U.S. v. Hernandez, No. 89-3395

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore TJOFLAT, Chief Judge, KRAVITCH, Circuit Judge, and GODBOLD; KRAVITCH
Citation921 F.2d 1569
Docket NumberNo. 89-3395
Decision Date30 January 1991
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Sandra HERNANDEZ, a/k/a "Cha Cha," Ronnie Lee Tape, Karen McCalvin, Rodney Gilmore, Rickey Rogers, Defendants-Appellants.

Page 1569

921 F.2d 1569
UNITED STATES of America, Plaintiff-Appellee,
v.
Sandra HERNANDEZ, a/k/a "Cha Cha," Ronnie Lee Tape, Karen
McCalvin, Rodney Gilmore, Rickey Rogers,
Defendants-Appellants.
No. 89-3395.
United States Court of Appeals,
Eleventh Circuit.
Jan. 30, 1991.

Page 1572

Arthur Addess, Tampa, Fla., for Hernandez.

David Weisbrod, Tampa, Fla., for Tape.

Julianne Holt, Tampa, Fla., for McCalvin.

Kim Munch, Tampa, Fla., for Gilmore.

Mark Bryan, Clearwater, Fla., for Rodgers.

Douglas Frazier, Asst. U.S. Atty., Fort Myers, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before TJOFLAT, Chief Judge, KRAVITCH, Circuit Judge, and GODBOLD, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

BACKGROUND

Five appellants bring an array of appeals from their convictions resulting from a drug selling operation. They contend that procedural and constitutional errors by the trial court deprived them of a fair trial. We disagree and affirm on all issues.

Ronnie Lee Tape led the drug operation. He began selling cocaine in Fort Myers, Florida in 1979. He later lived with Sandra Hernandez, who assisted in buying and selling cocaine. Karen McCalvin and Rodney Gilmore helped prepare and package crack cocaine for sale; they also sold it for Tape as did a number of other street distributors. Tape paid his distributors handsomely, up to $2,500 a week by 1985, and individual sellers brought in up to $20,000 a day for Tape from drug sales.

In addition to these activities, Tape had invested money in a musical band and various properties, including a nightclub called Phase II. Gilmore worked for the band and travelled with the band members to California. Tape sent Gilmore several large payments via Western Union, which eventually were deposited into a bank account in Los Angeles in the band's name. Ricky Rogers managed the Phase II nightclub and oversaw its renovation. Tape had access to the club's bank account and ordered some of the renovations. Rogers's testimony before the grand jury concerning the purchase and renovation of the club was the subject of the perjury count of the indictment.

Agent Boyer of the Internal Revenue Service participated in the investigation of Tape. Boyer fortuitously encountered Tape at a toy store in Fort Myers in January 1988. Their encounter was the basis of the assault count.

When police arrested Gilmore in May 1988, they searched his truck and seized a .44 Magnum pistol from under the passenger seat.

The government's final indictment is summarized as follows:

Count 1: Tape: Engaging in a continuing criminal enterprise. 21 U.S.C. Sec. 848.

Count 2: Tape, Hernandez, McCalvin, Gilmore and others not appealing: Conspiracy to possess with intent to distribute cocaine hydrochloride and 50 grams or

Page 1573

more of a mixture or substance containing cocaine base. 21 U.S.C. Sec. 846.

Counts 3, 4, 5, 6: Tape and others not appealing: Unlawful distribution of more than 50 grams of cocaine base. 21 U.S.C. Sec. 841(a)(1); 18 U.S.C. Sec. 2.

Count 7: Tape, Hernandez, Rogers, McCalvin, Gilmore and others not appealing: Conspiracy to defraud the United States by impeding the lawful functions of the Internal Revenue Service. 18 U.S.C. Sec. 371.

Count 8: Rogers: False declarations before grand jury or court (perjury). 18 U.S.C. Sec. 1623.

Count 9: Tape: Forcible assault of a federal officer. 18 U.S.C. Sec. 111.

After a jury trial, the jury returned a verdict of guilty on all counts. The trial judge sentenced the defendants to various prison terms in accordance with the federal sentencing guidelines.

PROSECUTION COMMENTS

Appellant McCalvin was convicted of conspiracy to possess with intent to distribute cocaine hydrochloride (Count 2) and conspiracy to defraud the IRS (Count 7). McCalvin argues that the prosecutor's summation statements impermissibly vouched for the veracity of the government's witnesses. United States v. Sims, 719 F.2d 375, 377 (11th Cir.1983), cert. denied, 465 U.S. 1034, 104 S.Ct. 1304, 79 L.Ed.2d 703 (1984). It is improper for the prosecution to place the prestige of the government behind a witness by making explicit personal assurances of the witness's veracity or by indicating that information not presented to the jury supports the testimony. Id. Our standard of review of the prosecution comments in this case is plain error because defense counsel did not object to them at trial. United States v. Eley, 723 F.2d 1522, 1525-26 (11th Cir.1984).

Appellant McCalvin argues that the prosecutor repeatedly vouched for the credibility of government witnesses during closing argument and rebuttal. 1 None of these comments amount to explicit personal assurances or references to evidence not before the jury. The prosecutor may not vouch for witnesses but may still "argue that the fair inference from the facts presented is that a witness had no reason to lie." Eley, 723 F.2d at 1526 (quoting United States v. Bright, 630 F.2d 804, 824 (5th Cir.1980)) 2. The prohibition against vouching does not forbid prosecutors from arguing credibility, which may be central to the case; rather, it forbids arguing credibility based on the reputation of the government office or on evidence not before the jury. Here the remarks were designed to refer the jury to evidence in the case that was favorable to the government. They did not amount to an explicit, personal guarantee of credibility, such as assuring the jury that the prosecution would not have brought the case unless the defendant was actually guilty. See Eley, 723 F.2d at 1526. The most troubling comment was # 6, fn. 1 supra, which seems to refer to

Page 1574

internal processes of the prosecutor's office, not to specific evidence. Although it may have been error to allow such a comment before the jury, it was not plain error because the prosecutor did not vouch for any particular piece of evidence but was instead apologizing for the overall volume of the evidence in the trial. Furthermore, whatever vouching there may have been was diminished when the trial judge warned the jury before closing argument that it was free to reject the prosecution's inferences from the evidence. The judge also stated in final jury instructions that the government was entitled to no greater consideration than is accorded any other party. Cf. Sims, 719 F.2d at 378 (trial judge cautioned that testimony given pursuant to immunity agreement should be scrutinized with great care). That the judge did not attempt further restrictions on the prosecutor's summation and rebuttal does not amount to plain error.
SUFFICIENCY OF THE EVIDENCE

For each of the following three issues, we review the evidence in the light most favorable to the government to determine if a reasonable jury could find proof of guilt beyond a reasonable doubt. United States v. Lopez, 898 F.2d 1505, 1509 (11th Cir.1990). The evidence may be sufficient even if it does not exclude every reasonable hypothesis of innocence. Id.

Perjury: Appellant Rogers was convicted of perjury (Count 8) for statements made to the grand jury.

The statements in dispute occurred during questioning to determine whether Tape exercised any control or had any role in purchasing and renovating the Phase II nightclub. 3 Although in the grand jury statements Rogers denied Tape helped him finance or gave him money to renovate the club, Rogers admitted at trial that Tape had "advanced" him more than $15,000 to purchase work and materials for the club, which he repaid. Rogers claims the grand jury statements are literally true and negate the perjury requirement that false statements be given knowingly. Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973); United States v. Petzold, 788 F.2d 1478, 1482-84 (11th Cir.1986); United States v. Corbin, 734 F.2d 643, 653 (11th Cir.1984); United States v. Abrams, 568 F.2d 411, 422 (5th Cir.), cert. denied, 437 U.S. 903, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1978) (no perjury when a witness "gives an evasive, nonresponsive but literally true answer, even if the answer is intentionally misleading and arguably false by negative implication."). First, Rogers argues Tape never financed the purchases because he never charged interest for Rogers's use of the money. Second, he argues Tape never gave him money for the purchases because the money was not a gift and Rogers repayed Tape in full. Rogers contends this was his understanding during questioning.

Whether the statements were literally true is determined by the context of the questioning. United States v. Cuesta, 597 F.2d 903, 920 (5th Cir.1979), cert. denied, 444 U.S. 964, 100 S.Ct. 451, 62 L.Ed.2d 377 (1979); United States v. Crippen, 570 F.2d 535, 537 (5th Cir.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979). A defendant does not escape perjury "simply because the defendant can postulate unstated premises of the question that would make his answer literally true." Cuesta, 597 F.2d at 920; see Crippen, 570 F.2d at 537 ("The words used were to be understood in their common sense, not as they might be warped by sophistry or twisted in pilpul.").

In this case, the thrust of the questioning was to discover if Tape had transferred money to Rogers to renovate the club. The terms of the transaction--be it a loan, a donation or an advance--were immaterial and did not arise in the questioning. Furthermore,

Page 1575

Rogers testified at another point in the grand jury inquiry that Tape was not the source of any money for renovations. Finally, Rogers himself used the verb "give" twice at trial to describe his return of the money to Tape. 4 This indicates that he understood the transaction to be a simple money transfer. Cf. United States v. Williams, 552 F.2d 226, 229 (8th Cir.1977) (defendant's attempt to distinguish between "lien" and "liens" contained in a prosecutor's question not sufficient to reverse perjury conviction because...

To continue reading

Request your trial
101 practice notes
  • U.S. v. Schwartz, No. 05-11715.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 5, 2008
    ...them incorrectly. 2. An agreement to conspire may "be proved by circumstantial as well as direct evidence," United States v. Hernandez, 921 F.2d 1569, 1575 (11th Cir.1991), and may be inferred from the relationship of the parties, their overt acts and concert of action, and the totality of ......
  • United States v. Annamalai, No. 15-11854
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 24, 2019
    ...prejudice, "the complexity of the case and the speed of deliberation alone [do] not constitute prejudice." United States v. Hernandez , 921 F.2d 1569, 1580 (11th Cir. 1991). See also id. (noting that "relatively short jury deliberations are an ambiguous indicator" because "[r]ather than ind......
  • U.S. v. Lopez, No. 09–12802.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • August 16, 2011
    ...indictment, 130 witnesses, and a seven-month trial resulting in 22,000 pages of transcript); see also United States v. Hernandez, 921 F.2d 1569, 1580–81 (11th Cir.1991) (collecting some of the more complex cases in which this Court has found that the district court did not abuse its discret......
  • Alexander v. Fulton County Georgia, No. 97-8189
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • March 30, 2000
    ...linked the evidence to the appellants and 'refuted any allegation of compelling prejudice' ") (quoting United States v. Hernandez, 921 F.2d 1569, 1578 (11th Cir.1991); United States v. Perlstein, 120 F.2d 276, 281 (3d Cir.1941)) (finding that the jury was not confused by two conspiracies be......
  • Request a trial to view additional results
101 cases
  • U.S. v. Schwartz, No. 05-11715.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 5, 2008
    ...them incorrectly. 2. An agreement to conspire may "be proved by circumstantial as well as direct evidence," United States v. Hernandez, 921 F.2d 1569, 1575 (11th Cir.1991), and may be inferred from the relationship of the parties, their overt acts and concert of action, and the totality of ......
  • United States v. Annamalai, No. 15-11854
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 24, 2019
    ...prejudice, "the complexity of the case and the speed of deliberation alone [do] not constitute prejudice." United States v. Hernandez , 921 F.2d 1569, 1580 (11th Cir. 1991). See also id. (noting that "relatively short jury deliberations are an ambiguous indicator" because "[r]ather than ind......
  • U.S. v. Lopez, No. 09–12802.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • August 16, 2011
    ...indictment, 130 witnesses, and a seven-month trial resulting in 22,000 pages of transcript); see also United States v. Hernandez, 921 F.2d 1569, 1580–81 (11th Cir.1991) (collecting some of the more complex cases in which this Court has found that the district court did not abuse its discret......
  • Alexander v. Fulton County Georgia, No. 97-8189
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • March 30, 2000
    ...linked the evidence to the appellants and 'refuted any allegation of compelling prejudice' ") (quoting United States v. Hernandez, 921 F.2d 1569, 1578 (11th Cir.1991); United States v. Perlstein, 120 F.2d 276, 281 (3d Cir.1941)) (finding that the jury was not confused by two conspiracies be......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT