Opinion
Case No. 3:05-cr-339-J-33TEM, 3:10-cv-57-J-33TEM.
May 13, 2011
ORDER
This cause is before the Court on Patrick Fitzgerald Porter's pro se 28 U.S.C. § 2255 Motion to Vacate, Set Aside or Correct Sentence (hereinafter "motion" or "motion to vacate"). (Doc. cv-1; cr-186). A review of the record demonstrates that, for the following reasons, the motion to vacate must be denied.
PROCEDURAL HISTORY
On July 14, 2006, Porter and his wife were named in an eighteen-count Third Superseding Indictment charging various drug and firearms offenses. Porter was named in seventeen of the eighteen counts. (Doc. cr-50). Prior to trial, Porter waived his right to be represented by counsel in favor of representing himself, proceeding to trial with stand-by counsel. Porter was found guilty on all counts. (Doc. cr-94). On September 27, 2007, Porter was sentenced to concurrent terms of twenty-seven years incarceration for each of his convictions involving certain drug offenses charged in the Superseding Indictment; a concurrent sentence of ten years incarceration for possession of a firearm after having been convicted of a felony; a consecutive sentence of five years incarceration for the first of the section 924(c) convictions, and a consecutive sentence of twenty-five years incarceration for each of his additional (six) section 924(c) convictions. (Doc. cr-148).Porter filed a timely notice of appeal, and on September 9, 2008, his conviction and sentence were affirmed in an unpublished, percuriam opinion. (Doc. cr-172). On December 8, 2008, Porter filed a petition for a writ of certiorari to the Supreme Court of the United States, and on December 17, 2009, a separate petition for writ of certiorari was filed, challenging the constitutionality of consecutive sentences imposed pursuant to convictions under 18 U.S.C. § 924(c)(2)(A). Certiorari review was denied on January 21, 2009, and June 21, 2010, respectively. In the interim, Porter filed the pending pro se 28 U.S.C. § 2255 motion to vacate.
DIRECT APPEAL
Porter raised several issues in his direct appeal to the Eleventh Circuit Court of Appeals: (1) that the District Court erroneously constructively amended the Indictment when it instructed the jury that it could find Porter guilty of a count of distribution by finding that he distributed "either cocaine or crack cocaine"; (2) that the distribution counts contained in the Indictment were duplicitous; (3) that the District Court erred in denying Porter's motion for new trial; (4) that the District Court erred in denying Porter's motion for judgment of acquittal on each of the seven firearms counts on the basis of insufficient evidence; (5) that the District Court erred in denying Porter's motion for judgment of acquittal on the felon in possession count; (6) that he was erroneously sentenced as an armed career criminal; and, (7) that his sentence was erroneously enhanced based on facts not found by the jury. In its substantive opinion, the appellate court rejected each of these claims and affirmed the judgment and sentence. (Doc. cr-172). (See Exhibit One for copy of Eleventh Circuit opinion.)
DISCUSSION
Title 28, United States Code, Section 2255, allows attack on a conviction and sentence on four grounds: (1) it was imposed in violation of the Constitution or laws of the United States; (2) it was imposed without jurisdiction; (3) it was imposed in excess of the maximum authorized by law; or (4) it is otherwise subject to collateral attack. Only jurisdictional claims, constitutional claims, and claims of error so fundamental as to have resulted in a complete miscarriage of justice warrant relief on collateral attack. E.g., United States v. Addonizio, 442 U.S. 178, 184-86 (1979).
Porter now seeks review of his conviction and sentence, claiming that he was denied his Sixth Amendment right to effective assistance of counsel. Ineffective assistance of counsel claims are generally reviewable only on collateral attack, pursuant to 28 U.S.C. § 2255. Mills v. United States, 36 F.3d 1052, 1055 (11th Cir. 1994). Claims of ineffective assistance excuse failure to raise other claims if ineffective assistance of counsel is the cause for the failure to raise the claim. Greene v. United States, 880 F.2d 1299, 1305 (11th Cir. 1989).
Standard for Ineffective Assistance of Counsel
The Sixth Amendment right to counsel is the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). The benchmark for judging any claim of ineffective assistance of counsel, however, is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland v. Washington, 466 U.S. 668, 688 (1984); see also Boykins v. Wainwright, 737 F.2d 1539, 1542 (11th Cir. 1984). The burden is on the defendant to demonstrate that (1) counsel's performance fell below an objective standard of reasonable professional assistance and (2) the defendant was prejudiced by the deficient performance. United States v. Cronic, 466 U.S. 648, 658 (1984).
The reasonableness of counsel's challenged conduct must be judged on the facts of the particular case, viewed as of the time of counsel's conduct. Devier v. Zant, 3 F.3d 1445, 1450 (11th Cir. 1993). For performance to be deficient, it must be established that, in light of all the circumstances, counsel's performance was outside the wide range of professional competence. See Strickland, 466 U.S. at 690. Judicial scrutiny of counsel's performance must be highly deferential, and courts "must avoid second-guessing counsel's performance." Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en banc). "Courts must `indulge [the] strong presumption' that counsel's performance was reasonable and that counsel `made all significant decisions in the exercise of reasonable professional judgment.'" Id. (quoting Strickland, 466 U.S. at 689). The defendant's burden in this regard, though not insurmountable, is a heavy one. See Chandler, 218 F.3d at 1314. For a petitioner to show deficient performance, he "must establish that no competent counsel would have taken the action that his counsel did take." Id. at 1315.
To establish prejudice, a petitioner must demonstrate a reasonable probability that, but for counsel's deficient performance, the result of his trial would have been different. United States v. Greer, 440 F.3d 1267, 1272 (11th Cir. 2006). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Rolling v. Crosby, 438 F.3d 1296, 1300 (11th Cir. 2006). If the defendant fails to show that he was prejudiced by the alleged errors of counsel, this Court may reject the defendant's claim without determining whether the counsel's performance was deficient. Strickland, 466 U.S. at 697; Tafero v. Wainwright, 796 F.2d 1314, 1319 (11th Cir. 1986).
Every effort must be made to eliminate the distorting effects of hindsight; to reconstruct the circumstances of counsel's challenged conduct; and to evaluate the conduct from counsel's perspective at the time. Weeks v. Jones, 26 F.3d at 1036; Diaz v. United States, 930 F.2d 832 (11th Cir. 1991). A court must examine the "totality of the circumstances" in determining whether counsel was constitutionally sufficient and effective. McCoy v. Newsome, 953 F.2d 1252, 1263 (11th Cir. 1992).
Specific Claims of Ineffective Assistance of Counsel
Porter, who waived his right to counsel in favor of representing himself, now claims that appointed stand-by counsel was ineffective at trial. He claims that stand-by counsel should have moved to dismiss the drug distribution counts in the Indictment as a violation of due process (failure to state amount of drug charged), and that the Government proved no nexus between the drug trafficking counts and the related firearms offenses. He claims also that the evidence was insufficient to support the guilty verdicts, and that stand-by counsel's failure to offer a "reasonableness" instruction for the jury demonstrates a probability that Porter is actually innocent. He also claims that stand-by counsel denied him his right to compulsory process when stand-by counsel did not adequately assist Porter in preparation for trial, and for failing to convince the Court that a continuance was necessary for the defense to procure a ballistics expert. He asserts he was denied his right to cross-examine witnesses when erroneous hearsay testimony was allowed during trial, and that stand-by counsel "merely sat silent and failed to object." He claims stand-by counsel withheld exculpatory witness statements, which would have resulted in exoneration of the firearms offenses. He faults stand-by counsel for failing to object when the Court sent the unredacted Superseding Indictment to the jury; failing to file a pretrial motion to suppress; and for allowing Porter to unknowingly waive his right to counsel at trial. Finally, Porter makes a vague claim that he is the victim of prosecutorial vindictiveness.
The record illustrates that the jury was informed that the parties had reached a stipulation to Porter's status as a convicted felon, (Doc. cr-124 at 206), and that a redacted copy of the Superseding Indictment was provided to the jury. (Doc. cr-125 at 168).
Faretta Waiver
Porter's Sixth Amendment claims of ineffective assistance of counsel are meritless because he chose to waive representation by counsel in favor of self-representation. Prior to trial, Porter informed the Court of his wish to represent himself, and the Court conducted a thorough colloquy on the issue, as required by Faretta v. California, 422 U.S. 806 (1975). Faretta requires that a defendant who chooses to represent himself "should be made aware of the dangers and disadvantages of self-representation" so that the record is clear the defendant knows what he is doing. Id. at 835.
A criminal defendant has a Sixth Amendment right to waive his right to counsel and proceed pro se as long as the decision is knowing, voluntary, and intelligent. United States v. Fant, 890 F.2d 408, 409 (11th Cir. 1989). On direct appeal the Government bears the burden of proving waiver, but, when the defendant challenges a conviction collaterally, the burden of proving that the defendant did not waive his right to counsel lies with the defendant. Strozier v. Newsome, 926 F.2d 1100, 1105 (11th Cir. 1991).
This Court should consider the following factors to determine whether the record establishes a knowing and voluntary waiver of the right to counsel: (1) defendant's age, educational background, and physical and mental health; (2) extent of defendant's contact with lawyers prior to the trial; (3) defendant's knowledge of the nature of the charges, of possible defenses, and of penalties; (4) defendant's understanding of the rules of procedure, evidence, and courtroom decorum; (5) defendant's experience in criminal trials; (6) whether stand-by counsel was appointed and the extent to which that counsel aided the defendant; (7) mistreatment or coercion of the defendant; and (8) whether defendant was trying to manipulate the events of the trial. Strozier, 926 F.2d at 1105; Fant, 890 F.2d at 410. The "ultimate test is not the trial court's express advice, but rather the defendant's understanding." Fitzpatrick v. Wainwright, 800 F.2d 1057, 1065 (11th Cir. 1986).
The record in the instant case demonstrates that Porter was cautioned by the Court multiple times against acting as his own counsel; nevertheless, he insisted that was his desire. (See Doc. cr-123 at 8-12, 30). Under oath, Porter assured the Court that he understood the charges against him and the related penalties (id. at 19-20, 23) and understood the possible defenses to the charges. (Id. at 21-22). He stated that he had not been forced to make the decision to represent himself, and requested that the Court continue the appointment of previous counsel (who had represented Porter for the previous six or seven months) in a stand-by capacity, a request the Court granted. (Id. at 12, 25). After thorough discussion on the matter, the Court found that Porter had knowingly and voluntarily chosen to represent himself having "been made aware of the dangers and disadvantages of self-representation and knows what he is doing, and has made the choice with his eyes open." (Id. at 31).
Porter now claims that his former counsel, against whom he had no previous complaint (and even requested that he remain appointed as stand-by counsel), provided ineffective assistance in his capacity as stand-by counsel. This claim is fatally flawed, because there is no constitutional right to stand-by counsel. See Simpson v. Battaglia, 458 F.3d 585, 597 (7th Cir. 2006) (citing McKaskle v. Wiggins, 465 U.S. 168 (1984) for the conclusion that there is no constitutional right to standby counsel); United States v. Singleton, 107 F.3d 1091, 1100-03 (4th Cir. 1997) (same); United States v. Webster, 84 F.3d 1056, 1063 (8th Cir. 1996) (same); Clark v. Perez, 510 F.3d 382, 395 (2d Cir. 2008) (same). The primary concern arising out of appointment of standby counsel, as expressed by the McKaskle Court, is that appointed standby counsel does too much, so as to abrogate the Faretta right to self-representation, not that counsel does too little. McKaskle, 465 U.S. at 177.
A defendant's burden in establishing cause and prejudice is compromised, if not eviscerated, by the very nature of this type of hybrid representation. Porter asks this Court to presume that the outcome would have been different in this case if counsel had done more, differently, and there is simply no way to determine whether, or to what extent, Porter's defense was undermined or adversely affected by counsel's performance. Porter now asks this Court to find that his waiver of counsel was unknowing, and also a product of substandard advice of counsel; however, this claim is contrary to Porter's sworn statements prior to trial. For this reason, any claim of ineffective assistance of counsel during trial must be denied.
Remaining Claims
Porter asserts three claims that are arguably not covered by his knowing waiver of representation by counsel: (a) that counsel should have moved to dismiss the drug distribution counts in the Indictment because they did not state the amount of drugs charged; (b) that counsel withheld exculpatory witness statements; and (c) that counsel failed to file a pretrial motion to suppress.
First, Porter faults counsel for failing to file a futile motion to dismiss the drug distribution counts in the Superseding Indictment on the basis that they did not charge a specific drug amount. Each of the drug counts specified in Porter's motion charge violations of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Section 841(b)(1)(C) is the penalty associated with distribution of any quantity of controlled substance; it does not designate a threshold quantity. Therefore, no amount need be included in the charge. Counsel is not deficient for failure to file a motion when it is not legally supportable and would have been unsuccessful. Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990); accord Rasheed v. Smith, 221 Fed. Appx. 832, 836 (11th Cir. 2007).
Likewise, Porter's claim that counsel should have filed a pretrial motion to suppress fails. This claim is vague, but it appears that Porter faults counsel for not moving to suppress the stop and search of his vehicle, in which police officers saw a firearm in plain view. (See Doc. cr-172 [opinion of appellate court; exhibit one to this order] at 3-4). Evidence that is in plain view may be used to support a subsequent arrest. United States v. Hensley, 469 U.S. 221, 235 (1985). Any argument to the contrary would have been denied.
Porter claims that stand-by counsel withheld exculpatory witness statements from him, but does not identify the alleged statements or witnesses. He claims that counsel had statements from witnesses who would testify that they never saw Porter with a firearm when buying drugs from him. However, this claim is only speculative; Porter himself merely "maintains" that such statements exist. (See Porter's Memorandum [Doc cv-2] at 31). Such testimony would not have been exculpatory, but only impeaching. Thus, Porter is unable to establish the requisite prejudice to prevail on this claim, even if the statements existed and were presented to the jury. To the contrary, such testimony at trial likely would only have corroborated Porter's drug dealing, and established that some of his clients did not see a firearm. Such testimony does not undermine confidence in the outcome of the trial, and this claim must be denied.
Finally, Porter asserts a vague claim that he is a victim of prosecutorial misconduct and/or vindictiveness. He makes bald assertions that the Government knowingly presented false testimony at trial, and that the Indictment against him was superseded three times as punishment for exercising his right to go to trial. These claims are unfounded. Porter fails to identify any false testimony, but it can be assumed that Porter faults the jury for finding the Government witnesses more credible than the defense witnesses. Such credibility determinations are in the sole province of the jury. Kansas v. Ventris, 129 S. Ct. 1841, 1847 (2009). It follows, then, that a verdict contrary to Porter's own defense will not satisfy a claim of Governmental misconduct. Equally specious is Porter's claim that the Government acted vindictively for seeking to supersede the Indictment, which he claims was vindictive and meant to punish him for demanding a jury trial. There is absolutely no evidence of any actual vindictiveness in superseding the Indictment; that is, no suggestion in the complete record that the Government's actions were brought to influence Porter's decision to go to trial. See United States v. Goodwin, 457 U.S. 368 (1982) (no presumption of vindictiveness when additional charges are sought following unsuccessful plea negotiations). This claim is speculative, and must be dismissed.
Conclusion
Porter's claims of ineffective assistance of stand-by counsel at trial are frivolous, because the record reflects that he knowingly waived his constitutional right to counsel prior to trial. His claims of ineffective assistance of counsel during the pretrial stage of his case are without merit, as established above. Finally, his claims of prosecutorial misconduct and vindictiveness are specious and speculative. For the reasons stated, Porter's pro se Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255, must be denied.
Accordingly, the Court orders:
That Porter's 28 U.S.C. § 2255 motion to vacate (Doc. cv-1; cr-186) is denied. The Clerk is directed to enter judgment against Porter and to close this case.
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
IT IS FURTHER ORDERED that Defendant is not entitled to a certificate of appealability. A prisoner seeking a motion to vacate has no absolute entitlement to appeal a district court's denial of his motion. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of appealability (COA). Id. "A [COA] may issue AAA only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at § 2253(c)(2). To make such a showing, Defendant "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that the issues presented were adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (citing Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). Defendant has not made the requisite showing in these circumstances. Finally, because Defendant is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.
ORDERED at Tampa, Florida.
United States Court of Appeals For the Eleventh Circuit No. 07-14627 District Court Docket No. 05-00339-CR-J-33-TEM UNITED STATES OF AMERICA, Plaintiff-Appellee, versus PATRICK FITZGERALD PORTER, Defendant-Appellant.Appeal from the United States District Court for the Middle District of Florida JUDGMENT
It is hereby ordered, adjudged, and decreed that the attached opinion included herein by reference, is entered as the judgment of this Court. Entered: September 9, 2008 For the Court: Thomas K. Kahn, Clerk By: Gilman, Nancy(September 9, 2008)
Before CARNES, MARCUS and WILSON, Circuit Judges.PER CURIAM:
Patrick Porter was convicted on seventeen drug and weapons counts, and he now appeals his convictions on fourteen of those counts and his sentence.
I.
The following are the facts in the light most favorable to the government, drawing all reasonable inferences in favor of the jury's verdict, which is how we are required to view them at this stage in the proceedings. United States v. Robertson, 493 F.3d 1322, 1329 (11th Cir. 2007).
During the early part of 2005 Porter began buying and reselling large quantities of powder and crack cocaine. Eventually he was purchasing a total of about five ounces of cocaine-around $4000 worth-per week. Over the course of several months Porter bought between two and two-and-a-half kilograms of cocaine for approximately $60,000.
On several occasions while buying drugs, Porter's customers saw him with one of a few different pistols either on his person or in his car. One of these times was when Porter went to collect money from a delinquent customer and, upon finding him gone, showed a semi-automatic pistol to one of the customer's housemates and demanded to know where the customer was. Another time Porter threatened to shoot up the house if he was not paid the money he was owed. One witness testified to giving Porter two pistols as collateral on a drug debt owed by the witness' girlfriend.
Porter's association with guns was not without consequences. On May 22, 2005 Porter apparently accidentally shot himself in the ankle and had to go to the emergency room. He told a police officer who spoke with him there that he had been shot by a mugger. The officer saved the bullet that the doctors had removed from Porter.
On August 22, 2005 Porter and his girlfriend were driving in his car when he was pulled over for having a tag light. The officer who pulled him over ran Porter's license plate number and discovered that Porter owned the car and that he had previous felony convictions. The officer then wrote Porter a fix-it ticket for the tag light. Porter, however, insisted on exiting the car to look at the light. When he did so, he left his door open and another officer at the scene saw the butt of a gun under the driver's side floor mat. The officers then arrested Porter and searched his car.
The gun turned out to be a loaded .25 caliber MP 25 Raven pistol manufactured in California. Forensic ballistics tests later revealed that the bullet removed from Porter's ankle a few months before was consistent with one fired from the Raven pistol, but there was no way to determine whether the bullet was actually fired from that gun. The search of Porter's car also uncovered a bag containing 13.5 grams of powder cocaine under the passenger seat and a bag containing 16.4 grams of crack cocaine wrapped in a black shirt in passenger-side door well. Subsequent tests failed to produce any discernable fingerprints on the gun or on either bag of drugs.
After Porter was arrested his wife-not his girlfriend-picked up his personal effects from the jail where he was held. These included two cellular phones. While in jail Porter spoke to his wife several times over the phone. Over the course of these conversations, Porter instructed his wife to answer his cell phones and collect from various people who owed him money. Porter's wife reported back to him on her attempts to collect his money, which were met with mixed results.
While in jail Porter met Steven Hoskins, another inmate being held on a drug charge. Porter told Hoskins that he had sold powder and crack cocaine starting in 2005 and that he kept a gun with him at all times in case of trouble. Porter went on to say that the gun and drugs found in his car when he was arrested belonged to him.
A federal grand jury indicted Porter on the following: one count of conspiracy to distribute crack and powder cocaine in violation of 21 U.S.C. § 846; five counts of distributing powder and crack cocaine in violation of 21 U.S.C. § 841(a)(1); two counts of distributing crack cocaine in violation of 21 U.S.C. § 841(a)(1); one count of distributing powder cocaine in violation of 21 U.S.C. § 841(a)(1); seven counts of possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c); and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Porter chose to represent himself, and the district court appointed him standby counsel. Porter then pleaded not guilty to all counts. Before trial both parties stipulated that Porter had prior felony convictions.
At trial the government put on several witnesses who testified to the facts recounted above. Porter declined to introduce any evidence on his own behalf. The jury convicted Porter on all seventeen counts. More than seven days after his conviction but before sentencing Porter filed a motion for new trial, contending that Hoskins had committed perjury. Porter supported this allegation with an affidavit from William Koster, another inmate at the jail. Koster alleged in the affidavit that Hoskins had asked him to testify against Porter and that he saw Hoskins look through Porter's legal papers while in jail. Additionally, Porter contended that the government had impermissibly amended one of the distribution counts in the indictment. The court denied Porter's new trial motion.
The probation office prepared a presentence investigation report. Porter objected to the PSR, arguing that it impermissibly attributed drug quantities to him because they had not been found by a jury. At sentencing Porter also objected to the drug quantity calculation and argued that the mandatory minimum sentence that applied to his convictions for carrying a firearm in furtherance of a drug offense was unconstitutional. He also renewed his motion for a new trial.
Porter called three witnesses at sentencing to offer mitigating testimony, one of whom was Koster. Koster reasserted the allegations in his affidavit but also admitted to having been convicted of fraud, first-degree attempted murder, and shooting into an occupied vehicle with a deadly weapon. The court again denied Porter's motion.
The district court then proceeded to overrule all of Porter's objections and adopt the PSI. Then, after considering the guideline range, the court sentenced Porter to a total of 182 years imprisonment. Porter, now represented by counsel, timely appealed.
II.
Porter first contends that the district court erred when it instructed the jury on one of the distribution charges because the instruction amounted to a constructive amendment of the indictment. A constructive "amendment occurs when the essential elements of the offense contained in the indictment are altered to broaden the possible bases for conviction beyond what is contained in the indictment." United States v. Keller, 916 F.2d 628, 634 (11th Cir. 1990). This is in contrast to a variance, which "occurs when the facts proved at trial deviate from the facts contained in the indictment but the essential elements of the offense are the same." Id. A constructive "amendment is per se reversible error, while a variance requires the defendant to show that his rights were substantially prejudiced by the variance in order to be entitled to a reversal." Id. at 633. Porter did not object to the jury instruction either when it was given or earlier, so we review only for plain error. Id. at 636.
For the part of the conviction that Porter challenges on these grounds, the indictment charged him with distributing crack cocaine. However, the jury instruction, as read to the jury by the court, stated that Porter could be found guilty of that count if he had distributed either cocaine or crack cocaine.
The difference between the jury instruction and the indictment is only about which controlled substance or substances Porter distributed. Because the statute does not specify a particular controlled substance, 21 U.S.C. § 841(a)(1), the identity of the controlled substance that the defendant distributed is not an "essential element[] of the offense contained in the indictment."Keller, 916 F.3d at 634. Therefore, we have held that there is no constructive amendment simply because the controlled substance specified in the indictment and the one in the jury instructions are different. United States v. Rutherford, 175 F.3d 899, 906 (11th Cir. 1999).
Even if this difference were a variance, it would not be reversible error. For a variance to be reversible error it must result in substantial prejudice to the defendant. Keller, 916 F.3d at 633. Porter has not identified any prejudice from the difference between the indictment and the jury instructions, and he has therefore waived the issue, Kelliher v. Veneman, 313 F.3d 1270, 1274 n. 3 (11th Cir. 2002). Absent any error, there is no plain error.
III.
Porter next contends that the five counts in the indictment charging him with distributing both powder and crack cocaine were duplicitous. "A count in an indictment is duplicitous if it charges two or more `separate and distinct' offenses." United States v. Schlei, 122 F.3d 944, 977 (11th Cir. 1997). We need not determine whether these charges were in fact duplicitous because Porter waived this issue by failing to raise it before trial. See Fed.R.Crim.P. 12(b)(3)(B).
IV.
Porter's third contention is that the district court erred in denying his Federal Rule of Criminal Procedure 33(b)(1) motion for a new trial in light of Koster's testimony that Hoskins perjured himself at Porter's trial. A defendant who, after trial, discovers evidence previously unknown to the government is entitled to a new trial only if: "(1) the evidence was in fact discovered after trial; (2) the defendant exercised due care to discover the evidence; (3) the evidence was not merely cumulative or impeaching; (4) the evidence was material; and (5) the evidence was of such a nature that a new trial would probably produce a new result." United States v. Starrett, 55 F.3d 1525, 1554 (11th Cir. 1995) (citation and internal quotation marks omitted). We review the denial of a motion for a new trial only for abuse of discretion. United States v. Thompson, 422 F.3d 1285, 1294-95 (11th Cir. 2005). "`Motions for a new trial based on newly discovered evidence are highly disfavored in the Eleventh Circuit and should be granted only with great caution. Indeed, the defendant bears the burden of justifying a new trial.'" United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (en banc) (citation omitted).Koster's testimony that Hoskins looked through Porter's legal papers in jail and tried to recruit Koster to testify against Porter was relevant only to impeach Hoskins, so it fails to meet the third element for obtaining a new trial. Starrett, 55 F.3d at 1554. "The failure to satisfy any one of these elements is fatal to a motion for new trial." United States v. Lee, 68 F.3d 1267, 1274 (11th Cir. 1995). The district court did not err in denying Porter's motion for a new trial.
V.
Porter's fourth contention is that the district court erred by not granting his motion for a judgment of acquittal on each of the seven counts of possessing a firearm in furtherance of drug trafficking. We review de novo a district court's denial of a motion for a judgment of acquittal. United States v. Dulcio, 441 F.3d 1269, 1276 (11th Cir. 2006). In doing so, we consider the evidence in the light most favorable to the government, drawing all reasonable inferences and credibility determinations in favor of the jury's verdict. United States v. Browne, 505 F.3d 1229, 1253 (11th Cir. 2007). "It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilty," United States v. Harris, 20 F.3d 445, 453 (11th Cir. 1994), because a "jury is free to choose among reasonable constructions of the evidence," United States v. Vera, 701 F.2d 1349, 1357 (11th Cir. 1983) (quotation marks omitted).
A defendant is guilty of possessing a firearm in furtherance of a drug trafficking crime when he: "(1) knowingly (2) possesse[s] a firearm (3) in furtherance of any drug trafficking crime for which he could be prosecuted in a court of the United States."United States v. Woodard, 531 F.3d 1352, 1362 (11th Cir. 2008).
Porter first argues that the government did not introduce sufficient evidence on any of the possession of a firearm in furtherance of a drug trafficking offense counts because there was insufficient evidence to identify the specific firearms he possessed. This argument is without merit. The term "firearm" in § 924(c)(1) is a generic one, meaning that the government need not plead or prove that the defendant possessed a particular gun or kind of gun to prove a violation of the statute. See United States v. Williams, 334 F.3d 1228, 1231-32 (11th Cir. 2003).
Porter next argues that there was insufficient evidence on the § 924(c)(1) counts because the drug offenses that the possession of a firearm furthered were duplicitous. Because we have already held that he waived any claim that his charges were duplicitous, this argument also fails.
Porter's third argument is that no reasonable jury could have found him guilty because the government failed to introduce evidence of the specific dates on which he possessed the firearm in furtherance of a drug crime. However, proving the date a violation occurred is not an element of § 924(c)(1).See also United States v. Reed, 887 F.2d 1398, 1403 (11th Cir. 1989) ("When the government charges that an offense occurred `on or about' a certain date, the defendant is on notice that the charge is not limited to the specific date or dates set out in the indictment. Proof of a date reasonably near the specified date is sufficient." (internal citations omitted)). Further, each of the possession in furtherance counts was associated with a drug count the approximate date of which was included in the indictment, and Porter does not argue that there was insufficient evidence of when the events described in the drug counts occurred.
Porter's fourth argument is that the evidence at trial was insufficient to show that he was "carrying" the Raven pistol that was found under the floor mat in the car when he was arrested because his girlfriend was in the car and arguably had equal access to the gun. This argument is inapposite. Although § 924(c)(1) does include the offense of using or carrying a firearm during and in relation to a drug trafficking crime, Porter was charged with and convicted of possessing a firearm in furtherance of a drug trafficking crime, which is a different offense. The two crimes have different elements, and the offense of possessing a firearm in furtherance of a drug trafficking crime was added to expand the statute after the Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501 (1995), interpreted the "during and in relation to" language narrowly. See United States v. Timmons, 283 F.3d 1246, 1249 (11th Cir. 2002). Insofar as Porter's argument is that the government did not present enough evidence that he "possessed" the firearms, we deal with that issue next.
There is sufficient evidence in the record for a reasonable jury to find that Porter possessed a firearm on each of the occasions for which he was convicted. "With firearms, possession may be either actual or constructive. Like constructive possession of drugs, the government can establish constructive possession of a firearm by proving `ownership, dominion, or control over the firearm." United States v. Thompson, 473 F.3d 1137, 1143 (11th Cir. 2006) (internal quotation marks, citations, and alteration omitted). Here, the government produced ample evidence of Porter possessing firearms during his drug trafficking. Hoskins testified that Porter admitted to carrying a gun with him at all times while engaged in drug trafficking. Although this testimony alone would be enough, there is more evidence. Several witnesses testified that they saw Porter carrying a gun or having one in his car when they bought drugs from him. Porter obviously had a gun when he accidentally shot himself. Porter also wielded a gun when he tried to locate his delinquent customer and threatened to shoot up another witness' house if he was not paid. From all of this, a reasonable jury could conclude that Porter had a firearm with him when he engaged in each of his drug offenses.
There is also enough evidence for a reasonable jury to conclude that Porter used firearms in furtherance of drug trafficking crimes. The "in furtherance" element "requires that the prosecution establish that the firearm helped, furthered, promoted, or advanced the drug trafficking." Timmons, 283 F.3d at 1252. This in turn requires "`a showing of some nexus between the firearm and the drug selling operation.'" Id. at 1253 (citation omitted). A non-exclusive list of factors that can establish this nexus includes: (1) "the type of drug activity that is being conducted"; (2) "accessibility of the firearm"; (3) "the type of the weapon"; (4) "whether the weapon is stolen"; (5) "the status of the possession (legitimate or illegal)"; (6) "whether the gun is loaded"; (7) "proximity to the drugs or drug profits"; and (8) "the time and circumstances under which the gun is found." Id. (quoting United States v. Ceballos-Torres, 218 F.3d 409, 415 (5th Cir. 2000)).
Porter's stated purpose in possessing firearms was for protection while conducting drug deals. This is one way in which having a "firearm helped, furthered, promoted, or advanced the drug trafficking." Timmons, 283 F.3d at 1252. Witnesses testified that they saw Porter's guns either on his person or in his car during drug deals, meaning that the weapons were accessible and in close proximity to the drugs. One could reasonably infer from the fact that the Raven pistol was loaded when Porter was arrested and from the fact that an unloaded gun is ineffective protection that Porter's guns were loaded when he engaged in drug trafficking. Finally, at least two of Porter's guns were not registered to him because they were given to him as collateral on a drug debt. Considering all of the above factors we conclude that there was sufficient evidence that the firearms were possessed in furtherance of drug trafficking.
VI.
Porter next contends that the district court erred in denying his motion for a judgment of acquittal on the felon in possession count. Again, we review de novo a district court's denial of a motion for a judgment of acquittal, "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." Browne, 505 F.3d at 1253. Porter stipulated at trial that he had been convicted of a felony before being arrested on August 22, 2005. His argument is that there was insufficient evidence for a reasonable jury to find that he possessed the firearm because when the police found it under the driver's side floor mat both Porter and his girlfriend were in the car.
A defendant possesses a firearm within the meaning of the felon in possession statute, 18 U.S.C. § 922(g), when he actually possesses it or has constructive possession of it. United States v. Gonzalez, 71 F.3d 819, 834 (11th Cir. 1996). Because the Raven pistol was not found on Porter's person, the question is whether it was constructively in his possession. Id. "Constructive possession exists when the defendant exercises ownership, dominion, or control over the item or has the power and intent to exercise dominion or control." United States v. Greer, 440 F.3d 1267, 1271 (11th Cir. 2006).
There was sufficient evidence for a reasonable jury to find that Porter had constructive possession of the pistol found in his car when he was arrested. Porter admitted to Hoskins that he owned the pistol that was found in his car when he was pulled over. Further, by stating that he kept a gun with him for protection whenever he dealt drugs, Porter essentially acknowledged that he had the power and intent to exercise control over the gun because a gun that he did not control would not serve his purpose.
VII.
Porter's penultimate contention is that the district court erred when it sentenced him under the Armed Career Criminal Act, 18 U.S.C. § 924(e), which increases the penalties for defendants convicted of being felons in possession of firearms who have already been convicted of three or more violent felonies or serious drug offenses. He relies on Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005), to argue that the district court improperly looked beyond the existence of his past convictions to see if those convictions were for violent felonies or serious drug offenses, a type of factfinding he asserts should be the sole province of the jury.
However, Porter's reliance on Shepard is misplaced. That case held a court may only look to "the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information" to determine if the crime to which a defendant has pleaded guilty fits within the common law definitions of the crimes enumerated in § 924(e)(2)(B)(ii).Shepard, 544 U.S. at 26, 125 S. Ct. at 1263. Because the district court did not need to go beyond the charging documents and judgments of conviction to determine that Porter fell under the Armed Career Criminal Act, there was no Shepard violation.
Porter's argument about the jury's province is foreclosed by the Supreme Court's decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998), which held that a court can apply a statutory increase in the penalty for a crime based on recidivism without the defendant's earlier convictions having been alleged in his indictment or proven to a jury. Id. at 226-27, 247, 125 S. Ct. at 1222, 1232. The district court did not err in sentencing Porter under the Armed Career Criminal Act.
VIII.
Porter's final contention is that the district court erred by enhancing his sentencing guideline range based on facts not found by the jury under a beyond-a-reasonable-doubt standard. We have repeatedly held that this is not error. See United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir. 2005) (stating that it is not error to apply "extra-verdict enhancements-enhancements based on facts found by the judge that were not admitted by the defendant or established by the jury verdict-that le[a]d to an increase in the defendant's sentence"). As long as the district court does not treat the guidelines as mandatory, determining a defendant's guideline range using facts found under a preponderance-of-the-evidence standard does not violate the constitution. United States v. Smith, 480 F.3d 1277, 1280-81 (11th Cir.), cert. denied, 128 S. Ct. 175 (2007); United States v. Chau, 426 F.3d 1318, 1322-23 (11th Cir. 2005).
AFFIRMED.
October 08, 2008
Sheryl L. Loesch
Clerk, U.S. District Court
300 N HOGAN ST STE 9-150
JACKSONVILLE FL 32202-4271
Appeal Number: 07-14627-FF
Case Style: USA v. Patrick Fitzgerald Porter
District Court Number: 05-00339 CR-J-33-TEM
The enclosed certified copy of the judgment and a copy of this court's opinion are hereby issued as the mandate of this court.
Also enclosed are the following:
Original Exhibits, consisting of: one folder, one envelope, one psi
Original record on appeal or review, consisting of: nine volumes
The clerk of the court or agency shown above is requested to acknowledge receipt on the copy of this letter enclosed to the clerk.
A copy of this letter, and the judgment form if noted above,but not a copy of the court's decision, is also being mailed to counsel and pro se parties. A copy of the court's decision was previously mailed to counsel and pro se parties on the date it was issued.
Sincerely, THOMAS K. KAHN, Clerk Reply To: James O. Delaney (404) 335-6113 Encl.