            Case: 15-14533   Date Filed: 08/25/2017   Page: 1 of 7


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                       No. 15-14533; No. 15-14625
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 9:15-cr-80003-DMM-5


UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

versus


REGINALD EUGENE GRIMES, SR.,
a.k.a. Bro Man,

                                                          Defendant-Appellant.

                       ________________________

                Appeals from the United States District Court
                    for the Southern District of Florida
                       ________________________

                             (August 25, 2017)

Before TJOFLAT, MARCUS and FAY, Circuit Judges.

PER CURIAM:
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      Reginald Grimes appeals his convictions and concurrent 168-month

imprisonment sentences for conspiracy to distribute and possess with intent to

distribute heroin and possession with intent to distribute heroin. First, he argues

that the district court violated his Sixth Amendment rights by restricting his cross-

examination of Gary Moore regarding Moore’s prior conviction and plea

agreement. Next, he argues that the district court erred by denying his motion to

dismiss the charges against him based on the government’s failure to correct

perjured testimony before the grand jury and his motion for judgment of acquittal

based on perjured testimony at trial. Finally, he argues that the district court erred

by applying a firearm enhancement under U.S.S.G. § 2D1.1(b)(1) despite a lack of

evidence that Grimes possessed a firearm in furtherance of the offense.

                                           I.

      We review limitations on the scope of cross-examination for a clear abuse of

discretion, but address de novo whether a defendant’s Sixth Amendment rights

were violated. United States v. Rushin, 844 F.3d 933, 938 (11th Cir. 2016).

      A defendant has a right to conduct a cross-examination that exposes the jury

to facts sufficient for it to infer a witness’s bias. Id. However, trial judges retain

wide latitude to impose reasonable limits on cross-examination based on concerns

about confusion of the issues or repetitive or marginally relevant interrogation. Id.




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      Even where a defendant’s Sixth Amendment Confrontation Clause rights are

violated, the error may be harmless. United States v. Jones, 601 F.3d 1247, 1264

(11th Cir. 2010) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). To

determine whether the denial of a defendant’s opportunity to impeach a witness

was harmless, the court analyzes five factors: (1) the importance of the witness’s

testimony to the prosecutor’s case; (2) whether the testimony was cumulative;

(3) the presence or absence of evidence corroborating or contradicting the

testimony of the witness on material points; (4) the extent of cross-examination

otherwise permitted; and (5) the overall strength of the prosecution’s case. Van

Arsdall, 475 U.S. at 684.

      The district court did not abuse its discretion by limiting his cross-

examination of Gary Moore regarding his prior conviction and plea agreement

because that testimony was repetitive and irrelevant. Grimes’s Sixth Amendment

rights were not harmed by this limitation because the jury had sufficient

information to assess Moore’s credibility. The jury already heard that Moore was

previously convicted for a drug-distribution offense and that he pleaded guilty to

that offense in exchange for a lesser sentence. Rushin, 844 F.3d at 938.

      The district court also sustained the government’s objection to Grimes’s

attempt to introduce Moore’s plea agreement from his prior drug conviction and

Grimes’s statement that the plea agreement still bound Moore. The district court


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did not abuse its discretion by finding that the statement was argumentative and

that the plea agreement was irrelevant. Neither limitation affected the jury’s ability

to assess Moore’s credibility, because Moore repeatedly admitted that he was

cooperating with the government in exchange for a lesser sentence. Moreover,

Grimes failed to present an argument that any error was not harmless given the

significant impeachment evidence admitted. Van Arsdall, 475 U.S. at 684.

                                          II.

      The denial of a motion to dismiss the indictment is reviewed for an abuse of

discretion, although the legal sufficiency of the allegations in an indictment is a

question of law reviewed de novo. United States v. York, 428 F.3d 1325, 1332 n. 8

(11th Cir. 2005). A defendant alleging an error in the grand jury proceedings must

show prejudice by showing that the violation substantially influenced the decision

to indict. Id. at 1332–33.

      The denial of a motion for judgment of acquittal is reviewed de novo.

United States v. Evans, 473 F.3d 1115, 1118 (11th Cir. 2006). The district court’s

denial of a motion for judgment of acquittal will be upheld if a reasonable trier of

fact could conclude that the evidence establishes the defendant’s guilt beyond a

reasonable doubt. United States v. Rodriguez, 218 F.3d 1243, 1244 (11th Cir.

2000). Where properly preserved, the district court’s decision on sufficiency of the

evidence is not entitled to deference. United States v. Taylor, 972 F.2d 1247, 1250


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(11th Cir. 1992). However, we must view the facts and draw all reasonable

inferences in the light most favorable to the government. United States v. Hansen,

262 F.3d 1217, 1236 (11th Cir. 2001).

      We previously indicated that the possibility that a witness provided false

testimony before the grand jury does not automatically vitiate an indictment based

on that testimony; to dismiss an indictment, the district court must also find an

abuse of the grand jury process such as perjury or government misconduct. United

States v. Garate-Vergara, 942 F.2d 1543, 1550 (11th Cir. 1991). Testimony that

constitutes perjury must be (1) given under oath or affirmation; (2) false; (3)

material; and (4) given with the willful intent to provide false testimony and not as

a result of a mistake, confusion, or faulty memory. United States v. Moran, 778

F.3d 942, 981 (11th Cir. 2015) (citing United States v. Dunnigan, 507 U.S. 87, 94

(1993)). Likewise, if the government not only fails to correct materially false

testimony at trial, but also affirmatively capitalizes on it, the defendant’s due

process rights are violated. United States v. Stein, 846 F.3d 1135, 1147 (11th Cir.

2017). To overturn the conviction, the alleged perjury must affect the jury’s

verdict, meaning that it must be material to the conviction and corrupt the truth-

seeking function of the trial process. United States v. Bailey, 123 F.3d 1381, 1396

(11th Cir. 1997).

      The district correctly denied Grimes’s motion to dismiss the indictment on


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the grounds that it relied on perjured testimony and his motion for a judgment of

acquittal on the same basis, because he presented no evidence of perjury.

                                         III.

      For sentencing purposes, possession of a firearm involves a factual finding,

which we review for clear error. United States v. Stallings, 463 F.3d 1218, 1220

(11th Cir. 2006).

      The Sentencing Guidelines provide that, if a dangerous weapon (including a

firearm) was possessed during a drug possession or conspiracy offense, then a

defendant’s offense level should increase by two levels, unless it is clearly

improbable that the weapon was connected to the offense. Id.; U.S.S.G.

§ 2D1.1(b)(1). To justify a firearms enhancement, the government must establish

by a preponderance of the evidence either that the firearm was present at the site of

the charged conduct or that the defendant possessed a firearm during conduct

associated with the offense of conviction. Stallings, 463 F.3d at 1220; U.S.S.G.

§ 2D1.1, comment (n. 11(A)). If the government is successful in meeting this

initial burden, then the evidentiary burden shifts to the defendant, who must

demonstrate that a connection between the weapon and the offense was “clearly

improbable.” Stallings, 463 F.3d at 1220. In drug-related cases, a proximity

between drugs and guns, without more, is sufficient to meet the government’s

initial burden and create the presumption of a connection between the weapon and


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the offense. United States v. Carillo-Ayala, 713 F.3d 82, 91–92 (11th Cir. 2013).

We previously held that the government met this burden by showing that a gun

was recovered in the same room as scales, a bag containing cocaine residue, and a

large amount of cash. United States v. Hall, 46 F.3d 62, 63 (11th Cir. 1995).

      The district court did not clearly err in applying a two-level sentence

enhancement based on the use of a firearm in connection with the conspiracy,

because the government presented unrefuted evidence that a firearm was present in

close proximity to the drugs being trafficked. Moore’s testimony at trial

established that Hunter’s apartment was one of the sites where the heroin in the

conspiracy was packaged and distributed, including to Grimes. Suarez’s testimony

at sentencing established that Moore stored a firearm at the apartment, removed it,

Grimes returned it to the apartment, and then gun was eventually found near the

heroin when the apartment was searched. Moore’s and Suarez’s testimony

combined established that the firearm was in close proximity to the drugs involved

in the conspiracy.

      AFFIRMED.




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