Case: 12-14444 Date Filed: 03/14/2014 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14444
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D.C. Docket No. 3:12-cr-00010-LC-7
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WARREN G. CHARLTON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(March 14, 2014)
Before WILSON, Circuit Judge, and BUCKLEW, * and LAZZARA, ** District
Judges.
PER CURIAM:
*
Honorable Susan C. Bucklew, United States District Judge for the Middle District of
Florida, sitting by designation.
**
Honorable Richard A. Lazzara, United States District Judge for the Middle District of
Florida, sitting by designation.
Case: 12-14444 Date Filed: 03/14/2014 Page: 2 of 3
Warren Charlton appeals his conviction for conspiracy to possess with intent
to distribute five kilograms or more of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(ii), and 846. On appeal, Charlton argues that the district
court abused its discretion in denying his motion for a mistrial because of a
reference by the prosecutor during closing argument to an evidentiary objection by
defense counsel causing a violation of his Sixth Amendment right to counsel and
his Fifth Amendment due process right to a fair trial.
After thorough review of the briefs and the record on appeal, and after the
benefit of oral argument, we find that the district court did not abuse its discretion
in denying the motion for a mistrial because any constitutional error in this case
was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S.
18, 24, 87 S. Ct. 824, 828 (1967). Based on the testimony of the government’s
witnesses, phone recordings, and photographic evidence, the evidence of
Charlton’s guilt was overwhelming.
Moreover, because Charlton chose to testify, the jury was entitled to
disbelieve him and consider his testimony as substantive evidence of his guilt. See
United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995). And because
corroborative evidence of Charlton’s guilt existed in the form of testimony,
photographs, and recorded telephone calls, Charlton’s testimony, denying his guilt,
was sufficient by itself to establish the elements of the offense. Id. at 314–15
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Case: 12-14444 Date Filed: 03/14/2014 Page: 3 of 3
(holding that, where some corroborative evidence of guilt exists for the charged
offense and the defendant testifies and denies guilt, that testimony, by itself, may
establish elements of the offense). This rule applies with special force here
because Charlton was charged with an offense that involved intent to distribute.
See id. at 315 (holding that this rule applies with special force where the elements
to be proved are highly subjective, such as intent or knowledge). Thus, the
evidence overwhelmingly showed that a conspiracy to possess with intent to
distribute cocaine existed, that Charlton knew of the conspiracy, and that Charlton
voluntarily joined the conspiracy. See 21 U.S.C. §§ 841(a)(1) and 846; United
States v. Iglesias, 915 F.2d 1524, 1527 (11th Cir. 1990). Finally, the court
instructed the jury that the attorneys’ statements were not evidence, and we
presume that the jury followed this instruction. See United States v. Lopez, 590
F.3d 1238, 1256 (11th Cir. 2009). Accordingly, we affirm.
AFFIRMED.
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