FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

January 23, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-11333

Non-Argument Calendar

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D. C. Docket No. 04-20632-CR-JEM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

DAVION ANTHONY BLACKBURN, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(January 23, 2006)

Before BLACK, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:

Davion Anthony Blackburn was convicted by a jury of (1) conspiracy to
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import at least 1 kilogram of cocaine and 100 grams of heroin, in violation of 21

U.S.C. § 952; (2) conspiracy to possess with intent to distribute at least 1 kilogram

of cocaine and 100 grams of heroin, in violation of 21 U.S.C. § 846; and

(3) possession with intent to distribute at least 1 kilogram of cocaine and 100

grams of heroin, in violation of 21 U.S.C. § 841. 

At trial, during its opening instructions to the jury, the district court

reminded the jury that it should not infer that the court had any opinion about the

case from the court’s rulings or comments. 

The evidence at trial established that Immigration and Customs Enforcement

Agents were involved in an investigation into narcotics smuggling using sea cargo

containers. Using a confidential informant named “Fabian” pretending to be a

corrupt dock worker responsible for checking cargo, agents arranged with a man

named Clark from Costa Rica to deliver drugs on a Seaboard Marine ship in

exchange for $8,000. On the day of the shipment, agents went to the dock,

boarded the ship, and conducted a search for the container Clark had identified as

containing the drugs. In the center console of the identified container, the agents

found contraband, which a DEA chemist confirmed was 1.454 kilograms of

cocaine and 201.4 grams of heroin. The agents and Fabian then arranged a

controlled delivery of the drugs to a man named “Pumpi.” At the arranged time,
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Fabian and an undercover officer waited at the parking lot where the delivery was

scheduled. Blackburn arrived as a passenger in a car driven by Cyril Gilbert. As

Blackburn made the exchange, the agents approached and Blackburn ran. The

agents chased Blackburn and he eventually stopped and was arrested. In his

possession, agents found cell phones with Fabian’s number and a call to Costa

Rica. Blackburn waived his right to remain silent and admitted that his nickname

was Pumpi. Gilbert also was taken to the station, but was released. When

Blackburn noticed Gilbert leaving the station, he asked why because Gilbert had

driven the getaway car. 

The government rested its case-in-chief and the court denied Blackburn’s

motion for judgment of acquittal. Blackburn then testified as follows: He worked

as a part-time reggae disk jockey (“DJ”) named Pumpi with an upscale sound

system using records and dub plates, which he defined as custom made music that

dubbed the name of his sound system into the songs. Blackburn bought a set of 8

dub plate CDs for $8,000 from a man named Fabian from Costa Rica. He did not

want the CDs shipped because he would have no recourse if he received the wrong

items. After he exchanged the money for the package he thought contained dub

plates, he observed men coming towards him and he ran because he thought he was

being robbed. 
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During Blackburn’s testimony, the court expressed confusion about the dub

plates and asked Blackburn: “Are you talking about regular size CDs, are the dub

plates the same size as a regular CD?” Blackburn responded, “Dub plate CDs.” 

Pointing to its own CD player and CDs, the court asked, “Is it the same size CD

that you play in a radio like this size?” Blackburn stated that it was. The court

then explained that “the record should reflect he is talking about approximately

five inch by five inch square, a quarter inch think if you take a separate holder. If

you take the cassette out, it is a quarter inch thick or a sixteenth of an inch thick.” 

The government then asked Blackburn to demonstrate how the plates could

be packaged in such a way that would make them appear to be the same size as the

brick of drugs that was delivered. After this exchange, defense counsel moved for

a mistrial because the judge’s comments invoked laughter from the jury and

prejudiced Blackburn. The court denied the motion, noting that it was unsure how

the exchange was prejudicial. Defense counsel claimed that it implied his defense

was laughable, but the court disagreed and stated that the comment was directed at

the government because the prosecutor was using the judge’s own property to

clarify the items for the jury. 

Defense counsel rested its case. After the government’s rebuttal witness,

Blackburn renewed his motion for judgment of acquittal, which the court again

denied. 
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In preparing jury instructions, the court questioned whether the parties

thought an instruction of flight was appropriate. Although Blackburn objected, the

court concluded that the instruction was proper. Defense counsel then asserted that

the court was acting as an advocate for the government by raising the instruction,

but the court overruled the objection. In closing argument, the court again

reminded the jury that the jury was the sole fact-finder and that it should not infer

that the court had any opinion based on comments or rulings it had made. The

court instructed the jury, inter alia, that 

Intentional flight by a person immediately after a crime has been

committed is not, of course, sufficient in itself to establish the guilt of

that person, but intentional flight under those facts is a fact which, if

proved, may be considered by the jury in light of all the other

evidence in the case in determining the guilt or innocence of that

person. Whether or not the defendant’s conduct constituted flight is

exclusively for you, as the jury, to determine. And if you do so

determine whether or not that flight showed consciousness of guilt on

his part and the significance to be attached to that evidence are also

matters exclusively for you as a jury to determine. I do remind you

that in your consideration of any evidence of flight, if you should find

that there was flight, you should also consider that there may be

reasons for this which are consistent with innocence. There may be

many reasons for a person to be unwilling to be interviewed by law

enforcement agents which are perfectly innocent reasons and in no

way show any consciousness of guilt on the part of that person. And

may I also suggest to you that a feeling of guilt does not necessarily

reflect actual guilt of a crime which you may be considering.

The jury convicted Blackburn on all three counts, further finding that the quantity

of drugs was 100 grams of heroin and 1 kilogram of cocaine.
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The probation officer prepared a presentence investigation report,

determining the guidelines range to be 63 to 78 months imprisonment. Blackburn

submitted no objections to the PSI calculations. The government objected to the

failure to recommend a two-level enhancement for obstruction of justice under

U.S.S.G. § 3C1.1 based on Blackburn’s perjured testimony at trial.

At sentencing, the court questioned whether Blackburn’s decision to testify

was sufficient to warrant the obstruction-of-justice enhancement and determined

that the enhancement was proper because Blackburn’s testimony was “ludicrous.” 

Blackburn did not object to the enhancement, but merely requested a sentence at

the low end of the original guidelines range (63 months). After the court added the

enhancement, the resulting guidelines range was 78 to 97 months imprisonment. 

The court noted that the guidelines were advisory and, in consideration of the

guidelines range, Blackburn’s lack of criminal history, and the sentencing factors

in 18 U.S.C. § 3553(a), found that a sentence of 68 months was appropriate. 

On appeal, Blackburn raises three issues: (1) Whether the district court

properly questioned Blackburn during his testimony; (2) Whether the district court

acted as an advocate for the government by suggesting a jury instruction on flight;

and (3) Whether the district court properly included a sentencing enhancement for

obstruction of justice, U.S.S.G. § 3C1.1.
 In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this court

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held that all decisions handed down by the old Fifth Circuit before the close of business on

September 30, 1981, are binding precedent in the Eleventh Circuit.

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A. Questions Posed by the Court

Blackburn argues that the district court became an advocate for the

government when it cross-examined him and implied that his defense was

unbelievable. 

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

discretion. United States v. Wright, 392 F.3d 1269, 1274 (11th Cir. 2004), cert.

denied, 125 S.Ct. 1751 (2005). “The district court abuses its authority when it

‘abandons [its] proper role and assumes that of an advocate.’” Id. (citing

Fed.R.Evid. 614, Advisory Committee Note).

As this court has explained, 

[a] trial judge is . . . more than a mere moderator and is under a duty

to question witnesses and comment on evidence when it appears

necessary. The trial court may interrogate a witness to clarify his

testimony or to insure that a case is fairly tried. On the other hand, a

trial judge improperly interjects himself into the trial by questioning

witnesses when the attorneys are competently conducting their cases.

United States v. Block, 755 F.2d 770, 775-76 (11th Cir. 1985); see also

Fed.R.Evid. 614(b); Wright, 392 F.3d at 1274-75; Moore v. United States, 598

F.2d 439, 442 (5th Cir. 1979). Although the cumulative effect of the many and 1

manifest interventions by the trial judge can deprive an appellant of a fair trial, the
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use of a curative instruction reminding the jury not to infer the court’s opinions

from any comments or rulings may prevent prejudice. United States v. Benefield,

889 F.2d 1061, 1066 (11th Cir. 1989); United States v. Chestang, 849 F.2d 528,

535 (11th Cir. 1988); Block, 755 F.2d at 775-77.

Here, there was no error or prejudice to Blackburn. First, the comments

were not so numerous or egregious as to constitute manifest injustice. See

Benefield, 889 F.2d at 1066. Second, the comments were designed to clarify the

testimony. Before the court interjected, it was not clear from the trial testimony

how big a dub plate was, what it looked like, or even what it was used for. Despite

repeated questions from defense counsel, Blackburn’s testimony concerning the

dub plates was confusing. Nothing in the judge’s questions “strayed from

neutrality.” Moore, 598 F.2d at 442. Finally, before trial and during jury

instructions, the court reminded the jury that it was not to consider anything the

court said as an opinion on the evidence or Blackburn’s guilt. This curative

instruction was sufficient to prevent any prejudice. See Block, 755 F.2d at 777. 

B. Jury Instruction

Blackburn next asserts that the court acted as an advocate of the government

by raising the issue of a jury instruction on flight, which was not warranted under

the facts of the case. 

We review a district court’s jury instructions for abuse of discretion. 
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Wright, 392 F.3d at 1277. This court has consistently approved of the inclusion of

a jury instruction on flight, leaving the factual-finding to the jury. Wright, 392

F.3d at 1277-78; United States v. Borders, 693 F.2d 1318, 1327 (11th Cir. 1982). 

As the government notes, the court has the duty to instruct the jury on all issues

raised during trial. Walker v. United States, 301 F.2d 954, 958 (5th Cir. 1962); see

also United States v. Glassman, 562 F.2d 954, 958 (5th Cir. 1977) (affirming

district court’s jury instruction not requested by the government because it was an

accurate statement of the law). 

Here, the district court properly instructed the jury in flight as evidence of

guilt. First, there was evidence presented that Blackburn tried to flee when police

arrived at the drug delivery. The jury heard Blackburn’s testimony that he thought

he was being robbed. The jury, however, was free to believe the opposite of

Blackburn’s account, which was a risk he took when he chose to testify. United

States v. Alejandro, 118 F.3d 1518, 1521 (11th Cir. 1997). Thus, the instruction

was appropriate under the facts of the case.

Second, the instruction was an accurate statement of the law. See Wright,

392 F.3d at 1278; Borders, 693 F.2d at 1327 (using the same instruction). Finally,

the court was obligated to instruct the jury on all evidence raised at trial. Because

the government presented evidence of flight as a theory of guilt, the court properly

issued the instruction, even in the absence of the government’s request. 
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C. Sentencing Enhancement

Finally, Blackburn argues that the court improperly applied an obstructionof-justice enhancement without making specific findings of fact necessary to

support the enhancement, and there is no evidence that the court would not have

imposed a lesser sentence had the guidelines range been lower. 

When a defendant fails to object at sentencing, he waives challenges to his

guidelines calculations. United States v. Jones, 899 F.2d 1097, 1103 (11th Cir.

1990). Here, Blackburn did not object to the enhancement, but merely requested a

sentence at the low end of the guidelines range as originally calculated. Therefore,

Blackburn failed to preserve this issue, and we need not address its merits. 

For the foregoing reasons, we AFFIRM the convictions and sentences.