*

Honorable Alfred T. Goodwin, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by

designation.

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

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No. 96-2822

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D.C. Docket No. 94-CR-4063-ALL

 

UNITED STATES OF AMERICA

Plaintiff-Appellee,

versus

 

DOCK CHARLES HUBERT

Defendant-Appellant.

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Appeal from the United States District Court for the

 Northern District of Florida

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(April 8, 1998)

Before BARKETT, Circuit Judge, GODBOLD and GOODWIN*

, Senior Circuit Judges.

PER CURIAM:

The defendant, Dock Charles Hubert (“Hubert”), appeals the judgment of conviction, the

enhancement of his sentence for obstruction of justice, and the district court’s order denying his

motion for a mistrial. We have jurisdiction to review the case under 28 U.S.C. § 1291. We

affirm.
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I.

On December 8, 1995, Hubert was found guilty by a jury on one count of conspiracy to

possess with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(A)(iii), and on three counts of possession with intent to distribute cocaine base

in violation of 21 U.S.C. § § 841(a)(1) and 841 (b)(1)(B)(iii) and 18 U.S.C. § 2. Hubert filed a

motion for a mistrial, arguing that the government wrongfully introduced testimonial evidence of

other criminal acts allegedly committed by Hubert over a twenty-year span prior to the dates

covered in the indictment in order to attack Hubert’s character. Hubert claimed that this

evidence unduly prejudiced the jury and prevented him from getting a fair trial. The district

court denied the motion for a mistrial and entered a judgment of conviction against Hubert on all

four counts. The district court then sentenced Hubert to 300 months on each count, to run

concurrently. This sentence was based on a guideline range of 292-to-365 months for a Criminal

History Category I and a Base Offense Level of 38 which was enhanced to 40 for obstruction of

justice because the district court found that Hubert had lied when he testified during trial and

during earlier court hearings.

II.

We first deal with Hubert’s contention that the district court erred in not granting his

motion for a mistrial. The indictment covers only the period of July 1992 to July of 1993. 

During the trial, however, the government elicited testimony from Richard Young about his prior

drug dealings with Hubert going all the way back to the early 1970's. Richard Young, who had
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already pled guilty to his involvement in the charged conspiracy, testified that he and Hubert

started using drugs in the 1970's; that he and Hubert had always been partners in drug dealing;

that at one time he and Hubert had an apartment together in Miami from which they sold

marijuana and powder cocaine; that in the late 1980's, Hubert supplied him with cocaine from

time to time; that starting in 1990, Hubert regularly sold him cocaine powder which he would

then cook into crack cocaine; and that in 1991, he and Hubert reaffirmed their drug dealing

partnership, agreeing to a 50/50 split in profits.

The government claims that Richard Young’s extensive testimony relating to his prior

drug dealings with Hubert was necessary to explain the circumstances of the charged crimes and

to clarify the relationship between Richard Young and Hubert. Hubert counters that the

testimony was not relevant to establishing the relationship he had with Richard Young because

there was no dispute that he and Richard Young had known each other and had been friends

since childhood. Hubert argues that the government did not use the elicited testimony to explain

the circumstances of the charged crimes but rather to show that Hubert possessed a criminal

character or otherwise had the propensity to commit the crime with which he was charged.

After reviewing the record, we have to agree with Hubert that Richard Young’s

testimony concerning drug activities prior to the 1991 alleged agreement was not necessary to

show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or accident. The testimony cannot be called necessary to impeach Hubert because Hubert had

not taken the stand at the time Richard Young’s testimony was offered. The testimony of events

prior to the alleged agreement in 1991, therefore, had no value except to prove a criminal

disposition in violation of the Federal Rule of Evidence 404(b). Accordingly, we hold that
2

 Sentencing Guideline § 3C1.1 states in full: “If the defendant willfully obstructed or

impeded, or attempted to obstruct or impede, the administration of justice during the

investigation, prosecution, or sentencing of the instant offense, increase the level by 2 levels.” 

U.S.S.G. § 3C1.1.

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permitting the government to introduce the challenged testimony was an abuse of discretion.

This holding, however, does not mandate a reversal. If a reviewing court finds that a

district court has abused its discretion in admitting evidence in violation of Rule 404(b), then its

decision to uphold the conviction is properly reviewed under a harmless error standard. See 

Fed. R. Crim. P. 52(a). After reviewing the record, we hold that the district court’s admission of

Richard Young’s testimony was harmless error. The evidence produced against Hubert at trial

was substantial. Five witnesses gave consistent testimony concerning Hubert’s participation in

the charged conspiracy to possess cocaine base with intent to distribute. These witnesses also

gave consistent testimony concerning Hubert’s actual possession of cocaine powder and cocaine

base with intent to distribute during the relevant time frame. Because any reasonable

construction of the evidence would allow a jury to find Hubert guilty beyond a reasonable doubt

on all four counts, we affirm the conviction. We conclude that the district court did not abuse its

discretion in denying the motion for a mistrial. United States v. Roper, 874 F.2d 782, 788 (11th

Cir. 1989)(internal citations omitted).

III.

Next we deal with Hubert’s contention that the district court erred in enhancing his

sentence for obstruction of justice2

 based upon his testimony at trial and at two prior bond
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revocation hearings. Upon reviewing the record, we hold that the two-level enhancement was

proper. Perjury under oath on material matters, not due to confusion or mistake, justifies such an

increase. United States v. Dunnigan, 507 U.S. 87, 93-94 (1993). Hubert may claim that the

sentence enhancement impermissibly chills his constitutional right to testify but this argument

has been soundly rejected by both this Circuit and the Supreme Court. See United States v.

Lawrence, 972 F.2d 1580, 1580 (11th Cir. 1992); Dunnigan, 507 U.S. at 96. Hubert may further

object that the district court failed to make a sufficiently detailed finding that he committed

perjury and obstructed justice, but in the context of the record of the hearing, detailed findings

were not necessary and would have been redundant. The Pre-Sentence Investigation Report,

which the district court adopted, spelled out the perjurious statements and the government

elaborated on these perjurious statements during the sentencing hearing. More importantly,

Hubert did not request any particularized findings regarding the perjurious statements at the

sentencing hearing. Having failed to do so, Hubert cannot now complain to this court. See

United States v. Geffrard, 87 F.3d 448, 453 (11th Cir. 1996), cert. denied, 117 S. Ct. 443 (1996).

AFFIRMED.