USA v. Marc Jean-Charles

Filing

Opinion issued by court as to Appellant Marc Elie Jean-Charles. Decision: Affirmed and Remanded. Opinion type: Non-Published. Opinion method: Per Curiam. Motion to file a replacement brief filed by Appellant Marc Elie Jean-Charles is DENIED. [7973603-2]; Motion for substitution of counsel filed by Appellant Marc Elie Jean-Charles is DENIED. [7974697-2]; Motion for appointment of counsel filed by Appellant Marc Elie Jean-Charles is DENIED. [7974697-3]. (See 06/07/2017 opinion)(FMH/CRW/RLA) 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[DO NOT PUBLISH]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
________________________
No. 16-10976
Non-Argument Calendar
________________________
D.C. Docket No. 9:15-cr-80055-RLR-6

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARC ELIE JEAN-CHARLES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 7, 2017)
Before HULL, WILSON, and ANDERSON, Circuit Judges.
PER CURIAM:

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Marc Jean-Charles appeals his convictions and sentence for conspiracy to
commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count 1);
conspiracy to possess with intent to distribute five kilograms or more of cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count 2); attempted
possession with intent to distribute less than 500 grams of cocaine, in violation of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846 (Count 3); conspiracy to use or
carry a firearm in connection with a crime of violence or drug trafficking crime, in
violation of 18 U.S.C. § 924(c), (o) (Count 4); and carrying a firearm in connection
with a crime of violence or drug trafficking crime, in violation of 18 U.S.C.
§ 924(c) (Count 5). On appeal, he argues: (1) the district court improperly
restricted voir dire when the court rejected his question on racial prejudice and
limited his questioning to 15 minutes; (2) the district court erred in precluding an
entrapment defense; (3) there was cumulative error; and (4) the district court
improperly calculated the drug amount and erred in applying enhancements for use
of body armor and obstruction of justice.
We will address each claim in turn.
I
The method of conducting the voir dire is left to the sound discretion of the
district court, and will be upheld unless there is an abuse of discretion. United
States v. Miller, 758 F.2d 570, 572 (11th Cir. 1985). The district court’s discretion
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extends both to the decision whether or not to submit suggested questions to the
jury, and to the decision whether to question prospective jurors collectively or
individually. United States v. Delval, 600 F.2d 1098, 1102 (5th Cir. 1979). A
district court’s refusal of a defendant’s request to inquire into racial matters
constitutes reversible error only where the circumstances of the case indicate that
there is a reasonable probability that racial or ethnic prejudice might have
influenced the jury. United States v. Dennis, 786 F.2d 1029, 1045 (11th Cir.), on
reh’g, 804 F.2d 1208 (11th Cir. 1986).
In Rosales-Lopez v. United States, the Supreme Court considered whether it
was reversible error for the district court to reject the defendant’s request that the
court’s voir dire inquire into the possibility of racial or ethnic prejudice against the
defendant. 451 U.S. 182, 183 (1981) (plurality opinion). The Supreme Court
concluded that while it is usually best to allow such a question from the defendant,
the court need not defer to a defendant’s request when there is no rational
possibility of racial prejudice. Id. at 191 & n.7. In that case, the Supreme Court
determined that there was no reasonable possibility that the jury was influenced by
racial prejudice. Id. at 193. Among other reasons, the Supreme Court stated that
the district court asked other questions to the jury to discover any racial bias. Id. at
193 & n.8.

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In United States v. Groce, we held that there was no reasonable probability
that racial prejudice influenced a jury. 682 F.2d 1359, 1362-63 (11th Cir. 1982).
We reasoned that the defendants were charged with victimless drug crimes, and no
issues involving racial prejudice were raised at trial. Id. at 1362. We also
reasoned that the district court took steps to ensure that the jury panel would serve
impartially through the court’s opening remarks and individual questions to the
jurors. Id. at 1363.
In this case, there is no reasonable probability that the jury was influenced
by racial prejudice. Since Jean-Charles’s offense involved a reverse-sting
operation, there were no victims with whom the jury could sympathize. Further,
no issues of racial prejudice were raised at trial. Thus, as in Groce, there was no
reasonable probability that the jury was influenced by racial prejudice. Id. at 136263. Moreover, the district court took reasonable steps to ensure that any prejudice
would be discovered. Id. at 1363; Rosales-Lopez, 451 U.S. at 193 & n.8. The
district court gave Jean-Charles’s counsel an opportunity to question the jury to
discover whether the jurors would be fair and impartial, and instructed the jurors
that they were not permitted to be influenced by prejudice or sympathy towards the
defendant or the government. Finally, the court did not abuse its discretion in
allotting 15 minutes of questioning to defense counsel. The district court’s method
of conducting voir dire is left to the sound discretion of the district court, including
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whether or not to submit proposed questions to the jury. Miller, 758 F.2d at 572;
Delval, 600 F.2d at 1102. Moreover, the district court allowed defense counsel to
request time beyond the 15-minute allotment, but defense counsel did not request
any additional time.
II
The sufficiency of the defendant’s evidence of government inducement
regarding entrapment is a legal issue to be decided by the trial court. United States
v. Sistrunk, 622 F.3d 1328, 1332-33 (11th Cir. 2010). Some of our opinions have
applied a de novo review, while others have reviewed the question for an abuse of
discretion. See id. at 1333 (noting the varying standards but declining to decide the
appropriate standard of review, and holding that the result of the case was the same
under either standard).
The affirmative defense of entrapment requires two elements: (1)
government inducement of the crime; and (2) lack of predisposition on the part of
the defendant. Id. The defendant’s right to present the entrapment defense is
conditional because before an entrapment defense may be presented to the jury, the
defendant must present an evidentiary foundation for a valid entrapment defense.
Id. To meet this burden, a defendant may produce any evidence to raise a jury
issue that the government’s conduct created a substantial risk that the offense
would be committed by a person other than one ready to commit it. Id. This
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burden is light because a defendant is generally entitled to present a recognized
defense to the jury where sufficient evidence exists for the jury to find in his favor.
Id. Nevertheless, evidence of the government’s mere suggestion of a crime or
initiation of contact is not enough. Id. Instead, the defendant must present
evidence of persuasion or mild coercion. Id. Such evidence includes evidence that
the defendant had not favorably received the government’s plan, that the
government had to “push it” on him, or that several attempts at setting up an illicit
deal had failed and on at least one occasion the defendant refused to participate.
Id. After the defendant meets his burden to show some evidence that the
government induced the defendant to commit the crime, the question of entrapment
becomes a factual one for the jury to decide. Id.
Finally, testimony that is fantastic, internally inconsistent, or speculative
does not present a question for the jury. United States v. Davis, 809 F.2d 1509,
1513 (11th Cir. 1987).
In this case, under either standard of review, Jean-Charles failed to meet his
burden of coming forward with sufficient evidence of government inducement.
Jean-Charles’s evidence of government inducement was his testimony contending
that an unedited recording of the March 17, 2015, meeting showed that he walked
away twice from Agent Michael Connors and that Agent Connors promised him a
better life. However, the government’s recording flatly contradicted Jean6

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Charles’s testimony. The recording showed that Jean-Charles agreed to the
robbery. And there was nothing in the record indicating the existence of an
unedited recording, rendering Jean-Charles’s testimony fantastical. Davis, 809
F.2d at 1513. Accordingly, the government’s mere suggestion of the crime to JeanCharles was not sufficient to establish evidence of government inducement.
Sistrunk, 622 F.3d at 1333.
III
We review for abuse of discretion the district court’s decisions regarding the
admissibility of expert testimony. United States v. Frazier, 387 F.3d 1244, 1258
(11th Cir. 2004). We also review a district court’s decision to admit evidence for
an abuse of discretion. United States v. Hill, 643 F.3d 807, 840 (11th Cir. 2011).
However, when a party raises an argument for the first time on appeal, we review
the issue for plain error. United States v. Hughes, 840 F.3d 1368, 1384 (11th Cir.
2016). To establish plain error, a defendant must show there is (1) error; (2) that is
plain; and (3) that affects substantial rights. Id. When all three requirements are
met, we may exercise its discretion to recognize a forfeited error, but only if it
seriously affects the fairness, integrity, or public reputation of the judicial
proceedings. Id. at 1384-85.
Under Fed. R. Evid. 702, an expert witness may testify if the witness’s
knowledge will help the trier of fact to understand the evidence or to determine a
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fact at issue. Fed. R. Evid. 702. Additionally, Fed. R. Evid. 403 provides that the
court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Fed. R. Evid. 403. Expert testimony is subject to Rule 403. Frazier, 387 F.3d at
1263.
It is well established that a jury serves no sentencing function. Shannon v.
United States, 512 U.S. 573, 579 (1994). The principle that juries are not to
consider the consequences of their verdict is a reflection of the basic division of
labor between judge and jury. Id. Providing jurors sentencing information invites
them to ponder matters that are not within their province, distracts them from their
fact-finding responsibilities, and creates a strong possibility of confusion. Id.
Under the cumulative-error doctrine, we will reverse a conviction when an
aggregation of non-reversible errors yields a denial of the constitutional right to a
fair trial. United States v. Reeves, 742 F.3d 487, 505 (11th Cir. 2014). However,
where there is no error or only a single error, there can be no cumulative error.
United States v. Gamory, 635 F.3d 480, 497 (11th Cir. 2011). Additionally, there
is no cumulative error when the defendant cannot establish that the combined
errors affected his substantial rights. United States v. Ladson, 643 F.3d 1335, 1342
(11th Cir. 2011).
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We reject Jean-Charles’s argument that there was cumulative error. As
noted above, the district court did not err in conducting the voir dire or in
precluding an entrapment defense. Additionally, the district court did not err in
admitting Officer Rey Paniagua’s testimony and in restricting Agent Connors’s
testimony on how he chose the 20-kilogram drug amount. Because Jean-Charles
objected to Officer Paniagua’s testimony on the basis that his testimony was
irrelevant, his challenge to the testimony under Fed. R. Evid. 403 as unfairly
prejudicial is reviewed for plain error. Hughes, 840 F.3d at 1384. The court did
not err in admitting Officer Paniagua’s testimony because the expert testimony
helped the jury understand how drug trafficking affects interstate commerce, how
home invasion crews operate, and why the scenario presented in the reverse sting
operation was realistic. Fed. R. Evid. 702. The testimony was also not unfairly
prejudicial under Fed. R. Evid. 403 because Officer Paniagua’s testimony did not
implicate Jean-Charles in the offense. Additionally, the court did not err in
precluding a question regarding how the 20-kilogram drug amount related to
sentencing, because a jury serves no sentencing function, and the line of
questioning may have confused the fact-finding issues for the jury. Shannon, 512
U.S. at 579.
Therefore, because there was no error, there can be no cumulative error.
Gamory, 635 F.3d at 497. And, even if the court erred in admitting Officer
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Paniagua’s testimony, a single error does not establish cumulative error, and it did
not affect Jean-Charles’s substantial rights. Id.; Ladson, 643 F.3d at 1342. The
evidence against Jean-Charles, which included a recording of the heist and him
agreeing to the heist, was overwhelming.
IV
We review for clear error the district court’s underlying determination of the
drug quantity attributable to the defendant. United States v. Almedina, 686 F.3d
1312, 1315 (11th Cir. 2012). With respect to Guidelines issues, including issues
regarding an obstruction of justice enhancement, we review the district court’s
factual findings for clear error, and its application of the factual findings to the
Sentencing Guidelines de novo. United States v. Doe, 661 F.3d 550, 565 (11th Cir.
2011); United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004).
For a factual finding to be clearly erroneous, we must be left with the definite and
firm conviction that a mistake has been committed. Rodriguez-Lopez, 363 F.3d at
1137.
For sentencing purposes, the government bears the burden of establishing
the drug quantity by a preponderance of the evidence. United States v. Rodriguez,
398 F.3d 1291, 1296 (11th Cir. 2005). A member of a drug conspiracy is liable not
only for his own acts, but also for the acts of others in furtherance of the activity
that the defendant agreed to undertake and that are reasonably foreseeable in
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connection with that activity. U.S.S.G. § 1B1.3(a)(1)(B). A defendant is liable for
drug quantities possessed by other participants if the transaction was in the scope
of, and in furtherance of, the jointly undertaken criminal activity, and was
reasonably foreseeable in connection with that criminal activity. Id., comment.
(n.3(C)). In a reverse sting operation, the agreed-upon quantity of the controlled
substance more accurately reflects the scale of the offense. U.S.S.G. § 2D1.1,
comment. (n.5).
U.S.S.G. § 3C1.1 provides for a two-level enhancement if the defendant
willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation, prosecution, or
sentencing. U.S.S.G. § 3C1.1. Such conduct includes providing materially false
information to a judge or magistrate judge. Id., comment. (n.4(F)).
U.S.S.G. § 3B1.5 provides for a two-level enhancement if the defendant was
convicted of a drug trafficking crime or a crime of violence, and the offense
involved the use of body armor. U.S.S.G. § 3B1.5(1), (2)(A). By contrast,
§ 3B1.5(2)(B) provides for a four-level enhancement if the defendant himself used
body armor. Id. § 3B1.5(2)(B). “Use” is defined as the active employment of the
body armor to protect the person from gunfire, and not mere possession. Id.,
comment. (n.1). We interpret the Guidelines so that no words are discarded as

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being meaningless, redundant, or mere surplusage. United States v. FuentesRivera, 323 F.3d 869, 872 (11th Cir. 2003).

In this case, the court did not err in calculating the drug amount or in
applying enhancements for use of body armor and obstruction of justice.1 With
respect to the drug quantity amount, Agent Connors told Jean-Charles that the heist
involved 20 kilograms of cocaine. Thus, it was reasonably foreseeable to him that
the jointly undertaken criminal activity would involve 20 kilograms of cocaine,
and, under the Guidelines, that amount governs the drug quantity amount.
U.S.S.G. § 1B1.3(a)(1)(B), comment. (n.3(C)). And, in a reverse-sting operation,
the agreed-upon quantity of the controlled substance more accurately reflects the
scale of the offense. U.S.S.G. § 2D1.1, comment. (n.5). Moreover, Jean-Charles’s
argument, that the jury found that he was responsible for less than 500 grams of
cocaine, is inapposite, because the jury also found that it was reasonably
foreseeable to Jean-Charles that the conspiracy involved more than five kilograms
of cocaine.
Additionally, the district court did not err in imposing an obstruction of
justice enhancement. Jean-Charles testified during the motion in limine hearing

1

Although the government argues that any error in the court’s Guidelines calculation was
harmless because Jean-Charles was sentenced to the mandatory minimum, the district court did
not sentence Jean-Charles to the mandatory minimum in this case.
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that the government’s video had been edited to delete portions in which JeanCharles walked away after Agent Connors asked him to agree to the robbery, and
that Agent Connors promised him a better life. However, the government’s
recording flatly contradicted that testimony, and there was no evidence of an
unedited video. The magistrate judge found that Jean-Charles’s testimony was
“incredible.” Accordingly, the court did not err in applying the enhancement for
providing materially false testimony to the magistrate judge. U.S.S.G. § 3C1.1,
comment. (n.4(F)).
Finally, with respect to the body armor enhancement, it was reasonably
foreseeable to Jean-Charles that the offense involved the use of body armor.
U.S.S.G. § 1B1.3(a)(1)(B) (stating that a defendant is responsible for the acts of
others in furtherance of the activity that the defendant agreed to undertake, and that
are reasonably foreseeable in connection with that activity). During the March 17
meeting, a co-conspirator stated that everyone knew the plan, which involved
donning police vests and handcuffing the armed guards. Thus, it was reasonably
foreseeable to Jean-Charles that the offense involved the use of body armor, even
though Jean-Charles himself did not use the armor. U.S.S.G. § 3B1.5(1), (2)(A).
Construing § 3B1.5(2)(A) to require that the defendant himself use the body armor
would render § 3B1.5(2)(B) redundant. Fuentes-Rivera, 323 F.3d at 872.
V
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We may sua sponte raise the issue of clerical errors in the judgment and
remand with instructions that the district court correct those errors. See United
States v. James, 642 F.3d 1333, 1343 (11th Cir. 2011) (remanding to correct
clerical error in judgment regarding statute of conviction); United States v. Massey,
443 F.3d 814, 822 (11th Cir. 2006) (same).
With regard to Count 1, the written judgment describes a conviction for
Hobbs Act robbery; however, Jean-Charles was charged in the indictment and
convicted of conspiracy to commit Hobbs Act robbery. With regard to Count 3,
the written judgment states a violation of 21 U.S.C. § 841(b)(1)(A); however, since
the jury found him responsible for less than 500 grams of cocaine for this count,
the statute of conviction is 21 U.S.C. § 841(b)(1)(C) instead. See United States v.
Cordero, 860 F.2d 1034, 1035 n.2 (11th Cir. 1988) (citing § 841(b)(1)(C) for an
offense involving less than 500 grams of cocaine). With regard to Count 5, the
written judgment describes a conviction for carrying a firearm in connection with a
crime of violence; however, Jean-Charles was charged in the indictment and
convicted of carrying a firearm in connection with a crime of violence or a drug
trafficking crime.
Accordingly, we AFFIRM Jean-Charles’s convictions and total sentence,
and REMAND to correct the following clerical errors in judgment: (1) Count 1
should read “Conspiracy to commit Hobbs Act Robbery,” (2) Count 3 should read
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“21 USC 841(a)(1), 841(b)(1)(C) and 846,” and (3) Count 5 should read “Carrying
a Firearm in connection with a Crime of Violence or Drug Trafficking Crime.”
AFFIRMED IN PART, REMANDED IN PART. 2

2

Jean-Charles’s pro se motion for appointment of substitute counsel is DENIED. Jean-

Charles’s counseled motion to amend his initial brief is DENIED. See
United States v. Durham, 795 F.3d 1329, 1330 (11th Cir. 2015) (en banc) (citing rule that an
appellant who does not raise an issue in his initial brief may not do so in a reply brief or a
supplemental brief).
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