United States v. Max Charlot

135 F. App'x 365
CourtCourt of Appeals for the Eleventh Circuit
DecidedJune 16, 2005
Docket04-12842
StatusUnpublished

This text of 135 F. App'x 365 (United States v. Max Charlot) 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. Max Charlot, 135 F. App'x 365 (11th Cir. 2005).

Opinions

PER CURIAM:

Max Chariot was indicted for conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846, and possession of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) & 2. After a jury trial, he was convicted and sentenced to 262 months imprisonment on the conspiracy charge and 60 months imprisonment on the firearm charge, to be served consecutively.

Chariot challenges his conviction and his sentence on the conspiracy count. He contends that the district court abused its discretion by denying his motion for a mistrial after the government elicited certain testimony from Richard Zayas, an ATF special agent. Chariot believes that the testimony was inadmissible because it was hearsay, because it violated his constitutional right to confront his accusers, and because it was more prejudicial than probative. Chariot also contends that the district court plainly erred in enhancing his conspiracy sentence based on impermissible factfindings, specifically about his role in the offense and the drug quantity involved.

I.

A.

At trial, Agent Zayas was the government’s first witness. Zayas testified that he participated in an investigation involving Chariot. The investigation started when he and another ATF agent received information from a confidential informant. The government asked Zayas what type of information he had received from the Cl, and Chariot objected on hearsay grounds. The government indicated that it was not trying to elicit what the Cl had said, only [367]*367“generally the subject matter of the information” provided by the CI. Doc. 197 at 15.

During a sidebar conference, Chariot argued that offering a general description of the information received from the Cl was just as damaging as offering the specifics of what the Cl had told Zayas. The government argued that it was attempting to establish that law enforcement “began an investigation of [Chariot] related to his willingness to participate in home invasion robberies.” Id. at 16. After some further discussion, the district court concluded that “it’s not hearsay, [it] just explains what the agent did.” Id. at 17. The court, however, instructed the government to “elicit that you received information from a Cl that led to an investigation and then explain what the investigation was.” Id.

The government asked Agent Zayas to identify the nature of the investigation. Zayas responded that “the nature of the investigation was individuals involved in armed home invasion robberies.” Id. at 17. Chariot again objected. The government asked Zayas about his intentions regarding the investigation and what he ultimately did. Zayas responded: “[m]y intention was to be introduced to these individuals. At that time determine if these individuals are actually involved in this type of crime, had experience in this type of crime and wanted to commit this type of crime.” Id. at 18. Chariot again objected, and the district court called for a sidebar. The court indicated that the government had disregarded its instructions by eliciting that the Cl had told Zayas about Chariot’s involvement or willingness to participate in home invasions. The government stated that the information described the nature of the offense, but the judge countered that “the nature comes from what the Cl said. Any idiot would know what the Cl said.” Id. at 19.

Chariot moved for a mistrial. He asserted that, because of Agent Zayas’ statement, the jury would believe that the Cl had told Zayas that Chariot and the others were committing multiple robberies even though they were only charged with one robbery. The judge indicated that he would strike Zayas’ testimony and instruct the jury not to consider it. The judge found that a mistrial was unnecessary because, based on Zayas’ occupation and the kind of investigation, the information would be somewhat obvious to the jury regardless of what Zayas said. Nevertheless, the judge indicated that he would instruct the jury to disregard Zayas’ testimony because of the mention of the “plural” robberies. Chariot reasserted his request for a mistrial and voiced his doubt that the jury instruction would be sufficient. The district court then issued the following instruction to the jury:

Ladies and gentlemen, the Court will instruct you to disregard, that is to not consider the last couple of answers from the witness with regard to what was told to him by a confidential informant. All you need to know is that he received information and based upon that he started an investigation. You don’t need to concern yourself about what was said. That’s what we refer to as hearsay and you shall not consider that in any way at this point or during your deliberations.

Id. at 22. The government then proceeded with its examination of Zayas.

Agent Zayas testified that, while undercover, he had met with Chariot and his co-conspirators. Zayas had portrayed himself as a disgruntled drug courier and proposed that the men steal 40 kilograms of cocaine from a stash house. Zayas had told them that someone from the stash house would page him, he would then con[368]*368tact the co-conspirators, and he would have 20 minutes to get to the stash house. Chariot had discussed his plans to execute the robbery and affirmed his commitment to do so.

The government also presented the testimony of government agents who had searched the co-conspirators’ cars after their arrests and of four of Chariot’s co-conspirators. Each of those four co-conspirators testified that the object of the conspiracy had been to rob the stash house of more than 40 kilograms of cocaine, killing the guards in the process.

At the close of the government’s case, Chariot, among other things, renewed his motion for a mistrial based on Agent Zayas’ testimony regarding multiple home invasion robberies because it was both hearsay and prejudicial. The court denied the motion, stating that “[t]he testimony that came in from Agent Zayas after the objection and without any additional objection was essentially the same and, in any event, there was no manifest necessity in my view for a mistrial.” Doc. 198 at 360. The court further found that “[t]he instruction I gave was straightforward and severe and told the jury what to do, what not to do with regard to that evidence ...” Id.

Chariot rested his case without presenting any witnesses. He presented his defense through his opening and closing statements and through his questions on cross-examination. Chariot’s defense was that while he participated in the conspiracy, the object of the conspiracy was to rob Agent Zayas, who he thought was a drug courier, of the two kilograms that Zayas was to pick up at the stash house — not to rob the stash house.

The jury found Chariot guilty as charged. It specially found that Chariot’s conspiracy offense involved at least five kilograms of cocaine. Chariot moved for a new trial based on the district court’s denial of his motion for a mistrial. The district court denied his motion.

B.

In preparing the presentence investigation report, the probation officer assigned Chariot a base offense level of 34 because the offense involved between 15 and 50 kilograms of cocaine.

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135 F. App'x 365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-max-charlot-ca11-2005.