U.S. v. Abraham, 03-14201. Non-Argument Calendar.

• Decision Date: 30 September 2004
• Docket Number: No. 03-14201. Non-Argument Calendar.,03-14201. Non-Argument Calendar.
• Citation: 386 F.3d 1033
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nevia Kevin ABRAHAM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

386 F.3d 1033

UNITED STATES of America, Plaintiff-Appellee, v. Nevia Kevin ABRAHAM, Defendant-Appellant.

No. 03-14201. Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

September 30, 2004.

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Sheryl Joyce Lowenthal (Court-Appointed), Miami, FL, for Defendant-Appellant.

Lauren E. Fleischer, Anne R. Schultz, Asst. U.S. Atty., Kathleen M. Salyer, Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before CARNES, BARKETT and HULL, Circuit Judges.

PER CURIAM:

Nevia Kevin Abraham appeals his life sentences for (1) conspiracy to kidnap a U.S. postal service employee, in violation of 18 U.S.C. § 1201(c); (2) kidnapping of a U.S. postal service employee, in violation of § 1201(a)(5); (3) use of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1) (two counts); (4) forcible assault of a U.S. postal service employee, in violation of 18 U.S.C. § 111(a),(b); and (5) possession of a firearm by a convicted felon, in violation of § 924(e)(1).

On January 31, 2003, Abraham kidnaped a U.S. postal worker, seeking to use her as a means to secure entry into his girlfriend's home. On appeal, Abraham makes seven arguments. First, he argues that the district court abused its discretion by denying Abraham's request for additional peremptory strikes during jury selection or, alternatively, by refusing to excuse for cause a juror who was a Postal Service employee. We review a district court's decision to strike a prospective juror for cause for abuse of discretion. United States v. Rhodes, 177 F.3d 963, 965 (11th Cir.1999). Abraham argues that it was inappropriate for the district court to seat a postal worker on the jury given the identity of the victim in this case. Abraham has failed to show, however, that the district court had any specific reason to conclude that the postal worker in question was incapable of impartially judging the defendant.

Second, Abraham argues that the district court abused its discretion by admitting evidence of Abraham's prior bad acts under Fed.R.Evid. 404(b). We review the district court's rulings on the admissibility of evidence for abuse of discretion. United States v. Thomas, 242 F.3d 1028, 1031 (11th Cir.2001). The district court admitted evidence that, on two occasions prior to the January 31 kidnaping, Abraham had used force and the threat of force against his girlfriend and her relatives. The evidence as to the first of these occasions indicated that, on January 17, 2003, Abraham pushed and choked his girlfriend in her home. As to the second, which took place on January 21, 2003, the evidence indicated that Abraham used a gun to threaten his girlfriend's mother and sister into helping him secure entry into his girlfriend's house. Abraham argues that the effect of this evidence was more prejudicial than probative. The government argues that the evidence of Abraham's prior bad acts was admissible, not to prove Abraham's character, but his motive, intent, or lack of mistake. We find that the district court's decision to admit the evidence was not an abuse of discretion.

Abraham's third argument is that the district court erred by not granting Abraham's motion for a mistrial following testimony attributing racist statements to Abraham. We review the district court's denial of a motion for a mistrial for abuse of discretion. United States v. Ettinger, 344 F.3d 1149, 1161 (11th Cir.2003). Here, too, we do not find that the trial court has committed an abuse of discretion in denying Abraham a mistrial, or that Abraham has made a showing of substantial prejudice sufficient to warrant a new trial. See id.

Fourth, Abraham argues that the prosecutor committed misconduct by misrepresenting the defendant's excuse and making inflammatory and prejudicial comments about the defendant to the jury. We will reverse a defendant's conviction for prosecutorial misconduct only if, "in the context of the entire trial in light of any curative instruction, the misconduct may have prejudiced the substantial rights of the accused." United States v. Bailey, 123 F.3d 1381, 1400 (11th Cir.1997). Where a defendant did not raise an issue below, our review is "limited to reviewing [the] claim[] of error for the first time on appeal under the plain error standard to avoid manifest injustice." United States v. Harness, 180 F.3d 1232, 1234 (11th Cir. 1999).¹ Because Abraham did not raise his argument of prosecutorial misconduct below, we review this claim under the plain error standard. Abraham argues that during a post-arrest interrogation on January 31, he told an FBI agent and Miami-Dade police detectives that his girlfriend had threatened to kill their children and that he had acted out of concern for his children's safety. He further argues that the prosecution disingenuously suggested at trial that Abraham fabricated his defense theory sometime after his arrest. The government responds that Abraham's initial explanation was simply that he wanted to remove his children from his girlfriend, and that he added only later that he was concerned by an alleged threat to their safety. Moreover, the government points to testimony indicating that Abraham repeatedly forfeited opportunities to advise others that his girlfriend had threatened their children. In light of this testimony discrediting Abraham's defense, we find that Abraham has not made the requisite showing of a plain error that substantially affects his rights and that, if left uncorrected, would "seriously affect the fairness, integrity, or public reputation of a judicial proceeding." Humphrey, 164 F.3d at 588 & n. 3. Abraham also points to a prosecutorial statement about Abraham's use of a piece of paper to monitor the opening and closing of his girlfriend's apartment door, and to prosecutorial statements about his extramarital relationships and children. The government concedes that the first of these statements was not supported by record evidence but argues that the controlling and jealous behavior that it suggests is more than adequately justified by the record. The government also argues that it was defense counsel, not the prosecution, that first made an issue of Abraham's extramarital relationships, and that any prejudice that may have resulted was redressed by a curative instruction from the district court.² Considered as a whole, we find that the statements in question were not sufficiently prejudicial to warrant a mistrial.

Fifth, Abraham argues that the district court erred by admitting into evidence the recording of a 911 call under the excited utterance exception to the hearsay rule. Because Abraham did not raise it below, we review this evidentiary claim under the plain error standard. The 911 call was made by the half-brother of Abraham's girlfriend, Melvin Dore, on January 21, 2003, when Abraham used a gun to threaten his girlfriend's mother and sister into helping him secure entry into his girlfriend's house. Dore had called to report that Abraham was abducting his mother and sister at gunpoint. Abraham argues that this recording was hearsay and that its admission into evidence violated Abraham's Sixth Amendment right to confront witnesses, given that Dore was available to testify. We find that the district court neither abused its discretion nor committed plain error in admitting the recording under the excited utterance exception to the hearsay rule.

Sixth, Abraham argues that his sentence was imposed in violation of the Ex Post Facto Clause. We review de novo a defendant's claim that his sentence was imposed in violation of the Ex Post Facto Clause. United States v. Futrell, 209 F.3d 1286, 1289 (11th Cir.2000). Because Abraham did not raise this claim below, we review it as well under the plain error standard. Abraham summarily argues that his sentence was imposed in violation of the Ex Post Facto Clause because the district court relied upon his prior escape conviction as a crime of violence in order to enhance his sentence under § 3559(c). Abraham contends that when he committed the crime of escape, "it was innocent and not a violent offense," and, by categorizing the offense as violent, the district court made the punishment for the crime of escape more burdensome than at the time of its commission.

"The ex post facto clause prohibits the enactment of statutes which . . . make more burdensome the punishment for a crime, after its commission. . . ." United States v. De La Mata, 266 F.3d 1275, 1286 (11th Cir.2001). We have explained that the following two elements must be present in order for a court to find an ex post facto violation: (1) the law must be retrospective, meaning it applies to events occurring before its enactment; and (2) the offender must be disadvantaged by it. United States v. Rosario-Delgado, 198 F.3d 1354, 1356 (11th Cir.1999) (citation omitted).

The federal "three strikes" law, which became effective on September 13, 1994, mandates a sentence of life imprisonment for a defendant who has been convicted of a "serious violent felony," if he previously was convicted of "one or more serious violent felonies and one or more serious drug...