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United States v. Oscar

United States Court of Appeals, Eleventh Circuit

December 20, 2017

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JEAN OSCAR, a.k.a. ZB, HYPICO BEAULIEU, a.k.a. Pico, a.k.a. Dred, Defendants-Appellants.

         Appeals from the United States District Court for the Southern District of Florida D.C. Docket No. 1:13-cr-20561-RNS-4.

          Before HULL, JORDAN and BOGGS, [*] Circuit Judges.

          HULL, Circuit Judge

         Defendant Hypico Beaulieu appeals his six criminal convictions and his sentence, all related to drug trafficking and the illegal possession of firearms. Co-defendant Jean Oscar appeals his two convictions for being a convicted felon in possession of a firearm on two different dates. Their appeals present five issues, implicating the lengthy investigation that led to their arrests and their joint criminal trial.

         After careful review, and with the benefit of oral argument, we affirm Beaulieu's and Oscar's convictions. We vacate Beaulieu's sentence imposed under the Armed Career Criminal Act and remand for resentencing.

         I. BACKGROUND

         A. Indictment

         On October 8, 2013, a grand jury indictment in the Southern District of Florida charged Beaulieu with conspiring to distribute cocaine and crack cocaine, in violation of 21 U.S.C. § 846 (Count One); three counts of distributing cocaine, in violation of 21 U.S.C. § 841(a)(1) (Counts Two, Three, and Four); stealing more than $1, 000 from the United States, in violation of 18 U.S.C. §§ 641 and 2 (Count Five); possessing with the intent to distribute cocaine and crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count Six); possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count Seven); and being a convicted felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count Eight).

         That same indictment also charged Oscar with two counts of being a convicted felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The same indictment also charged crimes against seven of Beaulieu's and Oscar's co-defendants: Francisco Castellon, Sandy Saintange, Christopher Dalpe, Aaron Hines, Gary Alexander, Ronald Prudent, and Lonnie Clanton. Ultimately, five of those co-defendants pled guilty, but not Saintange, who is a fugitive.

         On June 2, 2014, Beaulieu, Oscar, and Dalpe proceeded to trial. At trial, co-defendant Castellon testified against them.

         B. Trial, Convictions, and Sentences

         At trial, the government presented the testimony of (1) the undercover agent ("UA") who purchased contraband from the defendants, (2) the Department of Homeland Security ("DHS") agent who led the investigation, and (3) various federal and local law enforcement officers involved in the investigation. Beaulieu, Oscar, and Dalpe did not testify. Beaulieu did, however, offer the testimony of Renetta Smith, his girlfriend, who testified that she owned the firearm found in Beaulieu's residence. The parties finished their closing arguments on June 6, 2014.

         On the fourth day of jury deliberations, the jury returned its verdict, convicting Beaulieu of Counts One, Three through Six, and Eight and acquitting him of Counts Two and Seven. The jury convicted Oscar of the two felon-in-possession counts.

         On October 3, 2014, the district court sentenced Beaulieu to 210 months' imprisonment and Oscar to 144 months' imprisonment. This timely appeal followed.[1] We first review the trial evidence and then discuss the five issues presented on appeal.

         II. TRIAL EVIDENCE

         In 2012, DHS launched an investigation into narcotics trafficking in the greater Miami, Florida area. By making controlled contraband purchases, the UA infiltrated a neighborhood where narcotics and illegal firearms sales were common. The UA's investigation eventually focused on Saintonas Oscar ("Saintonas"), who brokered sales of narcotics and firearms between the UA and multiple people. Defendant Oscar is a cousin of Saintonas.

          For controlled purchases of narcotics and firearms, the UA would call Saintonas, negotiate a price for the contraband, and agree on a meeting time and location. The UA would drive to the agreed-upon location to complete the transaction, with Saintonas present to facilitate the exchange of money and contraband between the UA and the seller.

         A. November 7 and 15, 2012 Sales

         On November 7, 2012, the UA made a controlled narcotics purchase from defendant Beaulieu. The UA called Saintonas and ordered one ounce of cocaine. Saintonas agreed to the sale and instructed the UA to drive him to the Food Point Mart in Hallandale Beach, Florida. Upon arrival, the UA saw Beaulieu, who was walking towards the Food Point Mart parking lot from an adjacent field. While Beaulieu was approaching, the UA paid Saintonas $1, 150 in cash. Saintonas then exited the car, "made contact" with Beaulieu, and returned to the UA with one ounce of cocaine.

         On November 15, 2012, the UA again ordered cocaine from Saintonas. After the UA and Saintonas agreed on a price, they set a time and location for the transaction. The UA and Saintonas met and travelled together to the same Food Point Mart, where Beaulieu was again present. Similar to the transaction on November 7, Saintonas took $1, 800 in cash from the UA upon arrival, before leaving the UA to meet with Beaulieu. Saintonas then returned to the UA with one-and-a-half ounces of cocaine.

         B. January 8, 15, and 18, 2013 Sales

         On January 8, 2013, the UA purchased a sawed-off shotgun from Saintonas with defendant Oscar present. After completing the purchase, the UA spoke to Oscar about buying three more firearms, and they negotiated the price for two of them.

         On January 15, 2013, the UA asked Saintonas to help him obtain a firearm. Saintonas told the UA that there was a pistol for sale for $300, and the UA agreed to purchase it.

         Later that day, Saintonas and the UA arrived at Saintonas' residence, and, in the front yard, the UA saw Oscar with the pistol in his waistband. The UA took that firearm and gave Saintonas $300 in cash. During the transaction, Oscar told the UA that he had fired the pistol. Saintonas and the UA then discussed the purchase of a rifle.

         On January 18, 2013, after agreeing to purchase a rifle, the UA called Saintonas. At Saintonas' instruction, the UA picked up Saintonas and Oscar in the UA's vehicle. Oscar directed the UA to a second location, where they picked up a fourth person who was not identified at trial. That fourth person directed the UA to an apartment where the firearm was located. Once at the apartment, Oscar and the fourth person walked towards a stairwell. The UA gave Saintonas $700 in cash before Saintonas also walked to the stairwell. The UA then exited his vehicle, opened the trunk, and waited. Oscar and the fourth person exited the stairwell and walked to the rear of the UA's vehicle. Once at the vehicle, Oscar pulled a rifle out of the right leg of his pants and placed it in the UA's trunk.

         C. February 27, 2013 Attempted Sale

         On February 27, 2013, the UA negotiated the purchase of two firearms-a rifle and a pistol-from Saintonas. The UA drove to Saintonas' residence. Saintonas approached the UA's car, and the UA handed him $1, 800 in cash. Saintonas then walked away from the UA's vehicle and did not return. Saintonas never delivered the firearms. After Saintonas departed, the UA waited for 45 minutes, repeatedly calling Saintonas' phone to no avail. During this 45-minute period, while waiting for the firearms, the UA noticed Oscar arrive at Saintonas' residence. Oscar approached the UA and told him that Saintonas had already sold the firearms but that the UA should buy firearms directly from Oscar. During this conversation, Oscar offered to sell the UA "a .45 revolver."

         D. April 2, 2013 Sale

         On April 2, 2013, Saintonas, in an effort "to make things right, " referred the UA to Beaulieu, from whom the UA previously had purchased cocaine. Similar to the purchases conducted through Saintonas, the UA met Beaulieu at the Food Point Mart. After Beaulieu entered the UA's vehicle, the UA gave Beaulieu $1, 150 in cash in exchange for one ounce of cocaine.

         E. April 11, 2013 Attempted Sale

         On April 11, 2013, the UA and Beaulieu negotiated a purchase of two ounces of cocaine for $2, 300. When the UA and Beaulieu arrived at the Food Point Mart for the cocaine sale, the UA noticed that there was no activity at the store and that the only other car in the parking lot was a Ford F-150 backed into a parking spot. The UA observed the driver of the vehicle, who "just seemed to be staring straight ahead." After waiting a few minutes, the UA called Beaulieu. As he had for past transactions, Beaulieu approached from the field adjacent to the Food Point Mart. Once Beaulieu entered the car, the UA handed him $2, 300 in cash.

         But unlike past purchases, Beaulieu did not hand the narcotics to the UA. Instead, Beaulieu began to count the cash slowly. While Beaulieu was counting, the driver of the Ford F-150 exited his vehicle, holding one hand to his chest. As the driver of the Ford F-150 went to shut his door, a silver badge fell from underneath the hand on his chest. The driver approached the left side of the UA's vehicle.

         As the driver of the Ford F-150 was nearing the UA's vehicle, Beaulieu exited the UA's vehicle on the passenger's side and ran to the front of the UA's vehicle. As Beaulieu ran away, the driver turned, ran, got into the Ford F-150, and began pursuing Beaulieu, who was fleeing on foot. As the driver began his pursuit, driving westbound away from the Food Point Mart, the UA fled the parking lot in his car. Later that day, the UA called Beaulieu to complain about "being ripped off, " as Beaulieu had taken the $2, 300 without giving the UA any cocaine.[2]

         That same day, April 11, shortly after Beaulieu "robbed" the UA, two Drug Enforcement Agency ("DEA") agents stopped Beaulieu in a vehicle as he was leaving his residence. DHS Agent Jubal Gimble, who led the investigation against Oscar and Beaulieu, also arrived at the scene and was present when one of the DEA agents told Beaulieu that he was aware of the robbery and "just want[ed] the money back . . . [t]hat's it." Beaulieu complied and also consented when Agent Gimble and a DEA agent asked to come to his residence to retrieve the money. Beaulieu took the law enforcement agents inside his residence and gave them $2, 200 in cash that he had taken from the UA.[3]

         F. August 16, 2013 Arrests

         On August 16, 2013, federal and local law enforcement officers arrested Beaulieu at his mother's residence after obtaining an arrest warrant. A search of the home revealed $1, 473 in cash in Beaulieu's shorts; two plastic bags of cocaine in the bathroom; and a firearm, ammunition, marijuana, crack cocaine, and drug trafficking paraphernalia in Beaulieu's bedroom. DHS agents arrested Beaulieu and transported him to a DHS office. Before questioning him, the agents advised Beaulieu of his Miranda[4] rights, and Beaulieu affirmed that he understood his rights by signing a Miranda waiver form. Beaulieu then admitted that he had sold cocaine to Saintonas and the UA. Beaulieu also admitted that the firearm in his bedroom was his and that he knew he was not allowed to possess a firearm. Beaulieu claimed that he had bought the firearm in order to protect himself.

         Oscar was arrested a few days later, on August 19, 2013.

         With this trial evidence as background, we turn to the five issues on appeal.

         III. JURY'S QUESTIONS

         A. Court's Answer

         The first issue is Beaulieu's challenge to the district court's answer to two written jury questions about possession of a firearm by a convicted felon.[5] The first question asked: "If you are a convicted felon, does the law specify whether or not you can knowingly be near or around a gun or is there space specification (in the room or just near)?" The second question asked: "If a convicted felon, is it illegal just to be 'around' a firearm?"

         Beaulieu's defense counsel argued that the district court should respond "no" to both questions. The government advocated that the district court should instruct the jury to rely on the district court's prior instructions. The district court had fully instructed the jury already on the elements of this firearm offense, as follows:

A defendant can be found guilty of this crime only if all of the following facts are proved beyond a reasonable doubt:
1. The defendant knowingly possessed a firearm or ammunition in or affecting interstate or foreign commerce and;
2. Before possessing the firearm, or ammunition, the defendant had been convicted of a felony, a crime punishable by imprisonment for more than one year.

         (emphasis added).

         After defining firearm, ammunition, and interstate commerce, the district court also initially instructed the jury on actual and constructive possession as follows:

The law recognizes several kinds of possession. A person may have actual possession, constructive possession, sole possession or joint possession. Actual possession of a thing occurs if a person knowingly has direct physical control of it. Constructive possession of a thing occurs if a person does not have actual possession of it, but has both the power and the intention to take control over it later. Sole possession of a thing occurs if a person is the only one to possess it. Joint possess[ion] of a thing occurs if two or more people share possession of it. The term "possession" includes actual, constructive, sole and joint possession.

         Beaulieu did not object to this initial instruction.

         After receiving the jury's questions and hearing from defense counsel and the government, the district court proposed this answer to both questions:

Members of the jury, the definition of possession is fully set forth on page 15 of the instructions. It is not sufficient to be around or near a gun. The government must prove beyond reasonable doubt that the defendant either knowingly had actual direct physical control of the gun or if he did not have actual possession of it, that he had both the power and intention to take control over the gun later.
A defendant may have sole possession if he is the only person to possess the gun, or he may have joint possession if he and another share possession of it.

         (emphasis in original). After hearing from counsel, the district court sent a note to the jury reciting the foregoing answer.

         B. ...


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