432 F.3d 1189 (11th Cir. 2005), 00-13083, United States v. Baker

Docket Nº:00-13083.
Citation:432 F.3d 1189
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Marvin BAKER, Wayne Baptiste a.k.a. "Fat Wayne", Michael Harper a.k.a. "Cuban Mike", Arthur Pless a.k.a. "Plex", Kenneth Williams a.k.a. "Boobie" a.k.a. "Black", Susan Hall Gibson a.k.a. "Miss Sue", Leonard Brown a.k.a. Bo, Efrain Casado a.k.a. "E-4" a.k.a. "Efro", Jonathon Hawthorne a.k.a. "Moose",
Case Date:December 13, 2005
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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432 F.3d 1189 (11th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,

v.

Marvin BAKER, Wayne Baptiste a.k.a. "Fat Wayne", Michael Harper a.k.a. "Cuban Mike", Arthur Pless a.k.a. "Plex", Kenneth Williams a.k.a. "Boobie" a.k.a. "Black", Susan Hall Gibson a.k.a. "Miss Sue", Leonard Brown a.k.a. Bo, Efrain Casado a.k.a. "E-4" a.k.a. "Efro", Jonathon Hawthorne a.k.a. "Moose", Malcolm Shaw, Ben H. Johnson a.k.a "Bush", Defendants-Appellants.

No. 00-13083.

United States Court of Appeals, Eleventh Circuit.

Dec. 13, 2005.

Appeals from the United States District Court for the Southern District of Florida, D. C. Docket No. 99-00125-CR-KMM.

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Roderick D. Vereen and Mauricio L. Aldazabal (Court-Appointed), Miami, FL, Arthur L. Wallace, III (Court-Appointed), Wallace Law Office, Pompano Beach, FL, Russell K. Rosenthal, Fed. Pub. Def., Fed. Pub. Defender's Office, Fort Myers, FL, G. Richard Strafer, G. Richard Strafer, P.A., Marisa Tinkler Mendez (Court-Appointed), Marisa Tinkler Mendez, P.A., Abe Anselheart Bailey (Court-Appointed), Abe A. Bailey, P.A., Miami, FL, Gregory A. Samms (Court-Appointed), Law Offices of Gregory A. Samms, Coral Gables, FL, Lynn Waxman (Court-Appointed), Lynn G. Waxman, P.A., West Palm Beach, FL, James S. Benjamin (Court-Appointed), Benjamin & Aaronson, P.A., Michael G. Smith (Court-Appointed), Ft. Lauderdale, FL, for Defendants-Appellants.

Carol E. Herman, Anne R. Schultz, Miami, FL, for U.S.

Before BARKETT and MARCUS, Circuit Judges, and GEORGE[*], District Judge.

BARKETT, Circuit Judge:

Eleven defendants appeal their convictions for drug trafficking offenses after a jury trial. Seven of these defendants also appeal their sentences. We address each

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of the defendants' arguments in turn, and AFFIRM the convictions and sentences of Williams, Casado, Harper, Leonard Brown, Malcolm Shaw, Baker, Baptiste, Pless and Gibson; REVERSE the convictions of Johnson and Hawthorne; and REMAND the case to the district court for proceedings consistent with this opinion.

I. BACKGROUND

The government accused fifteen defendants of drug trafficking offenses in a seventeen-count indictment: Kenneth Williams, Efrain Casado, Leonard Brown, Lenard Brown, Susan Hall Gibson, Bernard Shaw, Marvin Baker, Malcolm Shaw, Ronald Raye, Wayne Baptiste, Michael Harper, Arthur Pless, Ben Johnson, Jonathon Hawthorne, and Charton Darces.1 Three defendants, Bernard Shaw, Ronald Raye, and Charlton Darces, pled guilty before the start of trial. Lenard Brown2 died of a congenital heart defect before trial. The centerpiece of the government's case-in-chief was its evidence implicating

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the remaining eleven defendants in the conspiracy to distribute and to possess with intent to distribute cocaine alleged in Count 2. That evidence, part of a thirty-one day trial featuring over one hundred witnesses, accused them of being part of a gang that the media, riffing on Williams' nickname "Boobie," had dubbed the "Boobie Boys." However, the government's witnesses, many of them incarcerated former associates of Williams or his co-defendants, described the "Boobie Boys" not as a stereotypical "gang" with colors, hand signals, or other visible signs of membership, but rather as an informal association of people from the Miami area.

The overall thrust of the hundreds of hours of witness testimony was that Williams and Casado, who had been operating their own, independent drug distribution networks with their friends in the Miami area, met in prison in 1992 and combined forces to create a massive drug distribution operation based in South Florida, in which the remaining thirteen defendants played a part. Raye, Bernard and Malcolm Shaw, Harper, the Brown twins, and their mother Susan Hall Gibson were all friends of Williams from the Miami neighborhoods of Carol City, Overtown, and Liberty City. Baptiste was Casado's close friend and business partner. Pless and Johnson, themselves friends, knew both Casado and Williams. Hawthorne, a paid lookout for a small-time drug dealer who did business with Williams, allegedly started to deal drugs directly with the "Boobie Boys." Charlton Darces was a Port of Miami longshoreman who, according to the evidence, helped the "Boobie Boys" import cocaine. The government's case was also replete with evidence, some of it quite graphic, that Williams, Casado, Leonard Brown, Baptiste, Harper, Pless, Johnson, and Hawthorne committed murders in furtherance of this conspiracy.3

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The crimes alleged in the other sixteen counts were linked to the Count 2 conspiracy. Count 3 accused Williams and Leonard Brown of a conspiracy to import cocaine that, according to the government's evidence, was related to their drug possession and distribution activities charged by the Count 2 conspiracy. Counts 4-15 alleged instances of drug distribution during the timeframe of the Count 2 conspiracy. Count 16 accused six defendants of conspiring to use and carry a firearm during and in relation to the Count 2 conspiracy. Count 17 accused Gibson of maintaining a place for manufacturing, distributing, and using cocaine. Count 1 essentially accused Williams and Casado of masterminding the Count 2 conspiracy, the related importation and firearms conspiracy, and the distribution charges listed in Counts 3, 4, 6, 8, 9, and 10.

The jury returned guilty verdicts as to all defendants on Counts 1, 2, 3, 4, 6, 8, 9, 10, 11, 12, 14, 15, and 16.4 The defendants appeal from these convictions, and Williams, Casado, Baptiste, Harper, Malcolm Shaw, Pless, and Hawthorne also challenge their sentences. We address each of the defendants' arguments in turn, grouping them whenever possible to avoid repetition.

II. DISCUSSION

A. Evidentiary Errors

We first address the defendants' arguments that the district court erred in admitting twenty items of evidence in violation of Federal Rules of Evidence 802 (hearsay), 404(b) (other crimes, wrongs, or acts), 701 (lay opinion testimony), and 106 (rule of completeness); the Fifth Amendment right against self-incrimination; and the Sixth Amendment's Confrontation Clause. Most of the defendants' claims are grounded in Rules 802 and 404(b), and the Confrontation Clause, and challenge evidence pertaining to violent acts allegedly committed by Williams, Casado, Leonard Brown, Baptiste, Pless, and Hawthorne.

We review a district court's evidentiary rulings for abuse of discretion. United States v. Henderson, 409 F.3d 1293, 1297 (11th Cir. 2005). An abuse of discretion arises when the district court's decision rests upon a clearly erroneous finding of fact, an errant conclusion of law, or an improper application of law to fact. United States v. Frazier, 387 F.3d 1244, 1276 n.12 (11th Cir. 2004) (en banc) (Tjoflat, J., specially concurring). We review preserved evidentiary objections for harmless error. United States v. Hands, 184 F.3d 1322, 1329 (11th Cir. 1999), corrected by 194 F.3d 1186 (11th Cir. 1999). However, when a party raises a claim of evidentiary error for the first time on appeal, we review it for plain error only. United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003). Under the plain error standard, "before an appellate court can correct an error not raised at trial,

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there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Cotton, 535 U.S. 625, 631-32 (2002) (internal quotation marks and citations omitted).

Further, we must review the prejudicial effect of all evidentiary errors, evaluated under both preserved and plain error standards, in the aggregate. United States v. Labarbera, 581 F.2d 107, 110 (5th Cir. 1978).5 We will therefore reverse if the cumulative effect of the errors is prejudicial, even if the prejudice caused by each individual error was harmless. United States v. Blasco, 702 F.2d 1315, 1329 (11th Cir. 1983) ("A piecemeal review of each incident does not end our inquiry. We must consider the cumulative effect of these incidents and determine whether, viewing the trial as a whole, appellants received a fair trial as is their due under our Constitution."). For convenience's sake, therefore, we defer our cumulative prejudice analysis until the end of this section.

1. Law

a) Hearsay and the Confrontation Clause

The defendants collectively challenge the admission of fifteen items of evidence on the bases that (1) they were inadmissible hearsay and (2) their admission violated the Confrontation Clause. Hearsay "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). Hearsay is inadmissible unless the statement is not hearsay as provided by Rule 801(d), or falls into one of the hearsay exceptions enumerated in Rules 803, 804, and 807.

Moreover, if hearsay is "testimonial," that is, for example, "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial," Crawford v. Washington, 541 U.S. 36, 52 (2004) the Confrontation Clause6 prohibits its admission at trial...

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