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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10041
Non-Argument Calendar
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D.C. Docket No. 8:12-cr-00228-RAL-TBM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CALVIN JOSEPH MOORE,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 23, 2013)
Before HULL, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
Calvin Moore appeals his conviction for attempted possession with intent to
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distribute cocaine, in violation of 21 U.S.C. §§ 841 and 846. Prior to trial, Moore
moved to exclude evidence of his 1999 conviction for distribution of cocaine base.
The court ruled the evidence was admissible under Federal Rule of Evidence Rule
404(b). At trial, the government’s informant testified that Moore approached him
to purchase a half-kilo of cocaine, contacted him frequently to discuss the details
of the purchase, showed up at the designated deal location with $17,000, the
agreed-on purchase price, asked for the drugs, and began counting the cash. The
government also introduced a videotape recording and recorded phone calls
between the two men on the day of the deal. Before Moore received any cocaine,
the police arrested him.
Moore raises two issues on appeal: (1) he argues that there was insufficient
evidence to support his conviction; and (2) he argues that the district erred in
admitting evidence of his 1999 conviction for distribution of cocaine base. After
careful review, we affirm Moore’s conviction.
I. Sufficiency of the Evidence
We review challenges to the sufficiency of the evidence de novo, viewing
the evidence in the light most favorable to the government. United States v.
Williams, 527 F.3d 1235, 1244 (11th Cir. 2008). We will not disturb a guilty
verdict unless, based on the evidence in the record, no trier of fact could have
found guilt beyond a reasonable doubt. United States v. Silvestri, 409 F.3d 1311,
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1327 (11th Cir. 2005).
To support a conviction for attempted possession of cocaine with intent to
distribute under 21 U.S.C. §§ 841 and 846, the government must prove that the
defendant (1) acted knowingly or intentionally to possess cocaine with the intent to
distribute; and (2) engaged in conduct which constitutes a substantial step toward
the commission of the crime, thus creating circumstances strongly corroborative of
criminal intent. United States v. McDowell, 705 F.2d 426, 427–28 (11th Cir.
1983); United States v. Mandujano, 499 F.2d 370, 376 (5th Cir. 1974). 1 On
appeal, Moore only argues that the government failed to produce sufficient
evidence that he engaged in conduct constituting a substantial step toward the
commission of the crime.
A substantial step must be shown by objective acts that are strongly
corroborative of criminal intent. United States v. Carothers, 121 F.3d 659, 661
(11th Cir. 1997). A substantial step does not require an actual exchange so long as
other objective acts corroborate an intent to complete the crime. See McDowell,
705 F.2d at 427–28 (holding that the defendant had completed a substantial step
toward possession with intent to distribute, despite defendant’s refusal to complete
the transaction, based on acts including (1) a prior drug transaction; (2) recorded
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc),
the Eleventh Circuit Court of Appeals adopted as precedent decisions of the former Fifth Circuit
rendered prior to October 1, 1981.
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phone conversations about a possible cocaine deal; (3) defendant’s trip to the site
of the deal; and (4) defendant’s conversations with the informant at the location of
the deal).
Here, there was sufficient evidence for the jury to reasonably determine that
Moore attempted to possess cocaine with the intent to distribute. There were
several objective acts by Moore on the day of the deal that were strongly
corroborative of a criminal intent: (1) Moore confirmed that he was “ready” to do
the deal and that he would meet the informant at a parking lot in five minutes; (2)
Moore showed up at the parking lot minutes later; (3) Moore asked the informant if
he had the half-kilo of cocaine; (4) Moore brought approximately $17,000 in cash
with him, which was the price that he and the informant had previously agreed on
for the sale; and (5) Moore began counting the cash in front of the informant,
ultimately counting $14,000 when law enforcement arrived and arrested him.
Moore argues that a discussion over the price on the day of the deal rendered
Moore’s acts prior to that point irrelevant. However, Moore’s actions on the day
of the deal were consistent with an intent to complete the transaction under the
terms originally agreed upon by the two men, especially considering that Moore
began counting the money only after he discussed the price with the informant and
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that Moore was arrested with approximately $17,000 in cash. See id.; Carothers,
121 F.3d at 661–66. 2
II. Admission of Prior Conviction
We review a district court’s admission of prior crimes or bad acts under Rule
404(b) for abuse of discretion. United States v. Ellisor, 522 F.3d 1255, 1267 (11th
Cir. 2008). Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act .
. . may be admissible for . . . proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” In order to admit
evidence under Rule 404(b), three conditions must be met: (1) the evidence must
be relevant to an issue other than the defendant’s character; (2) the evidence must
be sufficient for a jury to find the defendant committed the extrinsic act; and (3)
the probative value of the evidence must not be substantially outweighed by its
undue prejudice. United States v. Matthews, 431 F.3d 1296, 1310–11 (11th Cir.
2005).
In weighing the probative value of evidence against its prejudicial effect, a
district court should consider factors such as the similarity between the charged
2
Moore also argues that the informant’s testimony was unreliable. Credibility
questions are for the jury, and we will assume that the jury answered them in a manner that
supports the jury’s verdict. United States v. Jiminez, 564 F.3d 1280, 1285 (11th Cir. 2009).
Testimony will not be considered incredible as a matter of law unless it is testimony that on its
face cannot be believed. United States v. Thompson, 422 F.3d 1285, 1291 (11th Cir. 2005).
Here, the jury was entitled to believe the informant’s testimony, and Moore does not argue that
the testimony was unbelievable on its face or incredible as a matter of law.
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and extrinsic offenses, the government’s need for evidence of intent, and the time
elapsed between the charged and extrinsic offenses. United States v. Edouard, 485
F.3d 1324, 1345 (11th Cir. 2007). When Rule 404(b) “other crimes” evidence
goes to intent, rather than identity, a lesser degree of similarity between the
charged crime and the uncharged crime is required, and a similarity in overall
purpose of each is sufficient. United States v. Delgado, 56 F.3d 1357, 1366 (11th
Cir. 1995) (upholding admissibility of extrinsic offense involving the purchase of a
comparatively small amount of cocaine as evidence of intent for the charged
offense, a multi-million dollar cocaine importation, because the offenses were
similar in their overall purpose—trafficking in cocaine). After a defendant puts his
intent at issue by pleading not guilty, the strength of the government’s case on
intent must be “overwhelming” in order to render extrinsic evidence on intent
unnecessary. See United States v. Dorsey, 819 F.2d 1055, 1060–61 (11th Cir.
1987) (“Moreover, the government’s proof of intent at trial was not so
overwhelming as to render the extrinsic offense evidence merely cumulative.”);
United States v. Hicks, 798 F.2d 446, 451–52 (11th Cir. 1986).
We have found that an intervening period of as much as fifteen years did not
render evidence of prior convictions inadmissible. United States v. Lampley, 68
F.3d 1296, 1300 (11th Cir. 1995); cf. United States v. Sanders, 668 F.3d 1298,
1315 (11th Cir. 2012) (holding the district court abused its discretion in admitting a
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22-year-old conviction involving 1.4 grams of marijuana, and recognizing that
although we have declined to establish a bright-line rule for when a prior
conviction is too old to be admissible, the conviction at issue was “nearly fifty
percent older than the oldest conviction we have previously allowed [in
Lampley]”). A defendant’s incarceration for a substantial amount of the time
between two offenses diminishes the significance of the intervening time period.
United States v. LeCroy, 441 F.3d 914, 926 (11th Cir. 2006).
Finally, if a court commits error under Rule 404(b), we determine “whether
the error was harmless.” United States v. Bradley, 644 F.3d 1213, 1273 (11th Cir.
2011). Improper admission of 404(b) evidence is harmless when, even without the
404(b) evidence, there is substantial evidence against the defendant that would
allow a jury to find the defendant guilty beyond a reasonable doubt. United States
v. Hubert, 138 F.3d 912, 914 (11th Cir. 1998).
Here, the district court did not abuse its discretion in admitting Moore’s
1999 conviction for distribution of cocaine base. Moore concedes that the first two
elements of this Court’s Rule 404(b) admissibility standard are met, and we agree
with the district court that the prejudicial effect of admitting this conviction did not
substantially outweigh its probative value. The present offense and the extrinsic
offense are substantially similar: both involve cocaine substances, and, despite
differences in quantity and Moore’s position as the buyer or seller, they are similar
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in their overall purpose, trafficking cocaine substances. See Delgado, 56 F.3d at
1366. Further, although the government did have substantial evidence on the issue
of intent, it was not “overwhelming” to an extent that rendered the admission of
additional evidence an abuse of discretion. See Dorsey, 819 F.2d at 1061; Hicks,
798 F.2d at 451–52. Finally, the 13-year old conviction is not too remote to be
probative. It is younger than the conviction approved in Lampley, 68 F.3d at 1300,
and the significance of the length of time is diminished because Moore spent
approximately ten of the thirteen years in prison. See LeCroy, 441 F.3d at 926.
The district court did not abuse its discretion in admitting the 404(b) evidence of
Moore’s past conviction.3
III. Conclusion
For the foregoing reasons, we affirm Moore’s conviction.
AFFIRMED.
3
Even if the district court had erred, we would readily conclude that any error was
harmless in light of the other evidence of Moore’s guilt. See Hubert, 138 F.3d at 914.
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