United States v. Leonard, 19-14142

• Decision Date: 08 July 2021
• Docket Number: No. 19-14142,19-14142
• Citation: 4 F.4th 1134
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tarresse LEONARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

4 F.4th 1134

UNITED STATES of America, Plaintiff-Appellee,

v.Tarresse LEONARD, Defendant-Appellant.

No. 19-14142

United States Court of Appeals, Eleventh Circuit.

July 8, 2021

Brandy Brentari Galler, U.S. Attorney's Office, West Palm Beach, FL, Robert Benjamin Cornell, U.S. Attorney's Office, Fort Lauderdale, FL, Nicole D. Mariani, Emily M. Smachetti, U.S. Attorney Service - Southern District of Florida, Miami, FL, for Plaintiff-Appellee.

Ralph Michael Hursey, Michael Hursey, PA, Fort Lauderdale, FL, for Defendant-Appellant.

Tarresse Leonard, pro se.

Before MARTIN, GRANT, and BRASHER, Circuit Judges.

GRANT, Circuit Judge:

A defendant must know that he is a felon in order to be convicted under 18 U.S.C. § 922(g) as a felon in possession of a firearm. This case requires us to decide whether an indictment that does not clearly set out that element warrants an automatic presumption of prejudice to the defendant. It does not. That kind of error is not the sort of structural infirmity that infects the entire trial, so we review it using the same harmless-error inquiry that applies to most other types of errors, including constitutional ones. Here, any potential error in the indictment was harmless. Finding no other errors in the conviction or sentence, we affirm.

I.

Emanuel Jackson, firearm by his side, walked toward a small crowd of people gathered near a street corner. As Jackson closed in, Detective Paul-Noel, onsite for an unrelated investigation, saw him raise the firearm to eye level and point the gun at the crowd. Chaos followed, as the people on the corner screamed and shouted, hurrying to get out of Jackson's way. Without firing a shot, Jackson tucked the gun into his waistband and walked back across the street, where he joined two other men—Tarresse Leonard and Dexter Franklin.

Realizing that he was in an emergency situation, Detective Paul-Noel put on a bulletproof vest and called for backup. One detective was close by; together, and with their badges prominently displayed, the detectives approached the three men, who started to run as soon as they realized what was going on. The detectives yelled at them to stop, but the trio kept on running. A foot chase ensued. With the two detectives hot on their heels, Jackson, Leonard, and Franklin raced toward a nearby house. During the chase, both detectives saw Leonard reach into his waistband and ditch a Ziploc bag; they suspected that it contained marijuana.

Leonard reached the house first. He tried to shut the door behind him, but Jackson and Franklin forced their way inside. The detectives also managed to squeeze inside, and immediately ordered everyone to the ground. Jackson and Franklin complied. Leonard, however, fled to a bedroom in the back of the house.

Detective Paul-Noel quickly identified Jackson as the man who had pointed the gun, so the officers arrested him. A post-arrest pat down revealed a handgun, as well as packets the officers thought contained heroin and Xanax, though lab tests later revealed they were not actually controlled substances. The officers also saw a bag of crack cocaine lying on the couch. They then ordered Leonard out of the back room and arrested him, finding $1,000 in cash and an electric scale in his pockets. Given all these facts, the officers applied for a search warrant; they thought it likely that more contraband would be found if they could look for it. They were right—once the officers executed the warrant, they found a loaded handgun and narcotics inside the back room where Leonard had been hiding. An expert later testified that Leonard was a "major contributor" to the DNA recovered off the firearm; the likelihood of the DNA matching another male profile was 1 in 18.02 trillion .

A federal grand jury indicted Leonard and Jackson for various crimes, including a felon-in-possession charge under 18 U.S.C. § 922(g). They each filed a motion to suppress the firearm, ammunition, and cocaine that the officers found, arguing that the initial entry into the home violated the Fourth Amendment and tainted the later discoveries. The district court denied their motions after a hearing. The court concluded that the officers had probable cause to arrest the men based on their reasonable belief that Jackson had committed a felony (aggravated assault) and that Leonard had committed an arrestable offense (possessing marijuana), not to mention their flight from the scene of a crime. This was an "open and shut case"—the "textbook definition" of probable cause to arrest, according to the district court. And not only could the officers arrest the men, exigent circumstances meant that they could enter the residence to do so—they were in hot pursuit of fleeing suspects and the public was at risk if the three escaped. Nor was the search warrant a problem: drugs were discovered in plain view and the officers had plenty of reason to think more illegal substances would be found.

Still, Leonard and Jackson moved to reopen the suppression hearing after prosecutors disclosed that Detective Paul-Noel had made a mistake in his testimony. At the initial hearing, the detective was shown a security-footage clip that included a man taking off his shirt and waving it around on the street corner where Jackson first drew the detective's attention. He identified the person as Jackson. But after reviewing the footage again after the hearing, Detective Paul-Noel concluded that Jackson actually showed up in the video a little later. He did not, however, waver in his belief that it was Jackson who brandished the firearm on the day of the arrests. He reiterated that he had no doubt that Jackson was "the person [he] saw with the gun," and later testified at trial that he was "absolutely sure that was Mr. Jackson walking across the street," and was "absolutely positive of what [he] saw that day." The court denied the motion to reopen the suppression hearing, emphasizing that the detective's mistake did not imperil his personal observations. After all, the court said, everyone "knew from the beginning" that it was a "grainy video."

Around the same time, the Supreme Court had taken up a case called Rehaif v. United States , and was set to decide whether a defendant must know he belonged to a relevant category of persons barred from possessing a firearm to be convicted under § 922(g). ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019). Just to be safe, the government sought a new indictment that it thought specifically charged the defendants with knowledge of their felon status. The indictment had previously alleged that Jackson and Leonard, "having been previously convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly possess a firearm ...." But the new indictment alleged that they "possessed a firearm ... having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, and did so knowingly." The government's caution paid off: soon after it secured the new indictment, the Supreme Court issued its opinion in Rehaif and confirmed that § 922(g) does require knowledge of status.

Still, Leonard and Jackson moved to dismiss their new indictment as legally insufficient under Rehaif . The court denied the motion. When Leonard raised the issue again at the beginning of trial proceedings, the government opposed dismissal; it informed the court that it had amended the indictment to prepare for Rehaif , and emphasized that the grand jurors were presented with evidence that the defendants knew their status as felons. Indeed, the parties had already signed stipulations agreeing that the government had proven beyond a reasonable doubt that the defendants knew they were convicted felons. So the case moved on to trial.

A jury found Leonard guilty of the felon-in-possession charge, but acquitted him of the drug charges.¹ The district court then determined that Leonard was subject to the Armed Career Criminal Act's 15-year mandatory minimum sentence because he had at least three qualifying convictions, and sentenced him to 20 years’ imprisonment followed by five years’ supervised release. See 18 U.S.C. § 924(e).

This appeal followed.

II.

We review the sufficiency of an indictment de novo. United States v. Pendergraft , 297 F.3d 1198, 1204 (11th Cir. 2002). We review a district court's denial of a renewed motion to suppress, as well as the denial of a hearing to challenge a search warrant affidavit, for abuse of discretion. United States v. Simms , 385 F.3d 1347, 1356 (11th Cir. 2004) ; United States v. Votrobek , 847 F.3d 1335, 1342 (11th Cir. 2017). We also review for abuse of discretion evidentiary and jury instruction decisions. United States v. Brown , 587 F.3d 1082, 1091 (11th Cir. 2009) ; United States v. Jockisch , 857 F.3d 1122, 1126 (11th Cir. 2017). And we review the application of the Sentencing Guidelines de novo. United States v. Massey , 443 F.3d 814, 818 (11th Cir. 2006).

III.

Leonard attacks his conviction and sentence on several fronts; we take each in turn. First , we consider Leonard's challenges to his indictment. Second , we take up the district court's denial of his motion to reopen the suppression hearing. Third , we review the denial of his motion to hold a hearing to challenge the search warrant affidavit. Fourth , we evaluate whether cumulative error occurred at his trial. And finally , we look at the propriety of his sentence.

A.

We start with the indictment. Leonard says that his indictment was defective for two reasons: it failed to charge a complete criminal offense and it did not inform him that he needed to know his status as a convicted felon. Neither argument persuades us.

1.

Congress has power over the jurisdiction of the lower federal courts. It has provided the district courts with jurisdiction over "all offenses against the laws of the United States." 18 U.S.C. § 3231. It follows that a district court lacks jurisdiction in a criminal case when an indictment fails to charge an offense...