USA v. David Garrison

Filing 511134516

USA v. David Garrison

Doc. 511134516

Case: 09-60382

Document: 00511134516

Page: 1

Date Filed: 06/07/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
June 7, 2010 N o . 09-60382 Lyle W. Cayce Clerk

U N I T E D STATES OF AMERICA P la in t iff - Appellee v. D A V ID WALLACE GARRISON D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Northern District of Mississippi N o . 2:08-CR-00058

B e fo r e JOLLY and GARZA, Circuit Judges, and MILLER * , District Judge. P E R CURIAM:* * D a v id Wallace Garrison was convicted of one count of smuggling c o u n te r fe it goods in violation of 18 U.S.C. § 545 and five counts of trafficking in c o u n t e r f e it goods in violation of 18 U.S.C. § 2320(a). Garrison appeals his c o n v ic t io n on three grounds: (1) the evidence was insufficient to sustain a c o n v i ct io n as to any count; (2) the district court erred in admitting evidence of

*

District Judge of the Southern District of Texas, sitting by designation.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

**

Dockets.Justia.com

Case: 09-60382

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No. 09-60382 s o m e of the counterfeit shirts; and (3) the district court erred in failing to grant a mistrial. For the reasons stated below, the conviction is AFFIRMED. I. G a r r is o n owned a clothing store named "Gambles" with locations in B a t e s v ille and Robinsonville, Mississippi. On June 1, 2007, upon information fr o m the clothing company Lacoste, a counterfeit specialist went to the B a t e s v ille store to investigate whether Garrison was selling counterfeit Lacoste s h i r ts . Upon his arrival, the investigator found more than six hundred c o u n te r fe it Lacoste, Polo/Ralph Lauren, and Abercrombie & Fitch shirts. The in v e s t ig a t o r then proceeded to the Robinsonville store, where he found more t h a n thirteen hundred counterfeit shirts. The shirts from both stores were seized b y police. During the seizure, the police also discovered shipping documents d a t e d September 27, 2006, September 12, 2006, and November 27, 2005, which in d ic a te d that Garrison had imported the same or similar shirts from abroad at a wholesale price of $2 or $3 per shirt. A ft e r the seizure, Garrison was interviewed by Immigration and Customs E n fo r c e m e n t agents. During the interview, Garrison admitted that on February 9 , 2006, U.S. Customs agents at JFK airport had seized a shipment of shirts he w a s importing on the basis that they were counterfeit. After having been sent n o t ic e of the seizure, Garrison was given the opportunity to contest the seizure if he believed the shirts were legitimate. Garrison chose not to do so. Garrison was charged with one count of fraudulently receiving, concealing, a n d selling merchandise after importation ("smuggling") in violation of 18 U.S.C. § 545 and five counts of trafficking in counterfeit goods in violation of 18 U.S.C. § 2 3 2 0 (a ). The trafficking counts related to the June 1, 2007, seizures at his s t o r e s , the shipping documents found in the stores, and the seizure at JFK a ir p o r t. At trial, Garrison was convicted by jury verdict on all counts.

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No. 09-60382 G a rrison appeals his conviction on three grounds. First, Garrison contends t h e evidence was insufficient to sustain a conviction as to any count. Second, the d is t r ic t court erred in allowing evidence of counterfeit shirts absent the p r e s e n t a t io n of those goods at trial. And last, the district court erred in not g r a n t in g a mistrial after a jury poll reflected a lack of unanimity in the verdict. II. W h e n a challenge to the sufficiency of the evidence is properly preserved b y a motion for judgment of acquittal at the close of the government's case and a t the close of all the evidence, review is de novo. See United States v. Shum, 496 F .3 d 390, 391 (5th Cir. 2007). In reviewing such a challenge, the court looks at t h e evidence in the light most favorable to the verdict to determine whether a r a tio n a l trier of fact could find every element of the offense beyond a reasonable d o u b t. Id. "The intent necessary to support a conviction can be demonstrated by d irect or circumstantial evidence that allows an inference of unlawful intent, and n o t every hypothesis of innocence need be excluded." United States v. Aggarwal, 1 7 F.3d 737, 740 (5th Cir. 1994) (citing United States v. McAfee, 8 F.3d 1010, 1 0 1 4 (5th Cir. 1993)). If, however, the challenge to the sufficiency of the evidence is not properly preserved, the review is to determine "whether there was a m a n if e s t miscarriage of justice." See United States v. Burton, 324 F.3d 768, 770 (5 th Cir. 2003) (quoting United States v. Galvan, 949 F.2d 777, 783 (5th Cir. 1 9 9 1 ) ). This standard requires a showing that either (1) the record is devoid of e v id e n c e pointing to guilt or (2) the evidence on a key element of the offense is s o tenuous that a conviction would be shocking. See Burton, 324 F.3d at 770 (c it in g United States v. McIntosh, 280 F.3d 479, 483 (5th Cir. 2002)). A t the conclusion of the government's case, Garrison moved pursuant to F e d e r a l Rules of Criminal Procedure 29(a) for a judgment of acquittal as to all c o u n ts of the indictment due to the insufficiency of the evidence to sustain a c o n v i c t io n as to any counts. This motion was denied by the district court in its 3

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No. 09-60382 e n tir e t y . After the trial, Garrison filed a timely Rule 29(c) motion for a judgment o f acquittal as to all counts except for the trafficking count based on the JFK s e iz u r e , and the district court again denied this motion. Thus, all counts except t h e trafficking count based on the JFK seizure are reviewed de novo and that c o u n t is reviewed for manifest miscarriage of justice. T h e indictment charged Garrison with smuggling counterfeit shirts from N o v e m b e r 27, 2005, to June 1, 2007. The government was required to prove that G a rr is o n imported counterfeit shirts, that the shirts copied or simulated a r e g is te r e d trademark, and that the defendant knew the importation of those s h ir t s was contrary to law. 18 U.S.C. § 545; 15 U.S.C. § 1124. Garrison contends th a t the government did not prove--for any given shirt--that he knowingly im p o r t e d the shirt, that the shirt was in fact counterfeit, and that Garrison knew it was counterfeit. The evidence admitted at trial, however, although of a c ir c u m s ta n t ia l nature, was sufficient to enable a rational trier of fact to find each o f these elements beyond a reasonable doubt. Several shipping documents were in t r o d u c e d that indicated that the same type of shirts, if not the exact shirts s e iz e d , were imported from abroad. There was also clear testimony by the c o u n te r fe it specialist that every shirt seized in both the Batesville and R o b in s o n v ille stores was in fact counterfeit. Additionally, although Garrison r e p e a te d ly stated that he had no knowledge the shirts were counterfeit, there w a s sufficient evidence introduced at trial from which a jury could find that G a r r i s o n was deliberately indifferent to the fact the shirts were counterfeit. F ir s t, Garrison should have been put on notice of the likely counterfeit nature o f the shirts after he was informed by U.S. Customs agents in 2006 that at least o n e shipment of shirts he was importing was counterfeit. See United States v. Yi, 4 6 0 F.3d 623, 630 (5th Cir. 2006) (selling merchandise after receiving a cease a n d desist letter is some evidence that the defendant knew the goods were c o u n t e r fe it ). Second, Garrison knew that a vendor must be licensed to sell Polo, 4

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No. 09-60382 L a c o s t e , and Abercrombie & Fitch shirts and he did not have a license. Third, t h e jury was told that Garrison had been previously convicted in 1995 for c o n s p i ra c y to counterfeit. And last, the very low cost of the shirts themselves s h o u ld have raised Garrison's suspicions. Thus, we affirm the smuggling count. F o r each of the trafficking counts, the government was required to prove t h a t (1) the defendant trafficked or attempted to traffic in goods; (2) such t r a ffic k in g , or attempt to traffic, was intentional; (3) the defendant used a c o u n t e r fe it mark on or in connection to the goods; and (4) the defendant knew th e mark was counterfeit. United States v. Hanafy, 302 F.3d 485, 487 (5th Cir. 2 0 0 2 ). With respect to each of the trafficking counts, Garrison argues there was n o evidence he knew the shirts were counterfeit. Additionally, for the trafficking c o u n ts based on the shipping documents found in the stores, Garrison contends t h a t only the shipping documents, and not the shirts themselves, were in t r o d u c e d at trial; thus, there was insufficient evidence to prove the shirts were in fact counterfeit. For the same reasons, however, that we find the evidence s u ffic ie n t to affirm the smuggling count, we find the evidence is also sufficient to support the trafficking counts. There was sufficient evidence, albeit c ir c u m s t a n tia l, for a rational finder of fact to conclude that Garrison knew the s h ir ts were counterfeit. See Aggarwal, 17 F.3d at 740. Additionally, the o v e r w h e l m in g evidence that every shirt seized in both the Batesville and R o b i n s o n v ille stores on June 1, 2007--some two thousand shirts--was c o u n te r fe it could lead a rational trier of fact to conclude that shipments of the s a m e or like shirts imported from abroad for only $2 or $3 a piece were also c o u n te r fe it . These four trafficking convictions, therefore, are also affirmed. T h e trafficking count related to the seizure at JFK airport is also affirmed. B e c a u s e Garrison did not properly preserve this error for appeal, we review only to determine whether there was a manifest miscarriage of justice. See Burton, 3 2 4 F.3d at 770. Although Garrison contends he could not have been put on 5

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No. 09-60382 n o tic e prior to the seizure at JFK airport in 2006, this argument is unavailing. T h e customs agent testified that the shirts seized at JFK were in fact c o u n te r fe it . Additionally, the agent testified that Garrison did not contest the s e iz u r e . Although failure to contest a seizure is not in itself proof of guilt, this in fo r m a tio n along with his prior conviction and the very low price he was paying f o r the shirts does indicate that he knew or should have known that the shirts w e r e counterfeit. In light of this evidence, the record is not devoid of any e v id e n c e of guilt nor is the evidence so tenuous as to make the conviction s h o c k in g . Id. II I. Garrison next appeals the district court's decision to admit evidence of the s h ir t s that form the basis of four of the trafficking counts absent the p r e s e n t a t io n of those goods at trial or any testimony that the shirts were in fact c o u n t e r fe it . Specifically, Garrison objects to the notice that was sent to him after U .S . Customs seized the shipment of shirts at JFK airport. Garrison also objects to the admission of several shipping documents that reflected purchases of Polo t -s h i r ts from India and Sri Lanka. In both cases, he argues that the evidence w a s irrelevant or, in the alternative, that the probative value was outweighed b y the danger of unfair prejudice. Prior to trial, Garrison filed a motion in limine s e e k in g to exclude both sets of evidence, which the district court denied. W ith respect to the seizure notice, Garrison failed to contemporaneously o b je c t to the introduction of this evidence at trial. The issue was therefore not p r o p e r ly preserved for appeal and is reviewed only for plain error. United States v . Graves, 5 F.3d 1546, 1551 (5th Cir. 1993). To establish plain error, the d e f e n d a n t must show: (1) there was error; (2) that was plain; (3) the error a f fe c t e d substantial rights; and (4) the error seriously affected the fairness, in te g r ity , or public reputation of judicial proceedings. United States v. Redd, 562 F .3 d 309, 314 (5th Cir. 2009). The district judge did not err in admitting the 6

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No. 09-60382 n o t ic e into evidence. The notice was relevant because it alleged that the shirts s e iz e d at JFK were counterfeit. This evidence was bolstered by the U.S. Customs a g e n t's testimony that the shirts seized were in fact counterfeit. Nor is the p r o b a tiv e value of the seizure notice outweighed by any danger of unfair p r e ju d ic e . Additionally, Garrison stipulated to the admission of the shipping d o c u m e n ts at trial. By stipulating to the admission of the evidence, Garrison has a rg u a b ly waived his appeal on this point. See United States v. Olano, 507 U.S. 7 2 5 , 732­34 (1993) (discussing forfeiture versus waiver). However, even if, as G a rr is o n argues on appeal, he stipulated only to the authenticity of the d o c u m e n ts and intended to preserve his objections to the admissibility of the e v id e n c e , we review only for plain error.1 Garrison contends the government c o u ld not conclusively tie the shipping documents found in the store to the c o u n t e r fe it shirts that were seized at his stores on June 1, 2007, and, therefore, t h e documents were irrelevant or in the alternative more prejudicial than p r o b a tiv e . Although it is true that the government was not able to conclusively p r o v e that the shipping documents related to the exact shirts found in Garrison's s to r e s , this does not make the documents irrelevant. These were the only s h ip p in g documents found in the stores during the seizure, and they describe s h i r ts exactly like some of the shirts seized in the stores. And, perhaps even m o r e compelling, every single shirt seized in both stores was determined to be c o u n t e r fe it . Moreover, the district court properly instructed the jury that they c o u ld make deductions and reach conclusions that reason and common sense

A thorough review of the record does not indicate that Garrison preserved this issue on appeal. The record reflects only that Garrison stipulated to these exhibits; it makes no mention that the stipulation was only as to authenticity of the documents or that Garrison in any way renewed his objections on the grounds of relevancy and the danger of possible prejudice outweighing the probative value.

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No. 09-60382 w o u ld lead one to draw from the facts. Therefore, the district court did not c o m m it an error in admitting the shipping documents as evidence. IV . L a s tly , Garrison argues the district court erred by not granting a mistrial in the case after the jury initially returned a guilty verdict, but when polled, one o f the jurors stated that was not her vote. Rule 31(d) of the Federal Rules of C r im in a l Procedure states that: A f t e r a verdict is returned, but before the jury is discharged, the c o u r t must on a party's request, or may on its own, poll the jurors in d iv id u a lly . If the poll reveals a lack of unanimity, the court may d ir e c t the jury to deliberate further or may declare a mistrial and discharge. T h e district court's decision is reviewed for abuse of discretion. United States v. J e ffe r so n , 258 F.3d 405, 410 (5th Cir. 2001). D u r in g deliberations, the jury sent a note to the judge because one juror w o u ld not communicate in an effort to reach a verdict. The judge replied and ad vised them to continue deliberations. The jury subsequently returned a verdict o f guilty, and during the district court's poll of the jury, one of the jurors stated t h a t it was not her verdict. The judge then asked the jury to return to the jury r o o m and see if they could come back with a unanimous verdict. At this time, G a rr is o n moved for a mistrial based upon the danger of coercion, which the d i s tr ic t court denied. The jury again returned a verdict of guilty and when p o l le d , all jurors replied it was their verdict. Based on this sequence of events, w e do not believe the district court's admonition to keep deliberating coerced the ju r y into rendering a guilty verdict, and the district court did not abuse its d is c r e tio n by failing to declare a mistrial. See United States v. Warren, 594 F.2d 1 0 4 6 , 1049­50 (5th Cir. 1979). V. F o r the reasons stated above, Garrison's conviction is AFFIRMED. 8