U.S. v. James

• Decision Date: 09 June 2011
• Docket Number: No. 10–10399Non–Argument Calendar.,10–10399Non–Argument Calendar.
• Citation: 22 Fla. L. Weekly Fed. C 2154,642 F.3d 1333
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Samuel Thamar JAMES, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

642 F.3d 1333

22 Fla. L. Weekly Fed. C 2154

UNITED STATES of America, Plaintiff–Appellee,

v.Samuel Thamar JAMES, Defendant–Appellant.

No. 10–10399Non–Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

June 9, 2011.

Walter Eugene Furr, III, Linda Julin McNamara, Jeffrey S. Miller, Christopher Francis Murray, Robert E. O'Neill, U.S. Attys., Tampa, FL, for Plaintiff–Appellee.Craig L. Crawford, Donna Lee Elm, Fed. Pub. Defenders, Federal Public Defender's Office, Orlando, FL, A. Mauricio Hued, Fed. Pub. Def., Federal Public Defender's Office, Tampa, FL, for Defendant–Appellant.Appeal from the United States District Court for the Middle District of Florida.Before WILSON, ANDERSON and BLACK, Circuit Judges.PER CURIAM:

Samuel Thamar James appeals his conviction and 262–month sentence for possession with intent to distribute less than five grams of cocaine, in violation of 21 U.S.C. § 841(b)(1)(C). James argues on appeal that the district court's instruction on reasonable doubt misled the jury and lowered the government's burden of proof by including a subjective standard of proof. Next, James argues that the district court did not comply with the 21 U.S.C. § 851(b) requirements in sentencing him because the court failed to conduct the required colloquy regarding his prior convictions. James also argues that the district court violated the Sixth Amendment by enhancing his sentence based on prior convictions not proven to a jury beyond a reasonable doubt. Finally, James argues that the written judgment contains a clerical error, listing the incorrect statute of conviction.

I. Facts

In March 2009, Samuel Thamar James was indicted on one count of possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). On July 17, 2009, the government filed an information and notice of prior convictions, pursuant to § 21 U.S.C. 851(a), alleging that James had two prior convictions, one for delivery and possession of cocaine and the other for possession of cocaine with intent to distribute. James did not contest either of the convictions alleged in the government's information. A jury found James guilty of the lesser-included offense of possession with the intent to distribute less than five grams of cocaine base.

The facts presented at trial were that on February 9, 2009, while in the process of attempting to stop a car that had an illegal window tint, an officer of the Tampa Police Department observed a black man with medium-length dreadlocks, wearing a black shirt, lean out the driver's side door and drop a plastic bag containing a white substance in a driveway. After the car came to a permanent stop, the officer identified James as both the driver of the vehicle and the person who dropped the plastic bag, based on his black shirt and dreadlocks. Testing revealed that the plastic bag contained 5.8 grams of cocaine base.

Before trial, Defendant and the government submitted proposed jury instructions to the district court. The government's instructions included a definition of reasonable doubt identical to this Circuit's Pattern Jury Instructions.¹ James submitted two possible definitions of reasonable doubt. The first was an excerpt from the Eleventh Circuit Pattern Jury Instructions, reading “Proof beyond a reasonable doubt is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.” James's alternative definition of reasonable doubt was the same Eleventh Circuit Pattern Jury Instruction submitted by the government, which also included the above quoted language. The district court, after reviewing the parties' proposed instructions, prepared preliminary draft instructions. James's counsel reviewed the draft instructions and stated that he had no objections. The district court instructed the jury using the reasonable doubt standard from the Eleventh Circuit Pattern Jury Instructions, which had been both proposed and approved by James. Those instructions read:

Now, the United States has the burden of proof, of proving a defendant guilty beyond a reasonable doubt. And if it fails to do so, you must find that defendant not guilty.

But while the United States' burden of proof is a strict or heavy burden, it is not necessary that a defendant's guilt be proved beyond all possible doubt. It is only required that the United States' prove [sic]—proof exclude any reasonable doubt concerning the defendant's guilt.

A reasonable doubt is a real doubt based upon reason and common sense after careful and impartial consideration of all the evidence in the case.

Proof beyond a reasonable doubt is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.

If you are convinced that the defendant has been proved guilty beyond a reasonable doubt, then during your deliberations you should say so. If you are not sufficiently convinced by the evidence, then during your deliberations you should say so.

After the court instructed the jury, the court called counsel to sidebar and asked, “Did I give an instruction that I said I would omit or otherwise err in the instructions?” James's counsel replied, “No, Your Honor.” James's counsel later relied upon the phrase “proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs,” in closing argument.²

During deliberations, the jury sent back a note with the question, “If we have, believe [sic], there is a possible doubt, should we return a verdict of guilty?,” and the court responded with a supplemental instruction, reiterating its original reasonable doubt instruction.³ James objected to the court's response to the jury, essentially requesting that the court repeat its original reasonable doubt instruction exactly, including the last paragraph of the pattern instructions, the “subjective component.” The court overruled this objection because the jury had requested an instruction on “possible doubt,” rather than a mere repetition of the reasonable doubt standard.

The jury found James guilty of possession with intent to distribute less than five grams of cocaine base, in violation of 21 U.S.C. § 841(b)(1)(C). The written judgment, filed in the case erroneously, indicated that James was convicted of possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(b)(1)(B)(iii).

At the sentencing hearing, the judge asked whether James had any objections to the Presentence Investigation Report (“PSI”), and his counsel responded that James did not stipulate to the facts presented as to the instant case but that they had no objections in any other respects to the PSI. The judge then asked Mr. James, “Do you understand that it's these drug trafficking offenses that are hurting you here today, not the one you got convicted for, and the two—the trial in my court and then the two other convictions you have for selling?,” and Mr. James responded, “Yes.”

II. Reasonable Doubt Instruction

“We review jury instructions de novo to determine whether they misstate the law or mislead the jury to the prejudice of the objecting party.” United States v. Hansen, 262 F.3d 1217, 1248 (11th Cir.2001) (per curiam) (internal quotations omitted). However, where the defendant has failed to object to the instruction in the district court, we will review for plain error only . Id. at 1248. Furthermore, “[u]nder the invited error doctrine, we will generally not review an error induced or invited by a party through the submission of an incorrect jury instruction to the judge which passed on to the jury.” Id. We review the response of the district court to questions from the jury for an abuse of discretion . United States v. Phaknikone, 605 F.3d 1099, 1107 (11th Cir.2010).

Pursuant to the invited-error doctrine, because James not only failed to object to the reasonable doubt instruction in the district court but also submitted the very instruction he now challenges, we need not review his argument on appeal. Id. Nonetheless, his argument is without merit because we have repeatedly approved of the definition of reasonable doubt provided in the Eleventh Circuit Pattern Jury Instructions. See, e.g., Hansen, 262 F.3d at 1249–50 (affirming jury instructions that defined proof beyond a reasonable doubt as “proof of such a convincing character that you would be willing to rely or act upon it without hesitation in a decision involving the most important of your affairs” and stated that “it is not necessary that a Defendant's guilt be proved beyond all possible doubt. It is only required that the Government's proof exclude any ‘reasonable doubt’ concerning a Defendant's guilt”); United States v. Daniels, 986 F.2d 451, 457–58, opinion readopted on reh'g, 5 F.3d 495, 496 (11th Cir.1993) (per curiam) (rejecting a defendant's argument that the “willing to act” language in this Circuit's reasonable doubt instruction impermissibly lowers the government's burden of proof); United States v. Clayton, 643 F.2d 1071, 1074–75 (5th Cir.1981) (finding no error in the jury instruction, “[p]roof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs”). Thus, the district court's jury instructions were proper.

Furthermore, James's challenge to the supplemental instructions provided in response to the jury's question about “possible doubt” is vague and wholly without merit. The district court's supplemental instructions were not an abuse of discretion.

III. 21 U.S.C. § 851(b)

James next argues that his sentence must be vacated because the district court failed to follow the proper procedure dictated by 21 U.S.C. § 851(b). Appellant...