USA v. Ricky Nuckles, No. 15-13823 (11th Cir. 2016)

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Case: 15-13823 Date Filed: 05/11/2016 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 15-13823 Non-Argument Calendar ________________________ D.C. Docket No. 1:14-cr-00218-ODE-AJB-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RICKY NUCKLES, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Northern District of Georgia ________________________ (May 11, 2016) Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges. PER CURIAM: Case: 15-13823 Date Filed: 05/11/2016 Page: 2 of 6 Ricky Nuckles appeals his convictions for possessing at least five kilograms of cocaine with the intent to distribute, 21 U.S.C. § 841(a)(1), (b)(1)(A)(ii)(11); 18 U.S.C. § 2, and possessing a firearm in furtherance of that drug offense, id. § 924(c)(1)(A)(i), and his sentence of 211 months of imprisonment. Nuckles challenges the sufficiency of the evidence, the denial of his motion for a mistrial and to strike a surveillance video recording from evidence, and the enhancement of his sentence for obstruction of justice. We affirm. Nuckles requests de novo review of his convictions, but because he “present[ed] his case after denial of a motion for judgment of acquittal and then fail[ed] to renew his motion . . . at the end of all the evidence,” we review his “challenge to the sufficiency of the evidence for a manifest miscarriage of justice,” United States v. House, 684 F.3d 1173, 1196 (11th Cir. 2012). Under this standard, we will not disturb a “conviction unless the evidence on a key element of the offense is so tenuous that [the] conviction [is] shocking.” Id. (quoting United States v. Milkintas, 470 F.3d 1339, 1343 (11th Cir. 2006)). Direct and circumstantial evidence are given equal weight, but “[w]here the government relies on circumstantial evidence, reasonable inferences . . . must support the jury’s verdict.” United States v. Doe, 661 F.3d 550, 560 (11th Cir. 2011) (quoting United States v. Klopf, 423 F.3d 1228, 1236 (11th Cir. 2005)). 2 Case: 15-13823 Date Filed: 05/11/2016 Page: 3 of 6 Sufficient evidence supports Nuckles’s conviction for possessing cocaine with the intent to distribute. See 21 U.S.C. § 841(a)(1). While Michael Connolly, an agent of the Drug Enforcement Agency, was at a Valero gas station, he saw a man transfer a bulky suitcase from his sedan to the back seat of Nuckles’s Ford Taurus. Connolly suspected that the transaction involved drugs because the Taurus was parked oddly with its gas lid facing away from the fuel pump; the man parked the sedan on the opposite side of the fuel pump and moved the suitcase swiftly; the man found the trunk locked, but glanced toward the convenience store and the tail lights of the Taurus then “flashed” consistent with the trunk being unlocked remotely; and after the man drove away, the tail lights of the Taurus illuminated a second time. Connolly met Nuckles at his car and asked him about the suitcase. Nuckles acted “visibly nervous” and evasive, refused to look inside his car, denied ownership of the suitcase, asserted that he had been “inside the gas station,” and returned to the convenience store. Nuckles’s response to Connolly “evidenc[ed] a consciousness of guilt.” See United States v. Stanley, 24 F.3d 1314, 1321 (11th Cir. 1994). Nuckles returned approximately one minute later and consented for Connolly to search the Taurus, and Connolly opened the suitcase to discover $750,000 of cocaine that had been packaged to distribute in kilogram and halfkilogram quantities. See United States v. Poole, 878 F.2d 1389, 1392 (11th Cir. 1989). And a reasonable jury could have found that Nuckles exercised dominion 3 Case: 15-13823 Date Filed: 05/11/2016 Page: 4 of 6 over the drugs that were placed in his car. See United States v. Leonard, 138 F.3d 906, 909 (11th Cir. 1998). Still photographs corroborated Connolly’s testimony that the car was unlocked and relocked remotely to facilitate the delivery. Sufficient evidence also proves that Nuckles possessed a firearm in furtherance of his drug offense. See 18 U.S.C. § 924(c)(1)(A)(i). Nuckles admitted that he had a gun in his car. And a detective who assisted Connolly found a loaded firearm and a magazine full of ammunition in the pocket of the driver’s side door. Based on Nuckles’s ready accessibility to the firearm, a jury reasonably could have inferred that Nuckles possessed the firearm to safeguard the cocaine. See United States v. Woodard, 531 F.3d 1352, 1362 (11th Cir. 2008). The district court did not abuse its discretion when it denied Nuckles’s motion for a mistrial and to strike the surveillance video recording. Nuckles argues that the government committed a “discovery violation” and that he was prejudiced by the admission of the videotape because it did not depict that the Taurus’s tail lights illuminated as the courier walked from its trunk to the rear door, but Nuckles falls short of establishing that the admission of the videotape violated his substantial rights. See United States v. Bueno-Sierra, 99 F.3d 375, 380 (11th Cir. 1996). Nuckles fails to identify which discovery requirement the government violated. And Nuckles cannot prove that his ability to mount a defense was compromised by admission of the videotape, which he used to impeach Connolly 4 Case: 15-13823 Date Filed: 05/11/2016 Page: 5 of 6 and reveal that he had failed to mention the illumination of the tail lights in his written report of the incident, in a summary that he prepared of the surveillance video recording, or during a pre-trial hearing. Moreover, we cannot say that Nuckles was prejudiced by the omission in the videotape when he allowed the government, without objection, to introduce still photographs bearing date and time stamps that showed Nuckles’s tail lights illuminate before and after the courier transferred the suitcase to Nuckles’s car. The district court did not abuse its discretion when it enhanced Nuckles’s sentence for obstruction of justice. A district court may increase a defendant’s offense level by two levels if he impeded the investigation or concealed evidence relevant to his offense of conviction. United States Sentencing Guidelines Manual § 3C1.1 & cmt. n.4(D) (Nov. 2014). Nuckles’s presentence investigation report stated that, when he returned to the convenience store after speaking with Connolly, he discarded a cellular telephone. Nuckles did not challenge this portion of the presentence report or deny discarding a cellular telephone. Nuckles objected to the enhancement on the ground that “no evidence presented at trial” showed that he “tossed a cell phone,” but surveillance video recordings corroborate the facts in the presentence report. The recordings show that Nuckles used a cellular telephone after he arrived at the gas station, while he waited inside the convenience store for the suitcase, and when he exited the convenience store; that after Connolly 5 Case: 15-13823 Date Filed: 05/11/2016 Page: 6 of 6 confronted him, Nuckles returned to the convenience store and tossed an object under a countertop; and that neither Connolly nor a second officer who patted Nuckles down discovered a cellular telephone in Nuckles’s belongings. The district court was entitled to conclude that Nuckles willfully disposed of his cellular telephone to frustrate an imminent investigation and that he obstructed the investigation by destroying evidence connected to the cocaine and its distribution. See United States v. Revel, 971 F.2d 656, 661 (11th Cir. 1992). We AFFIRM Nuckles’s convictions and sentence. 6

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