United States v. Archible
| Decision Date | 09 November 2022 |
| Docket Number | 21-14172 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. HAKIM AMAL ARCHIBLE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
DO NOT PUBLISH
Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:19-cr-00410-TWT-CCB-1 Before LUCK, BRASHER, and DUBINA, Circuit Judges.
Appellant Hakim Amal Archible appeals his convictions and total sentence of 105 months' imprisonment for retaliating against a federal judge or federal law enforcement officer by false claim, in violation of 18 U.S.C. § 1521, and attempting to interfere with the administration of Internal Revenue laws, in violation of 26 U.S.C. § 7212(a) and 18 U.S.C. § 2. First, Archible argues that the district court plainly erred when it allowed Judge Brian Amero to testify under Rule 404(b) of the Federal Rules of Evidence. Second, he argues that the district court erred when it gave the jury an "attempt" instruction. Third, he argues that the evidence was insufficient to convict him on all counts. Finally, he argues that the district court violated his Fifth Amendment right by improperly increasing his sentence because he asserted his innocence during allocution at his sentencing hearing. After reading the parties' briefs and reviewing the record, we discern no district court error and affirm Archible's convictions and total sentence.
"We review the district court's ruling on the admission of evidence for an abuse of discretion." United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000). However, where the defendant fails to object to or challenge the admission of certain evidence at trial, but raises a challenge to it on appeal, we review for plain error only. See United States v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006).
To establish plain error, the appellant must show that "(1) an error occurred; (2) the error was plain; (3) it affected his substantial rights; and (4) it seriously affected the fairness of the judicial proceedings." United States v. Ramirez-Flores, 743 F.3d 816, 822 (11th Cir. 2014). An error is "plain" if controlling precedent from the Supreme Court or our court establishes that an error occurred. Id. The relevant time for assessing whether an error was plain is at the time of appellate consideration. Id. For an error to affect substantial rights, it must have been prejudicial i.e., it must have affected the outcome of the district court proceedings. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1778 (1993). If a defendant satisfies the first three prongs of the plain error test, we have the authority to correct the plain error, but we are not required to do so. Id. at 735-36, 113 S.Ct. at 1778.
Rule 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove a defendants' character to show conformity therewith. Fed.R.Evid. 404(b). Such evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. Thus, evidence of uncharged criminal activities generally is considered inadmissible extrinsic evidence under Rule 404(b). Id. However, such evidence is admissible if it is "(1) an uncharged offense which arose out of the same transaction or series of transactions as the charged offense, (2) necessary to complete the story of the crime, or (3) inextricably intertwined with the evidence regarding the charged offense." United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998).
Rule 404(b) permits the admission of prior bad acts evidence to show motive, preparation, knowledge, and intent, as well as an ongoing scheme or plan. See United States v. Lehder-Rivas, 955 F.2d 1510, 1515-16 (11th Cir. 1992) ( that "[e]vidence of criminal activity other than the charged offense is admissible for purposes of Rule 404(b) if it [] pertains to the chain of events explaining the context, motive and set-up of the crime and is linked in time and circumstances with the charged crime"). To establish the relevance of other crimes' evidence offered as proof of intent, "it must be determined that the extrinsic offense requires the same intent as the charged offense." United States v. Dickerson, 248 F.3d 1036, 1047 (11th Cir. 2001) (quotation marks omitted).
Evidence is relevant if it has any tendency to make a material fact more or less probable. Fed.R.Evid. 401. However, a district court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Fed.R.Evid. 403. Rule 403 "is an extraordinary remedy which the district court should invoke sparingly, and the balance should be struck in favor of admissibility." United States v. Alfaro-Moncada, 607 F.3d 720, 734 (11th Cir. 2010) (quotation marks omitted). Additionally, the risk of unfair prejudice can be reduced by an appropriate limiting instruction. See United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005).
Moreover, credibility determinations are left to the jury. United States v. Flores, 572 F.3d 1254, 1263 (11th Cir. 2009). We will not disregard them unless the testimony is unbelievable on its face or incredible as a matter of law, meaning it contains facts that the witness could not have possibly observed or events that could not have occurred under the laws of nature. Id.
The record indicates that Archible cannot establish that the district court plainly erred when it admitted Judge Amero's testimony because Judge Amero's testimony was relevant, and its probative value was not substantially outweighed by its prejudicial effect. The record demonstrates that Archible cross-examined Judge Amero at trial, the district court instructed the jury that it had to determine the credibility of each witness and gave a limiting instruction on the use of Rule 404(b) evidence, and the jury determined Judge Amero's credibility. Accordingly, Archible is not entitled to relief on this issue.
Where the defendant challenges the instructions as read, we review the legal correctness of the instructions de novo, but we defer to the district court on questions of phrasing absent an abuse of discretion. United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). We will not reverse a conviction provided that the jury charge, in its entirety, precisely reflects the law and facts and presents issues of law accurately. Id. Finally, we presume that jurors follow the instructions given by the district court. United States v. Almanzar, 634 F.3d 1214, 1222 (11th Cir. 2011).
In Phillips, we held that the federal government cannot punish an individual more than once for the same offense when (1) one act is a lesser-included offense of the other, and (2) both offenses arise out of the same incident. United States v. Phillips, 4 F.4th 1171, 1178 (11th Cir. 2021). There, the defendant was "improperly convicted and sentenced for both a crime and a lesser-included crime based on the same set of facts." Id. at 1173-74. We held that, because "[b]oth offenses involved the same conduct from the same day," punishing the defendant for both violated the Double Jeopardy Clause. Id. at 1178. Our present case is distinguishable from Phillips.
The record indicates that Archible's claim that the district court violated his rights pursuant to the Double Jeopardy Clause fails because his conduct arose out of three separate Uniform Commercial Code financing statements that were filed against different people in at least two of the counts, filed on different days, and asserted different false claims of debt against government officials. The jury did not convict him twice on each count, so his double jeopardy argument fails. Further, the district court did not err when it gave the jury an "attempt" instruction because the jury was sufficiently informed that it had to unanimously find Archible guilty of one of the means of committing the offense: either by filing, attempting to file, or conspiring to file a false lien against a government official on account of the official's performance of his duties. Hence, Archible is not entitled to relief on this claim.
Ordinarily, we review the sufficiency of the evidence to support a conviction de novo, viewing the evidence in the light most favorable to the government and drawing all reasonable inferences and credibility choices in favor of the jury's verdict. United States v. Ignasiak, 667 F.3d 1217, 1227 (11th Cir. 2012). "It is not necessary that the evidence exclude every reasonable hypothesis of innocence, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt." United States v. Young, 906 F.2d 615, 618 (11th Cir. 1990).
However, "where a defendant does not move for acquittal or otherwise preserve an argument regarding the sufficiency of the evidence in the court below," he has a heavier burden, and we will only reverse a conviction when it is necessary to prevent a manifest miscarriage of justice. United States v. Fries, 725 F.3d 1286, 1291 (11th Cir. 2013). A defendant preserves a sufficiency-of-the-evidence claim when he moves for acquittal at the close of the government's case and renews the motion for judgment of acquittal at the close of the evidence. See United States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir. 1998). Likewise, the "defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later." Fed. R. Crim. P. 29(c)(1).
It is a crime to file, attempt to file, or conspire to file in any public record or in any private record which is generally available to the public, any false lien or...
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