[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12674 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 29, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 4:09-cr-00065-RH-WCS-2
UNITED STATES OF AMERICA,
llllllllllllllllllll lPlaintiff-Appellee,
versus
BRANDON WARE,
llllllllllllllllllll lDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(March 29, 2011)
Before HULL, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Brandon Ware appeals his convictions for conspiracy to manufacture,
distribute, and possess with intent to distribute more than five grams of cocaine
base, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B)(iii), and possession
with intent to distribute more than five grams of cocaine base, in violation of 21
U.S.C. §§ 841(a), (b)(1)(B)(iii). First, Ware argues that the evidence is
insufficient to support his convictions. Ware next argues that the cumulative
effect of six alleged evidentiary errors prejudiced his trial. We affirm both
convictions.
I. Sufficiency of the Evidence
Ware contends the district court erred in denying his motion for a judgment
of acquittal because the evidence against him proves nothing more than aiding and
abetting, not a conspiratorial agreement. He argues there was no evidence he had
any knowledge of an agreement or willfully participated in the conspiracy.
“We review the sufficiency of the evidence de novo, viewing the evidence
in the light most favorable to the verdict.” United States v. Thompson, 473 F.3d
1137, 1142 (11th Cir. 2006).
The jury gets to make any credibility choices, and we will
assume that they made them all in the way that supports the
verdict. It is not enough for a defendant to put forth a
reasonable hypothesis of innocence, because the issue is
not whether a jury reasonably could have acquitted but
whether it reasonably could have found guilt beyond a
reasonable doubt.
Id. (citations omitted).
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We are bound by the jury’s credibility determinations unless the testimony
is “‘incredible as a matter of law.’” United States v. Calderon, 127 F.3d 1314,
1325 (11th Cir. 1997) (quoting United States v. Hewitt, 663 F.2d 1381, 1385–86
(11th Cir. 1985)), modified on other grounds by United States v. Toler, 144 F.3d
1423, 1427 (11th Cir. 1998). Testimony is incredible only if it relates to “‘facts
that [the witness] physically could not have possibly observed or events that could
not have occurred under the laws of nature.’” Id. (alteration in original) (quoting
United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir. 1985)). “[W]hen a
defendant chooses to testify, he runs the risk that if disbelieved the jury might
conclude the opposite of his testimony is true.” United States v. Brown, 53 F.3d
312, 314 (11th Cir. 1995) (internal quotation marks omitted).
To convict Ware of conspiracy, the government had to prove (1) that a
conspiracy existed; (2) that Ware knew about the conspiracy; and (3) that Ware
knowingly joined the conspiracy. See United States v. Molina, 443 F.3d 824, 828
(11th Cir. 2006). The defendant’s knowing participation may be proven by direct
or circumstantial evidence. United States v. Miranda, 425 F.3d 953, 959 (11th
Cir. 2005). And the existence of an agreement is often “‘proved by inferences
from the conduct of the alleged participants or from circumstantial evidence of a
scheme.’” Molina, 443 F.3d at 828 (quoting United States v. Ayala, 643 F.2d 244,
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248 (5th Cir. 1981)). In a conspiracy case, “presence and association are material
and probative factors that a jury may consider in reaching its verdict.” United
States v. Lluesma, 45 F.3d 408, 410 (11th Cir. 1995). We will uphold a
conspiracy conviction “‘when the circumstances surrounding a person’s presence
at the scene of conspiratorial activity are so obvious that knowledge of its
character can fairly be attributed to him.’” Molina, 443 F.3d at 828 (quoting
United States v. Figueroa, 720 F.2d 1239, 1246 (11th Cir. 1983)).
To convict Ware of possession “the government must have proved beyond a
reasonable doubt that he knowingly possessed the drugs with intent to distribute
them.” See Thompson, 473 F.3d at 1142. “Possession can be actual or
constructive and can be shown through direct or circumstantial evidence.” Id.
Constructive possession “‘can be proven by a showing of ownership or dominion
and control over the drugs or over the premises on which the drugs are
concealed.’” United States v. Woodard, 531 F.3d 1352, 1360 (11th Cir. 2008)
(quoting United States v. Clay, 355 F.3d 1281, 1284 (11th Cir. 2004)).
In the instant case, sufficient evidence supported Ware’s convictions.
Although “[m]ere presence at the scene of a crime is insufficient to support a
conspiracy conviction,” Miranda, 425 F.3d at 959 (internal quotation marks
omitted), this appeal is not about mere presence. Ware leased a small apartment
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and was in control of who lived there. Ware associated with drug dealers, and he
allowed a known major drug dealer—his co-defendant—to live with him. Ware
was arrested just outside his apartment, coming from the direction of his
apartment. Just after Ware’s arrest, in his kitchen, in plain view, were two recently
prepared crack cocaine cookies and various items used to produce and distribute
crack cocaine—a triple-beam scale, a measuring cup, mixing bowls, a digital
scale, a razor blade, and a fork.
Officers found .4 grams of crack cocaine and drug paraphernalia in Ware’s
bedroom. Ware testified his only income was unemployment, which did not cover
the monthly costs of his apartment, yet Ware had over $600 in his pocket when he
was arrested. He said he was coming from his uncle’s house, not from his
apartment, when he was arrested. Ware offered explanations for the cash in his
pocket and for the cocaine and drug paraphernalia in bedroom. He denied any
involvement in the conspiracy and testified he never used or sold cocaine. The
jury heard Ware’s testimony, observed his demeanor, evaluated his truthfulness,
and were free to discredit any and all of his statements. Indeed, “a statement by a
defendant, if disbelieved by the jury, may be considered as substantive evidence of
the defendant’s guilt.” Brown, 53 F.3d at 314.
The leasing agent for Ware’s apartment testified that she had previously
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seen a scale, little plastic baggies, and a white substance that “could have been
drugs” in Ware’s apartment. As discussed in more detail below, the apartment
manager’s testimony was permissible, and the jury was free to accept or reject the
inferences raised by her testimony.
Another witness, who was in county jail on unrelated charges at the time of
Ware’s trial, testified that she never bought drugs from Ware, but that he
sometimes sold crack. She testified that she saw Ware sell drugs more than one
time. On cross-examination, she admitted that before trial, she told defense
counsel that she had never seen Ware sell drugs. The jury heard about these
inconsistencies and knew that this witness believed that if she cooperated with law
enforcement, then she might receive favorable treatment in her own case. This
testimony was not “incredible as a matter of law.” This witness was subject to
cross-examination, and the jury was entitled to credit this testimony as it saw fit.
The evidence—Ware’s association with known drug dealers, and other drug
dealers; the cocaine cookies and drug equipment in plain view in his apartment;
the $602 in his pocket—reasonably indicates more than “mere presence” in the
midst of an overt drug manufacture and distribution operation. The evidence
could reasonably “give rise to a permissible inference” that Ware knowingly
participated in an agreement with his co-defendant to manufacture and distribute
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cocaine. See United States v. Westry, 524 F.3d 1198, 1213–14 (11th Cir. 2008)
(per curiam) (concluding that evidence of the defendant’s associations, residence,
and involvement could support a reasonable inference of participation in the
conspiracy). Ware also constructively possessed the cocaine in his apartment.
Together with the blatant drug operation conducted therein, the jury also could
reasonably infer from this evidence the elements to support the possession charge.
Because all of the evidence, including the inferences the jury could draw
from Ware’s testimony, was sufficient to convict him on the conspiracy and
possession counts, the district court did not err in denying his motion for judgment
of acquittal.
II. Cumulative Effect of Alleged Evidentiary Errors
We next address whether the cumulative effect of the allegedly inadmissible
evidence constitutes plain error. Evidentiary errors raised for the first time on
appeal are reviewed for plain error. United States v. Baker, 432 F.3d 1189, 1202
(11th Cir. 2005). To establish plain error, a defendant must show that there was an
“(1) error, (2) that is plain, and (3) that affects substantial rights. Once these three
requirements are satisfied, we have the discretion to provide relief if (4) the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Henderson, 409 F.3d 1293, 1307 (11th Cir. 2005)
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(citation omitted). An error is “plain” if it is obvious or clear under current law.
Baker, 432 F.3d at 1207. “An error that affects substantial rights is one that
affected the outcome of the district court proceedings.” Henderson, 409 F.3d at
1308 (internal quotation marks omitted). Even where individual errors do not rise
to the level of prejudicial error, the cumulative effect of several non-reversible
errors can so prejudice the right to a fair trial that reversal is necessary. Baker,
432 F.3d at 1223.
Ware did not contemporaneously object to any of the alleged evidentiary
errors, except for his third claim. Therefore, all his evidentiary claims except his
third are reviewed for plain error. Ware argues the district court erroneously
admitted the following inadmissible and prejudicial evidence: “(1) prejudicial
hearsay evidence of his co-defendant’s involvement in a shooting; (2) statements
obtained during custodial interrogation without a valid waiver of Miranda rights;
(3) post-arrest silence; (4) evidence of Ware’s arrest on an unrelated warrant; (5)
improper lay witness identification of alleged drugs; and (6) patently incredible
testimony of a plea bargaining addict-informant.”
A. Ware’s First and Fourth Claims
In his first claim, Ware argues a leasing agent’s testimony about a shooting
at Ware’s co-defendant’s former residence was inadmissible hearsay, irrelevant to
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the prosecution of Ware, and prejudicial as showing the bad character of Ware. In
his fourth claim, Ware contends that a police officer’s testimony regarding Ware’s
arrest on unrelated outstanding warrants was inadmissible because it served only
to show his bad character, which is inadmissible pursuant to Federal Rule of
Evidence 404(b).
Under Rule 403, relevant evidence “may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice . . . .” Fed. R. Evid.
403. However, “Rule 403 is an extraordinary remedy, which should be used only
sparingly, and the balance should be struck in favor of admissibility. Thus, in
reviewing issues under Rule 403, we look at the evidence in a light most favorable
to its admission, maximizing its probative value and minimizing its undue
prejudicial impact.” United States v. Edouard, 485 F.3d 1324, 1344 n.8 (11th Cir.
2007) (alterations, citations, and quotation marks omitted).
First, the leasing agent’s testimony was not hearsay because it was not
offered to prove the truth of the matter asserted—it was offered to explain the
sequence of events that led to Ware and his co-defendant living together. See Fed.
R. Evid. 801(c); United States v. Jiminez, 564 F.3d 1280, 1288 (11th Cir. 2009).
And the testimony was not irrelevant to the prosecution of Ware—it was relevant
to explain why Ware’s co-defendant left his previous apartment and how Ware
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ended up living with him. And any possible prejudice from this testimony was
minimized by the government’s repeated explanation at trial that Ware had
nothing to do with the shooting. While we may have excluded this testimony if
we were in the trial judge’s position, we cannot say, on plain error review, that the
district court plainly erred by admitting this evidence.
It was also not error under Rule 404(b) for the district court to admit the
officer’s testimony. Extrinsic evidence of other crimes, wrongs, or acts is not
admissible to prove a defendant’s character in order to show action in conformity
therewith. Fed. R. Evid. 404(b). But the officer’s testimony was not admitted to
show that Ware had a criminal disposition and would act in conformity therewith.
Instead, it was relevant to explain why the officer arrested Ware. See United
States v. US Infrastructure, Inc., 576 F.3d 1195, 1210 (11th Cir. 2009); cert.
denied, 130 S. Ct. 1918 (2010) (“Rule 404(b) does not apply when the other act
evidence is linked in time and circumstances with the charged crime and concerns
the context, motive or setup of the crime; or forms an integral part of the crime; or
is necessary to complete the story of the crime.”). Without this testimony, the jury
would be left wondering why Ware was arrested as he was walking from the
direction of his apartment. And it is clear the probative value of this evidence was
not substantially outweighed by the danger of unfair prejudice because the
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government explained that the warrants were for unpaid traffic tickets.
Consequently, no error, much less plain error occurred, and Ware fails on
his first and his fourth evidentiary claims.
B. Ware’s Second Claim
Statements made in violation of Miranda v. Arizona, are not admissible at
trial. 384 U.S. 436, 444, 86 S. Ct. 1602 (1966). Ware asserts that his post-arrest
statements to two police officers were inadmissible because the government made
no showing that he was informed of his Miranda rights prior to talking to each of
the officers. But even assuming that Ware was not given the Miranda warnings,
he has not shown that, in the context of the trial, any alleged Miranda error
affected his substantial rights. Henderson, 409 F.3d at 1307. Ware’s statements
were one piece of evidence in a trial which produced other strong evidence of
guilt. Further, Ware chose to testify, he had the opportunity to explain and defend
any statements made to the officers, and the jury was free to believe or disbelieve
him. See United States v. Turner, 474 F.3d 1265, 1279–80 (11th Cir. 2007). Ware
has not shown that any possible Miranda error affected the outcome of the district
court proceedings, and therefore Ware did not meet the third prong of the difficult
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plain error test.1
C. Ware’s Third Claim
During trial, Ware testified that another individual was using his bedroom
as an overnight guest, and that Ware was sleeping on the couch. In rebuttal, the
government re-called the arresting officer, who testified that Ware told him that
the individual did not live there, but was visiting to get a power cord for a video
game, and had nothing to do with anything inside the apartment. The government
then asked the officer, “[a]nd did Mr. Ware say anything like, I have been sleeping
on the sofa; I don’t know what’s in my bedroom?” To which the officer replied,
“No, sir. He didn’t volunteer any kind of information like that.” Ware argues the
district court erroneously admitted this evidence of his post-arrest silence in
violation of Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240 (1976). Ware
contemporaneously objected to this alleged evidentiary error, so review this claim
for abuse of discretion. Turner, 474 F.3d at 1275.
Doyle “held that the Due Process Clause of the Fourteenth Amendment
prohibits impeachment on the basis of a defendant’s silence following Miranda
1
Moreover, the majority of the officers’ testimony regarding Ware’s statements were
given in rebuttal to impeach Ware’s testimony, so the officers’ testimony would have been
admissible even absent Miranda warnings. Harris v. New York, 401 U.S. 222, 225–26, 91 S. Ct.
643 (1971).
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warnings.” Anderson v. Charles, 447 U.S. 404, 407, 100 S. Ct. 2180 (1980) (per
curiam). But Doyle is inapplicable,
to cross-examination that merely inquires into prior
inconsistent statements. Such questioning makes no unfair
use of silence because a defendant who voluntarily speaks
after receiving Miranda warnings has not been induced to
remain silent. As to the subject matter of his statements,
the defendant has not remained silent at all.
Id. at 408.
The court did not abuse its discretion in admitting the officer’s testimony.
Assuming that the arresting officer administered the Miranda warnings to Ware,2
the record reveals that the officer’s rebuttal testimony addressed the inconsistency
between Ware’s post-arrest statement to the officer and his exculpatory testimony
at trial, and not Ware’s failure to offer exculpatory information on arrest. “The
questions were not designed to draw meaning from silence, but to elicit an
explanation for a prior inconsistent statement.” Charles, 447 U.S. at 409.
Because the question did not address Ware’s “failure to offer exculpatory evidence
upon arrest,” but rather “simply addressed the context of [Ware’s] statement on
arrest,” United States v. Dodd, 111 F.3d 867, 869 (11th Cir. 1997) (per curiam),
2
Alternatively, if Ware was not given the Miranda warnings, the Doyle prohibition is not
implicated. See United States v. O’Keefe, 461 F.3d 1338, 1346 (11th Cir. 2006) (“[D]ue process
is not violated by the use for impeachment purposes of a defendant’s silence prior to arrest, or
after arrest if no Miranda warnings are given.”).
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the district court did not abuse its discretion in allowing the officer’s testimony.
D. Ware’s Fifth Claim
During trial the leasing agent testified that she saw baggies and a white
substance in Ware’s kitchen during a visit to his apartment. The government
elicited that this “could have been drugs,” and that baggies were something the
agent “associated with drugs.” The government subsequently argued to the jury
that the leasing agent “recognized these immediately to be drugs and drug
paraphernalia.” Ware argues that the leasing agent’s identification of drugs in his
apartment was inadmissible as a lay witness’s opinion. He argues it prejudiced his
defense because it was the only evidence that placed Ware in the apartment in
close proximity to drugs.
Pursuant to Federal Rule of Evidence 701, lay witnesses can testify to
opinions and inferences “which are (a) rationally based on the perception of the
witness, (b) helpful to a clear understanding of the witness’ testimony or the
determination of a fact in issue, and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701. A lay
witness’s opinion is admissible “only if it is based on first-hand knowledge or
observation . . . .” United States v. Marshall, 173 F.3d 1312, 1315 (11th Cir.
1999).
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The court did not plainly err by admitting this testimony. The leasing agent
testified that she observed a white substance, baggies, and a scale in Ware’s
kitchen. Her testimony that the substance “could have been drugs” was made in
context of not only the appearance of the substance, but its proximity to baggies
and a scale. This testimony was based on her first-hand observation of the kitchen
counter top, and was a rationally based perception. She explained that she
associated the baggies with drugs because they were tiny and because she
observed them “all over the place” where persons distributed drugs. This was
helpful to understand her testimony. Her identifications were not based on expert
knowledge, but were permissible under Rule 701.
E. Ware’s Sixth Claim
Ware contends that the testimony of a government witness, who was a drug
user under arrest, was incredible as a matter of law and that the admission of her
testimony violated due process. But in federal criminal cases, everyone is
competent to testify except (1) a person who refuses to declare that he or she will
testify truthfully, (2) the presiding judge, and (3) any member of the jury hearing
the case. See generally Fed. R. Evid. 601–615. As we previously stated, witness
credibility determinations are the exclusive province of the jury and may not be
disturbed unless the witness’s testimony was incredible as a matter of law.
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Calderon, 127 F.3d at 1325. Here, the witness was competent to testify, and her
testimony was not “incredible as a matter of law.” Accordingly, the district court
did not plainly err in admitting her testimony.
Conclusion
In conclusion, of all Ware’s evidentiary claims, only one—the second
claim—may present an evidentiary error, although not a plain error. The
remainder of his claims do not present error at all, and therefore, his claim of
cumulative error fails.
AFFIRMED.
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