U.S. v. Grant, Nos. 99-12052 and 99-13303

• Decision Date: 10 July 2001
• Docket Number: Nos. 99-12052 and 99-13303
• Parties: (11th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. NICHOLAS GRANT, Defendant-Appellant
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1146

256 F.3d 1146 (11th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. NICHOLAS GRANT, Defendant-Appellant.

Nos. 99-12052 and 99-13303

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

July 10, 2001

Appeals from the United States District Court for the Middle District of Florida. D.C. Docket Nos. 98-00198-CR-T-26C & 93-00083-CR-T-26B

Before CARNES and RONEY, Circuit Judges, and ALAIMO^*, District Judge.

CARNES, Circuit Judge:

Nicholas Grant appeals his convictions for conspiracy to possess with intent to distribute cocaine and marijuana, in violation of 21 U.S.C.§ 846, use of a firearm during a drug-trafficking crime, in violation of 18 U.S.C. § 924(c), and failure to appear, in violation of 18 U.S.C. § 3146(a)(1). These questions are presented: whether Grant's appeal on the conspiracy and firearms charges was timely; whether there was sufficient evidence to convict him on the failure to appear and the conspiracy charges; and whether statements of an alleged co-conspirator exculpating Grant were inconsistent statements admissible for purposes of impeachment pursuant to Federal Rule of Evidence 806. We answer all three questions "yes." The affirmative answer to the third one requires that we reverse Grant's conviction on the conspiracy and use of a firearm charges.

I. BACKGROUND

A. FACTS

In early 1993, United States Customs Service Special Agent Louis Mozas met with Deosie Wilson and discussed Wilson's plan to have Mozas smuggle 2000 pounds of marijuana from Jamaica into the United States, which Wilson would then sell. Jamaican police seized the marijuana which was to be smuggled in, however, so the transaction was not consummated.

Mozas next advised Wilson that Mozas would be smuggling one hundred kilograms of cocaine from Columbia, for which he would be paid 18,000 pounds of marijuana. Wilson agreed to market that marijuana for Mozas. Upon inspection, Wilson deemed the marijuana to be of poor quality, but set out to market it anyway. Mozas also advised Wilson that he had 15 kilograms of cocaine, and Wilson agreed to assist in selling it.

Wilson departed for Jamaica on March 12, 1993, and returned to Tampa on March 18, 1993. Mozas picked up Wilson at the Tampa airport and took him to an undercover residence in Homosassa, Florida. In connection with his planned purchase of the cocaine from Mozas, Wilson advised Mozas that $100,000 had been transferred into Wilson's bank account and that the funds would be available the next day. On March 19, 1993, Mozas accompanied Wilson to a bank in Homosassa, Florida and was present when Wilson obtained a cashier's check for $100,000. Mozas and Wilson then returned to the undercover residence.

Later that same afternoon, Mozas dropped Wilson off at the same bank. Wilson remained inside the bank for between one to five minutes before leaving with the occupants of a waiting Nissan Pathfinder. Undercover agents followed the Pathfinder, which drove by the undercover residence and then to a restaurant. A short while later, Wilson and Grant were observed leaving the restaurant and entering the Pathfinder. The agents followed the Pathfinder as it returned to the undercover residence, where Wilson was dropped off. The agents then followed the Pathfinder as it returned to the restaurant.

Wilson arrived at the undercover residence carrying a bundle underneath his shirt. The agreement between Mozas and Wilson provided that Wilson would purchase 10 kilograms of cocaine from Wilson at $15,000 per kilogram, or $150,000 total. Wilson went into a bedroom at the residence and, upon his return, produced a vinyl pouch containing $50,000 in United States currency.

Mozas then instructed Detective Michael Joyner to bring the cocaine to the residence. Joyner brought the cocaine and Wilson showed him the $100,000 cashier's check and $50,000 cash. Wilson told Mozas that Grant was in Homosassa Springs, but that Grant did not want to meet anyone. Wilson then put down $15,000, left with one kilogram of cocaine, and was arrested immediately thereafter. Wilson was talking on a cell phone at the time of his arrest and the person to whom he was speaking was exclaiming "police, police, police."

Within one minute of being informed that Wilson had been arrested, the undercover agents observing the Pathfinder saw Grant and his brother quickly run from the restaurant and depart in the Pathfinder. Grant drove slowly by the location where Wilson was being arrested and then fled the area at approximately 80 miles per hour. After a brief chase, Grant was arrested and a search of the Pathfinder revealed two loaded semi-automatic pistols, one in the glove compartment and another in a duffle bag on the floor in front of the back seat, and an open briefcase containing $11,208.

After his arrest, Grant told Customs Special Agent Phillip Aston that while he was in Jamaica Wilson had contacted him about participating in a marijuana transaction. Grant did not, however, mention anything about a cocaine transaction. Grant also told Aston that on March 18, 1993, he had traveled from Jamaica to Miami with approximately $16,000 in cash. Grant had a passport bearing his photograph and name which documented that he had left Jamaica on March 18, 1993. Grant admitted to Aston that he had been speaking to Wilson on the telephone before Grant had run from the restaurant, but claimed that he and his brother had decided that they did not want to participate in Wilson's transaction anymore and had decided to leave.

Grant was released on bond on March 26, 1993. Four days later, he was indicted on one count of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. Grant pleaded not guilty at his arraignment. The United States requested a show cause hearing for revocation of Grant's bond on the grounds that he had failed to comply with the conditions of his release. The magistrate judge scheduled a show cause hearing for May 17, 1993. On May 4, 1993, the clerk's office sent notice of that scheduled hearing to Grant. After Grant failed to appear for the show cause hearing, a warrant was issued for his arrest.

On February 16, 1998, a detective assigned to a Customs task force arrested Grant at the Miami International Airport. At the time of his arrest, Grant possessed two Jamaican driver's licenses - both bearing his photograph, but one in his name and one in the name of Rory Roberts. Grant was advised of his rights and agreed to be interviewed. During that interview, Grant stated that there was a fugitive warrant issued for his arrest and that he needed to use a different name to avoid arrest and prosecution in the United States. He explained to the detective that the fugitive warrant was the result of an arrest that had occurred in Tampa on a charge of attempting to purchase cocaine from undercover Customs agents and that he failed to appear in court and had fled to Jamaica in order to avoid prosecution on that charge.

B. PROCEDURAL HISTORY

A superseding indictment was returned on March 19, 1998 charging Grant with one count of conspiracy to possess with intent to distribute cocaine and marijuana, in violation of 21 U.S.C. § 846, and one count of use of a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Grant was convicted by a jury on both counts on May 19, 1998.

On May 14, 1998 Grant was indicted for failing to appear at the May 17, 1993 show cause hearing, in violation of 18 U.S.C. § 3146(a)(1). After a bench trial, Grant was convicted of that charge on October 7, 1998.

At a consolidated sentencing hearing on June 18, 1999, Grant was sentenced to imprisonment for 145 months for the conspiracy conviction, 60 months for the firearms conviction, and 6 months for the failure to appear conviction, all sentences to run consecutively. Grant filed a motion for a new trial and a renewed motion for judgment of acquittal, both of which were denied. Grant appeals his convictions on several grounds. Among other things, he argues that there was insufficient evidence to sustain his convictions on the failure to appear and the conspiracy charges. Grant also argues that evidence which would have impeached testimony elicited from Wilson at trial was improperly excluded, in violation of Federal Rule of Evidence 806.¹

II. DISCUSSION

A. THE JURISDICTIONAL QUESTION

As a threshold matter, we must decide whether Grant's appeal of the conspiracy and firearms charges is timely. After Grant's consolidated sentencing hearing, the district court entered one judgment as to both cases. The judgment bore the district court case numbers for the conspiracy and firearms charges (93-83-CR-T-26B) and for the failure to appear charges (98-198-CR-T-26C). The judgment was entered on June 24, 1999 as to case number 98-198-CR-T-26C, and on June 28, 1999 as to case number 93-83-CR-T-26B.

On June 28, 1999, Grant filed a notice of appeal which stated that he was appealing "the Judgment and Committment [sic] entered in this action on June 18, 1999."² The notice of appeal, however, bore only one case number, 98-198-CR-T-26C (the failure to appear case).

On August 31, 1999, Grant filed a second notice of appeal bearing case number 93-83-CR-T-26B (the 1993 drug case), along with a "motion to submit an out-of-time appeal," which indicated that case number 93-83-CR-T-26B had been inadvertently omitted from the first notice of appeal due to a clerical error. On October 1, 1999, the district court granted the motion to file out of time.

"The timely filing of a notice of appeal is a mandatory prerequisite to the exercise of appellate jurisdiction." United States v. Ward, 696 F.2d 1315, 1317 (11th Cir. 1983) (citations omitted). Pursuant to Federal Rule of Appellate Procedure 4(b)(1)(A), a defendant in a criminal case must file a notice of appeal within 10 days after the entry of the judgment. Grant's second notice of appeal, regarding the 1993 drug case, was not...