                   Case: 11-14056          Date Filed: 07/13/2012   Page: 1 of 12

                                                                         [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-14056
                                        Non-Argument Calendar
                                      ________________________

                           D.C. Docket No. 3:10-cr-00067-PAM-JRK-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellee,

                                                 versus

DANIEL E. HAMPTON,

llllllllllllllllllllllllllllllllllllllll                                 Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Florida
                                 ________________________

                                             (July 13, 2012)

Before BARKETT, PRYOR and FAY, Circuit Judges.

PER CURIAM:

         Daniel Hampton appeals his convictions for possessing with intent to
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distribute cocaine, in violation of 18 U.S.C. § 841(a)(1), (b)(1)(C); possessing a

firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A); and possessing a firearm as a convicted felon, in violation of 18

U.S.C. § 922(g)(1). On appeal, he argues that the district court: (1) violated his

Fifth and Sixth Amendment rights by excluding evidence relating to his defense

theories, and (2) abused its discretion when it denied his motion to sever the

felon-in-possession count. For the reasons set forth below, we affirm Hampton’s

convictions.

                                          I.

      In March 2010, in the parking lot of a Quality Inn in St. Augustine, Florida,

Hampton was found inside a car engulfed in smoke with the engine running.

David Johnston and Neil Jones struggled to pull Hampton out of the car. Hampton

resisted their efforts. Deputy Thomas Bickhart arrived and warned Hampton that

he would use his Taser if Hampton did not exit the car and get on the ground.

Hampton got out of the car and was restrained. Cocaine, a digital scale, a

handgun, and a rifle were found in the car.

      In a superseding indictment, a federal grand jury charged Hampton with

possessing with intent to distribute cocaine, in violation of 18 U.S.C. § 841(a)(1),

(b)(1)(C) (Count 1); possessing a firearm in furtherance of a drug trafficking

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crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 2); and possessing a

firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count 3).

      Hampton filed a motion to sever Count 3, arguing that it was irrelevant to

Counts 1 and 2. Under Federal Rule of Criminal Procedure 14(a), severance was

proper to prevent apparent prejudice, and here, trying all three charges together

would prejudice Hampton because the jury would learn of his ten-year old felony

conviction. The government would not be prejudiced by a severance because

Hampton had stipulated to the authenticity of his prior conviction, alleviating the

government’s need to prepare to try Count 3. The court denied the motion.

      After a jury was selected, the court read the indictment to the jury and gave

some preliminary jury instructions, including the instruction that the defendant

was “on trial only for the crimes charged and not for anything else.” The

government then gave its opening statement, stating, among other things, that the

parties had stipulated that Hampton was a convicted felon. Thus, the government

would not need to offer any proof of that element of Count 3.

      Hampton argued during his opening statement that the government would

not be able to prove that he possessed the drugs or firearms at issue. One of the

firearms had DNA on it that matched Paul Morgan, not Hampton. Hampton

asserted that the government had not interviewed or contacted Morgan, and he

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stated that a theme in the case was, “incomplete, partial investigation, minds made

up from the start.” Finally, Hampton addressed Count 3 and agreed that he had

stipulated to the existence of his prior conviction. That conviction had occurred

more than ten years ago, when Hampton was under the age of 18.

      The morning of the second day of trial, Hampton argued to the court that the

government had committed a discovery violation. At the end of the first day of the

trial, the government had, for the first time, informed Hampton that Morgan had

been interviewed. He argued that the government’s failure to inform him of the

interview prejudiced him because he had focused his defense on, and made

statements to the jury regarding, the incomplete investigation. The jury would not

consider him credible if Morgan actually had been investigated. Hampton asked

that evidence regarding the investigation of Morgan be excluded or that the court

consider granting a mistrial after a verdict was reached. The court stated that it did

not believe that the government had committed a discovery violation, but it would

take the motion for a mistrial under advisement.

      Timothy Reichenbach testified that he was a special agent with the Drug

Enforcement Administration. He and John Hollingsworth had interviewed

Morgan because Morgan’s blood was found on a gun magazine that was found in

the burning car. During the interview, Morgan had explained why his blood was

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on the magazine. Based on that explanation, which was corroborated by Polk

County detectives, Reichenbach was satisfied that he did not need to investigate

Morgan further in regard to this case. Reichenbach obtained Morgan’s

photograph, but he did not show the picture to Johnston or Jones.

      John Hollingsworth testified that he was a case agent on Hampton’s case.

Hampton asked Hollingsworth if he had informed Hampton the day before that

Morgan had been interviewed. The government objected on relevance grounds,

and the court sustained the objection. Hollingsworth testified that Morgan’s DNA

had been found on one of the guns in this case. Hollingsworth had not taken

Morgan’s fingerprints or taken a photograph of Morgan. Hampton asked

Hollingsworth if he had interviewed or investigated Morgan, placed Morgan in a

lineup, or shown Morgan’s picture to Johnston and Jones. The government

objected to those questions, and the court sustained the objections. Hampton

asked Hollingsworth if he had learned that Morgan was a convicted drug dealer,

and the government objected. The court sustained the objection. Out of the

presence of the jury, Hampton asked the court whether he could ask questions

about the interview of Morgan. The court responded that Morgan was “not on

trial” and that Hollingsworth’s testimony on Morgan was not relevant.

      Before closing arguments began, the parties clarified what language they

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wanted included in the stipulation regarding Hampton’s prior felony conviction.

Hampton wanted to include the nature of the prior offense as well as its date, and

he stated that the stipulation should mirror the indictment to avoid confusing the

jury. The court stated that the only relevant information was that Hampton had

been convicted of a crime punishable by more than one year of imprisonment, but

the extra information could be included because the jury had been read the

indictment. The court then denied Hampton’s motion for a mistrial. The

government read the stipulation to the jury. The stipulation specified that

Hampton’s prior felony conviction was for “fleeing or attempting to elude a police

officer on or about March 8th, 2001.”

      The government began its closing argument by discussing the evidence as it

related to Counts 1 and 2. As to Count 3, the government noted that the

defendant’s status as a felon was not in dispute. Additionally, there was evidence

that he possessed two firearms. Convicted felons were not allowed to possess

firearms. The government further argued that, despite Hampton’s status as a

convicted felon, he possessed the firearms to protect himself while selling drugs.

      In his closing argument, Hampton argued that the government’s

investigation had been incomplete and that the officers involved had rushed to

judgment without considering alternative explanations for the events in the case.

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The evidence showed that Morgan’s DNA was on one of the firearms. Despite

that DNA, there was no evidence that the government ever showed Morgan’s

picture to Johnston or Jones or that they put Morgan in a lineup.

      In rebuttal, the government argued, among other things, that a convicted

felon could not legally possess the firearms found in the car. Additionally, based

on the evidence, the jury could reasonably determine that Hampton was a drug

dealer, a convicted felon, and had the firearms to protect the drugs in the car as

well as himself.

      The court instructed the jury to consider the evidence relating to each count

charged in the indictment separately. Finding Hampton guilty or not guilty of one

count was not to affect the jury’s verdict for any other count. Additionally, the

court stated that Hampton was “on trial only for the specific crimes charged in the

indictment” and that the jury was only to determine whether Hampton was “guilty

or not guilty of those specific crimes.”

      The jury found Hampton guilty of all three counts. Hampton filed a motion

for a new trial, which the court denied. The court imposed a 92-month total

sentence, and Hampton timely appealed.

                                           II.

      “We review constitutional claims de novo.” United States v. Anton, 546

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F.3d 1355, 1357 (11th Cir. 2008). “[T]he Constitution guarantees criminal

defendants a meaningful opportunity to present a complete defense.” Holmes v.

South Carolina, 547 U.S. 319, 324, 126 S.Ct. 1727, 1731, 164 L.Ed.2d 503 (2006)

(quotations omitted). Without violating a defendant’s constitutional right to

present a defense, a district court may “exclude evidence that is repetitive [or] only

marginally relevant.” Id. at 326, 126 S.Ct. at 1732 (quotations omitted).

“Evidence is relevant if . . . it has any tendency to make a fact more or less

probable than it would be without the evidence.” Fed.R.Evid. 401(a).

      The district court did not err in limiting Hampton’s questions regarding the

government’s investigation of Morgan. Hampton’s defense focused on two

theories: (1) that Morgan was the actual possessor of the contraband found in the

car, and (2) that the government did not fully investigate the crimes at issue.

Although questions regarding the government’s investigation of Morgan would

have been relevant to these defense theories, the district court was permitted to

exclude repetitive evidence. See Holmes, 547 U.S. at 326, 126 S.Ct. at 1732.

Reichenbach testified that he and Hollingsworth had interviewed Morgan and

learned why Morgan’s DNA was on one of the gun magazines found in the car.

Because Polk County detectives corroborated Morgan’s explanation, Reichenbach

determined that he did not need to further investigate Morgan. Reichenbach

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testified that he did not show Morgan’s picture to witnesses to determine whether

Morgan had been in the car or at the Quality Inn. Hollingsworth also testified that

he had not taken Morgan’s fingerprints or taken a photograph of Morgan. Thus,

Hampton’s proposed questions to Hollingsworth regarding his investigation of

Morgan, whether he had placed Morgan in a lineup, and whether he had shown

Morgan’s pictures to Johnston or Jones were cumulative and properly excluded.

See Holmes, 547 U.S. at 326, 126 S.Ct. at 1732.

      Hampton’s proposed questions regarding Morgan’s criminal history were

not relevant, as Morgan was neither a witness nor a defendant in Hampton’s trial.

Morgan’s alleged past misdeeds would not have made it “more or less probable”

that: (1) he was in the car with Hampton, or (2) the government did not thoroughly

investigate this case. Fed.R.Evid. 401(a). This irrelevant evidence was properly

excluded. See Holmes, 547 U.S. at 326, 126 S.Ct. at 1732.

      Finally, Hampton argues on appeal that he lost all credibility with the jury

when the district court did not allow him to adequately pursue his theme of an

incomplete investigation through his questioning of Reichenbach and

Hollingsworth. This argument is without merit. Based on Reichenbach’s and

Hollingsworth’s testimony as to the steps they had not taken to investigate

Morgan, Hampton was able to argue extensively to the jury that the government

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had not completed a thorough investigation.

                                         III.

      “The denial of a motion to sever is reviewed for abuse of discretion.”

United States v. Bennett, 368 F.3d 1343, 1351 (11th Cir. 2004), vacated on other

grounds, 543 U.S. 1110, 125 S.Ct. 1044, 160 L.Ed.2d 1041 (2005). “We will not

reverse the denial of a severance motion absent a clear abuse of discretion

resulting in compelling prejudice against which the district court could offer no

protection.” Id. (quotation omitted).

      A “court may order separate trials of counts” where the joinder of those

counts “appears to prejudice a defendant or the government.” Fed.R.Crim.P.

14(a). In Bennett, the defendant was charged with, among other things, possessing

firearms as a convicted felon. 368 F.3d at 1348. We held that the defendant had

not shown compelling prejudice from the district court’s denial of his motion to

sever the felon-in-possession count. Id. at 1351. Any prejudice resulting from the

denial of the motion was mitigated by the parties’ stipulation as to the existence of

the prior felony conviction. Id. As the stipulation did not contain details about the

prior conviction, the risk that the jury would have considered that conviction when

considering the other charges was minimal. Id. The district court in

Bennett further mitigated any prejudice by instructing the jury not to consider the

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prior felony conviction “in determining the guilt or innocence of the defendant in

the other counts of the indictment.” Id. (quotation omitted). Similarly, in United

States v. Walser, 3 F.3d 380 (11th Cir. 1993), there was no compelling prejudice

because “the district court instructed the jury to consider each charge in the

indictment separately and not to permit a verdict on one count to affect

deliberations regarding another count.” Id. at 387. “We presume that a jury

follows the instructions given to it by the district court.” Bennett, 368 F.3d at

1351.

        The district court did not abuse its discretion when it denied Hampton’s

motion to sever. See Bennett, 368 F.3d at 1351. Like the defendant in Bennett,

Hampton has not shown compelling prejudice from this denial because any

prejudice was mitigated by the stipulation and jury instructions. See id. First, the

stipulation included the information Hampton requested regarding the nature of

the offense and the date on which it had occurred. In addition to informing the

jury that the prior conviction had occurred approximately nine years before the

events in this case, the stipulation meant that the conviction was brought up only

intermittently during the trial. Further mitigating any possible prejudice was the

district court’s instruction that the jury should consider the evidence relating to

each count charged in the indictment separately. The court further instructed that

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the verdict on one count was not to affect the jury’s verdict for any other count and

that Hampton was on trial only for the charged offenses. We presume that the jury

followed those instructions and did not consider the prior felony conviction, which

related only to Count 3, in coming to a verdict on Counts 1 or 2. See id.

      For the foregoing reasons, we affirm Hampton’s convictions.

      AFFIRMED.




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