, 133 S.Ct. 2151 (2013), by sentencing him
to a mandatory minimum sentence under U.S.S.G. § 5G1.1(b) without a jury
having found beyond a reasonable doubt that his offense involved at least five
kilograms of cocaine. Second, he contends that we should vacate his sentences
6 Case: 12-15091 Date Filed: 06/26/2014 Page: 7 of 17
because the attorney appointed to represent him during the 2012 proceedings had
an alleged conflict of interest. Third, he contends that the district court misapplied
the sentencing guidelines when it imposed a separate, consecutive sentence for his
failure to appear conviction. Fourth, he contends that the appellate record is
incomplete and we should therefore remand the case to the district court so it can
reconstruct the record of what occurred during the final two days of his 1990 trial,
which he missed when he jumped bond.
A. The Alleyne Error
In Alleyne the Supreme Court held that any fact that increases the
mandatory minimum sentence for a crime must be submitted to a jury and be found
beyond a reasonable doubt. 133 S.Ct. at 2163. That decision was an extension of
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362–63 (2000), in
which the Supreme Court held that “any fact that increases the penalty for a crime
beyond the prescribed statutory maximum” other than the fact of a prior
conviction, must be found beyond a reasonable doubt by the jury. See Alleyne,
133 S.Ct. at 2160. Malone contends, and the government concedes, that the
district court violated Alleyne when it sentenced him to a 240-month mandatory
minimum sentence on his 1990 drug conviction without a jury finding that the
offense involved at least five kilograms of cocaine. Although both parties agree
7 Case: 12-15091 Date Filed: 06/26/2014 Page: 8 of 17
that an Alleyne error occurred, they disagree about whether that error requires
vacating Malone’s sentence. The point of disagreement is whether the sentence
may be affirmed under the harmless error rule notwithstanding the Alleyne error.
We have not yet decided in a published opinion whether Alleyne errors are
subject to harmless error review. 2 Our precedent applying the harmless error rule
to Apprendi errors is instructive because “Alleyne was an extension of Apprendi.”
United States v. McKinley, 732 F.3d 1291, 1295 (11th Cir. 2013). We have
consistently applied harmless error analysis to Apprendi errors, e.g., United States
v. Anderson, 289 F.3d 1321, 1326 (11th Cir. 2002); United States v. Allen, 302
F.3d 1260, 1276 (11th Cir. 2002), because such errors are not “structural error[s]
that would require per se reversal,” United States v. Nealy, 232 F.3d 825, 829 &
n.4 (11th Cir. 2000). Nealy illustrates that proposition. In that case, we held that
the district court’s “failure to submit the issue of drug quantity to the jury” was a
harmless error that did not require reversal, even though the court’s drug quantity
finding increased the defendant’s statutory maximum sentence. Id. at 829.
We have also applied the harmless error rule when reviewing errors arising
from decisions that extended the Apprendi rule. The Blakely/Booker decision was
2 Several of our sister circuits have already addressed this question, and they have held that Alleyne errors are subject to harmless error review. See United States v. Davis, 736 F.3d 783, 785 (8th Cir. 2013); United States v. Harakaly, 734 F.3d 88, 94 (1st Cir. 2013); United States v. Mack, 729 F.3d 594, 609 (6th Cir. 2013). 8 Case: 12-15091 Date Filed: 06/26/2014 Page: 9 of 17
an extension of Apprendi, and we have held that the harmless error rule applies to
Blakely/Booker errors. See United States v. Dulcio, 441 F.3d 1269, 1277 (11th
Cir. 2006); United States v. Paz, 405 F.3d 946, 947–48 (11th Cir. 2005). Because
Alleyne, like Blakely/Booker, is another extension of the Apprendi decision, it
would be illogical not to apply the harmless error rule consistently to all three
types of Apprendi error.
We know that the Alleyne error in this particular case was harmless beyond
a reasonable doubt because Malone stipulated to the drug quantity at his trial. See
United States v. Camacho, 248 F.3d 1286, 1290 (11th Cir. 2001) (“The stipulation
took the issue away from the jury, and the jury’s guilty verdict on the substantive
offense rested upon the quantity to which [the defendant] stipulated. The
stipulation thus acts as the equivalent of a jury finding on drug quantity.”),
overruled on other grounds by United States v. Sanchez, 269 F.3d 1250 (11th Cir.
2001); United States v. Jackson, 240 F.3d 1245, 1249 (10th Cir. 2001) (rejecting
defendant’s Apprendi-based request for a new trial or resentencing where she
stipulated to a drug quantity so that “drug type and quantity were no longer facts
required to be determined by the jury”), overruled in part on other grounds by
United States v. Prentiss, 256 F.3d 971, 981 (10th Cir. 2001) (en banc); United
States v. Champion, 234 F.3d 106, 110 (2d Cir. 2000) (“[E]ven if the district court
9 Case: 12-15091 Date Filed: 06/26/2014 Page: 10 of 17
erred by arrogating to itself the quantity-determining function, any such error was
surely harmless. Under the stipulation, a jury could not have found differently.
Because [the defendant] stipulated to the fact that his crime involved over 2.6
kilograms of heroin, under 21 U.S.C. § 841(b)(1)(A), he would have been subject
to a mandatory minimum sentence of 10 years, in any event.”) (footnote omitted).
At trial Malone agreed to two stipulations about the drug quantity involved
in the conspiracy. First, he stipulated that 537.5 kilograms of cocaine were seized
from the boat that another conspirator had commissioned to transport cocaine from
the Bahamas to Miami. Second, he stipulated that 39.75 kilograms of cocaine
were seized from a golf bag that he had indisputably transported when the boat’s
cargo was unloaded in Miami. Given those two stipulations, no reasonable jury
could not have found that the conspiracy involved less than five kilograms of
cocaine or that less than that amount could be attributed to Malone. We therefore
conclude that the Alleyne error that occurred in this case was harmless beyond a
reasonable doubt.
B. Alleged Conflict of Interest
After Malone was returned to the United States in 2012, a pretrial hearing
was held in which a magistrate judge appointed a federal public defender to
10 Case: 12-15091 Date Filed: 06/26/2014 Page: 11 of 17
represent him. On appeal, Malone contends for the first time that the appointment
was error because the federal defender allegedly had a conflict of interest. 3
In order to establish a Sixth Amendment violation, a defendant who did not
object to the appointment of counsel “must demonstrate that an actual conflict of
interest adversely affected his lawyer’s performance.” United States v. Novaton,
271 F.3d 968, 1010 (11th Cir. 2001). This requires satisfying a two-pronged test.
See id. First, he must demonstrate an “actual conflict” by “mak[ing] a factual
showing of inconsistent interests or point[ing] to specific instances in the record to
suggest an actual impairment of his or her interests.” Id. at 1010–11 (quotation
marks omitted). Second, he must prove an “adverse effect” by showing (1) that
some plausible alternative defense strategy might have been pursued, (2) that the
alternative strategy was reasonable under the facts of the case, and (3) that a causal
link existed between the actual conflict and the decision to forego the alternative
defense strategy. Id. at 1011.
3 At the pretrial hearing when Malone was appointed counsel, the magistrate judge asked the courtroom clerk whether the Federal Defender’s Office would have a conflict representing Malone. One of Malone’s codefendants had been represented by a federal defender twenty-two years before during the 1990 proceedings, but the clerk responded to the judge’s question by mistakenly stating that retained counsel had represented all of the codefendants then. The AUSA was not aware of any conflict that would result from appointing a federal defender to represent Malone. 11 Case: 12-15091 Date Filed: 06/26/2014 Page: 12 of 17
In this case, even assuming that Malone has shown an actual conflict of
interest, he has failed to demonstrate any adverse effect from the fact that he was
represented by a federal defender in 2012. More specifically, he has failed to
identify any alternative defense strategy, let alone a reasonable one, that his
attorney could have pursued in the 2012 proceedings. As a result, this challenge
fails. See id. at 1010.
C. Imposition of Consecutive Sentences
Malone contends that the district court violated Application Note 3 of
U.S.S.G. § 2J1.6 when it sentenced him to a consecutive 22-month term of
imprisonment on the failure to appear charge. See United States v. Kinard, 472
F.3d 1294, 1297 (11th Cir. 2006) (“[W]e must interpret the text of the Guidelines
in light of the corresponding Commentary and Application Notes, which are
binding on the courts unless they contradict the plain meaning of the text of the
Guidelines.”) (quotation marks omitted). Under that application note, when a
defendant is convicted on both a failure to appear charge and an underlying
offense, the advisory sentence is to be calculated by grouping the two offenses
under U.S.S.G. § 3D1.2(c) and applying an enhancement to the base offense level
by treating the failure to appear charge as an obstruction of justice, which warrants
a 2-level enhancement under § 3C1.1. U.S.S.G. § 2J1.6 cmt. n.3. That is exactly
12 Case: 12-15091 Date Filed: 06/26/2014 Page: 13 of 17
what the district court did in this case. Malone argues however that the court
should have concluded that the punishment for his failure to appear charge was
already accounted for in his advisory guidelines range (based on the § 3C1.1
enhancement), and that the court erred by imposing what he calls an “unwarranted
guidelines enhancement” in the form of a consecutive sentence on the failure to
appear count.
We need not decide this issue because Malone invited the error, if any, in
imposing a consecutive sentence. See, e.g., United States v. Harris, 443 F.3d 822,
823–24 (11th Cir. 2006) (“The doctrine of invited error is implicated when a party
induces or invites the district court into making an error. Where a party invites
error, the Court is precluded from reviewing that error on appeal.”) (quotation
marks and citation omitted). Before the district court announced Malone’s
sentence, his attorney stated: “[W]ith respect to any sentence that should follow
because of [Malone] being a fugitive with respect to the failure to appear, I would
ask that the court limit that to just an additional month in light of the fact that he
[will be] serving a minimum mandatory of 20 years [on the drug conspiracy
count]” (emphasis added). Although Malone did not invite the court to impose a
22-month sentence on the failure to appear count, he unequivocally invited the
district court to sentence him to an additional term of imprisonment on that count.
13 Case: 12-15091 Date Filed: 06/26/2014 Page: 14 of 17
And the law is clear that any prison term imposed on the failure to appear count
had to be served consecutively to any other term of imprisonment the district court
imposed. 18 U.S.C. § 3146(b)(2). Malone cannot now claim for the first time that
the district court erred by imposing any sentence on the failure to appear count or
by running it consecutively. See, e.g., Harris, 443 F.3d at 823–24; Ford ex rel.
Estate of Ford v. Garcia, 289 F.3d 1283, 1293–94 (11th Cir. 2002); United States
v. Ross, 131 F.3d 970, 988 (11th Cir. 1997).
D. Incomplete Appellate Record
While this appeal was pending, Malone ordered transcripts for the last two
days of his 1990 trial, which is when the closing arguments and jury deliberations
occurred. Those were also the two days that Malone missed when he jumped bond
and failed to appear in court. The court reporter was unable to produce transcripts
for those two days, however, because he was unable to locate notes for the
proceedings that occurred 22 years earlier. Malone contends that we must remand
this case to the district court for purposes of reconstructing the record of the final
two days of the 1990 trial.
We decline to do so for two reasons. First, there was no violation of the
Court Reporter Act, which provides that a court reporter shall file his “original
shorthand notes or other original records” with the clerk of the court “who shall
14 Case: 12-15091 Date Filed: 06/26/2014 Page: 15 of 17
preserve them in the public records of the court for not less than ten years.” 28
U.S.C. § 753 (emphasis added). Here, Malone’s transcript request came 22 years
after the original records were made, and the delay in his request for the records
was entirely due to his decision to evade justice for more than two decades. We
have held that “[w]hen a portion of a record is lost through no fault of the
defendant, he should not be made to bear the burden of the loss.” United States v.
Ullrich, 580 F.2d 765, 773 n.13 (5th Cir. 1978).4 But a defendant who flees justice
and stays on the run for 22 years has only himself to blame for part of the record
being lost in that long interval. He should be made to bear the burden of the loss
he caused. Second, a defendant is not entitled to relief in any event unless “there is
a substantial and significant omission from the trial transcript” and a defendant’s
appellate counsel is not the same as his trial counsel. See United States v. Charles,
313 F.3d 1278, 1283 (11th Cir. 2002). The part of the transcript covering the
closing arguments and the proceedings surrounding the jury deliberations does not
involve “substantial and significant” portions of the trial. The trial went on not for
a couple of days but for 21 days. Malone has not plausibly suggested any error
that occurred during the last two days and merely speculates that he may have
4 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. 15 Case: 12-15091 Date Filed: 06/26/2014 Page: 16 of 17
suffered prejudice if his “absence was considered by the jury during its
deliberations.” Under these circumstances, Malone is not entitled to relief. See
United States v. Preciado-Cordobas, 981 F.2d 1206, 1214 (11th Cir. 1993) (“Mere
speculation, entirely unsupported or contradicted by the record, that error may have
been committed during an unrecorded part of the trial simply is not enough to
support a finding that omissions are substantial and significant.”); United States v.
Stefan, 784 F.2d 1093, 1102 (11th Cir. 1986) (refusing to reverse a conviction
where the transcript for a bench conference was not available because the
conference was not “substantial and significant” given that the trial involved a
“long and complex case”). Not only that, but if the jury in convicting him did
consider the fact that he had absconded from the trial, whose fault is that? It would
not have been reversible error. See United States v. Williams, 541 F.3d 1087,
1089 (11th Cir. 2008) (“Evidence of flight is admissible to demonstrate
consciousness of guilt and thereby guilt.”) (quotation marks omitted); United
States v. Wright, 392 F.3d 1269, 1277–78 (11th Cir. 2004) (noting that “we agreed
with other circuits that universally accepted a defendant's flight, escape, resistance
to arrest, concealment, assumption of a false name, and related conduct as
admissible evidence of consciousness of guilt, and thus of guilt itself”) (quotation
marks and emphasis omitted); United States v. Watson, 866 F.2d 381, 385 (11th
16 Case: 12-15091 Date Filed: 06/26/2014 Page: 17 of 17
Cir. 1989) (“Evidence of flight is admissible to prove consciousness of guilt for the
underlying offense.”); United States v. Beard, 775 F.2d 1577, 1581 (11th Cir.
1985) (“There is no question that evidence of flight can raise a permissive
inference of consciousness of guilt of the crime charged.”).
AFFIRMED.