United States v. Diamond

102 F.4th 1347

UNITED STATES of America, Plaintiff-Appellee, v. Jay DIAMOND, a.k.a. Larry Allen Dilleshaw, Defendant-Appellant.

No. 21-13528

United States Court of Appeals, Eleventh Circuit

Filed: June 4, 2024

Appeal from the United States District Court for the Northern District of Georgia, D.C. Docket No. 3:19-cr-00008-TCB-RGV-1

Before Jill Pryor, Branch, and Hull, Circuit Judges.

Hull, Circuit Judge:

After a two-day jury trial, defendant Jay Diamond was convicted of (1) impersonating a federal officer and employee in an attempt to avoid receiving a speeding ticket, in violation of 18 U.S.C. § 912 ("Count 1") and (2) impersonating a federal officer and employee in an attempt to avoid being arrested for falsely impersonating a federal officer, in violation of 18 U.S.C. § 912 ("Count 2"). On appeal, Diamond argues, inter alia, that: (1) the government failed to present sufficient evidence to establish that Diamond acted as a federal officer and (2) the district court erred in admitting evidence of his alleged prior bad acts and in instructing the jury. After review and with the benefit of oral argument, we affirm Diamond's convictions.

I. FACTUAL BACKGROUND

Here's the trial evidence, in the light most favorable to the government. United States v. Holmes, 814 F.3d 1246, 1250 (11th Cir. 2016).

A. Traffic Stop and Interaction with Deputy Baker

On August 23, 2018, Troup County Sheriff's Deputy William Baker pulled over Diamond for driving approximately 20 miles per hour over the speed limit. Deputy Baker approached the passenger side of Diamond's car to conduct a traffic stop. Diamond immediately told Baker that (1) he was on his way to recover his wife's stolen vehicle and (2) he was an air marshal and a senior air marshal. Baker asked Diamond if he had identification and Diamond stated, "I have my badge right here, but I'm an air marshal." Diamond presented a badge with the words "United States Federal Air Marshal."

Deputy Baker then asked for Diamond's credentials, but Diamond stated, "all I have is my badge." Diamond told Baker that he had another badge for when he was on the airplane and that the badge he presented was just the badge he carried in his pocket. Baker thought the badge looked like a toy and that Diamond's story was "shady." Baker returned to his vehicle to run Diamond's license and investigate his air marshal claims. Baker also called for backup.

Deputy Adam Richardson arrived at the scene as backup. Baker and Richardson discussed what happened, including Baker's belief that Diamond's badge was fake.

While on the side of the road, the deputies called Russell Edwards, a Transportation Security Administration ("TSA") officer with the Federal Air Marshal Service, to verify whether Diamond was a federal air marshal. Edwards searched all of the agencies within the Department of Homeland Security, including the Air Marshal Service and TSA, but did not find Diamond in the system. Edwards told the deputies that there was no record of anyone named Jay Diamond being a current federal air marshal. Edwards also reported the incident to the Office of Inspector General for the Department of Homeland Security.¹

Undisputedly, Jay Diamond was never employed as a federal air marshal or through the TSA.

B. Interaction with Deputy Richardson

Deputy Richardson approached Diamond and asked to see the badge he had provided Baker. Diamond gave Richardson the badge and told Richardson that it was an "honorary badge" that he uses to get discounts at Home Depot. Diamond also told Richardson that he was an assistant to the air marshal and described his purported duties. Diamond stated that President Jimmy Carter gave him the badge and offered to show Richardson a photo of himself with President Carter. Richardson believed that Diamond knew the deputies were "on to him" and was "trying to escape" by "trying to downplay it."

Diamond was arrested on state charges of impersonating an officer. Diamond told the deputies he was not trying to impersonate an officer, and that he was just trying to be on the same side as the deputies because he is a patriot and supports law enforcement.

Both deputies' interactions with Diamond were audio and video recorded on their vehicles' dash cameras and played at trial.

C. Federal Arrest

On May 1, 2019, Department of Homeland Security agents Edward Kleppinger and Jerry Coleman arrested Diamond in Phenix City, Alabama on federal charges of falsely impersonating a federal officer. They transported him to Atlanta, Georgia for his initial appearance. The transport took approximately two hours, during which Agent Coleman was driving and Agent Kleppinger was sitting in the rear with Diamond.

The agents did not question Diamond during the transport, but Diamond "spoke quite a bit." Diamond told the agents that "he had gotten his air marshal badge from his local law enforcement individuals." Diamond also stated that "this was a misunderstanding" and that the badge "was more of an honorary badge."

After driving past a Troup County Sheriff's patrol car near where Diamond was pulled over on August 23, 2018, Diamond stated he wished he "had just taken the ticket."

D. Prior Bad Acts

At trial, Diamond's ex-wife, Christy Diamond, testified against Diamond. According to Christy Diamond, Diamond never worked in federal law enforcement or served in the military. Christy Diamond stated that in early August 2018, she found the fake air marshal badge Diamond later presented to the deputies in Diamond's pants pocket and confronted him about it. Diamond told her that he found it at his grandmother's house and jokingly asked, "I wonder what kind of discounts we can get with this." Christy Diamond responded, "I hope you have more sense than to ever use a fake badge, because that is impersonation of an officer, and you can go to jail for that."

Christy Diamond also testified to four prior instances where Diamond received discounts or benefits based on the false pretense that he was a federal law enforcement officer or military member. First, on an anniversary trip to Knoxville, Tennessee, while trying to get a hotel room, Diamond told the hotel employee that he was with the U.S. Marshals office and requested a government rate. Christy Diamond walked away in shock, but Diamond later told her that their room "was comped for the night" and that they received an upgraded room. Second, on a family vacation in Panama City Beach, Florida, Diamond was able to get a spot at an RV park with no vacancies because, he said, he told the receptionist he was with the U.S. Marshals office. Third, on two occasions at Home Depot in Phenix City, Alabama, Christy Diamond recalled Diamond receiving a discount by saying he was in the military.

II. PROCEDURAL HISTORY

A. Motion to Exclude

Prior to trial, the government filed a notice of intent to introduce testimony from Christy Diamond pursuant to Federal Rule of Evidence 404(b). The anticipated testimony included the four prior instances where Diamond sought discounts or other benefits on the false pretense that he was a United States marshal or member of the military. Diamond responded and sought to exclude the evidence of these prior bad acts, arguing that Christy Diamond's testimony was irrelevant and purely propensity evidence. The government argued that Christy Diamond's testimony was proper 404(b) evidence because it showed "a similar intent, motive, or plan on [Diamond's] part." The government also asserted that a limiting instruction would prevent any unfair prejudice.

At a pretrial conference, the district court denied Diamond's motion to exclude Christy Diamond's testimony. The district court concluded that the proposed testimony was relevant evidence of Diamond's intent and knowledge. At the close of the evidence, the district court instructed the jury about the limited permissible uses of the Rule 404(b) evidence.

B. Batson Challenge

During jury selection, the government used six peremptory strikes to preclude potential jurors. The government's strikes were against one white man, two white women, one black man, and two black women. The empaneled jury included eight women and three black jurors.

After jury selection, Diamond made a Batson challenge based on gender and race. Diamond argued that the government used five of its six peremptory strikes to preclude prospective jurors based on their gender and/or race. Without making an explicit finding as to whether Diamond had made a prima facie showing, the district court asked the government to provide explanations. The government proffered its justifications.

The district court denied Diamond's Batson challenge, essentially finding the government's justifications credible, race-neutral, and not based on sex.

C. Motion for Judgment of Acquittal

At the conclusion of the government's evidence, Diamond moved for a judgment of acquittal on both counts. Diamond argued that while the government presented evidence that Diamond made statements pretending to be an air marshal, the government failed to present sufficient evidence that Diamond performed an overt act while pretending to be an air marshal. Diamond argued that showing the deputies his fake badge was not an overt act but was "still in the act of pretending." The district court denied Diamond's motion. Diamond did not testify.

After the charge conference, Diamond renewed his motion for judgment of acquittal, which the district court denied.

D. Jury Instructions

During the charge conference, Diamond agreed that the pattern instruction for the § 912-impersonation crime should be given in its entirety. The § 912 pattern instruction stated:

The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt:

(1) the Defendant pretended to be an officer or employee acting under the authority of the United States;

(2) the Defendant acted as such; and

(3) the Defendant did so knowingly with intent to deceive or defraud another.

Nonetheless, Diamond...