U.S. v. Anthony, No. 08-14370 (11th Cir. 9/10/2009)
| Decision Date | 10 September 2009 |
| Docket Number | No. 08-14370.,08-14370. |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL ANTHONY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeal from the United States District Court for the Southern District of Florida; D. C. Docket No. 07-20721-CR-JLK.
Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.
DO NOT PUBLISH
Michael Lamar Anthony appeals his convictions and 120-month sentences for possession with intent to distribute crack, cocaine, heroin, and marijuana, in violation of 21 U.S.C. § 841. Anthony now appeals, arguing (1) the court erred by denying his motion to suppress evidence seized from his apartment; (2) various improper statements at trial by the court and prosecutor amounted to misconduct and prejudiced his case; and (3) the notice of enhanced penalties was insufficient under 21 U.S.C. § 851 to confer jurisdiction. After a thorough review of the record and the parties' briefs, we affirm.
"A district court's ruling on a motion to suppress presents a mixed question of law and fact." United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999). We accept the district court's findings of fact to be true, unless shown to be clearly erroneous, and review de novo the district court's application of the law to those facts. Id. "[A]ll facts are construed in the light most favorable to the prevailing party below." United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000). "The individual challenging the search bears the burdens of proof and persuasion." United States v. Cooper, 133 F.3d 1394, 1398 (11th Cir. 1998). In reviewing the denial of a motion to suppress, we may consider the entire record. United States v. Newsome, 475 F.3d 1221, 1224 (11th Cir. 2007).
Although the Fourth Amendment shields one's home from unreasonable searches and seizures by law enforcement officers, "because the ultimate touchstone of the Fourth Amendment is `reasonableness,' the warrant requirement is subject to certain exceptions." Brigham City, Utah v. Stuart, 547 U.S. 398, 126 S.Ct. 1943, 1947, 164 L.Ed.2d 650 (2006). One exception is a warrantless search made pursuant to voluntary consent. Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 2797, 111 L.Ed.2d 148 (1990); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). Consent is voluntary "if it is the product of an `essentially free and unconstrained choice.'" United States v. Purcell, 236 F.3d 1274, 1281 (11th Cir. 2001) (quotation omitted). The government bears the burden of proving the existence of valid consent-that the consent was given voluntarily and not in acquiescence to a claim of lawful authority. United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989). Consent "usually turns on credibility choices resulting from conflicting testimony." United States v. Gonzalez, 71 F.3d 819, 828 (11th Cir. 1996) (internal quotations marks omitted). Credibility determinations are within the province of the fact finder "because the fact finder personally observes the testimony and is thus in a better position than a reviewing court to assess the credibility of witnesses." United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). We "`must accept the evidence unless it is contrary to the laws of nature, or is so inconsistent or improbable on its face that no reasonable factfinder could accept it.'" Id. (alteration in original) (quotation omitted).
In this case, Miami-Dade Police Detective Kevin Richardson, Detective William Padraja, and Sergeant Jose Ramirez testified that they went to Anthony's apartment after receiving an anonymous tip. Catherine Cannady, Anthony's mother and the lease holder on the apartment, answered the door, invited them in, and gave both written and verbal consent to search the apartment. Cannady was calm and cooperative and was not pressured or coerced to give consent. Cannady escorted the officers to the bathroom where they spoke with Anthony, who identified his bedroom and gave verbal consent to a search. Police found drugs, drug paraphernalia, and a firearm. Anthony was arrested and given his rights, after which he admitted the contraband was his and stated that his mother knew nothing about it. Police also searched the bathroom and found more drugs, which Anthony also admitted were his.
Cannady testified that when she opened the door, there were about seven or eight officers there. One of the officers slid his foot over the threshold so she could not close the door. After the officers entered the apartment, one officer pushed a form at her. She was very nervous, did not know what the form was, and felt pressured to sign it. Although she allowed the police entry into her home and permitted them to look around, she did not think she had given consent to a search. Nevertheless, she admitted that she had written her address on the consent form and had signed and dated it. She also admitted that she signed the form where it indicated that consent had been given freely.
Upon review, we conclude the district court properly denied the motion to suppress. The magistrate judge explained that the officers's testimony was more credible than Cannady's.1 Viewing the evidence in the light most favorable to the government, the testimony established that three officers arrived at Anthony's apartment, identified themselves, and informed Cannady that they were investigating a tip. Cannady invited them in; she was calm and cooperative as she signed the consent form and led the officers through the house. On these facts, Anthony has not shown that the initial entry into the apartment or the subsequent consent to search was invalid. See United States v. Ramirez-Chilel, 289 F.3d 744, (11th Cir. 2002) ().
Anthony argues that the following instances of prosecutorial and judicial misconduct prejudiced his case: (1) the court's explanation of the charges against Anthony during opening statements, stating "if I may put it in this fashion for the jury to understand, operating sort of a pharmacy or drug store"; (2) the prosecutor's reference in opening statements that "in the words of a convicted felon," Anthony admitted his possession of the gun and drugs; (3) the court's refusal to allow defense counsel to offer its view of the evidence during opening statements; and (4) the prosecutor's reference in rebuttal to Anthony going home, which implied that he was in custody. According to Anthony, the cumulative effect of these errors compels reversal of his convictions.
We review a judge's comment on evidence for an abuse of discretion. See, e.g., United States v. Berdick, 555 F.2d 1329, 1330 (5th Cir. 1977).2 Allegations of prosecutorial misconduct present mixed questions of fact and law that are reviewed de novo. United States v. Noriega, 117 F.3d 1206, 1218 (11th Cir. 1997). We review a claim that the district court improperly limited a defendant's opening statement for an abuse of discretion. See United States v. Burns, 298 F.3d 523, 543 (6th Cir. 2002) () (persuasive authority). The denial of a motion for a mistrial is reviewed for abuse of discretion. United States v. Campa, 529 F.3d 980, 992 (11th Cir. 2008), cert. denied, 129 S.Ct. 2790 (2009). When a defendant fails to object to an error before the district court, we review the argument for plain error. United States v. Hall, 314 F.3d 565, 566 (11th Cir. 2002); see also United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993). "Plain error occurs where (1) there is an error; (2) that is plain or obvious; (3) affecting the defendant's substantial rights in that it was prejudicial and not harmless; and (4) that seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Hall, 314 F.3d at 566; Olano, 507 U.S. at 732.
Anthony challenges the district court's statement to the jury that Anthony was operating a drug store. Because Anthony failed to object at trial, we review this issue for plain error.
Remarks may constitute error if they (1) were improper and (2) prejudiced the defendant's substantive rights. United States v. Delgado, 56 F.3d 1357, 13681369 (11th Cir. 1995). Furthermore, `[a] clear effect on the jury is required to reverse for comment by the trial judge.'" United States v. Morales, 868 F.2d 1562, 1576 (11th Cir. 1989). "[I]n order to amount to reversible error, a judge's remarks must demonstrate such pervasive bias and unfairness that they prejudice one of the parties in the case." United States v. Ramirez-Chilel, 289 F.3d 744, 750 n.6 (11th Cir. 2002); see also United States v. Verbitskaya, 406 F.3d 1324, 1337 (11th Cir. 2005).
Here, the court's statement was a single, isolated comment. The jury heard testimony that Anthony admitted possession of the drugs. In light of this evidence, Anthony cannot show that he was prejudiced by the court's comment.
Anthony next challenges the prosecutor's reference during open statement to Anthony's status as a convicted felon. Again, we review this claim for plain error.
Prosecutorial misconduct is a basis for reversing an appellant's conviction only if, in the context of the entire trial and in light of any curative instruction, the misconduct may have prejudiced the substantial rights of the accused. United States v. Cordoba-Mosquera, 212 F.3d 1194, 1198 (11th Cir. 2000). When we review an issue of prosecutorial misconduct, we must determine (1) whether the challenged comments were improper and (2) if so, whether they...
To continue reading
Request your trial