United States v. Boykins

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JARRETT DENARD BOYKINS,a.k.a. Jarrett Denard Boykin, Defendant-Appellant.

No. 19-13250

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

November 3, 2020

[DO NOT PUBLISH]

Non-Argument Calendar

D.C. Docket No. 2:18-cr-00313-AKK-GMB-1

Appeal from the United States District Court for the Northern District of Alabama

Before JORDAN, GRANT, and LUCK, Circuit Judges.

PER CURIAM:

A jury convicted Jarrett Boykins of two counts of possession of methamphetamine with intent to distribute and five related gun counts, stemming from three arrests in 2017 and 2018. He now appeals his conviction on five of those counts.

Mr. Boykins raises four arguments on appeal. First, he argues that the district court plainly erred in allowing the government's expert witness to testify, in violation of Fed. R. Evid. 704(b), that he possessed the requisite intent for the crime charged. Second, he contends that the district court abused its discretion in admitting staged photographs of evidence seized during his first arrest. Third, he asserts that the district court erred in allowing a witness—who was in the car with Mr. Boykins during the first arrest—to testify that someone reached out to her and tried to persuade her to claim a gun found during that arrest. Fourth, should no error alone warrant reversal, he maintains that the errors' cumulative effect does.

For the following reasons, we affirm.

I

In January of 2019, a federal grand jury returned a second superseding indictment charging Mr. Boykins with two counts of possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A); two counts of possessing a firearm in furtherance of a drug traffickingcrime, in violation of 18 U.S.C. § 924(c)(1)(A); and three counts of possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1).

A

The first three counts—Counts 1, 2, and 3—arose from an October 2017 arrest in Pleasant Grove, Alabama. Mr. Boykins was sitting in his car in a park with Katelyn Morgan, a woman he met via Facebook Messenger. Ms. Morgan testified at trial that she planned to buy marijuana from Mr. Boykins. She explained that Mr. Boykins showed her a gun, which he shoved under his seat as police drove up to the car to inform them that the park was closed. She testified that, as police approached the car, Mr. Boykins put "two ounces of ice"—a street term for crystal methamphetamine—in his pocket, and that he took off running after an officer started talking to them.

Police pursued Mr. Boykins into a wooded area and found him standing behind a rock in a retention pond for a small creek. A search of Mr. Boykins' person revealed $2370 in cash; a search of the pond revealed what was later determined to be 52.21 grams of methamphetamine. Police also searched the car and found a loaded handgun, an ammunition drum with a magazine and ammunition, a set of digital scales, and a box of plastic sandwich bags.

Ms. Morgan testified that, following Mr. Boykins' arrest, a third party contacted her via Facebook Messenger and asked her to claim the gun found in thecar. The third party told her that if she did so, he would bail her out the same day. Ms. Morgan said she refused the offer.

B

Counts 4, 6, and 7 arose from an incident in May of 2018. Mr. Boykins was driving the mother of two of his children, Jessica Falls, to visit her father, and police stopped them based on an issue with the vehicle's tag registration. The police officer noticed a smell of marijuana coming from the car and asked them if they had any firearms or narcotics in the vehicle. [Both initially said no, but when they were ordered out of the vehicle, Ms. Falls blurted out that there was a gun on the passenger side, under the back seat. Officers searched the car and found two bottles of liquid codeine and a partially smoked marijuana cigarette. In a diaper bag in the backseat they found a loaded handgun and a plastic bag containing what appeared to be Ecstasy tablets but what was later determined to be methamphetamine. Police also searched Mr. Boykins and found $1020 in cash in his pocket.

Mr. Boykins was arrested at Ms. Falls' apartment in October of 2018, and the arrest led to a search that formed the basis of Count 5 (one of the gun charges). Agents with the Bureau of Alcohol, Tobacco, Firearms, and Explosives found in the apartment the following items: two sets of digital scales, a revolver and various types of ammunition, and a black trash bag containing eight clear plastic bags filled withtwo ounces of a "crystal substance" that was tested and found not to be a controlled substance.

Mr. Boykins was convicted of all seven counts, and the district court sentenced him to 241 months in prison.

II

We normally review "a district's courts evidentiary rulings for a clear abuse of discretion" and will reverse "only if the resulting error affected the defendant's substantial rights," United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003), i.e., if "it had substantial and injurious effect or influence in determining the jury's verdict." United States v. Barton, 909 F.3d 1323, 1337 (11th Cir. 2018).

"[W]hen a party raises a claim of evidentiary error for the first time on appeal, we review it for plain error only." United States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005). "The plain-error test has four prongs: there must be (1) an error (2) that is plain and (3) that has affected the defendant's substantial rights; and if the first three prongs are met, then a court may exercise its discretion to correct the error if (4) the error 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'" United States v. Madden, 733 F.3d 1314, 1320 (11th Cir. 2013) (quoting United States v. Olano, 507 U.S. 725, 732 (1993)) (alterations in original).

Finally, "[w]e review de novo the cumulative impact of multiple evidentiary errors, although some of the errors might individually be reviewed for plain error."United States v. Hoffman-Vaile, 568 F.3d 1335, 1340 (11th Cir. 2009) (internal quotation marks and citation omitted).

III

We address each of Mr. Boykins' arguments below.

A

Officer John Walker, a member of the Birmingham Police Department and the Drug Task Force, testified as an expert witness for the government at trial. His direct examination included the following exchange:

Q. "Based on your training and experience and the evidence that you reviewed in relation to the Pleasant Grove case, do you believe that the 50-plus grams or more methamphetamine was possessed with the intent to distribute it?"

A. "Yes, sir, absolutely."

Q. "In relation to the Homewood case, the 152 pills . . . do you believe that that quantity, in relation to the quantity that was possessed was possessed with the intent to distribute?"

A. "Yes, sir."

Mr. Boykins did not object to this testimony at trial, but he now argues that it was improperly admitted in violation of Fed. R. Evid. 704(b). We therefore review for plain error.

Rule 704(b) expressly prohibits expert witnesses from "stat[ing] an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense," reserving such mattersfor "the trier of fact alone." An expert witness can "give testimony 'that supports an obvious inference with respect to the defendant's state of mind," United States v. Stahlman, 934 F.3d 1199, 1220 (11th Cir. 2019), but "may not opine on the defendant's intent." United States v. Gillis, 938 F.3d 1181, 1194 (11th Cir. 2019).

The government appears to concede, and we agree, that this testimony by Officer Walker violated Rule 704(b) and cases like Gillis. The question is whether this error satisfies the remaining prongs of plain error. Mr. Boykins succeeds under the first two prongs of plain error: The district court committed an error, which was plain, by allowing Officer Walker to testify that Mr. Boykins intended to distribute methamphetamine.

To satisfy the third prong, Mr. Boykins must establish that the error affected his substantial rights—that it "affected the outcome of the district court proceedings such that, absent the error, there is a reasonable probability of a different result." United States v. Hernandez, 906 F.3d 1367, 1370 (11th Cir. 2018) (internal quotation marks and citation omitted).

Even absent the error, there was ample evidence supporting a finding that Mr. Boykins had the requisite intent to commit the drug crimes charged. In unchallenged testimony, Officer Walker testified that the 52 grams of methamphetamine found in the Pleasant Grove pond was a quantity consistent with that which would be possessed by a "mid-level drug distributor"; he also testified about the significanceof the digital scales found in the car and in the apartment, as well as the significance of the tablets found during the Homewood arrest. Another witness, a police officer involved in the Pleasant Grove arrest, testified about the significance of the digital scales and the cash found on Mr. Boykins. A DEA agent offered unchallenged testimony about drug distribution, including the significance of the individual bags of a non-controlled substance found in the apartment (it is a way for those who sell drugs to make a profit). Messages obtained from Mr. Boykins' phone demonstrated his involvement in narcotics, and Ms. Morgan testified that Mr. Boykins had offered to sell her marijuana immediately prior to his Pleasant Grove arrest. See United States v. Diaz-Lizaraza, 981 F.2d 1216, 1224 (11th Cir. 1993) ("evidence of prior drug dealings . . . his highly probative of intent in later charges of conspiracy and distribution of a controlled substance").

This is not a case where, without the challenged testimony, "there would not have been sufficient evidence to convict" Mr. Boykins "on any of the counts against him." United States v. Hawkins, 934 F.3d 1251,...