FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 July 19, 2005 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-10667

________________________

D. C. Docket No. 03-00079-CR-1-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID TAYLOR,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(July 19, 2005)

Before BIRCH, CARNES and RONEY, Circuit Judges.

PER CURIAM:

Defendant David Taylor appeals his jury convictions and 322-month

sentence arising from several drug possession and firearm charges. He raises eight

intertwined issues on appeal: five alleged errors on the admission or exclusion of
2

evidence; cumulative error; insufficiency of the evidence; and a violation of

Booker/Blakely in sentencing. We affirm.

The marijuana, crack and powder cocaine upon which the charges were

based were found on Taylor during an arrest. A central contention made in

Taylor’s defense and on this appeal is that prosecution witness Atlanta Police

Department Officer Matthew Strevel lied about finding drugs on Taylor. The

district court erred, Taylor argues, in not permitting him to put in evidence of bad

character and of thirteen prior complaints against Strevel of police misconduct.

A brief review of the facts shows the critical nature of Strevel’s testimony

before the jury. On April 6, 2002, at approximately 12:45 a.m., Atlanta Police

Department Officers Randy Sheen and Matthew Strevel were dispatched to an

overpass in downtown Atlanta. Officer Sheen arrived first, shone his spotlight,

and saw Taylor sitting near that overpass. He parked his marked police vehicle

and began walking toward Taylor. Taylor then ran from the overpass into a

wooded area, and Officer Sheen followed him. Officer Sheen observed, with the

assistance of a “very powerful” hand-held flashlight, Taylor “drop down a black

object.” Officer Sheen ultimately captured Taylor, escorting him to the road

where Officer Strevel had been waiting near his separate police vehicle. Officer

Sheen then walked back to the area where he had observed Taylor throw down the
3

black object, discovering a black, loaded Sig Sauer, Model P-230, .380 caliber

firearm. The firearm was clean and did not appear to have been on the ground for

a long time. Officer Sheen then radioed to Officer Strevel that he had found a

firearm, and Officer Strevel placed Taylor under arrest for carrying a concealed

weapon. Officer Strevel noticed that Taylor had a bleeding cut on his forehead. 

Officer Strevel testified that in searching Taylor incident to the arrest, he located

marijuana, as well as individually-packaged crack and powder cocaine bags, and a

black ski mask. The Georgia Bureau of Investigation Crime Laboratory tested the

drugs, revealing 24.89 grams of marijuana and 8.34 grams of cocaine.

The possession of the firearm and those drugs formed the basis of the fourcount indictment against Taylor: (Count 1) felon in possession of a firearm, 18

U.S.C. §§ 922(g), 924(e); (Counts 2 and 3) possession with intent to distribute

cocaine and marijuana, 21 U.S.C. §§ 841, 851; and (Count 4) using and carrying a

firearm during and in relation to a drug trafficking offense, 18 U.S.C. § 924(c).

Argument 1: Excluding testimony and evidence regarding prior

complaints against Officer Strevel.

The day before trial, Taylor advised the district court that he intended to

cross-examine Officer Strevel, a government witness, regarding prior citizens’

complaints against him alleging harassment, planting evidence and brutality
4

pursuant to either Federal Rules of Evidence 404(b) or 608. The defense provided

the prosecution with the Atlanta Police Department Internal Affairs Reports,

indicating the nature of the complaints against Officer Strevel and the results of

those investigations. Taylor subsequently filed a very limited “Proffer of

Evidence.” Taylor proffered that: (1) in Complaint No. 00-C-499, a defendant,

Joseph Taylor, alleged that Officer Strevel had planted cocaine on him, kept his

money and property; and (2) as stated in Internal Affairs Investigation case

number 01-C-0296-UAF, Officer Strevel had been “under investigation by

Internal Affairs for brutality at the time of [his] arrest.” The proffer stated nothing

else. Taylor’s proffer of evidence only references one citizen complaint,

Complaint No. 00-C-499, against Officer Strevel which included an allegation that

Officer Strevel had “plant[ed] cocaine on [an arrestee], kept his money and

property.” This complaint was determined to be “unfounded” by the Internal

Affairs Division of the Atlanta Police Department. The other complaint

referenced in the proffer, No. 01-C-0296, only stated, without any explanation,

that “Officer Strevel was under investigation for brutality at the time of Mr.

Taylor’s arrest.” All of the remaining complaints were determined to be

“unfounded” by the Internal Affairs Division as well.
5

The government argued that because Internal Affairs had determined that all

of the alleged instances regarding harassment, planting evidence and brutality

were “unfounded based on lack of evidence, . . . the defendant should [not] be

entitled to inquire about those instances . . ..” The district court agreed ruling:

As to the other evidence the defendant seeks to introduce

for use on cross-examination or relative to bias and

matters that were subject to internal affairs . . ., that

evidence is excluded because [its] probative value, if

any, is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, and misleading the

jury; therefore, the jury will not be permitted to pursue

these matters either by oral testimony or by documentary

evidence.

Taylor contends that these thirteen complaints of police misconduct were

relevant to prove that Officer Strevel was “biased,” had a tendency for

“untruthfulness,” and thus may have planted the drugs on him during the arrest. 

The district court did not abuse its discretion by denying Taylor’s request to

either reference or admit these thirteen complaints of police misconduct under

Rules 404(b) or 608(b). Taylor’s attempt to offer or reference these “unfounded”

complaints into evidence at trial is similar to the failed defendants’ efforts in

United States v. Novaton, 271 F.3d 968 (11th Cir. 2001). The Novaton defendants

attempted to cross-examine one government agent on his potential involvement in

the “Miami River Cops Scandal,” where that officer had been suspended with pay
6

for four months but was later reinstated and no criminal charges were ever brought

against that agent, “although he was formally reprimanded for failing to document

a conversation with an informant.” 271 F.3d at 1004. Like Taylor here, the

defendants had argued to the district court that cross-examination of the officer

regarding this matter should be permitted because it could show the agent’s bias or

motive to lie. The defendants also sought to cross-examine another government

agent concerning one pending investigation and one completed investigation

where the same source had sent the Drug Enforcement Agency a letter alleging

that the agent had stolen cocaine during a drug seizure. 271 F.3d at 1004-05.

The district court in Novaton held that those investigations were

“‘irrelevant, and even if [they were] relevant, [their] probative value is outweighed

by [their] prejudice.’” 271 F.3d at 1005. In affirming the district court’s

evidentiary rulings, this Court reasoned that the “insertion” of one agent’s

involvement in the “Miami River Cops Scandal,” where the agent “was thoroughly

investigated in connection with that scandal, but was never charged with any

crime and only received a reprimand for failing to document a conversation with

an informant,” was irrelevant and “any potential relevance” was substantially

outweighed by the likelihood of unfair prejudice and thus was properly excluded

under Federal Rule of Evidence 403. 271 F.3d at 1007.
7

Similarly, the Novaton Court also affirmed the exclusion of the “unproven

allegations” that the second agent had stolen cocaine, ruling that the injection of

the evidence into trial “had the obvious potential to cause serious and unfair

prejudice to the government.” 271 F.3d at 1007. The Court reasoned, “In light of

the fact that [the agent] was cleared during the first investigation and that the

second investigation concerned the same allegations from the same source,

information concerning those investigations elicited during cross-examination

would not have had much, if any, probative value.” 271 F.3d at 1007.

Here, like Novaton, Taylor sought to admit or reference evidence of

unproven, citizen complaints that were brought against Officer Strevel. Also like

the agents in Novaton, there is no record evidence that Officer Strevel was

disciplined for, or convicted of, planting evidence or brutalizing any arrestee. See

Novaton, 271 F.3d at 1007. Next, even if there was evidence that Officer Strevel

had actually injured arrestees in the past, that evidence would be irrelevant in this

case, as this is not a civil rights case where brutality has been alleged. Taylor

further failed to proffer the testimony of any witness who might testify that Officer

Strevel had engaged in any of the alleged acts but instead chose to simply refer to

Internal Affairs documents to support his theory that Officer Strevel had a history

of planting evidence on arrestees and had a character for untruthfulness and racial
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bias. It is axiomatic that the “trial court has broad discretion in determining how

and why bias may be proved and what collateral evidence is material to that

purpose.” United States v. Love, 599 F.2d 107, 108 (5th Cir. 1979). Without

these proffers in the record, our review of the district court’s discretionary

evidentiary decision to determine the existence of an abuse of discretion is

impossible. See, e.g., Love, 599 F.2d at 109 (affirming district court’s limitation

of testimony on cross-examination of a government agent that another agent had

allegedly planted evidence in different incident where “no offer of proof was made

at that time”).

But unlike Novaton, which involved an effort to introduce evidence solely

under Rule 608(b), Taylor also attempted to admit these prior instances of “racial

harassment, brutality and evidence planting” under Rule 404(b) as evidence that

Officer Strevel had “racial bias” and thus had a motivation to frame Taylor and lie

at trial. Rule 404(b) authorizes the admission of evidence of other wrongs to show

“proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident . . ..” Fed. R. Evid. 404(b). Taylor’s arguments are

trumped under Rule 404(b) for similar reasons that they were under Rule 608. 

See, e.g., United States v. Farmer, 923 F.2d 1557, 1567 (11th Cir. 1991) (stating

that the word “motive” in the text of Rule 404(b) does not refer to the witness’s
9

motive to testify falsely, and noting that “[t]he witness’s motive to testify falsely . .

. is merely an aspect of credibility [controlled by Fed. R. Evid. 608]”) (quotation

and citation omitted).

As to opinion testimony regarding Officer Strevel, the district court held,

“you must show that [the witness] had an opportunity to acquire knowledge about

the officer” and that “the witness’s personal opinion cannot be based solely upon

isolated personal contact with the officer.” At trial, Taylor neither called any

witnesses to testify as to their opinion about Officer Strevel’s truthfulness or his

reputation in the community for truthfulness, nor did he offer any proffers of

evidence regarding the same. Taylor’s argument that the district court erred by

failing to permit witnesses to testify as to their opinion as to Officer Strevel’s

reputation also fails because he never called any witnesses to testify, never

proffered the testimony of any witness as to his or her opinion on the truthfulness

of Officer Strevel, never named the potential witnesses, and never represented to

the court that he had spoken to any witnesses and could proffer what they might

say. Once more, without a proffer or any record to review, the value of their

testimony and the district court’s ruling cannot be assessed on appeal. 

Accordingly, there was no abuse of discretion in these evidentiary rulings under

either Rules 404(b) or 608. 
10

The other issues raised on appeal reveal no reversible error.

Argument 2: Excluding the hearsay testimony of Dr. Barnanda

Kerrium Norwood, a hospital physician who had examined Taylor after

his arrest, and was to testify that Taylor had told her that the injury to

Taylor’s head was caused when the arresting officers had “stepped on”

him.

There was no abuse of discretion by excluding this testimony because it was

irrelevant. Taylor’s statement to Dr. Kerrium Norwood during her post-arrest

treatment of him was irrelevant because where or how Taylor received the injury

to his head was not probative of whether or not he possessed a firearm and illegal

narcotics, which was the subject of this criminal trial.

Argument 3: Limiting the direct examination of Gloria Pittman,

Taylor’s sister, to exclude the background facts that she believed led to

Taylor becoming homeless and living under the overpass.

There was no abuse of discretion by limiting the testimony of Gloria

Pittman, Taylor’s sister, a defense witness. Although the district court permitted

Pittman to testify that her brother was homeless and living under an overpass in

Atlanta, as well as when he became homeless, it sustained the government’s

objection to restrict her from testifying about the circumstances leading to Taylor’s

homelessness, such as his family history and failed boxing career. The

determination of the relevance of this evidence was within the broad discretion of
11

the district court. See United States v. Nabors, 707 F.2d 1294, 1298 (11th Cir. 

1983).

Argument 4: Permitting Calvin Jones to testify as to Taylor’s jailhouse

confession.

The day before the start of trial, the government notified Taylor that it

would be introducing the testimony of a federal prisoner, Calvin Jones, who had

been housed with Taylor in an Atlanta pretrial detention center, for the purpose of

introducing Taylor’s jailhouse confession of the charged offenses. Although Jones

had contacted the government agent by letter about this information six months

before the start of trial, the government did not interview Jones and did not decide

to call him as a witness until October 15, 2003, the same day it notified the

defense. Jones testified that Taylor had confessed his charged crimes, as well as

his plans to make false allegations against the police because “he was going to try

to sue them.”

Taylor had objected to Jones’s testimony before opening arguments on the

ground that the government had not notified him pursuant to Federal Rule of

Criminal Procedure 16(a)’s notification procedures and that this violated “the

spirit of the rule.” There was no abuse of discretion in admitting this testimony

because Taylor made those voluntary statements to an individual who was not a
12

government agent and the statements are thus not discoverable under Federal

Rules of Criminal Procedure 16(a)(1)(A) or (B). Rule 16(a)(1) states:

Upon a defendant’s request, the government must

disclose to the defendant the substance of any relevant

oral statement made by the defendant, before or after

arrest, in response to interrogation by a person the

defendant knew was a government agent if the

government intends to use the statement at trial. . . . [and]

the portion of any written record containing the

substance of any relevant oral statements made before or

after arrest if the defendant made the statement in

response to an interrogation by a person the defendant

knew was a government agent . . ..

Fed. R. Crim. P. 16(a)(1)(A), (B)(ii) (emphasis supplied); see United States v.

Bailey, 123 F.3d 1381, 1399 (11th Cir. 1997) (“Because Rule 16(a)(1)(A)

“requires government disclosure only of a defendant’s oral statements made ‘in

response to interrogations by any person then known to the defendant to be a

government agent,’ a defendant’s voluntary statements made to individuals that

the defendant did not know were government agents do not come within the ambit

of this rule.”) (citation omitted). Jones was not, at any time, a government agent. 

There is no record evidence that Taylor was ever “interrogated,” as required by the

Rule. 

Argument 5: Admitting “Rule 404(b) evidence” of his prior conviction

for being a felon in possession of a firearm.
13

Taylor argues that the district court abused its discretion by admitting

evidence of his prior conviction for being a felon in possession of a firearm

because, he contends, it is “not admissible under Fed. R. Evid. 404(b).” Taylor

never admitted to or stipulated to the fact that he knowingly and intentionally

possessed the firearm found by Officer Sheen. The government had the burden of

proving knowing possession of a firearm. To do so and satisfy the mens rea

element of this offense, it sought admission of evidence that Taylor had knowingly

possessed a firearm at another point in time. See United States v. Jernigan, 341

F.3d 1273, 1281 (11th Cir. 2003) (permitting admission of defendant’s prior felon

in possession of firearm conviction to prove “knowing possession of a firearm”

element of charged offense). The district court instructed the jury of the limited

use of this evidence as well. The district court did not abuse its discretion in

admitting this evidence.

Argument 6: Cumulative error.

There being no error in any of the district court’s rulings, the argument that

cumulative trial error requires that this Court reverse Taylor’s convictions is

without merit.

Argument 7: Sufficiency of the evidence.
14

There was sufficient evidence to support the drug possession and

distribution, as well as the firearm charges convictions. The thrust of Taylor’s

arguments is not that there was insufficient evidence to meet a prima facie case for

the charged offenses but instead that the jury should not have believed the

testimony of Officers Sheen and Strevel, who testified that they found a large

quantity of individually-packaged drugs, consistent with distribution, on Taylor’s

person and a firearm in an area where they had seen Taylor “drop down a black

object.” Because all factual and credibility inferences are drawn in favor of the

government, the jury’s verdict must stand unless no reasonable factfinder could

have found Taylor guilty beyond a reasonable doubt. See United States v.

Calderon, 127 F.3d 1314, 1324 (11th Cir. 1997). With these favorable credibility

and factual inferences in mind, the record supports the jury’s convictions.

Argument 8: Booker/Blakely sentencing error.

The district court did not commit Booker/Blakely error by enhancing

Taylor’s sentence based on his prior convictions. In United States v. Shelton, 400

F.3d 1325 (11th Cir. 2005), this Court held that a district court did not violate the

Sixth Amendment by using the defendant’s prior convictions to enhance his

sentence. 400 F.3d at 1329 (“The Supreme Court consistently has rejected [the

defendant’s] argument that a district court errs when it considers prior convictions
15

in sentencing a Defendant under the Guidelines.”). Because there was no dispute

as to Taylor’s prior convictions that were utilized by the district court to enhance

his sentence, there was no error, plain or otherwise, for the district court to have

increased his criminal history score based on its findings concerning prior

convictions.

Although the district court did not commit a Sixth Amendment violation in

sentencing Taylor, it did commit a statutory error under Booker. “As we stated in

Shelton, the district court commits a statutory error by sentencing a defendant

‘under a mandatory Guidelines scheme, even in the absence of a Sixth Amendment

violation.’” United States v. Camacho-Ibarquen, ___ F.3d ___, 2005 WL

1297236, *7 (11th Cir. June 2, 2005) (quoting Shelton, 400 F.3d at 1330–31). 

As we stated above, because Taylor did not raise this argument before the

district court, our review is only for plain error. United States v. Rodriguez, 398

F.3d 1291, 1298 (11th Cir. 2005). Because the district court treated the guidelines

as mandatory, it committed an error that is plain. Shelton, 400 F.3d at 1330–31. 

However, the defendant has the burden to demonstrate that the plain error affected

his substantial rights. That is, he must show that there was a reasonable

probability that he would have been given a lesser sentence had the guidelines

been applied in an advisory rather than a mandatory fashion. Id. at 1331–32.
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Here, Taylor has not presented any evidence that the district court would

have given him a lesser sentence but for the Booker statutory error. Where that is

the case, we have held that the defendant fails to meet his burden under the

substantial prejudice prong of the plain error test. Rodriguez, 398 F.3d at

1300–01. Thus, the district court did not plainly err in sentencing Taylor under a

mandatory guidelines scheme.

AFFIRMED.