854 F.3d 1276 (11th Cir. 2017), 15-13241, United States v. Davis

Docket Nº:15-13241
Citation:854 F.3d 1276, 26 Fla.L.Weekly Fed. C 1416
Opinion Judge:O'MALLEY, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DEMETRIUS SHARRON DAVIS, Defendant - Appellant
Attorney:For United States of America, Plaintiff - Appellee: Karin Bethany Hoppmann, Susan Hollis Rothstein-Youakim, Arthur Lee Bentley III, Shauna S. Hale, James A. Muench, Adam M. Saltzman, U.S. Attorney's Office, Tampa, FL. For Demetrius Sharron Davis, Defendant - Appellant: Thomas A. Burns, Burns, PA,...
Judge Panel:Before TJOFLAT, HULL and O'MALLEY,[*] Circuit Judges.
Case Date:April 20, 2017
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
SUMMARY

A jury found defendant guilty of being a felon in possession of a firearm; witness tampering; and obstruction of justice. On appeal, defendant challenged his convictions for witness tampering and obstruction of justice. Defendant raised numerous pretrial and trial challenges. The court rejected defendant's contention that the district court court erred when it concluded that the witness tampering ... (see full summary)

 
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Page 1276

854 F.3d 1276 (11th Cir. 2017)

26 Fla.L.Weekly Fed. C 1416

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

DEMETRIUS SHARRON DAVIS, Defendant - Appellant

No. 15-13241

United States Court of Appeals, Eleventh Circuit

April 20, 2017

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 8:14-cr-00191-CEH-JSS-1.

For United States of America, Plaintiff - Appellee: Karin Bethany Hoppmann, Susan Hollis Rothstein-Youakim, Arthur Lee Bentley III, Shauna S. Hale, James A. Muench, Adam M. Saltzman, U.S. Attorney's Office, Tampa, FL.

For Demetrius Sharron Davis, Defendant - Appellant: Thomas A. Burns, Burns, PA, Tampa, FL.

Before TJOFLAT, HULL and O'MALLEY,[*] Circuit Judges.

OPINION

O'MALLEY, Circuit Judge:

Demetrius Sharron Davis (" Davis" ) appeals from a final judgment of the district court for the Middle District of Florida entered after a jury found him guilty of: (1) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) (Count One); (2) witness tampering in violation of 18 U.S.C. § 1512(b)(1) (Count Two); and (3) obstruction of justice in violation of 18 U.S.C. § 1503 (Count Three). The district court sentenced Davis to a total of one hundred twenty-one (121) months imprisonment. Davis appeals his convictions for witness tampering and obstruction of justice. After review of the record, and with the benefit of oral argument, we affirm.

I. BACKGROUND

A. Factual Background

According to the evidence at trial, on October 26, 2013, Tacarra Wilson, the mother of Davis's three daughters, arrived home from work to find Davis on her porch. Wilson testified that she has not lived with Davis since 2006, and that they have a " rocky" relationship. Davis asked to see the girls, and Wilson told him that they were at her sister's house. Wilson then went to her sister's house and did not return home until roughly midnight.

When Wilson returned home, Davis was sitting on her living room couch. He called Wilson a " slimy, nasty bitch," said " you know I want to see my girls," and accused Wilson of lying that she had been at her sister's house. Davis then started an argument with Wilson and said he wanted to pawn the girls' jewelry so he could get some money.

During the argument, Davis pulled out a gun, " slammed it on the dresser," and told Wilson to " shut the fuck up." At that point, Wilson and Davis's nine-year-old daughter, D.D., entered the room and saw the gun. D.D. testified that Davis attempted to hide the gun from her, and that she saw Davis grab her mother. Wilson told D.D., " Go in your room; lock your door; and go in your closet and get your phone and call the police."

When the police officers arrived at Wilson's home, they heard Davis angrily yelling inside. They knocked on the door and Wilson opened it. The officers saw Davis sitting on the couch in the living room. One of the officers asked Davis to step outside, while the other spoke with Wilson inside the house. Wilson told the officer talking to her that Davis had a gun and that she saw him put it in the couch when he got up. The officer found a loaded silver pistol on the couch cushion where Davis had been sitting. The officers subsequently arrested Davis, who was a convicted felon, and thus could not legally possess a gun. Davis denied that the gun was his.

On May 13, 2014, a federal grand jury returned an indictment charging Davis with being a felon in possession of a firearm, in violation of 18 U.S.C. § § 922(g)(1) and 924(e). The district court scheduled the case for trial in October 2014 for the sole count charged in the indictment. Both Wilson and D.D. were scheduled to be witnesses at trial.

While Davis was detained prior to trial, he made several recorded calls to Wilson, who testified that she felt that Davis was trying to get her to change her story. Davis asked Wilson about the " games you going to play" and told her, " [y]ou do your part; I'm going to do mine, too."

Davis also contacted D.D. directly. On October 7, 2014, Davis called D.D. using another detainee's personal call identification number. In relevant part, Davis and D.D. had the following exchanges: [Davis]: That night that happened, did you--did you see me with anything?

D.D.: No, but I seen it. I seen it on the dresser.

[Davis]: Well, you don't need to get on the stand, 'cause that'll make Daddy go to jail for a long time just by you saying I was in the house with it. You can't get on-you can't go.

D.D. I'll--

[Davis]: That won't help me. That will help lock me up, so never mind.

. . .

[Davis]: I called to see what you all was doing, but I want to talk to you. But, uh--the people wanted you to--they wanted you to, but I don't want you to. That will--that ain't good.

D.D.: You keep saying (inaudible)--

[Davis]: That's why I have to be in a way to discuss, but--I think you old enough to understand the decisions that you make and the stuff that come out your mouth. You should know what's wrong and what's right, what not to say and what to say; and I don't know--what you just told me, I asked you something just that simple, and don't you know that will have me locked up for the rest of the time--I'll be gone till you grown. You know, I'll be old when I get out just by you saying what you just said, which is not true.

. . .

[Davis]: All right, I don't even want to talk about it no more. (Inaudible) to see what you would say. But don't worry about it. Lucky I ain't using what's his name to call you, cause they'll use this conversation in court, and that shit will get me locked up. This shit have me locked away for a long time. But I know you lying though... I didn't do that in front of y'all. But don't worry about it.

D.D.: So I'm going to just tell people--

[Davis]: Don't. I'm going to tell the man no, I don't want you to talk, because you'll fuck me up and I'd be locked up for a long time just from the stuff that you'd be saying.

But I ain't mad at you, but I see you all chose sides and where you want me at. So, this is where you want me at. But I ain't mad at you, though. I ain't worried about it.

Well, I just wanted to hear your voices ... but I can't use you now, so I guess, I'll--I just--I'll call y'all--well, ...when I get out. If I beat it, I get out. If I don't, that means I'm going away for more than 15 years. So, I guess y'all will have somebody else new to call y'all daddy, I guess, but I don't know. I love y'all, and I'll get at y'all when I can.

D.D.: Okay.

Based on this phone call, a federal grand jury returned a superseding indictment on October 21, 2014, adding two new charges. Count Two of the superseding indictment charged Davis with tampering with a witness in violation of 18 U.S.C. § § 1512(b)(1) and (j), and Count Three charged Davis with obstruction of justice in violation of 18 U.S.C. § 1503.

B. District Court Proceedings

1. Pretrial Motions

Davis filed several pretrial motions that are relevant to this appeal. In particular, Davis filed: (1) a motion for a bill of particulars; (2) a motion to dismiss Counts Two and Three of the superseding indictment; and (3) a motion to continue the jury trial.

First, Davis moved for a bill of particulars to require the government to identify, in print, any statements he made that formed the basis for Counts Two and Three of the superseding indictment. The government opposed the motion on grounds that it already provided the requested information to defense counsel. The magistrate judge denied the motion, concluding that the superseding indictment set forth the alleged offenses in detail and that the government's disclosures adequately advised Davis of the allegations against him.

Davis also moved to dismiss Counts Two and Three of the superseding indictment as multiplicitous and vindictive. Davis requested that the district court dismiss both counts or require the government to elect which count to take before a jury. With respect to multiplicity, Davis argued that the government charged him with two crimes based on identical acts. Davis also argued that the superseding indictment was vindictive because the government added the two new charges in retaliation for his refusal to cooperate with government officials who wanted him to testify against a defendant in a different case.

The district court conducted an evidentiary hearing on Davis's motion. At the hearing, Davis's father, Donald McLendon, testified that an agent wanted Davis to talk to him, but that Davis did not want to cooperate because his family might get hurt. The district court subsequently denied Davis's motion to dismiss. United States v. Davis, No. 8:14-cr-191, 2015 WL 500531...

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