United States v. Tony Donnell Mathis

710 F. App'x 396
CourtCourt of Appeals for the Eleventh Circuit
DecidedOctober 4, 2017
Docket16-16312 Non-Argument Calendar
StatusUnpublished

This text of 710 F. App'x 396 (United States v. Tony Donnell Mathis) 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. Tony Donnell Mathis, 710 F. App'x 396 (11th Cir. 2017).

Opinion

PER CURIAM:

Tony Mathis appeals his convictions and 162-month total sentence after being adjudicated guilty of possessing ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1) and possessing with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C). On appeal, Mathis argues that: (1) the district court abused its discretion by denying his motion for a mistrial based upon the prosecutor making improper remarks to the jury; and (2) his total sentence was procedurally unreasonable because the district court clearly erred by relying on hearsay testimony to determine his base offense level and guideline sentences. After careful review, we affirm in part and remand in part.

We review a district court’s denial of a mistrial for abuse of discretion. United States v. McGarity, 669 F.3d 1218, 1232 (11th Cir. 2012). As we’ve acknowledged, a trial judge has discretion to grant a mistrial since he or she is in the best position to evaluate the prejudicial effect of a statement or evidence on the jury. United States v. Newsome, 475 F.3d 1221, 1227 (11th Cir. 2007). Nevertheless, we review de novo an underlying claim of prosecuto-rial misconduct. United States v. Flanders, 752 F.3d 1317, 1332 (11th Cir. 2014).

We review for clear error a district court’s findings of fact based on hearsay evidence made during sentencing as well as its determination of the drug quantity attributable to a defendant. United States v. Query, 928 F.2d 383, 384-86 (11th Cir. 1991) (hearsay evidence); United States v. Almedina, 686 F.3d 1312, 1315 (11th Cir. 2012) (drug quantity). We review the ultimate sentence a district court imposes for “reasonableness,” which “merely asks whether the trial court abused its discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008) (quotation omitted).

First, we are unpersuaded by the claim that the district court abused its discretion by denying his motion for a mistrial based upon improper remarks made by the prosecutor in closing argument. “To find prosecutorial misconduct, a two-element test must be met: (1) the remarks must be improper, and (2) the remarks must prejudicially affect the substantial rights of the defendant.” United States v. Wilson, 149 F.3d 1298, 1301 (11th Cir. 1998) (quotations omitted). A defendant’s substantial rights are prejudicially affected when a reasonable probability arises that, but for the remarks, the outcome of the trial would have been different. Id. We make “this determination in the context of the entire trial and in light of any curative instruction.” Id. (quotation omitted).

“[Bjecause the statements of counsel are not evidence, the district court may rectify improper prosecutorial statements by instructing the jury that only the evidence in the case is to be considered.” United States v. Jacoby, 955 F.2d 1527, 1541 (11th Cir. 1992). Furthermore, the jury is presumed to have followed any curative instruction. Wilson, 149 F.3d at 1302.

Here, Mathis claims that the prosecutor’s remarks in closing argument created an improper inference for the jury that Mathis spontaneously and voluntarily had admitted to possessing everything in the residence before law enforcement conducted a search. He points to the comments, among other things, that: (1) “[the officers] found ... exactly what Mr. Mathis said they would find,” and (2) “Sergeant Rindos didn’t go into the house. She didn’t see what was found. She was talking to Mr. Mathis. He told her about the gun, about the ballistics vest, and about security.”

Even if we were to assume, arguendo, that the challenged remarks were improper, we conclude that they would not affect Mathis’s substantial rights. For starters, the timing of his confession did not undermine the ability of the jury to rely on it for making a conviction. As the record reveals, there was no testimony that Mathis was improperly interrogated, or that his confession would have been different if it occurred either before or after the search. Furthermore, the substance of his confession was supported by a witness’s contemporaneous testimony that “she just slept with Mr. Mathis in exchange for crack cocaine.” The long and short of it is that we can discern precious little probative significance from the timing of his confession.

Moreover, the court’s instructions to the jury effectively cured any inaccurate inferences that may be been caused by the prosecutor’s remarks. Following the government’s closing argument, during which the defendant objected to the prosecutor’s comments at issue, the court issued a “special” curative instruction to the jury, directing it that “there was absolutely no evidence proving that Mr. Mathis, the defendant, was questioned before the start of the search and the discovery of the items that were seized in the search” and instructing it to ignore any arguments supporting that conclusion. The district court also instructed the jury both at the beginning and end of trial that statements made by the attorneys during opening and closing remarks were not evidence and could not be considered in that way. In addition, during jury instructions, the district court told the jury to consider Mathis’s confession with “caution and great care,” emphasizing that it must determine how much weight to give it. A long line of our case precedent presumes that the jury follows the court’s curative instructions; and Mathis has presented no evidence that it did not. Wilson, 149 F.3d at 1302. Inasmuch as any improper remarks by the prosecutor did not affect Mathis’s substantial rights, we affirm the denial of his motion for a mistrial. Id. at 1301; McGarity, 669 F.3d at 1232.

We are also unpersuaded by Mathis’s claim that his total sentence is procedurally unreasonable. In reviewing sentences for procedural reasonableness, we “ ‘ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3563(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.’ ” Pugh, 515 F.3d at 1190 (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). 1

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Related

United States v. Anderton
136 F.3d 747 (Eleventh Circuit, 1998)
United States v. Wilson
149 F.3d 1298 (Eleventh Circuit, 1998)
United States v. Kenneth Newsome
475 F.3d 1221 (Eleventh Circuit, 2007)
United States v. Pugh
515 F.3d 1179 (Eleventh Circuit, 2008)
United States v. Beckles
565 F.3d 832 (Eleventh Circuit, 2009)
United States v. Docampo
573 F.3d 1091 (Eleventh Circuit, 2009)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. James
642 F.3d 1333 (Eleventh Circuit, 2011)
United States v. Fritznel Reme and Fritz Pierrot
738 F.2d 1156 (Eleventh Circuit, 1984)
United States v. Robert C. Jacoby and Thomas Skubal
955 F.2d 1527 (Eleventh Circuit, 1992)
United States v. McGarity
669 F.3d 1218 (Eleventh Circuit, 2012)
United States v. Hector Almedina
686 F.3d 1312 (Eleventh Circuit, 2012)
United States v. Lavont Flanders, Jr.
752 F.3d 1317 (Eleventh Circuit, 2014)
United States v. Alexander Dimitrovski
782 F.3d 622 (Eleventh Circuit, 2015)

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Bluebook (online)
710 F. App'x 396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tony-donnell-mathis-ca11-2017.