USA v. Frederick Wardell Mitchell

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 13, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-10341
Non-Argument Calendar
________________________
D. C. Docket No. 8:09-cr-00429-VMC-EAJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDERICK WARDELL MITCHELL,
a.k.a. Wardell,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 13, 2011)
Before MARCUS, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Frederick Wardell Mitchell appeals his convictions and 747-month total

-- 1 of 12 --

sentence for conspiracy to commit robbery, in violation of 18 U.S.C. § 1951(a)
(Count 1); robbery, in violation of 18 U.S.C. §§ 1951(a) and 2 (Count 2); two
counts of aiding and abetting the discharge of a firearm during a crime of violence,
in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2 (Counts 3 and 5); and carjacking,
in violation of 18 U.S.C. §§ 2119 and 2 (Count 4). On appeal, Mitchell raises four
principal arguments: (1) the district court abused its discretion in denying his
motions for mistrial; (2) the court erred in allowing the government to shift the
burden of proof through a line of questioning about him being able “to tell his
story”; (3) the court erred in failing to provide an expert witness instruction to the
jury; and (4) his 747-month total sentence was substantively unreasonable. After
thorough review, we affirm.
We review a district court’s decision not to grant a mistrial for abuse of
discretion. United States v. Jennings, 599 F.3d 1241, 1249 (11th Cir. 2010).
Generally, we review a claim of prosecutorial misconduct de novo because it
presents a mixed question of law and fact. United States v. Duran, 596 F.3d 1283,
1299 (11th Cir.), cert. denied, 131 S.Ct. 210 (2010). We review the legal
correctness of a jury instruction de novo, but will defer on questions of phrasing
absent an abuse of discretion. United States v. Prather, 205 F.3d 1265, 1270 (11th
Cir. 2000). We review the sentence a district court imposes for “reasonableness,”
2

-- 2 of 12 --

which “merely asks whether the trial court abused its discretion.” United States v.
Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 551
U.S. 338, 351 (2007)).
First, we are unpersuaded by Mitchell’s argument that the district court
abused its discretion when it denied his motions for mistrial, because hearsay
statements of Detective Sal Augeri on a tape recording that was played to the jury,
and Augeri’s trial testimony that Mitchell had previously been locked-up, were
prejudicial. In order to prevail on a motion for mistrial, the movant must show that
his substantial rights have been prejudicially affected. United States v. Emmanuel,
565 F.3d 1324, 1334 (11th Cir. 2009). “This occurs when there is a reasonable
probability that, but for the remarks, the outcome of the trial would have been
different.” United States v. Newsome, 475 F.3d 1221, 1227 (11th Cir. 2007). We
make this determination in the context of the entire trial and in light of any curative
instruction. Id. “[W]hen a district court gives a curative instruction, the reviewing
court will reverse only if the evidence is so highly prejudicial as to be incurable by
the trial court’s admonition.” United States v. Delgado, 321 F.3d 1338, 1347 (11th
Cir. 2003) (quotations omitted).
In this case, the district court did not abuse its discretion in denying
Mitchell’s motions for mistrial. With respect to the recorded statements of
3

-- 3 of 12 --

Detective Augeri, Mitchell was not prejudicially affected by their being played to
the jury because the majority of Augeri’s statements during those pages merely
placed one of the witnesses’s responses into context. In addition, the court gave
numerous curative instructions to the jury to ignore Augeri’s statements, and those
statements were not so highly prejudicial as to be incurable. See id.; see also
United States v. Byrom, 910 F.2d 725, 730, 737 (11th Cir. 1990) (holding that a
confidential informant’s statements on a videotape were admissible after an
instruction by the district court that they were not offered for the truth of the matter
asserted, but to place the defendant’s comments into context).
With respect to Augeri’s trial testimony that Mitchell had been “locked up,”
Mitchell was similarly not prejudiced, because this part of Augeri’s testimony was
brief and unelicited by the government, and the court immediately provided a
curative instruction to the jury. See Emmanuel, 565 F.3d at 1334 (“[W]here the
comment is brief, unelicited, and unresponsive, adding nothing to the
government’s case, the denial of a mistrial is proper.”). Furthermore, there was
overwhelming evidence against Mitchell at trial -- including that Mitchell had
received medical treatment for a gunshot wound, that Mitchell had confessed to a
friend that he had committed the robbery, and that a police officer had identified
4

-- 4 of 12 --

Mitchell as one of the robbers -- and he has not shown that, but for the testimony,
the outcome of the trial would have been different.
Second, we find no merit in Mitchell’s claim that he was entitled to a new
trial when the government questioned him about not having a previous opportunity
“to tell his story.” “To establish prosecutorial misconduct, (1) the remarks must be
improper, and (2) the remarks must prejudicially affect the substantial rights of the
defendant.” United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006)
(quotation omitted). “A defendant’s substantial rights are prejudicially affected
when a reasonable probability arises that, but for the remarks, the outcome of the
trial would have been different.” Id. “Thus, where there is sufficient independent
evidence of guilt, any error is harmless.” United States v. Merrill, 513 F.3d 1293,
1307 (11th Cir. 2008) (quotation omitted).
Here, the government’s questioning of Mitchell about his failure to tell the
authorities his story was not improper. Mitchell testified that he “never got a
chance to tell [his] story,” and that his testimony was the “first time” he had said
what happened. The record shows that this statement was unsolicited by the
government, and thus, Mitchell effectively opened the door to the prosecutor’s
questioning. See United States v. Daniels, 617 F.2d 146, 150 (5th Cir. 1980)
(holding that a prosecutor’s remarks during closing argument that the defendant
5

-- 5 of 12 --

had not been fully cooperative were permissible to rebut the defendant’s assertion
that he had cooperated with the authorities when the defendant had “opened the
door to comment on the issue of his cooperation, and the prosecutor’s statement
fell within the doctrine of fair reply.”). Moreover, as noted above, Mitchell has1
failed to establish that but for the prosecutor’s questions, the outcome of his trial
would have been different.
Third, we reject Mitchell’s claims that the district court erred in failing to
provide the jury with an expert witness instruction for the testimony of David
Snavely, or alternatively, that the failure of his trial counsel to request an expert
witness instruction constituted ineffective assistance of counsel. Generally, district
courts “have broad discretion in formulating jury instructions,” and we will not
reverse a conviction due to a jury charge “unless the issues of law were presented
inaccurately, or the charge improperly guided the jury in such a substantial way as
to violate due process.” Prather, 205 F.3d at 1270. However, a party invites error,
and thus precludes review of any error on appeal, when it informs the district court
that a jury instruction was acceptable. United States v. Silvestri, 409 F.3d 1311,
1337 (11th Cir. 2005) (holding that a party invites error when it states that an
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we1
adopted as binding precedent all decisions of the former Fifth Circuit issued before October 1,
1981.
6

-- 6 of 12 --

instruction “covered the bases” or that a proposed correction to an instruction was
not “necessary”).
As the record shows, Mitchell failed to request an expert witness instruction
at the preliminary jury charge conference, and when asked by the court if an expert
witness had testified, he failed to respond. In addition, after informing the court at
the jury charge conference that he reviewed the instructions “with a fine tooth
comb,” he responded in the negative to the court’s question about whether there
was anything else it needed to consider with respect to the instructions. In this
respect, Mitchell’s comments to the court, or lack thereof, are the functional
equivalent of the defendant in Silvestri replying that the instructions “covered the
bases,” and of the defendant in Fulford informing the court that its instructions
were “acceptable.” See Silvestri, 409 F.3d at 1337; United States v. Fulford, 267
F.3d 1241, 1247 (11th Cir. 2001). In addition, he responded in the negative to the
court’s question at the jury charge conference about whether there was anything
else it needed to consider with respect to the instructions. As a result, Mitchell
invited any error in the court’s jury instructions, and thus, we will not review this
claim on appeal. See Silvestri, 409 F.3d at 1337.
We also decline to address Mitchell’s ineffective-assistance-of-counsel
claim on direct appeal because the record is not sufficiently developed to allow
7

-- 7 of 12 --

meaningful review of the claim. See Merrill, 513 F.3d at 1308 (holding that
“except in the rare instance when the record is sufficiently developed, we will not
address claims for ineffective assistance of counsel on direct appeal” (quotation
and alteration omitted)). We note, moreover, that Mitchell remains free to raise
this claim in a collateral proceeding. Massaro v. United States, 538 U.S. 500,
503-04 (2003) (holding that an appellant may raise an ineffective-assistance-of-
counsel claim in a collateral proceeding, even if he failed to raise the issue on
direct appeal).
Finally, we disagree with Mitchell’s argument that his sentence was
substantively unreasonable because the district court failed to give weight to
“several” mitigating factors under 18 U.S.C. § 3553(a). We review the2
“‘substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard,’” based on the “‘totality of the circumstances.’” Pugh, 515 F.3d at 1190
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). This review is
“deferential,” requiring us to determine “whether the sentence imposed by the
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the2
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
8

-- 8 of 12 --

district court fails to achieve the purposes of sentencing as stated in section
3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). “[W]e will
not second guess the weight (or lack thereof) that the [district court] accorded to a
given factor . . . as long as the sentence ultimately imposed is reasonable in light of
all the circumstances presented.” United States v. Snipes, 611 F.3d 855, 872 (11th
Cir. 2010) (quotation, alteration and emphasis omitted), cert. denied, 131 S. Ct.
2962 (2011). We will “vacate the sentence if, but only if, we are left with the
definite and firm conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) factors by arriving at a sentence that lies
outside the range of reasonable sentences dictated by the facts of the case.” See
United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quotation
omitted), cert. denied, 131 S. Ct. 1813 (2011). Although we do not automatically
presume a sentence within the guideline range is reasonable, we ordinarily expect
such a sentence to be reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th
Cir. 2008).
“The party challenging the sentence bears the burden to show it is
unreasonable in light of the record and the § 3553(a) factors.” United States v.
Tome, 611 F.3d 1371, 1378 (11th Cir. 2010), cert. denied, 131 S.Ct. 674 (2010).
The sentencing court need not explicitly articulate that it has considered the §
9

-- 9 of 12 --

3553(a) factors and need not discuss each factor, so long as the record indicates
that the court considered the factors in some form. See United States v. Dorman,
488 F.3d 936, 944 (11th Cir. 2007) (holding that a sentence was not unreasonable
because, “[d]espite the district court’s failure to explicitly articulate that it had
considered the § 3553(a) factors, by virtue of the court’s consideration of [the
defendant’s] objections and his motion for a downward departure, the court did, in
fact, consider a number of the sentencing factors . . .”).
On this record, Mitchell’s is substantively reasonable. For starters,3
Mitchell’s 747-month term total sentence is within, though at the high-end, of the
advisory guideline range. As for Mitchell’s argument that the court failed to
consider the § 3553(a) factors he presented in mitigation, the record shows that the
sentencing judge stated that she had reviewed the PSI and the advisory Guidelines.
The court found that its sentence complied with the purposes of sentencing as set
forth in § 3553(a) after considering the advisory guideline recommendation, the
minimum mandatory sentences required by statute, and “all of the factors identified
in [§ 3553(a)(1-7)].” Thus, the fact that the court did not explicitly address the
factors raised by Mitchell, such as the sentence received by others involved in the
Notably, Mitchell does not challenge the procedural reasonableness of his sentence.3
10

-- 10 of 12 --

robbery, his age, or his history and characteristics, does not render the court’s
sentence substantively unreasonable. See Dorman, 488 F.3d at 944.
Moreover, in requesting a 35-year total sentence, Mitchell effectively argued
for a sentence of zero months’ imprisonment -- and thus, a substantial downward
variance -- for Counts 1, 2, and 4. However, Mitchell failed to establish that his
circumstances, in light of the § 3553(a) factors, justified such a variance. Rather,
the court found that it “simply couldn’t” sentence him to a minimum mandatory
sentence of 35 years’ imprisonment for numerous reasons supported by the record.
For example, the court noted that the waitresses at the Waffle House had guns put
to their heads, that there could have been victims on the road during the high speed
chase with the police, and that police officers could have been killed during the
incident. The court also decided not to sentence Mitchell at the low-end of the
Sentencing Guidelines because (i) of the violence involved in the offenses, and (ii)
Mitchell had not testified truthfully at trial. The court further said that it had
“thought long and hard” about the sentence and that the sentence would “send[ ] a
message that this type of behavior isn’t going to be tolerated” and would
compensate the victims for what had occurred. Accordingly, the record
demonstrates that the district court properly considered the facts of this case, as
11

-- 11 of 12 --

well as the factors listed in § 3553(a), and the decision to impose a sentence at the
high-end of the recommended guideline range was not an abuse of discretion.
AFFIRMED.
12

-- 12 of 12 --