USA v. Wayne Matthew Elliott

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12145
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WAYNE MATTHEW ELLIOTT,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cr-00278-LMM-JSA-4
____________________
USCA11 Case: 22-12145 Document: 48-1 Date Filed: 08/31/2023 Page: 1 of 12

-- 1 of 12 --

2 Opinion of the Court 22-12145
Before G RANT, BRASHER , and TJOFLAT, Circuit Judges.
PER CURIAM:
Wayne Matthew Elliott appeals the District Court’s order
denying his post-trial motion for a judgment of acquittal or, in the
alternative, motion for a new trial, alleging improper venue and
insufficient evidence. Elliott argues that the Government failed to
prove (1) that the crime of conviction occurred in the Northern
District of Georgia and (2) that Elliott took a substantial step to fur-
ther the crime of attempted possession of methamphetamine. Al-
ternatively, Elliott argues that if we find his venue argument
waived, we should hold that his trial counsel was ineffective for
failing to timely raise the issue at the close of the Government’s
case during the trial. For the reasons discussed below, we affirm.
I.
In July 2019, a grand jury in the Northern District of Geor-
gia returned a four-count indictment against Elliott and three code-
fendants. Only two of those counts—Counts One and Three—in-
volved Elliott. Count One charged Elliott with conspiracy to pos-
sess with intent to distribute at least 500 grams of a mixture and
substance containing methamphetamine, in violation of 21 U.S.C.
§ 846. Count Three charged Elliott with attempted possession with
intent to distribute methamphetamine, also in violation of 21
U.S.C. § 846.
Before trial, Elliott requested a jury instruction on at-
tempted possession of methamphetamine, a lesser-included
USCA11 Case: 22-12145 Document: 48-1 Date Filed: 08/31/2023 Page: 2 of 12

-- 2 of 12 --

22-12145 Opinion of the Court 3
offense to Count Three. The case proceeded to trial, and the Gov-
ernment showed the following—mostly through the testimony of
Kyle Lawrence, an investigator with the Catawba County Sherriff’s
Office, and Justin Clutter, a Special Agent with the Drug Enforce-
ment Agency (“DEA”).
On June 1, 2019, DEA agents learned that Kevin Brown—
one of Elliott’s codefendants—acquired methamphetamine in At-
lanta, Georgia, and planned to deliver some to Elliott in Marion,
North Carolina. Elliott knew Brown well and coordinated this
transaction with him.
After Brown picked up the drugs, agents intercepted text
messages between him and Elliott. Brown texted Elliott earlier
that afternoon, “Just picked up the fruit,” to which Elliott replied,
“Come on.” “All the way to Marion?” Brown asked. And with no
reply from Elliott for three hours, Brown sent another, “I’ll see you
in the A.M., better be up waiting.” Presumably, Brown had in-
tended to deliver the drugs to Elliott’s residence in Marion, as El-
liott had texted his address to Brown just two days earlier.
At any rate, Brown did not complete the planned delivery to
Elliott. DEA agents coordinated a traffic stop and pulled Brown
over in the Northern District of Georgia. The agents found two
kilograms of methamphetamine concealed in the tailgate of
Brown’s truck. At about that time, Elliott replied to Brown’s ear-
lier texts, “Where or were I come to you or something, loosing [sic]
a lot of $$$$$$$$.” And one minute later, evidently becoming im-
patient, Elliott sent another: “It is the A.M [sic].”
USCA11 Case: 22-12145 Document: 48-1 Date Filed: 08/31/2023 Page: 3 of 12

-- 3 of 12 --

4 Opinion of the Court 22-12145
With Brown in custody, DEA agents and law enforcement
officers went to Elliott’s residence in Marion and spoke with him.
In their discussions, Elliott admitted that Brown visited Elliott “re-
ligiously” and that Brown was supposed to be on his way to El-
liott’s that night. Elliott also admitted that Brown charged “ten
eight”1 for delivering a kilogram of methamphetamine2 and that he
had cash ready to pay back a $5,000 debt he owed to Brown.3
Elliott gave varying stories of his cash’s location. At first,
Elliott told law enforcement his money was in the woods nearly a
mile away, but later said it was in his kitchen in the oven or stove.
Upon searching Elliott’s kitchen, agents found a bag with $29,420
in cash in the oven drawer. Officer Lawrence testified that this cash
was sufficient for Elliott to buy the two kilograms of methamphet-
amine in Brown’s truck ($21,600) and to pay off the $5,000 debt that
Elliott owed to Brown.
Other notable events occurred during law enforcement’s
discussions with Elliott. Without the officers telling Elliott where
they had found Brown’s methamphetamine, Elliott pinpointed that
1 Officer Lawrence testified that he understood “ten eight” to mean “$10,800”
based on the price of methamphetamine and the amount of cash that Elliott
had on hand.
2 Elliott also explained that if he went to Atlanta to pick up the methampheta-
mine, then the purchase price decreased to “ten.” Special Agent Martin un-
derstood this to mean “$10,000.”
3 Initially, Elliott stated that he would receive Brown’s methamphetamine “on
front.” That is, Elliott would first sell the methamphetamine before paying
Brown.
USCA11 Case: 22-12145 Document: 48-1 Date Filed: 08/31/2023 Page: 4 of 12

-- 4 of 12 --

22-12145 Opinion of the Court 5
the drugs would be in the tailgate of Brown’s truck. Additionally,
Elliott consented to a search of his phone, which allowed the agents
to confirm that Elliott’s phone was the one they had intercepted
and that Elliott had been the one communicating with Brown.
At the close of the trial evidence, Elliott made an oral motion
for a judgment of acquittal as to the conspiracy count.4 The Dis-
trict Court denied this motion. On March 30, 2022, the jury found
Elliott guilty of attempted possession of methamphetamine, the
lesser-included offense to Count Three, and acquitted him of the
other charges.
Seven days later, Elliott filed a motion for a judgment of ac-
quittal under Federal Rule of Criminal Procedure 29(c) or, in the
alternative, a new trial under Rule 33(a). This motion was the first
time that Elliott challenged the venue of his trial. After reviewing
the trial transcript, Elliott asked the District Court to allow him to
amend and supplement this motion. That request was granted.5
Meanwhile, the District Court sentenced Elliott to one year
of imprisonment and three months of supervised release.6 Elliott
4 Elliott argued that he was not part of any conspiracy but was instead part of
a buyer-seller relationship.
5 The District Court also granted Elliott’s trial counsel’s motion to withdraw
as counsel, referred the matter to a magistrate judge for appointment of new
counsel, and gave Elliott’s new counsel 30 days to perfect his motion for a
judgment of acquittal.
6 Elliott has completed his term of imprisonment and his term of supervised
release.
USCA11 Case: 22-12145 Document: 48-1 Date Filed: 08/31/2023 Page: 5 of 12

-- 5 of 12 --

6 Opinion of the Court 22-12145
timely appealed the District Court’s judgment. This Court re-
scinded the briefing schedule and stayed the appeal pending reso-
lution of Elliott’s motion for a judgment of acquittal or a new trial.
In the perfected motion, Elliott again moved for a judgment
of acquittal of the lesser-included offense of attempted possession
under Rule 29(c) or, in the alternative, for a new trial under Rule
33(a). Elliott argued that the Government neither proved that
venue was proper in the Northern District of Georgia nor that El-
liott took a substantial step to further the crime of attempted pos-
session.
The District Court denied that motion.7 The Court found
that (1) Elliott had waived his venue challenge by waiting to raise
it until seven days after the jury rendered its verdict and (2) a rea-
sonable jury could have found Elliott guilty beyond a reasonable
doubt.
On appeal, Elliott argues that the District Court erred in
finding that he waived his challenge to venue and that there was
sufficient evidence to sustain his conviction. Should we find venue
waived, Elliott argues that his trial counsel was ineffective for fail-
ing to raise the issue at the close of evidence. We address each
argument in turn.
7 After the District Court denied Elliott’s perfected motion for a judgment of
acquittal, we issued a new briefing schedule in Elliott’s appeal.
USCA11 Case: 22-12145 Document: 48-1 Date Filed: 08/31/2023 Page: 6 of 12

-- 6 of 12 --

22-12145 Opinion of the Court 7
II.
The first issue we address is whether the Government estab-
lished venue in the Northern District of Georgia. We review de
novo a determination that the government established venue, view-
ing the “evidence related to venue in the light most favorable to
the government and mak[ing] all reasonable inferences and credi-
bility determinations in favor of the verdict the jury returned.”
United States v. Smith, 22 F.4th 1236, 1242 (11th Cir. 2022).
Elliott challenges the placement of venue, alleging that all
the essential acts of his crimes took place in North Carolina. Elliott
alleges that he did not possess or attempt to possess a controlled
substance, but if he had, it would have been in North Carolina, not
the Northern District of Georgia.
The Government counters that Elliott waived appellate re-
view of his venue claim because he did not object to it until after
the jury rendered its verdict. The Government also contends that
it established venue with the evidence showing that Elliott shared
criminal intent with his codefendant Brown to possess controlled
substances in the Northern District of Georgia. Finally, the Gov-
ernment argues that to the extent that venue was improper in the
Northern District of Georgia for the lesser-included offense of at-
tempted possession of a controlled substance, Elliott may not ap-
peal that error as he requested the jury instruction on the lesser-
included offense.
Under the Sixth Amendment, defendants have a right to be
tried in the district where they committed their crimes. See United
USCA11 Case: 22-12145 Document: 48-1 Date Filed: 08/31/2023 Page: 7 of 12

-- 7 of 12 --

8 Opinion of the Court 22-12145
States v. Little, 864 F.3d 1283, 1287 (11th Cir. 2017). But that right
is not absolute and “it will be deemed waived unless asserted prior
to trial.” United States v. White, 590 F.3d 1210, 1213 (11th Cir. 2009).
Federal Rule of Criminal Procedure 12(b)(3)(A)(i) requires a de-
fendant to raise a claim of improper venue by pretrial motion “if
the basis for the motion is then reasonably available and the motion
can be determined without a trial on the merits.” In United States
v. Dabbs, we noted a limited exception to this waiver rule: if an in-
dictment alleges an incorrect venue, but the defendant is unaware
of the error until the prosecution presents its case, an objection to
venue made at the close of the evidence is timely. See 134 F.3d
1071, 1078 n.8 (11th Cir. 1998).
Elliott waived the issue of venue by waiting to challenge it
until seven days after the jury rendered its verdict. Additionally,
Elliott neither raises a Dabbs issue in his initial brief nor argues that
the indictment contained a venue defect not apparent on its face.
But even if he had, Elliott’s venue challenge was raised seven days
after the limited exception that Dabbs allows for. Thus, Elliott has
waived venue. As a result, we do not inquire into the substance of
Elliott’s claim that the Government failed to prove venue was
proper in the Northern District of Georgia.
III.
Elliott also argues that the District Court erred in finding that
there was sufficient evidence to support Elliott’s conviction for at-
tempted possession of a controlled substance. We review the suf-
ficiency of the evidence de novo, viewing the evidence in the light
USCA11 Case: 22-12145 Document: 48-1 Date Filed: 08/31/2023 Page: 8 of 12

-- 8 of 12 --

22-12145 Opinion of the Court 9
most favorable to the government and making all reasonable infer-
ences and credibility choices in favor of the jury’s verdict. United
States v. Robertson, 493 F.3d 1322, 1329 (11th Cir. 2007).
In a ruling on a motion for a judgment of acquittal, a court must
determine “whether there is substantial evidence from which a
jury could reasonably find the defendant[] guilty beyond a reason-
able doubt.” United States v. Gregory, 730 F.2d 692, 706 (11th Cir.
1984). The evidence does not have to exclude every reasonable
hypothesis of innocence or be entirely inconsistent with every con-
clusion except that of guilt, “provided that a reasonable trier of fact
could find that the evidence established guilt beyond a reasonable
doubt.” Robertson, 493 F.3d at 1329 (quoting United States v. Tinoco,
304 F.3d 1088, 1122 (11th Cir. 2002).
On the other hand, we review the disposition of a motion for a
new trial for an abuse of discretion. United States v. Martinez,
763 F.2d 1297, 1312 (11th Cir. 1985). “The decision to grant or deny
a new trial motion based on the weight of the evidence is within
the sound discretion of the trial court.” Id. Motions for new trials
based on the weight of the evidence are disfavored and courts are
to grant them sparingly. Id. at 1313. They are granted only in those
exceptional cases in which the evidence preponderates heavily
against the verdict, such that it would be a miscarriage of justice to
let the verdict stand. Id. at 1312–13.
The elements of attempted possession of a controlled sub-
stance are (1) that the defendant knowingly intended to commit
the crime of possession of a controlled substance, and (2) that the
USCA11 Case: 22-12145 Document: 48-1 Date Filed: 08/31/2023 Page: 9 of 12

-- 9 of 12 --

10 Opinion of the Court 22-12145
defendant’s intent was strongly corroborated by his taking a sub-
stantial step toward committing the crime. Cf. United States v.
McDowell, 250 F.3d 1354, 1365 (11th Cir. 2001) (describing elements
of attempted possession with intent to distribute); see also 21 U.S.C.
§ 844. “A ‘substantial step’ is an important action leading up to
committing of an offense – not just an inconsequential act. It must
be more than simply preparing. It must be an act that would nor-
mally result in committing the offense.” 11th Cir. Pattern Jury In-
structions, S11 (Mar. 2022).
The District Court did not err in denying Elliott’s motion for
a judgment of acquittal or abuse its discretion by denying his mo-
tion for a new trial because the jury had sufficient evidence to sup-
port Elliott’s conviction for attempted possession of methamphet-
amine. Officer Lawrence testified that Elliott admitted that he and
Brown had an established relationship for drug deals, that Brown
was supposed to be on his way to North Carolina and had drugs in
his truck’s tailgate, and that he had cash in his oven to pay Brown.
Law enforcement found $29,420 in cash in Elliott’s oven. Officer
Lawrence believed this was sufficient for Elliott to buy Brown’s two
kilograms of methamphetamine and to pay off a $5,000 drug debt
that Elliott admittedly owed Brown.
Additionally, while Elliott argues that the evidence does not
suggest that a drug transaction was imminent, text messages be-
tween Elliott and Brown show otherwise. Shortly after picking up
the drugs, Brown texted Elliott “Just picked up the fruit,” and El-
liott replied, “Come on.” Brown then asked about delivering the
USCA11 Case: 22-12145 Document: 48-1 Date Filed: 08/31/2023 Page: 10 of 12

-- 10 of 12 --

22-12145 Opinion of the Court 11
drugs to Elliott in Marion and confirmed this plan by texting, “I’ll
see you in the A.M., better be up waiting.” When Brown did not
arrive in the “A.M.”—because law enforcement stopped his vehi-
cle—Elliott texted, “Where or were I come to you or something,
loosing [sic] a lot of $$$$$$$$” and “It is the A.M [sic].”
Elliott offers other interpretations of the evidence, but a jury
verdict will not be overturned so long as there is any reasonable
construction of the evidence that would have allowed the jury to
find the defendant guilty beyond a reasonable doubt. See United
States v. Martin, 803 F.3d 581, 587 (11th Cir. 2015). Based on the
evidence presented at trial, we cannot agree that there is no reason-
able construction of the evidence that could support a guilty ver-
dict. Elliott agreed with Brown on the deal’s terms, directly and
repeatedly urged Brown to bring the drugs to him, and readied cash
for the transaction. The jury could construe this evidence as sup-
porting Elliott’s guilt beyond a reasonable doubt. Therefore, be-
cause there was substantial evidence from which a reasonable jury
could convict Elliott, the District Court did not err when it denied
Elliott’s motion for a judgment of acquittal. Additionally, because
the evidence does not preponderate heavily against the verdict and
no miscarriage of justice would occur by letting the verdict stand,
the District Court did not abuse its discretion by denying Elliott’s
motion for a new trial.
IV.
Elliott also raises on direct appeal a claim of ineffective assis-
tance of counsel for his trial counsel’s failure to timely object to
USCA11 Case: 22-12145 Document: 48-1 Date Filed: 08/31/2023 Page: 11 of 12

-- 11 of 12 --

12 Opinion of the Court 22-12145
venue. “Whether a criminal defendant’s trial counsel was ineffec-
tive is a mixed question of law and fact, subject to de novo review.”
Nixon v. Newsome, 888 F.2d 112, 115 (11th Cir. 1989).
This Court generally will not consider an ineffective-assis-
tance-of-counsel claim raised on direct appeal where the district
court neither entertained the claim nor developed a record. Id.
Even if the record contains some indication of deficiencies in coun-
sel’s performance, a 28 U.S.C. § 2225 motion is the preferred means
for deciding an ineffective assistance claim. United States v. Patter-
son, 595 F.3d 1324, 1328–29 (11th Cir. 2010). That said, we will con-
sider the claim on direct appeal where the record is sufficiently de-
veloped. See Bender, 290 F.3d at 1284.
After reviewing the record and reading the parties’ briefs, we
conclude that the record is not sufficiently developed to consider
whether Elliott’s counsel was ineffective. Elliott did not raise a
claim of ineffective assistance of counsel below, so the District
Court did not develop any record. For these reasons, we decline
to consider Elliott’s ineffective-assistance-of-counsel claim on di-
rect appeal so that he can raise it in a § 2225 motion. Accordingly,
the District Court’s judgment is
AFFIRMED.
USCA11 Case: 22-12145 Document: 48-1 Date Filed: 08/31/2023 Page: 12 of 12

-- 12 of 12 --