630 F.3d 1003 (11th Cir. 2011), 09-12797, United States v. Townsend
|Citation:||630 F.3d 1003|
|Opinion Judge:||CARNES, Circuit Judge:|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. Shynita TOWNSEND, a.k.a. Shynita Townsend-Ponton, a.k.a. La Negra, Defendant-Appellant.|
|Attorney:||Roderick D. Vereen (Court-Appointed), Miami, FL, for Townsend. Kathleen M. Salyer, Anne R. Schultz, Asst. U.S. Atty., Dawn Bowen, Miami, FL, for U.S.|
|Judge Panel:||Before CARNES, FAY and SILER,[*] Circuit Judges.|
|Case Date:||January 13, 2011|
|Court:||United States Courts of Appeals, Court of Appeals for the Eleventh Circuit|
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Southern District of Florida.
It has long been said that " the price of freedom is eternal vigilance," 1 and maybe as a matter of political philosophy it is. When it comes to pretrial release from custody, however, some are willing to pay for freedom with cold hard cash, and the amount of freedom that one has while on supervised release increases as the vigilance of his supervising officer decreases. In this case a drug dealer indicted on state charges who was released pending trial bought himself more freedom by bribing the officer whose duty it was to supervise his release. That officer was convicted under a statute that makes this Court's jurisdiction over the crime dependent on whether the drug dealer's freedom, or increments of it, involved " any thing of value of $5,000 or more." See 18 U.S.C. § 666(a)(1)(B).
How should we value freedom and increments of it in monetary terms? There is lyrical authority for the proposition that, " Freedom's just another word for nothin' left to lose/And nothin' ain't worth nothin', but it's free." 2 Rejecting that view in this case, we adopt instead a non-lyrical, free-market approach that pegs the value of freedom and other intangible benefits to the price settled upon by the bribe-giver and the bribe-taker. Under that approach the value in bribes paid by the defendant on pretrial release to his supervising corrections officer in exchange for greater freedom while on release and freedom from jail does satisfy § 666(a)(1)(B)'s monetary requirement.
In June of 2003, Humberto Febles was arrested on multiple state charges including cocaine trafficking and aggravated assault with a deadly weapon, and on June 6, 2003, he was released on $500,000 bond pending trial. One condition of his release was that Febles not leave his residence for any reason, and to ensure his compliance with that condition he was required to wear a radio-frequency ankle bracelet.
On June 19, 2003, Shynita Townsend, a Miami-Dade County Corrections Officer, was assigned to monitor Febles during his pretrial release. Early on, Febles asked his former girlfriend, Carol Campbell, to request permission from Townsend for him to resume working for Campbell at his previous place of employment, Febles Nursery. After Campbell made that request of Townsend, the state court on July 29, 2003 modified the terms of Febles' release to allow him to work at the nursery.
Initially, the court authorized Febles to be away from his home only from 8 a.m. to 4 p.m. for work at the nursery, with an additional 15 minutes on both ends for travel time. The modified pretrial release order required Febles to remain at home at all other times. Despite the terms of his release, Febles never actually showed up for work at the nursery. To make it look like he did, Campbell provided Townsend with pay stubs and employment verification forms for Febles through November 2003. Although Campbell eventually stopped submitting the forms, Townsend never did anything about it; she never asked about the forms or visited the nursery to verify that Febles was working there.
Instead of working at the nursery Campbell ran, Febles was working with plants of a different kind. He was tending to his several marijuana grow-houses. As is true of anyone running a booming business, Febles needed to work more than a forty-hour week, but his ability to do so was hampered by his conditions of release. In order to increase the time he could be away from the house, about a month after he was placed under her supervision Febles gave Townsend a pair of diamond earrings worth $280.00. After she received that gift, Townsend modified the terms of Febles' release to authorize him to be away from his house until 7 p.m. instead of 4 p.m. Febles' self-described right-hand-man, Ramon Hernandez, later testified at Townsend's trial that after giving her the earrings Febles " could go wherever he wanted."
Even with the expanded hours of freedom he had bought with the earrings, Febles continued to routinely violate the terms of his release. And he did it with Townsend's help. For example, Febles and Hernandez took weekend trips to the Florida Keys to " party it up," and on at least one of those occasions Febles cut off his ankle bracelet and had Townsend reattach it upon his return. The log file generated by Febles' ankle bracelet shows that he remained away from his house outside of his normal work hours on several other occasions. Townsend made entries into the log file indicating that those excursions were the result of " Power Fail[ures]" or were otherwise excused or authorized.
One of Febles' excursions got him into trouble. Because he was allowed to stray from home for extended periods of time thanks to Townsend's lax supervision, Febles traveled to a tire shop in Hialeah, Florida on July 6, 2004. The tire shop was under police surveillance, and he was arrested for felony possession of a concealed weapon. In addition to committing that crime, Febles also violated the terms of his pretrial release by making that trip to the tire store without advance approval.
Following his arrest, Febles called Campbell to have her enlist Townsend's help in getting him out of jail, but Townsend told Campbell that she could not help if Febles was charged with a felony. According to Campbell, Townsend explained that " [s]he had to change it somehow to something to make it a misdemeanor" before she could get him out of jail. Febles instructed Campbell to work with Hernandez and offer Townsend money if she could get Febles released by midnight. Townsend later told Campbell that " she almost had it taken care of," but she " had to go above her head" and " [h]er job was on the line." According to Campbell, Hernandez instructed her to tell Townsend that she would receive $5,000 cash in a McDonald's bag if she could get Febles out by midnight.
Hernandez placed the $5,000 in a McDonald's bag along with a side of french fries and met Townsend in the parking lot
of her office building, where she initially tried to refuse the bag even though Hernandez had told her it contained the cash and showed it to her. Eventually, Townsend took the cash-filled bag and Hernandez last saw her walking back to the building with it as he drove away. Febles was released later that night, and he told Campbell that Townsend was " wonderful" because " [s]he got him out." He also told Roberto Gomez, his housemate, that the " trick or prank had cost him $5,000," but " ‘ thanks to her,’ his probation had not been violated."
In order to ensure that Febles' bond would not be " violated," however, Townsend also had to create the illusion that his trip to Hialeah had been authorized. To that end, Townsend instructed Campbell to prepare and back-date a letter falsely stating that Campbell had sent Febles to Hialeah in order to purchase tires for the nursery's delivery van. Campbell faxed the letter to Townsend on July 7, 2004, one day after Febles' arrest, but the letter was dated a month earlier, June 5, 2004.
Unbeknownst to Febles or Townsend, law enforcement had been investigating his marijuana-growing operation since the end of 2003. Detective Carl Cooper of the Miami-Dade Police Department met with Townsend on August 17, 2004, to gather basic information about Febles including his address and the terms of his home confinement, presumably to plan a raid that would catch Febles either at home or at one of the grow-houses. On the morning of September 1, 2004, officers executed search warrants on Febles' residence and his grow-houses. When the officers learned that Febles was not at home, Detective Cooper contacted Townsend to inquire about his whereabouts. She informed the detective that she had given Febles permission to visit the driver's license bureau in Homestead, Florida, to have his driver's license renewed, but officers were unable to find any driver's license bureau at the address Townsend gave them.
According to telephone records, Townsend had spoken to Febles the day before the search warrants were executed. And on the morning of the search, after she and Detective Cooper talked, she called Febles and spoke with him for about four minutes. Febles then called Hernandez to let him know that Townsend had alerted him to the impending search. After successfully avoiding capture at his home, Febles met Hernandez and Gomez at a friend's house. Febles told Gomez " that he had received a telephone call...
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