United States v. Davis
| Decision Date | 20 April 2017 |
| Docket Number | No. 15-13241,15-13241 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Demetrius Sharron DAVIS, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Karin Bethany Hoppmann, Susan Hollis Rothstein–Youakim, Arthur Lee Bentley, III, Shauna S. Hale, James A. Muench, Adam M. Saltzman, U.S. Attorney's Office, Tampa, FL, for Plaintiff–Appellee.
Thomas A. Burns, Burns, PA, Tampa, FL, for Defendant–Appellant.
Before TJOFLAT, HULL and O'MALLEY,* Circuit Judges.
Demetrius Sharron Davis ("Davis") appeals from a final judgment of the district court for the Middle District of Florida entered after a jury found him guilty of: (1) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) (Count One); (2) witness tampering in violation of 18 U.S.C. § 1512(b)(1) (Count Two); and (3) obstruction of justice in violation of 18 U.S.C. § 1503 (Count Three). The district court sentenced Davis to a total of one hundred twenty-one (121) months imprisonment. Davis appeals his convictions for witness tampering and obstruction of justice. After review of the record, and with the benefit of oral argument, we affirm.
According to the evidence at trial, on October 26, 2013, Tacarra Wilson, the mother of Davis's three daughters, arrived home from work to find Davis on her porch. Wilson testified that she has not lived with Davis since 2006, and that they have a "rocky" relationship. Davis asked to see the girls, and Wilson told him that they were at her sister's house. Wilson then went to her sister's house and did not return home until roughly midnight.
When Wilson returned home, Davis was sitting on her living room couch. He called Wilson a "slimy, nasty bitch," said "you know I want to see my girls," and accused Wilson of lying that she had been at her sister's house. Davis then started an argument with Wilson and said he wanted to pawn the girls' jewelry so he could get some money.
During the argument, Davis pulled out a gun, "slammed it on the dresser," and told Wilson to "shut the fuck up." At that point, Wilson and Davis's nine-year-old daughter, D.D., entered the room and saw the gun. D.D. testified that Davis attempted to hide the gun from her, and that she saw Davis grab her mother. Wilson told D.D., "Go in your room; lock your door; and go in your closet and get your phone and call the police."
When the police officers arrived at Wilson's home, they heard Davis angrily yelling inside. They knocked on the door and Wilson opened it. The officers saw Davis sitting on the couch in the living room. One of the officers asked Davis to step outside, while the other spoke with Wilson inside the house. Wilson told the officer talking to her that Davis had a gun and that she saw him put it in the couch when he got up. The officer found a loaded silver pistol on the couch cushion where Davis had been sitting. The officers subsequently arrested Davis, who was a convicted felon, and thus could not legally possess a gun. Davis denied that the gun was his.
On May 13, 2014, a federal grand jury returned an indictment charging Davis with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The district court scheduled the case for trial in October 2014 for the sole count charged in the indictment. Both Wilson and D.D. were scheduled to be witnesses at trial.
While Davis was detained prior to trial, he made several recorded calls to Wilson, who testified that she felt that Davis was trying to get her to change her story. Davis asked Wilson about the "games you going to play" and told her, "[y]ou do your part; I'm going to do mine, too."
Davis also contacted D.D. directly. On October 7, 2014, Davis called D.D. using another detainee's personal call identification number. In relevant part, Davis and D.D. had the following exchanges:
Based on this phone call, a federal grand jury returned a superseding indictment on October 21, 2014, adding two new charges. Count Two of the superseding indictment charged Davis with tampering with a witness in violation of 18 U.S.C. §§ 1512(b)(1) and (j), and Count Three charged Davis with obstruction of justice in violation of 18 U.S.C. § 1503.
Davis filed several pretrial motions that are relevant to this appeal. In particular, Davis filed: (1) a motion for a bill of particulars; (2) a motion to dismiss Counts Two and Three of the superseding indictment; and (3) a motion to continue the jury trial.
First, Davis moved for a bill of particulars to require the government to identify, in print, any statements he made that formed the basis for Counts Two and Three of the superseding indictment. The government opposed the motion on grounds that it already provided the requested information to defense counsel. The magistrate judge denied the motion, concluding that the superseding indictment set forth the alleged offenses in detail and that the government's disclosures adequately advised Davis of the allegations against him.
Davis also moved to dismiss Counts Two and Three of the superseding indictment as multiplicitous and vindictive. Davis requested that the district court dismiss both counts or require the government to elect which count to take before a jury. With respect to multiplicity, Davis argued that the government charged him with two crimes based on identical acts. Davis also argued that the superseding indictment was vindictive because the government added the two new charges in retaliation for his refusal to cooperate with government officials who wanted him to testify against a defendant in a different case.
The district court conducted an evidentiary hearing on Davis's motion. At the hearing, Davis's father, Donald McLendon, testified that an agent wanted Davis to talk to him, but that Davis did not want to cooperate because his family might get hurt. The district court subsequently denied Davis's motion to dismiss. United States v. Davis , No. 8:14-cr-191, 2015 WL 500531 (M.D. Fla. Feb. 4, 2015). As to multiplicity, the court found that charges under 18 U.S.C. § 1503 and 18 U.S.C. § 1512(b)(1) are not multiplicitous because they require proof of different elements. In reaching this conclusion, the court noted that both the First and Eighth Circuits agree that the elements of these two charges are not the same. Id. at *1 (citing United States v. Risken , 788 F.2d 1361, 1369 (8th Cir. 1986) ; United States v. LeMoure , 474 F.3d 37, 43 (1st Cir. 2006) ). Turning to vindictiveness, the court explained that there is no presumption of vindictiveness where, as here, the charges are added pre-trial. Based on the evidence adduced at the hearing, the court found no actual vindictiveness on the part of the prosecution.
At Davis's request, the district court continued the trial multiple times, and trial was finally scheduled for February 9, 2015. On January 29, 2015, Davis moved to continue the trial again, this time on grounds that the prosecution had just sent him discovery discs that included letters, videos, and seventeen hours of recorded phone calls that Davis made while he was in custody pending trial. The district court conducted an evidentiary hearing on the motion on February 3, 2015. Davis argued that, due to his mental health issues, he needed more time to review this new evidence to prepare for trial. His counsel confirmed, however, that Davis participated in each of the calls at issue. The government opposed the motion to continue because: (1) defense counsel had equivalent access to the recordings and actually had provided some of them to the government; and (2) its witnesses had to...
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