FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DEC 18, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-12058

Non-Argument Calendar

________________________

D. C. Docket No. 05-00144-CR-ORL-28-KRS

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

JAMES AVERY, JR., 

a.k.a. Terry Avery, 

a.k.a. James Terry Avery, 

a.k.a. James Avery, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(December 18, 2006)

Before BIRCH, DUBINA and FAY, Circuit Judges.

PER CURIAM:
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James Avery, Jr. appeals his conviction and 210-month sentence for

possession of a firearm by a convicted felon, in violation of 18 U.S.C.

§§ 922(g)(1), 924(a)(2), and 924(e)(1). Avery raises three issues on appeal:

(1) whether the district court abused its discretion in denying his motion for

mistrial; (2) whether the district court erred in denying his motion to dismiss the

indictment; and (3) whether the district court erred in enhancing his sentence based

upon prior convictions that were not admitted or proven beyond a reasonable

doubt. For the reasons set forth more fully below, we affirm.

I. Background

A. Motion for Mistrial

On August 30, 2005, a federal grand jury returned an indictment against

Avery, charging him with knowingly possessing a firearm after having been

convicted of a crime punishable by a term of imprisonment exceeding one year, in

violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)(1). The indictment

listed Avery’s prior felonies as: (1) armed burglary, grand theft of a firearm,

robbery with a firearm, and grand theft of property in Brevard County, Florida; and

(2) armed robbery, robbery, and burglary in Fulton County, Georgia. 

During voir dire, the district court read Avery’s indictment, including the

listed prior convictions, to the venire. After the court had read the entire

indictment and voir dire had proceeded, Avery’s counsel moved for a mistrial
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based upon the court reading the entire indictment to the jury where the parties had

entered into a stipulation regarding notice to the jury of Avery’s specific prior

convictions. The parties acknowledged that they had entered the stipulation just

before voir dire began and that they notified the court of the stipulation only after

the court had read the indictment. The court reserved judgment on the motion for

mistrial, but asked each of the venire members whether they felt that Avery

deserved any less of a fair trial because he had been convicted of a crime in the

past. All venire members answered in the negative. After the court selected the

jury, it instructed the jury that “[its] reading of [the] charges is not proof or

evidence and you should not consider it at all as such.”

After further argument on the motion, the court accepted the stipulation and

indicated that it would read the stipulation to the jury. The court nonetheless

denied the motion for mistrial, finding that, as the parties conceded, it was not

aware of the stipulation prior to reading the indictment to the jury and thus “the

objection didn’t come until sometime after the court read the charge included in the

indictment.” The court acknowledged that, after it learned of the stipulation, it

twice informed the jury that the indictment was not evidence. The court also

agreed to give the jury an additional curative instruction upon Avery’s request. 

After the government rested its case, the court read the stipulation to the jury as

follows:
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The United States of America and defendant James Avery, Jr. jointly

agree at the time of the alleged crime Avery previously had been

convicted in a court of a crime punishable by imprisonment for a term

in excess of one year, that is, a felony offense. Furthermore, Avery

never has had his civil rights, including the right to keep and bear

firearms, restored by the State of Florida Office of Executive

Clemency. The parties jointly agree that this element has been proved

beyond a reasonable doubt.

B. Government’s Case-In-Chief

Agent Scott Perala of the Bureau of Alcohol, Firearms, and Tobacco

(“ATF”) testified that, in February 2005, he investigated numerous persons

involved in firearms and narcotics transactions and used the CI Stanley Domino to

aid in the investigation. Domino’s role in the investigation included introducing

Agent Perala to Avery so that Agent Perala could purchase a firearm from Avery. 

Agent Perala further stated that the general cover story he and Domino used was

that Agent Perala was a friend of Domino’s from California and that Agent Perala

wanted to buy firearms and narcotics to ship back to California. On February 11,

2005, Agent Perala and Domino met Avery at a Publix supermarket. Avery

entered Agent Perala and Domino’s car and directed them to drive him to a

location where he could pick up the firearm and sell it to Agent Perala for $100. 

Agent Perala and Domino took Avery to a house where Avery gave them a firearm

and ammunition. 

On cross-examination, Agent Perala testified that he met Avery on February
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9, 2005 and thought that Avery would have had a firearm to sell him on that day. 

Avery did not have a firearm on that day, but he indicated to Agent Perala that he

knew where a firearm was located and that he intended to steal it and sell it to

Agent Perala. Agent Perala told Avery that he would pay him for the gun and that

he “already had it sold.” Agent Perala then notified his undercover investigation

team that he intended to drive Avery to the neighborhood where Avery wanted to

conduct the potential burglary. Agent Perala drove Avery to the neighborhood,

hoping that Avery “would identify the house he was going to in which case we

could arrest him . . . in the course of committing a burglary.” Avery did not

identify the house. 

Agent Perala further testified that, later in the day on February 9, 2005, he

sent Domino to find Avery and determine whether he had the firearm. When

Domino found Avery, Avery told him that he did not have the firearm and that he

planned to wait until nightfall to obtain it. Agent Perala did not arrest Avery, but

he and other officers canvassed the neighborhood, contacted the residents, and “did

everything they could to even keep [Avery] from doing a burglary or stop him.” 

Avery actually sold Agent Perala the firearm on February 11, 2005. On that day,

Agent Perala picked up Avery at the Publix and drove him to a vacant house that

did not belong to him, but at which he had stayed the previous night. Avery

entered the house and returned to Agent Perala’s car with a firearm in his
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possession. In response to Avery’s counsel’s questions regarding whether Agent

Perala aided Avery in committing a burglary, Agent Perala stated that, “in my

opinion [Avery] was going to do that burglary whether I had anything to do with it

or not, so my idea was at least law enforcement is somewhat intrinsically involved

and we could find out where he was going.” 

C. Motion to Dismiss the Indictment

On September 6, 2005, before trial, the district court had entered a

scheduling order, requiring the parties to submit all motions, including motions to

dismiss the indictment, by September 26, 2005. The order also included a waiver

provision, which indicated that the failure to raise any defenses or objections in a

timely motion would constitute waiver unless the party could demonstrate

excusable neglect. On November 25, 2005, Avery filed a motion to dismiss the

indictment on the basis of “outrageous government conduct.” Avery contended

that Agent Perala’s participation in aiding Avery to commit a burglary and

encouraging the criminal activity was extreme and outrageous conduct. The

district court did not rule on Avery’s motion to dismiss the indictment, and trial

began on November 28, 2005. 

Avery renewed his motion to dismiss the indictment at the close of the

government’s case. The court first found that Avery’s motion was untimely and

that he did not establish a sufficient excuse for the delay. The court also denied
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Avery’s motion on the merits, finding that, while law enforcement’s conduct was

troubling, it did not rise to the level of a constitutional violation. Avery thereafter

made an ore tenus motion for judgment of acquittal based upon the government’s

outrageous conduct and the violation of Avery’s due process rights. The court also

gave the jury one final cautionary instruction with regard to not considering the

indictment as evidence.

D. Sentencing

At sentencing, Avery objected to the use of his prior felony convictions to

determine his status as an armed career criminal. Avery argued that there was

insufficient proof to establish that he committed some of the prior crimes reported

in his criminal history, and, thus, they could not support the armed career criminal

designation. He further maintained that, in order for his prior convictions to be

used to support armed career criminal status, the jury had to find proof of those

convictions beyond a reasonable doubt and the court should apply the same

standard. The court concluded that the government proved Avery’s prior

convictions by a preponderance of the evidence, overruled Avery’s objection, and

found that Avery qualified for the sentencing enhancement based upon his armed

career criminal status. 

II. Discussion

A. Motion for Mistrial
Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). 1

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Avery argues on appeal that the district court’s reading of the indictment that

contained the specifics of his prior felony convictions violated his constitutional

rights to due process and a fair trial. He cites the Supreme Court decision in Old

Chief to support his argument that he suffered unfair prejudice because the jury 1

heard the nature of his prior convictions and could have used those convictions to

reach a verdict in his case. He further contends that the stipulation was valid upon

both parties accepting and signing it, which the parties did prior to the start of the

voir dire. He maintains that nothing the court did to cure the reading of the entire

indictment could have erased the prejudicial effect the reading had on his trial. 

We ordinarily review a district court’s denial of a motion for mistrial for

abuse of discretion. United States v. Trujillo, 146 F.3d 838, 845 (11th Cir. 1998). 

“When a district court issues a curative instruction, we will reverse only if the

evidence is so highly prejudicial as to be incurable by the trial court’s admonition.” 

Id. (quotation omitted). However, the government contends that plain error review

applies here due to Avery’s untimely objection. “An appellate court may not

correct an error the defendant failed to raise in the district court unless there is:

(1) error, (2) that is plain, and (3) that affects substantial rights.” United States v.

Rodriguez, 398 F.3d 1291, 1297 (11th Cir.), cert. denied, 545 U.S. 1127 (2005)

(quotation omitted). When these three factors are met, we may then exercise our
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discretion and correct the error if it seriously affects the fairness, integrity, or

public reputation of the judicial proceedings. Id. We have explained that “[t]he

purpose of the plain error rule is to enforce the requirement that parties object to

errors at trial in a timely manner so as to provide the trial judge an opportunity to

avoid or correct any error, and thus avoid the costs of reversal.” United States v.

Sorondo, 845 F.2d 945, 948-49 (11th Cir. 1988) (quotation omitted). In his reply,

Avery does not argue that plain error review should not apply, but he states only

that he did not object immediately after the court’s reading of the indictment

because the “damage was already done.” This argument, however, does not

explain why Avery did not object immediately when he heard the court start to

read the indictment. Thus, plain error review is appropriate here. Regardless, as

discussed more fully below, Avery is not entitled to a reversal even under the less

stringent abuse of discretion standard.

Avery does not establish on appeal that the court plainly erred or abused its

discretion in denying his motion for a mistrial. Avery admits that neither party

informed the court of the stipulation prior to voir dire, and, thus, the court had no

knowledge that its reading of the indictment violated the terms of the stipulation. 

Avery contends that the stipulation was binding on the court when the parties

accepted and signed it, but Avery cites no support for this conclusion. Assuming

without deciding that the stipulation was binding on the court, Avery has not
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demonstrated that a mistrial was warranted because the court gave numerous

curative instructions and there was overwhelming evidence of Avery’s guilt. The

court inquired whether any member of the venire felt that Avery deserved any less

of a fair trial because he had been convicted of a crime in the past, and all venire

members answered in the negative. The court also informed the jury five separate

times that the indictment was not evidence and that the jury should not consider it

as such. See United States v. Brazel, 102 F.3d 1120, 1145 (11th Cir. 1997)

(explaining that we presume that a jury follows a district court’s curative

instructions); United States v. Satterfield, 743 F.2d 827, 848 (11th Cir. 1984)

(holding that the district court did not abuse its discretion by erroneously reading

to the jury an indictment containing the defendant’s alias that had been stricken

from the indictment, where the court gave a cautionary instruction and later read

the corrected version of the indictment to the jury). The court’s instructions were

in accordance with what Avery’s counsel requested after the court denied the

motion for mistrial and the parties had rested their cases. Moreover, Avery’s prior

convictions were never mentioned again and, upon the parties’ request, the court

read the stipulation to the jury. 

In addition, the government produced substantial evidence of Avery’s guilt

at trial, regardless of the court’s reading of his prior convictions. See United States

v. Harriston, 329 F.3d 779, 789 (11th Cir. 2003) (“an error in admitting evidence
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of a prior conviction was harmless where there is overwhelming evidence of

guilt”). A conviction under 18 U.S.C. § 922(g)(1) requires the government to

prove that a defendant was: “(1) in knowing possession of a firearm, (2) a

convicted felon, and (3) that the firearm affected interstate commerce.” United

States v. Billue, 994 F.2d 1562, 1565 n.2 (11th Cir. 1993). Avery does not

challenge that the government did not prove these elements beyond a reasonable

doubt at trial. Furthermore, the parties’ stipulation established that Avery was a

convicted felon and Agent Perala’s testimony provided proof of the remaining

elements.

Lastly, as the government correctly argues, Old Chief is not on point in this

case. In Old Chief, the Supreme Court determined that a district court abuses its

discretion when it rejects the parties’ stipulation that a defendant was a convicted

felon “when the purpose of the evidence is solely to prove the element of prior

conviction.” Old Chief, 519 U.S. at 174, 117 S.Ct. at 647. Here, the issue is not

whether the court abused its discretion in rejecting a stipulation, because the court

actually accepted the stipulation. Rather, as discussed above, the issue is whether

the court erred or abused its discretion in not granting a mistrial. Thus, the

reasoning of Old Chief is inapplicable for the resolution of Avery’s case. 

B. Motion to Dismiss the Indictment

Avery argues on appeal that the indictment should have been dismissed
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because the government’s conduct in his case was extreme and outrageous where

the ATF agents aided and abetted Avery in committing two burglaries. He also

argues that the motion to dismiss was not untimely because the court did not have

sworn facts about the government’s conduct until the evidence was produced at

trial. He alternatively asserts that the court should have granted his motion for

judgment of acquittal, which he made because the court determined that his motion

to dismiss was untimely, because the government’s conduct was outrageous and

violated his due process rights. 

We review a district court’s denial of a defendant’s motion to dismiss an

indictment for abuse of discretion. United States v. Clarke, 312 F.3d 1343, 1345

n.1 (11th Cir. 2002). However, a motion to dismiss the indictment due to

outrageous government conduct involves a question of law that we review de novo. 

United States v. Savage, 701 F.2d 867, 868 n.1 (11th Cir. 1983). 

A motion to dismiss an indictment must be made prior to trial. 

Fed.R.Crim.P. 12(b)(3)(B). A district court may set a deadline by which parties

must make pre-trial motions. Fed.R.Crim.P. 12(c). However, “[a] party waives

any Rule 12(b)(3) defense, objection, or request not raised by the deadline the

court sets under Rule 12(c) or by any extension the court provides. For good

cause, the court may grant relief from the waiver.” Fed.R.Crim.P. 12(e). In

Avery’s case, the district court entered a scheduling order in which the court
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required that any motion to dismiss the indictment be filed by September 26, 2005. 

Avery filed his motion to dismiss on November 25, 2005, which was the Friday

before his trial began the following Monday. Thus, under the explicit language of

Rule 12 and the court’s scheduling order, Avery waived his right to move to

dismiss the indictment. Nonetheless, Avery argues on appeal that the facts upon

which his motion relied could not have been fully discovered until trial. However,

given that Avery’s motion to dismiss contained three pages of detailed facts

regarding the government’s conduct in his case, his argument that the necessary

facts could not have been discovered prior to trial is meritless. As such, the district

court correctly determined that Avery’s motion to dismiss was untimely.

Avery alternatively argues on appeal that the court’s denial of his motion for

judgment of acquittal was erroneous for the same reasons as he argues with regard

to the motion to dismiss. Pursuant to Federal Rule of Criminal Procedure 29, “the

court on the defendant’s motion must enter a judgment of acquittal of any offense

for which the evidence is insufficient to sustain a conviction.” Fed.R.Crim.P.

29(a). Avery did not argue that he was entitled to a judgment of acquittal on

sufficiency of the evidence grounds, but rather asserted that it was warranted

because of the government’s outrageous conduct. Such a ground is not

contemplated in Rule 29, and, thus, the district court properly denied Avery’s

motion for judgment of acquittal. 
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C. Armed Career Criminal Designation

Avery argues that the district court violated the Sixth Amendment in

imposing an enhanced sentence based upon Avery’s status as an armed career

criminal because the court considered Avery’s prior convictions that had neither

been admitted nor proven beyond a reasonable doubt. Avery acknowledges that

the current case law indicates that the government does not have to prove prior

convictions beyond a reasonable doubt, but Avery states that he raises the issue for

preservation. 

We review constitutional errors at sentencing de novo, but reverse only for

harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). With

regard to prior convictions that are used to enhance a sentence, the Supreme Court

held in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140

L.Ed.2d 350 (1998) that the government need not allege in its indictment, and need

not prove beyond a reasonable doubt, that a defendant had prior convictions in

order for a district court to use those convictions for purposes of enhancing a

sentence. Almendarez-Torres, 523 U.S. at 247, 118 S.Ct. at 1233. We explained

in United States v. Greer, 440 F.3d 1267 (11th Cir. 2006) that we continue to

follow the rule as set forth in Almendarez-Torres. Greer, 440 F.3d at 1274. 

At sentencing in Avery’s case, the district court determined that the

government had proven Avery’s prior convictions by a preponderance of the
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evidence. According to binding precedent, the district court’s use of Avery’s prior

convictions as a basis for finding him an armed career criminal did not violate the

Sixth Amendment.

III. Conclusion

For the foregoing reasons, the district court did not err in denying Avery’s

motions for mistrial and dismissal of the indictment, nor did it err in imposing

Avery’s sentence. Accordingly, Avery’s conviction and sentence are

AFFIRMED.