USA v. Ricky Atkins

Filing

Opinion issued by court as to Appellant Ricky Jermaine Atkins. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10844
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-20895-MGC-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICKY JERMAINE ATKINS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 26, 2017)
Before HULL, WILSON, and ROSENBAUM, Circuit Judges.
PER CURIAM:

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After a jury trial, Ricky Atkins was convicted of one count of conspiracy to
engage in sex trafficking of minors, in violation of 18 U.S.C. § 1594(c), and two
counts of sex trafficking of a minor, in violation of 18 U.S.C. § 1591(a)(1) and
(b)(2). In this appeal, Atkins challenges his convictions on two main grounds.
First, he argues that the district court abused its discretion in denying as untimely
his motion to suppress evidence obtained from his cell phone and in admitting the
evidence at trial. Second, he contends that the court committed cumulative error
by, in addition to admitting the cell-phone evidence, admitting other allegedly
unfairly prejudicial evidence regarding the two minor victims and failing to give a
limiting instruction. After careful review, we affirm.
I.
A.
The trial evidence established that Atkins used his job as a mentor at a
Florida Keys shelter for abused and neglected girls to recruit two minor victims,
L.P. and G.W., to engage in prostitution for him. Atkins had suggested that the
two minors run away from the shelter and work for him as prostitutes. L.P. had
engaged in prostitution before (though not for Akins); G.W. had not. On the night
of August 15, 2014, the girls left the shelter through the window of their room and
then got in touch with Atkins. Soon after, Atkins picked them up and explained
that he would take them to his cousin, Sandra Simon, at a motel where the girls
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would engage in prostitution.

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Atkins planned to buy a sports car with their

earnings.
Before going to the motel, however, Atkins drove L.P. and G.W. to an
apartment, where Atkins said G.W. would be “tested.” At the apartment, three of
Atkins’s male friends took G.W. upstairs and had sex with her. L.P. stayed
downstairs and had sex with Atkins and one of his friends. G.W. also gave Atkins
oral sex at the apartment before they left for the motel.
After the events at the apartment, Atkins took the two girls to Simon at a
Motel 6. Simon took pictures of the girls and posted ads online. Over the next few
days, both girls had numerous prostitution “dates” at the Motel 6 and other motels.
The girls gave their earnings to Simon, who said the money would go to Atkins.
On or around August 19, L.P. and G.W. left Simon to go to the Tampa area
with two other people, one of whom L.P. knew from a children’s hospital. After
getting into a car accident in Tampa a few days later, L.P. and G.W. were returned
to the Florida Keys shelter. Both girls described encounters with Atkins after
returning to the shelter. G.W. said that Atkins touched her inappropriately and
asked her when she would work for him again as a prostitute. L.P. stated that, on
her first night back at the shelter, she complied with Atkins’s request for oral sex.

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B.
Atkins and Simon were indicted and charged with one count of conspiracy
to engage in sex trafficking of minors, in violation of 18 U.S.C. § 1594(c), and two
counts of sex trafficking of a minor, in violation of 18 U.S.C. § 1591(a)(1) and
(b)(2). Simon pled guilty to one count of sex trafficking of a minor and agreed to
cooperate with the United States. Atkins maintained his not-guilty plea and went
to trial.
Three different attorneys represented Atkins during the course of the districtcourt proceedings. In February 2015, before the March 15, 2015, deadline for
pretrial motions and while the public defender was representing Atkins, Atkins
submitted several pro se filings, including a motion to suppress his cell phone and
a request for new counsel. After a hearing on these matters, the court relieved the
public defender and appointed CJA counsel to represent Atkins. Also, based on
Atkins’s statements at the hearing, the court treated the pro se motion to suppress
as effectively withdrawn pending further action by newly appointed counsel. In
June 2015, Atkins retained counsel, and the court allowed CJA counsel to
withdraw. Atkins was found competent to stand trial in August 2015, and the court
set a trial date for October 2015.
In the morning on the first day of trial, October 19, retained counsel filed a
motion to suppress evidence obtained from a cell phone that had been seized from
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Atkins in connection with his arrest. Addressing the motion before jury selection,
the district court found that it was “way out of time” and denied it as untimely.
Later in the trial, when the government introduced the cell-phone evidence, Atkins
objected and the court allowed defense counsel to, in effect, argue the motion to
suppress. The court overruled the objection, reiterating that the motion to suppress
was untimely but stating that, even if it had been timely, the motion would be
denied on the merits.
Both minor victims, L.P. and G.W., testified at trial.

Over Atkins’s

objection, the district court permitted L.P. to testify that she had given oral sex to
Atkins at the shelter after returning from Tampa.

The court found that this

testimony was admissible as both inextricably intertwined with the offense conduct
and as evidence of Atkins’s intent, motive, and plan under Rule 404(b), Fed. R.
Evid. The court gave a standard limiting instruction on the use of “similar acts”
evidence before the jury began its deliberations.
To impeach L.P.’s testimony on cross examination, defense counsel played a
recorded statement L.P. made to police on September 6, 2014, the first time she
spoke with police about the matters in this case. In that statement, L.P. never
mentioned Atkins’s involvement. To rehabilitate L.P. on redirect, the government
offered a second recorded statement she gave to police that implicated Atkins and
was consistent with her testimony at trial.
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In that second statement, L.P. explained that she felt compelled to take G.W.
with her when leaving the motel for Tampa with her acquaintance and another
person. L.P. stated, “They were just going to take me and leave her, leave [Simon]
and G.W. together, but I couldn’t do that to G.W. because I know what they’ll do
to G.W., G.W. will end up—she’ll be dead, she going to die if I left her. I had to
take her with me.”

Defense counsel moved for a mistrial, arguing that the

testimony implied that Atkins was going to kill G.W. The district court disagreed
with counsel’s interpretation and denied the motion. The court maintained that
L.P.’s statement implied that G.W.’s inexperience made her particularly
vulnerable, not that she would be killed by Atkins. The court made clear to the
jury that the second recorded statement was being offered for the purpose of
judging L.P.’s credibility.
The jury found Atkins guilty of all three sex-trafficking offenses. The
district court sentenced Atkins to a total prison term of 380 months. Atkins now
appeals.
II.
Atkins first contends that the district court abused its discretion in denying
as untimely his motion to suppress evidence obtained from a cell phone seized
from him in connection with his arrest. Atkins asserts that the motion was timely
because the court failed to set a pretrial-motions deadline and the motion was filed
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before trial started. Atkins also notes that he had filed a pro se motion to suppress
seven months before trial but the court never held an evidentiary hearing. On the
merits, Atkins argues that suppression of the cell-phone evidence was warranted
because the government acted with unreasonable delay in securing a warrant to
search the phone in its custody.
We review for an abuse of discretion the denial of a motion to suppress on
the grounds of timeliness. United States v. Smith, 918 F.2d 1501, 1509 (11th Cir.
1990). Under Rule 12 of the Federal Rules of Criminal Procedure, district courts
may set, extend, or reset a deadline for the parties to make motions that must be
filed before trial, including motions to suppress. Fed. R. Crim. P. 12(b)(3)(C),
(c)(1). If the court does not set a deadline for pretrial motions, “the deadline is the
start of trial.” Fed. R. Crim. P. 12(c)(2). A defendant who “fail[s] to file his
motion within the deadlines set by the court . . . waives his right to assert this
motion.” Smith, 918 F.2d at 1509; Fed. R. Crim. P. 12(c)(3). Nevertheless, “this
waiver may be excused for good cause.” United States v. Lall, 607 F.3d 1277,
1288 (11th Cir. 2010).
Here, the district court did not abuse its discretion in denying the motion to
suppress as untimely. Contrary to Atkins’s claim on appeal, the district court did
set a deadline for pretrial motions. That deadline was March 15, 2015. 1 The

1

Atkins suggests that there was no pretrial-motions deadline because an August 5, 2015,
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motion to suppress was not filed until October 19, 2015, on the morning of the first
day of trial and more than seven months after the March deadline. So the motion
was untimely. See United States v. Echols, 577 F.2d 308, 311 (5th Cir. 1978)
(district court acted within its discretion in denying a motion to suppress that was
filed “over one year after the trial court had set pretrial motions to be heard and
just six days before trial”). 2
Besides the counseled motion, Atkins argues that the district court should
have addressed his timely submitted pro se motion to suppress at some point
earlier in the proceedings, but we disagree. Our review of the record confirms that
the court acted reasonably by not resolving Atkins’s pro se motion.
The record shows that from the outset of the case, Atkins personally wished
to file a suppression motion relating to the seizure of his cell phone, but it appears
that Atkins’s initial attorney, a federal public defender, was unwilling to do so.

scheduling order continuing the trial date—after the court had determined that Atkins was
competent to stand trial—did not mention a motions deadline. We disagree. Given that the
deadline had long since passed, the lack of a reference to the deadline in the August order is
unsurprising and does not suggest that no deadline had been set. Moreover, even apart from the
pretrial deadline, Atkins did not clearly raise his current basis for seeking suppression—
unreasonable delay in obtaining a search warrant—until after the trial began. The motion to
suppress hinted in vague terms at this issue, but it was not sufficiently definite, specific, detailed,
and non-conjectural to enable the court to consider the claim. See United States v. Richardson,
764 F.2d 1514, 1527 (11th Cir. 1985). Atkins first raised the unreasonable-delay issue in clearer
terms when the government admitted the cell-phone evidence during trial. Accordingly, even if
the court did not set a motions deadline, the suppression claim he presses on appeal was not
timely raised before trial. See Fed. R. Crim. P. 12(b)(3)(C) & (c)(1).
2
This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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That disagreement led to Atkins’s submission of several pro se filings, including a
request for new counsel and a motion to suppress the cell phone. The district court
held a hearing on these issues on February 20, 2015, during which Atkins told the
court that he was unhappy with counsel’s defense of the case but that he “didn’t
want to file [the pro se motion to suppress]” at that time. The court granted
Atkins’s request for substitute counsel and stated that it would not treat Atkins’s
pro se filing as a motion until the issue of counsel was resolved. Immediately
thereafter, the court appointed CJA counsel to defend Atkins.
Thus, the district court, quite reasonably in our view, appears to have treated
Atkin’s pro se motion to suppress as effectively withdrawn pending further action
by counsel. But from February until the morning of trial in October, defense
counsel never informed the court of an intention to seek suppression of the cell
phone. While CJA counsel said at a March 2015 status conference that he was
thinking about filing a motion to suppress, which the court indicated it would
consider, counsel did not raise the issue at the next status conference or file such a
motion. So the court never extended or reset the motions deadline.
Then, after the court allowed substitution of retained counsel in June 2015,
retained counsel also did not mention any intention of seeking suppression—that
is, until he filed a motion to suppress four months later on the morning of trial.
Atkins cannot now claim that the district court should have addressed his pro se
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motion to suppress on the merits, or held an evidentiary hearing on the motion,
when it was never asked to do so. In fact, retained counsel at trial expressly
disavowed the claims made in the pro se motion. So the district court did not
abuse its discretion by failing to resolve the pro se motion to suppress.
Nor has Atkins offered any justification for the delay in filing the counseled
motion to suppress. When the district court told defense counsel before jury
selection that the motion was “way out of time,” counsel neither disagreed with
that assessment nor offered an adequate justification for the delay. Counsel’s
explanation that he had hesitated to file the motion because it was “borderline” and
did so only because Atkins demanded it does not amount to good cause. The facts
upon which the motion was based were known well before retained counsel took
over the defense. And despite multiple changes in defense counsel, the record
indicates that the district court was willing to consider a motion to suppress
provided it was given reasonable notice in advance of trial. For all of these
reasons, the district court did not abuse its discretion in finding that Atkins’s
suppression motion was untimely and that the delay was inexcusable.
Finally, the district court did not excuse the delay by allowing counsel to
argue the merits of the motion during trial and indicating that it would have denied
the motion on the merits even if it had been timely. “The district court’s indication
of its view on the merits of the [suppression] claim did not automatically excuse
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appellant’s waiver of that claim.” United States v. Milian-Rodriguez, 828 F.2d
679, 683 (11th Cir. 1987). And the court “never indicated that it would excuse the
waiver and decide the [suppression] issue solely on the merits.” Id.
As for the admission of the cell-phone evidence, in light of the absence of a
timely motion to suppress, we review that for plain error. Atkins cannot satisfy
that standard here.
He has not demonstrated that any error in admitting the cell-phone evidence
was “plain” in the circumstances of this case. See id. at 683–84 (reviewing an
untimely-raised suppression claim for plain error). For an error to be “plain,” it
must be “obvious and clear” under current law. United States v. Dortch, 696 F.3d
1104, 1112 (11th Cir. 2012).
Atkins sought suppression of the cell-phone evidence on the ground that the
government unreasonably delayed obtaining a warrant to search the phone. 3 “A
temporary warrantless seizure supported by probable cause is reasonable so long as
the police diligently obtained a warrant in a reasonable period of time.” United
States v. Laist, 702 F.3d 608, 613 (11th Cir. 2012) (internal quotation marks
omitted). We consider the reasonableness of a delay in obtaining a warrant under
the totality of the circumstances. Id. As we noted in Laist, these are “often

3

Atkins suggests in passing that his phone was seized without probable cause. But he
appears to have disavowed this argument during the trial, and the argument is not adequately
raised on appeal. So we view this claim as abandoned and do not consider it.
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difficult cases” requiring a balancing of privacy-related and law-enforcementrelated concerns, including the strength of the possessory interest, the length of the
delay, the government’s diligence, and the government’s interests in holding the
property as evidence. Id. at 613–14. Id. Because the balancing analysis is factintensive, no per se rule of unreasonableness or even a rule of presumptive
unreasonableness applies. See id. at 614. “Thus, in some contexts, a delay as short
as 90 minutes may be unreasonable; while in others, a delay of over three months
may be reasonable.” Id. (citation omitted).
Here, Atkins has not shown that the district court plainly erred by admitting
the cell-phone evidence. The police conducted controlled calls to Atkins’s cell
phone, so they had reason to believe the cell phone was an instrumentality of the
offense. And there is nothing “obvious” or “clear” under the specific facts of this
case that the government’s 30-day delay in obtaining a warrant to search the phone
was unreasonable. Apart from the length of the delay, Atkins has not developed
facts, either below or on appeal, that plainly establish that the delay was
unreasonable. See id. at 613–14.
Atkins claims that “the government did not provide an excuse for the delay.”
But in reviewing for plain error, “we cannot penalize the Government for failing to
introduce evidence” regarding its actions when Atkins’s failure to timely move for
suppression “seemed to make such a showing unnecessary.” See United States v.
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Meadows, 523 F.2d 365, 368 (5th Cir. 1975). Rather, we can find plain error “only
if the facts in the record compel the conclusion” that the evidence should have
been suppressed. Id. Given the “fact-intensive” nature of the balancing calculus,
Atkins has not made that showing. See Laist, 702 F.3d at 614. For these reasons,
we affirm the district court’s admission of the evidence obtained from his cell
phone.
III.
Next, Atkins argues that the district court committed reversible error by (1)
permitting one of the minor victims, L.P., to testify that she performed oral sex on
Atkins after engaging in prostitution for him; and (2) denying his motion for a
mistrial after the jury heard L.P.’s statement that the other minor victim, G.W.,
would have died if L.P. had left her at the motel with Simon, Atkins’s cousin and
co-defendant. Atkins contends that both statements were unfairly and substantially
prejudicial, warranting exclusion under Federal Rule of Evidence 403 if not a
declaration of mistrial. Atkins also asserts that the court failed to give limiting
instructions to the jury on the use of similar-acts evidence. Finally, he maintains
that the district court’s errors combined warrant reversal even if they are
insufficient to do so on their own.
We review a district court’s evidentiary rulings for a clear abuse of
discretion. United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003). We also
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review for an abuse of discretion a district court’s denial of a motion for a mistrial.
United States v. Ramirez, 426 F.3d 1344, 1353 (11th Cir. 2005). A defendant is
entitled to a mistrial only upon a showing of substantial prejudice. United States v.
Chastain, 198 F.3d 1338, 1352 (11th Cir. 1999).
Relevant evidence is generally admissible unless it falls under a rule of
exclusion. See United States v. Troya, 733 F.3d 1125, 1131 (11th Cir. 2013).
Relevant evidence includes “intrinsic” and “extrinsic” evidence. See id. What we
deem intrinsic evidence may be admissible if it is in some sense part of the story of
the charged offense, though not part of the crime itself. See id. So, for example,
evidence is admissible as “inextricably intertwined” with the charged offense “if it
is an integral and natural part of the witness’s accounts of the circumstances
surrounding the offenses for which the defendant was indicted.” Id. (internal
quotation marks omitted).

Evidence that is extrinsic to a charged offense—

evidence of other crimes or wrongdoing—is admissible if it is relevant to an issue
other than the defendant’s character, such as intent, motive, plan, or knowledge.
Id.; see Fed. R. Evid. 404(b).
“All admissible evidence, whether intrinsic or extrinsic, must be weighed
against Rule 403 prejudice.” Troya, 733 F.3d at 1331. Rule 403 permits a court to
“exclude relevant evidence if its probative value is substantially outweighed by a
danger of,” among other things, unfair prejudice. Fed. R. Evid. 403. But “Rule
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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. Lopez,
649 F.3d 1222, 1247 (11th Cir. 2011) (internal quotation marks omitted). Because
the district court is in a better position to weigh competing concerns under Rule
403 in light of the specific facts of the case before it, “we will find that the district
court abused its discretion under Rule 403 in only the rarest of situations.” Id.
Moreover, a limiting instruction can diminish any unfair prejudice caused by the
evidence’s admission. United States v. Brown, 665 F.3d 1239, 1247 (11th Cir.
2011).
Here, the district court did not abuse its discretion with regard to any of the
challenged rulings. First, we agree with the district court that L.P.’s testimony that
she gave Atkins oral sex after returning to the shelter was admissible as
“inextricably intertwined” intrinsic evidence. 4 The testimony was an integral and
natural part of the minor victim’s account. It echoed her earlier testimony about
having sex with Atkins before engaging in the acts of prostitution and, as the court
stated, showed “the influence and the improper relationship” that Atkins had with
her and G.W., who testified about similar inappropriate contact with Atkins upon
returning to the shelter. Moreover, the jury heard admissible and unchallenged

4

The evidence was probably also admissible under Rule 404(b), but we need not decide
that issue. In any case, Atkins does not challenge the bases for admission, just the court’s failure
to exclude the evidence under Rule 403.
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evidence that Atkins had engaged in other sex acts with the two minors, so any
additional prejudicial effect from the challenged testimony was negligible. Thus,
the district court did not abuse its considerable discretion under Rule 403.
Second, the district court did not abuse its discretion in denying Atkins’s
motion after the jury heard L.P.’s statement that G.W. would have died if L.P. had
left her alone with Simon at the motel. That statement did not mention Atkins, and
the record supports the court’s interpretation that the implication of the statement
was that G.W. was less “street-wise” than L.P., so she was particularly vulnerable
to the dangers of being a teenage prostitute. The district court did not abuse its
discretion in concluding that Atkins was not substantially prejudiced by the
isolated and ambiguous statement. See Chastain, 198 F.3d at 1352.
Third, the record contradicts Atkins’s claim that district court failed to give a
limiting instruction related to evidence that Atkins had engaged in similar sex
trafficking with J.H. While the instruction may not have specifically referenced
that evidence, the court instructed the jury as a general matter about how it could
and could not properly use “similar acts” evidence, explaining that such evidence
could not be considered “to decide whether the defendant committed the acts
charged now,” but that it could be considered “for other very limited purposes,”

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including showing intent, plan, or lack of mistake. As a matter of fact, then, the
court did not err by failing to give a limiting instruction.5
Finally, Atkins has not shown that he was denied his constitutional right to a
fair trial by the cumulative effect of the alleged errors. See United States v. King,
751 F.3d 1268, 1277 (11th Cir. 2014). In fact, Atkins has not shown that the court
committed any error, so there is no error to accumulate. See id.
IV.
Because the district court did not abuse its discretion in denying as untimely
Atkins’s motion to suppress, did not plainly err in admitting the evidence obtained
from his cell phone, and did not otherwise abuse its discretion during the trial in
the ways alleged by Atkins, we AFFIRM his convictions.

5

We do not address Atkins’s allegations of ineffective assistance in this direct appeal.
See United States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010). Claims of ineffective
assistance are better addressed on collateral review, when they have been more fully developed.
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