United States v. Daniel Mack

Case: 12-16602 Date Filed: 07/24/2014 Page: 1 of 70

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
_____________________________

No. 12-16602
_____________________________

D.C. Docket No. 1:12-cr-20276-FAM-2

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

DANIEL MACK,
OCTAVIUS MCLENDON,
HENRY LEE BRYANT,
Defendants-Appellants.

____________________________

Appeals from the United States District Court
for the Southern District of Florida
____________________________

(July 24, 2014)

Before MARCUS, Circuit Judge, PROCTOR,* and EVANS,** District Judges.

*
The Honorable R. David Proctor, United States District Judge for the Northern District
of Alabama, sitting by designation.
**
The Honorable Orinda D. Evans, United States District Judge for the Northern District
of Georgia, sitting by designation.
 Case: 12-16602 Date Filed: 07/24/2014 Page: 2 of 70

EVANS, District Judge:

Defendants/Appellants (hereinafter “Defendants”) Daniel Mack (“Mack”),

Henry Lee Bryant (“Bryant”), and Octavius McLendon (“McLendon”) were

convicted of, inter alia, conspiracy to possess with intent to distribute five

kilograms or more of cocaine and possession of a firearm in furtherance of a drug

trafficking crime. They appeal, raising numerous issues related to their

convictions. Bryant also appeals his sentence. We affirm.

I. Background

A. The Evidence

The following is the evidence construed in the government’s favor.1 United

States v. Harris, 20 F.3d 445, 452 (11th Cir. 1994) (citation omitted).

In 2011, the Federal Bureau of Investigation (the “FBI”) initiated an

investigation in Miami Beach, Florida. As part of that investigation, undercover

FBI agent Dante Jackson (“Agent Jackson”) posed as “Kevin Johnson,” the

general manager of a Miami Beach nightclub called Dolce UltraLounge (“Dolce”).

While acting as the nightclub manager, Agent Jackson was introduced to

Defendant Bryant, a veteran Miami Beach fire inspector.

1
Much of the evidence was recorded, and the recordings were played for the jury.

2
 Case: 12-16602 Date Filed: 07/24/2014 Page: 3 of 70

During a meeting at the nightclub office on December 2, 2011, Agent

Jackson told Bryant that he was helping a drug-trafficker friend from New York

by transporting drugs. Agent Jackson proposed a plan to move some of the

friend’s drugs from the Miami Beach nightclub to the Aventura Mall in north

Miami-Dade County, and asked Bryant whether he could provide police protection

for the transport. Jackson specifically insisted that the officers be in uniform and

drive marked police cruisers to avoid interdiction by other law enforcement.

On December 4, 2011, Bryant told Agent Jackson that he had “four County

guys” and “two Beach guys” who would escort the drugs. He added that he would

bring in Defendant McLendon, to whom Bryant referred as his “brother.” Bryant

described McLendon as “the point man" who would communicate the plans to the

officers.

On December 6, 2011, Agent Jackson called Bryant and attempted to

arrange a meeting with the officers who had been enlisted by Bryant to provide the

escort. Bryant did not bring his “guys” to his follow-up meeting with Jackson that

took place on December 9, 2011; however, he assured Agent Jackson in a

recorded conversation that “[the police officers] gonna know what’s gonna on,

cause [Bryant was] gonna tell them [what the deal was] straight up.” Bryant also

3
 Case: 12-16602 Date Filed: 07/24/2014 Page: 4 of 70

commented that he and McLendon had been “in this thing together for, since

[they]’ve been eight years old.”

Agent Jackson and Bryant had several additional conversations in which

they discussed the details of the transportation of the drugs. During a telephone

call on December 10, 2011, Agent Jackson referred to the “dope” that they would

be transporting, and Bryant immediately hung up. Later, Bryant reprimanded

Jackson stating he had thought that Jackson had said “coke.” Bryant instructed

Jackson not to use the word “coke” over the telephone because their conversations

could be intercepted by law enforcement.

December 21, 2011 was the date of the first of two drug transportation trips.

On that day, Agent Jackson introduced Bryant to his drug-trafficking friend from

New York, who was played by Detective KayTee Tyson (“Det. Tyson”), at a

restaurant on South Beach. At approximately 4:30 p.m. that afternoon, Bryant,

accompanied by McLendon, arrived at Dolce to collect the cocaine.2 Agent

Jackson and Det. Tyson were present in their undercover roles.

Bryant and McLendon began discussing the route that they were going to

take. McLendon stated that they should not use the SunPass toll lane, and Bryant

clarified that this was because the camera on the toll lane takes pictures. Det.

2
That meeting was video recorded.

4
 Case: 12-16602 Date Filed: 07/24/2014 Page: 5 of 70

Tyson then told Bryant and McLendon that “there’s nine in there,” referencing the

quantity of cocaine in kilograms, and stated that “we need to make sure that all

nine of these get there.” McLendon nodded his head in agreement. Det. Tyson

added, “cause this money, see what I’m saying?”

In front of both Bryant and McLendon, Det. Tyson then marked each of the

nine packaged bricks of sham cocaine with a marker, and Agent Jackson placed

the packages into a duffel bag. After Bryant and McLendon counted or partially

counted the nine kilograms of sham cocaine, Det. Tyson told them that there may

be “no deviation, no taste, no test,” and asked if either of them “get high?”

According to Det. Tyson, they appeared to be insulted and McLendon made a

sound as though he was upset with the question.

FBI agents on the ground and in a surveillance aircraft observed Bryant and

McLendon driving away from the nightclub. Bryant and McLendon’s vehicle

drove to Aventura Mall. Their vehicle was escorted by a marked police patrol car

with the numbers 1929A painted on its roof. There is no express evidence as to

who was driving that vehicle, but the patrol car was assigned to Defendant Mack.3

3
The government and Defendant Mack stipulated that vehicle number 1929A was
assigned to Mack.

5
 Case: 12-16602 Date Filed: 07/24/2014 Page: 6 of 70

Mack’s vehicle kept going past the mall and did not reappear. Bryant was paid

$10,500 for the job.

On the morning of January 14, 2012, the date of the second drug

transportation trip, the undercover agents met with Bryant and Defendant Mack at

a restaurant. Mack had been a police officer with the Miami-Dade police

department for sixteen years. He had been scheduled to work that day, but had

requested the day off.

Before Mack arrived, the undercover agents attempted to confirm with

Bryant that “everybody was on the same page [about what they were doing].”

Bryant assured Tyson that Mack “[knew] exactly what [they were] doing” and that

“there’s no secrets.”

Mack arrived in his Miami-Dade police patrol car. He wore his police

uniform and badge, but not his name tag. His firearm was visible, holstered at his

waist. When Mack arrived, Bryant stated, “James, T.” Jackson interpreted this as

Bryant introducing Mack by the name “James.”

Due to lack of seating at the restaurant, the group decided to move the

meeting to another restaurant. Det. Tyson and Bryant rode together in Bryant’s

vehicle. They were followed by Agent Jackson. Mack met them at the second

restaurant. At the new restaurant location, they sat together.

6
 Case: 12-16602 Date Filed: 07/24/2014 Page: 7 of 70

During the meeting at that restaurant, which began at about 9:05 a.m., Agent

Jackson and Det. Tyson did not mention the words “cocaine” or “drugs.” Det.

Tyson emphasized that it was important that Mack understood what was going on

and that he was “on the same point.”4 Mack did not ask any questions while

Tyson was speaking. He gave brief affirmative responses when spoken to, such

as, “[t]hat’s true,” “[r]ight,” “[y]ou right,” and “[y]eah.” He asked no questions.

At some point, while they were still in the restaurant, Mack and Det. Tyson

began discussing the county's plan to reduce the police force by laying off

hundreds of police officers, to which Tyson replied “[w]e ready to get rich.”

Tyson also commented that “[n]obody down [in Miami] be working” and that

“we” could be in Miami “all the time,” and Mack confirmed that “[t]here won’t be

[anybody working].” Jackson then added that Miami would be “wide open.”

Mack said nothing in response to that statement.

As the group left the restaurant, Agent Jackson said “[h]ey but I appreciate

it man[,]” to which Mack replied “[n]o problem.” Jackson told Mack that they

were “trying to make it work” because Miami was “new territory for us.” He also

stated that they had “many t-shirts coming through you know what I mean, we just

want to make sure everything is right you know what I mean.” Mack responded,

4
That meeting was recorded.

7
 Case: 12-16602 Date Filed: 07/24/2014 Page: 8 of 70

“I don’t hate, so that’s why I respect and understand everything he mentioned.”

Jackson then remarked that “ain’t nobody trying to get locked up.” Mack

responded “[y]ou know how they do us” and gestured as though he was

handcuffed, which Jackson interpreted to mean “the government against two black

guys.” The meeting broke up at 10:18 a.m.

Less than two hours later, Bryant arrived at the nightclub with McLendon.

There, McLendon counted ten brick-shaped packages of cocaine as they were

packed into a duffel bag. There is no evidence that Mack was present when the

packages were counted and packed. A little after 12:03 p.m., Bryant and

McLendon transported the 10 kilograms of sham cocaine in their car to Aventura.

Their vehicle, a PT Cruiser, was followed closely for about eight to ten miles by

the same marked patrol car that was observed escorting the December 21, 2011

transport. The marked patrol car kept going behind Bryant and McLendon’s

vehicle until it entered a Publix parking lot in Aventura. FBI agents testified that

throughout the surveillance, there was radio communication between the marked

patrol car and the PT Cruiser.

Bryant, McLendon, and Mack were arrested on April 11, 2012.

All three Defendants were indicted on four counts: (1) conspiracy to possess

with intent to distribute five kilograms or more of cocaine, in violation of 21

8
 Case: 12-16602 Date Filed: 07/24/2014 Page: 9 of 70

U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count One); (2) attempt to possess

with intent to distribute cocaine on December 21, 2011, in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A)(ii), 846, and 18 U.S.C. § 2 (Count Two); (3) attempt

to possess with intent to distribute cocaine on January 14, 2012, in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), 846, and 18 U.S.C. § 2 (Count Three); and

(4) possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. §§

924(c)(1)(A) and 2 (Count Four).

B. Procedural History

On September 13, 2012, the government filed a motion in limine to exclude

testimony at trial concerning Bryant’s and Mack’s statements at the time of their

arrest. According to the government’s pretrial motion, Bryant and Mack each

stated to the arresting officers that Mack was led to believe he was escorting

money, not cocaine. The motion does not detail the content of the post-arrest

statements, and the government did not attach any copies of said statements.

Although there is nothing in the record for us to determine what precisely the

statements were, there does not appear to be any dispute that statements of this

nature were made.

Mack did not file a pretrial motion for severance. On the Friday preceding

the trial, which began on Tuesday, October 2, 2012, Bryant made additional

9
 Case: 12-16602 Date Filed: 07/24/2014 Page: 10 of 70

statements to the prosecutors, asserting that he had led Mack to believe that the

transportation involved money, not drugs. Those statements were not recorded or

otherwise made a part of the record. At the outset of trial, the court granted the

government’s motion in limine to bar Mack’s and Bryant’s statements to the

arresting officers. The court also ruled that exculpatory statements are

inadmissible hearsay. Mack then orally moved to sever the trials. The court

inquired whether Bryant was going to testify in the joint trial, but Bryant's counsel

stated he could not confirm that he would. The district judge denied the motion as

premature, and stated that if Bryant did not testify in the joint trial, Mack could

move to sever at that time. Defense counsel did not offer information that Bryant

would testify on Mack’s behalf at a separate trial. Neither did the court inquire

whether this would be the case.

The government’s case concluded on Thursday, October 4, 2012. All three

Defendants made motions for judgments of acquittal pursuant to Rule 29 on the

ground that there was insufficient evidence to prove that they knew what was

being transported was cocaine and to prove that any firearms were possessed or

carried in connection with the drug transportation. No renewed severance request

was made by Mack. The court questioned the prosecutor closely concerning the

sufficiency of evidence as to Defendant Mack. She outlined the government’s

10
 Case: 12-16602 Date Filed: 07/24/2014 Page: 11 of 70

evidence. At a couple of points the court interjected, expressing some skepticism

about whether there was enough evidence to support the government’s case

against Mack. At the conclusion of that colloquy, the court denied Mack’s motion

for judgment of acquittal but stated that “it’s a close question.” The court

specifically stated, “I assume at the end of the defense case, it will be raised

again.” The court then inquired of Mack’s counsel “Mr. Rouviere, what are you

going to do in front of the jury?” Mack’s counsel stated that “. . . in light of the

court’s deep analysis of the judgment of acquittal, I would like a couple of minutes

to discuss it with my client.” The court stated: “Oh, I’m not telling you what I’m

going to do.” After hearing from counsel for the two other Defendants, who stated

that they would not be presenting any evidence, the court inquired again of Mack’s

counsel who stated his client would not be testifying. Then the court affirmed

with Mack individually that he understood that no witnesses would be called on

his behalf and that he had made a decision not to testify in his own behalf.

At that point the jury was brought in and counsel for all Defendants

announced that they rested. After the jury retired from the courtroom, the

following colloquy occurred:

THE COURT: All right. You’re renewing your motions for judgment
of acquittal pursuant to Rule 29, right, Mr. Stonick?

11
 Case: 12-16602 Date Filed: 07/24/2014 Page: 12 of 70

MR. STONICK: Correct, Judge, and I’d also restate and renew all
previous objections for appellate purposes, if necessary.

THE COURT: Mr. Rouviere.

MR. ROUVIERE: Yes, Judge. I’m renewing my Rule 29 motion and
maintaining all prior objections.

THE COURT: Mr. Walker.

MR. WALKER: And also, same Rule 29 and maintaining all the
prior objections that I made during the course of the trial.

The court denied Bryant’s and McClendon’s motions. It announced it

would take Mack’s motion under advisement, and suggested to Mack’s counsel

that he file a brief over the long weekend. We do not construe Mack’s reference to

“maintaining all prior objections” as a renewed request for severance.

The court recessed until Tuesday, October 9, 2012. After closing arguments

on October 9, 2012, the district court orally denied Mack’s Rule 29 motion for

judgment of acquittal.

On October 10, 2012, a jury found Bryant and McLendon guilty of all four

counts. Mack was found guilty of Counts One, Three, and Four, but not guilty of

Count Two (the attempt charge related to the December 21, 2011 drug

transportation). On October 17, 2012, the district court issued a written order once

12
 Case: 12-16602 Date Filed: 07/24/2014 Page: 13 of 70

again denying all Defendants’ renewed motions for judgment of acquittal on the

ground that the evidence was sufficient to support a jury finding.

On October 17, 2012, Mack filed a renewed motion for judgment of

acquittal, or alternative motion for new trial. That motion specifically mentioned

the district court’s failure to sever Mack’s case for trial as a reason to grant a new

trial. On the same date, Mack filed a motion for leave to file an affidavit that he

anticipated receiving from Bryant, in which Bryant was expected to affirm that he

would have provided exculpatory statements for Mack in a separate trial. The

court denied both motions in an order entered on October 24, 2012.

On November 12, 2012, Mack filed a second renewed motion for a new trial

or in the alternative, motion to alter, amend, or correct order denying motion for a

new trial and judgment of acquittal. That motion was also based on the court’s

denial of severance. An affidavit of Bryant dated November 5, 2012 was attached

to the motion. It stated that Bryant had not told Mack that the transaction involved

drugs.

On December 18, 2012, McLendon filed a motion adopting Mack’s motion

for new trial. McLendon subsequently submitted an affidavit of Bryant dated

November 15, 2012 concerning McLendon’s lack of knowledge that cocaine

would be involved in the transaction. Mack’s second renewed motion was denied

13
 Case: 12-16602 Date Filed: 07/24/2014 Page: 14 of 70

in an order entered on November 15, 2012, and McLendon’s motion was denied

during the December 19, 2012 sentencing proceedings.

On December 19, 2012, McLendon and Mack were sentenced to 188 and

120 months’ imprisonment, respectively, on each of the drug counts they were

convicted of, all terms to be served concurrently, followed by 60-months’

imprisonment for Count Four, to be served consecutively. The court also imposed

a five-year supervised release term on all of the counts, to be served concurrently.

On the same date, after his request for a downward variance based on

sentencing factor manipulation was denied, Bryant was sentenced to 204 months’

imprisonment for Counts One, Two, and Three, and to a consecutive 60-month

term on Count Four, followed by ten years of supervised release on all counts, to

be served concurrently.

II. Issues on Appeal

Defendants challenge the denial of their motions for a judgment of acquittal.

Mack appeals the district court’s denial of his oral motion made on the first day of

trial and of his written post trial motion pertaining to severance. Both Mack and

McLendon attack the district court’s denial of their respective motions for new

trial. All Defendants challenge the district court’s failure to admit Bryant’s post-

arrest statements for impeachment purposes. They further contend that the

14
 Case: 12-16602 Date Filed: 07/24/2014 Page: 15 of 70

cumulative effect of purported prosecutorial misconduct, improper government

witness testimony, and erroneous judicial rulings warrant a reversal in this case.

Only Bryant appeals his sentence.

III. Sufficiency of the Evidence

A. Standard of Review

All Defendants assert that their convictions were not supported by sufficient

evidence. We review de novo the question whether sufficient evidence supports a

jury verdict. United States v. Calderon, 127 F.3d 1314, 1324 (11th Cir. 1997)

(citing Harris, 20 F.3d at 452). On review of a guilty verdict, “the evidence is

viewed in the light most favorable to the government, with all reasonable

inferences and credibility choices made in the government’s favor.” Id. The

verdict must be upheld “if there is substantial evidence to support it, that is ‘unless

no trier of fact could have found guilt beyond a reasonable doubt.’” Id. (quoting

United States v. Battle, 892 F.2d 992, 998 (11th Cir. 1990)).

We first address the district court’s denial of Defendants’ Rule 29 motion

for acquittal with respect to the conspiracy and attempt charges (Counts One

through Three). We then turn to the sufficiency of the evidence on the 18 U.S.C.

§ 924(c) charge (Count Four). We find that the evidence presented to the jury was

sufficient to support Defendants’ convictions on all counts.

15
 Case: 12-16602 Date Filed: 07/24/2014 Page: 16 of 70

B. The Conspiracy and Attempt Charges

The conspiracy charge requires the government to prove beyond a

reasonable doubt that: “(1) a conspiracy existed; (2) [Defendants] knew the

essential objectives of the conspiracy; and (3) [Defendants] knowingly and

voluntarily participated in the conspiracy.” Calderon, 127 F.3d at 1326 (quoting

Harris, 20 F.3d at 452 (internal quotation marks omitted)). To find Defendants

guilty of attempt, the jury had to find beyond a reasonable doubt (1) that they

acted with the culpability required for the commission of the crime, and (2) that

they took a substantial step toward to the commission of the crime. United States

v. Ohayon, 483 F.3d 1281, 1285 (11th Cir. 2007). At issue for both the conspiracy

and the attempt charges (hereinafter “the drug charges”) is the sufficiency of the

evidence that Defendants knew that the transaction involved drugs.

1. Bryant’s Knowledge

The record is rife with evidence of Bryant’s knowledge that the contents of

the cargo consisted of drugs. On December 9, 2011, Agent Jackson told Bryant

“it’s ten keys . . . , I mean that’s what gonna be moving.” Bryant responded,

“okay.” Jackson repeated himself, to be clear that Bryant understood, “[j]ust so

you know. Uh, its ten kilo’s.” Bryant again said, “okay.” Bryant acknowledged

16
 Case: 12-16602 Date Filed: 07/24/2014 Page: 17 of 70

that moving the drugs was “a huge risk” and that the police he had recruited to do

the job “usually get paid four, five gran’ a piece.”

Later in the conversation, Agent Jackson stated , “it’s not a incre-,

incredible amount of cocaine, I mean so it ain’t a ton. Know what I mean?”

Bryant replied, “I understand, I understand.” Jackson also said that “cocaine

prices isn’t what it used to be . . . .” Bryant hung up when Jackson, on one

occasion, referred to the “coke” during a telephone conversation with him, and

later chided Jackson for using that term on the telephone. Bryant suggested that

Agent Jackson could use many other terms to refer to cocaine. There can be no

doubt that Bryant knew exactly what he had agreed to transport. Thus, his

conviction on the drug charges must be upheld.5

5
Bryant also contends that the “outrageous government conduct” warrants an acquittal.
That argument was not presented to the district court. Issues raised for the first time on appeal
are reviewed only for plain error. See United States v. Kelly, 888 F.2d 732, 739 n.12 (11th Cir.
1989) (a defendant’s claim of outrageous government conduct that was not raised at trial is
reviewable only for plain error).
An acquittal on grounds that the government engaged in outrageous conduct requires a
showing by the defendant that, based on the totality of the circumstances, the government’s
conduct and over-involvement violated that “fundamental fairness, shocking to the universal
sense of justice” mandated by the Due Process Clause of the Fifth Amendment to the United
States Constitution. Wilcox v. Ford, 813 F.2d 1140, 1147 (11th Cir. 1987) (quoting United
States v. Russell, 411 U.S. 423, 432, 93 S. Ct. 1637, 1647 (1973) (internal quotation marks
omitted)). The defense can be raised only in the “rarest and most outrageous circumstances.”
United States v. Tobias, 662 F.2d 381, 387 (5th Cir. Unit B 1981), cert. denied 457 U.S. 1108,
102 S. Ct. 2908 (1982).
According to Bryant, the government’s conduct was outrageous because this “egregious
reverse sting” involved two drug transportation trips instead of one. We disagree. The second
run enabled agents to meet and collect evidence against Mack, one of the police officers who

17
 Case: 12-16602 Date Filed: 07/24/2014 Page: 18 of 70

2. McLendon’s Knowledge

The evidence is ample with respect to McLendon’s knowledge that the

offense involved drugs. Bryant stated to Agent Jackson that McLendon would

serve as his “point man” to the police officers on the transaction and that he and

McLendon have been “in this thing” since they were children.

In addition, McLendon’s knowledge of the drugs is supported by

independent evidence. McLendon was present at the nightclub office on

December 21, 2011 when Det. Tyson marked each of the nine brick-shaped items,

counted them, and placed them in a duffel bag. Det. Tyson then handed the bag to

McLendon and told him that “there’s nine in there” and that “[they] need[ed] to

make sure all nine of these get there.”

McLendon contends that he was not told what was contained in the

“opaque, brick-shaped, shrink-wrapped items that were placed in a duffel bag by

the undercover agents and given to him and Bryant to transport.” But Det. Tyson

instructed both Bryant and McLendon that there can be “no deviation, no test, no

taste” and asked “neither one of y’all get high right?”

assisted Bryant and who was charged as a co-conspirator. Thus, the government’s decision in
conducting two runs, instead of one, was not “fundamentally unfair.”

18
 Case: 12-16602 Date Filed: 07/24/2014 Page: 19 of 70

McLendon points out that Det. Tyson himself told McLendon and Bryant

that they were transporting money, not drugs, by making the statement “cause this

money, see what I’m saying?” However, that statement was made immediately

after Tyson had counted the nine brick-like objects and after he had handed the

bag to McLendon, cautioning him that they needed to make sure the cargo reaches

its destination intact. Thus, this statement is consistent with Tyson’s testimony

that he sought to communicate to McLendon and Bryant that the nine kilograms of

cocaine were worth a lot of money to him. In sum, the evidence in the record fully

sustains McLendon’s conviction on the drug charges.

3. Mack’s Knowledge

Mack asserts that there was no evidence from which a reasonable jury could

find, beyond a reasonable doubt, that he knew the conspiracy involved drugs,

instead of money. He points out that he was not involved in any of the

negotiations or preparations for the offense. He was not present when the drugs

were loaded into the vehicle driven by Bryant and McLendon, and he drove away

before they were unloaded. He never saw the sham cocaine or the bag in which it

was carried. He adds that, on the morning of the second drug transportation trip,

the undercover agents were still trying to confirm that he knew that he was

escorting drugs.

19
 Case: 12-16602 Date Filed: 07/24/2014 Page: 20 of 70

Even though the evidence of Mack’s knowledge of the drugs is not

overwhelming, it is sufficient to support his conviction on the drug charges. Mack

appeared at the January 14, 2012 meeting in full uniform; he was wearing his

badge but not his name tag. His weapon was visible and was holstered on his

person. Approximately two hours later, FBI agents observed his marked police

car following closely the vehicle driven by Bryant and McLendon. We have held

that “repeated presence at the scene of the drug trafficking . . . can give rise to a

permissible inference of participation in the conspiracy.” Calderon, 127 F.3d at

1326 (citations omitted). Although “mere presence,” standing alone, is

insufficient to support a conviction for a drug-related offense, it is “a material and

probative factor” that may be considered by the jury in reaching the verdict. Id.

(internal quotation marks and citations omitted); United States v.

Baptista-Rodriguez, 17 F.3d 1354, 1374 (11th Cir. 1994).

Mack argues that the “permissible inference” does not apply in his case

because he was never present around the drugs and his presence at the scene was

not recurring. Contrary to Mack’s contentions, a co-conspirator’s presence around

the drugs involved in the offense is not the only way to trigger the permissible

inference. Rather, the inference of participation in the conspiracy can arise from a

co-conspirator’s presence at meetings related to the conspiracy. See Baptista-

20
 Case: 12-16602 Date Filed: 07/24/2014 Page: 21 of 70

Rodriguez, 17 F.3d at 1374 (the defendant challenging the sufficiency of his

conviction was present at two “key meetings” involving the conspiracy). In the

present case, Mack’s presence extends not only to his participation in the January

14, 2012 meeting, but to his subsequent escort of the drugs later that day.6

Moreover, the record reflects additional proved circumstances that support

the inference of Mack’s guilty knowledge. See United States v. Hernandez, 141

F.3d 1042, 1053 (11th Cir. 1998) (“‘a conspiracy conviction will be upheld . . .

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’”) (quoting Calderon, 127 F.3d at 1326). We find the

conversation between Mack and Agent Jackson to be significant in that regard.

The undercover agents told Mack that, as a result of the police officer layoffs, they

would be able to do more business in Miami and would “get rich” because Miami

would be “wide open.” Agent Jackson then confided in Mack that Miami was

“new territory” for him and Tyson, and that they had “this many t-shirts coming

through you know what I mean, we just want to make sure everything is right you

know what I mean.” Mack stated that he understood and respected that.

6
Mack was found not guilty of the attempt offense charged in Count Two, which
stemmed from the December 21, 2011 drug transport.

21
 Case: 12-16602 Date Filed: 07/24/2014 Page: 22 of 70

Although Mack did not say much during the meeting, “[a]n illegal

agreement may be inferred from the conspirators’ conduct and other circumstantial

evidence.” Baptista-Rodriguez, 17 F.3d at 1374 (citations omitted) (concluding

that the evidence was sufficient to support the defendant’s conviction, despite the

absence of evidence showing that he verbally assented to the scheme); cf. United

States v. Kelly, 749 F.2d 1541, 1548-49 (11th Cir. 1985) (reversing a defendant’s

conviction of drug-related conspiracy because the defendant’s proven involvement

in the conspiracy was limited to his presence at another conspirator’s house, at

which the defendant could have been present as a social guest, particularly where

“[n]o evidence exist[ed] that the affairs of the . . . schemes were discussed with

[the defendant]”).

Mack contends that there is no direct evidence of his knowledge that “t-

shirts” is one of the many code words for drugs. However, Agent Jackson, who is

an agent on the drug squad, testified that “t-shirts” was a very common word for

cocaine “not just [in] Atlanta, . . . but everywhere”; it was also a term he had used

with Bryant in reference to the drugs involved in this case. In light of Mack’s 16-

year experience on the Miami-Dade police force, the jury could reasonably have

inferred that Mack knew exactly what Jackson was referring to and that he knew

22
 Case: 12-16602 Date Filed: 07/24/2014 Page: 23 of 70

that the indubitably criminal activity in which he was about to participate involved

drugs.

Finally, Bryant made numerous statements to the undercover agents

assuring them that Mack knew everything.7 These statements likely bolstered the

government’s case against Mack on the drug charges. However, they are not

necessary to sustain a guilty verdict. Even absent these statements, the cumulative

effect of the circumstantial evidence discussed above is sufficient to show Mack’s

knowledge of the drugs.8

Accordingly, taken in the light most favorable to the verdict, we cannot say

that the record reveals a lack of substantial evidence from which a factfinder could

7
These statements include: “They gonna know what’s going on because I’m gonna tell
them straight out”; “My guys are all on board”; “He knows exactly what we’re doing; there’s no
secrets”; “They ain’t talking cheap”; “[H]e knows about it”; “These guys, they know exactly
what’s going on, ‘cause I, I’m straight forward with all of them”; and “They do know.” Agent
Jackson did testify, however, that while they were waiting for Mack on the morning of January
14, 2012, Bryant stated that the less the officers knew, the better off they were.
8
Mack contends that this case is indistinguishable from United States v. Martinez, 83
F.3d 371 (11th Cir. 1996), in which we reversed the convictions on, inter alia, drug charges of
one of the defendants (Gomez). Id. at 377. Gomez claimed that he was told that he was going to
a house to steal money, as opposed to cocaine. Id. at 374.
We find Martinez distinguishable. There, the entirety of the evidence showing Gomez’s
knowledge of the drugs consisted of a co-defendant’s statement to the undercover agents that he
(the co-defendant) “had men ready to steal the cocaine [from a house].” Id. In contrast, here,
even if Bryant had led Mack to believe that he was escorting money, Mack’s subsequent
conversation with the undercover agents, coupled with his 16 years of experience as a police
officer in Miami-Dade County, amounts to sufficient evidence to support Mack’s conviction.

23
 Case: 12-16602 Date Filed: 07/24/2014 Page: 24 of 70

find guilt beyond a reasonable doubt. Calderon, 127 F.3d at 1324. Thus, we

affirm Bryant’s, McLendon’s, and Mack’s convictions on the drug charges.9

C. The “Firearms Charge”

18 U.S.C. § 924(c)(1)(A) provides in part:

any person who, during and in relation to any crime of violence or
drug trafficking crime . . . for which the person may be prosecuted in
a court of the United States, uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm, shall, in addition
to the punishment provided for such crime of violence or drug
trafficking crime . . . be sentenced to a term of imprisonment of [a
minimum of 5 years].

18 U.S.C. § 924(c)(1)(A)(i) (emphasis added). Accordingly, to prove the firearms

charge, the government must show that the defendant (1) knowingly used or

carried a firearm during and in relation to any drug trafficking crime for which he

could be prosecuted in a court of the United States, or (2) possessed a firearm in

furtherance of such a crime. United States v. Woodard, 531 F.3d 1352, 1362 (11th

Cir. 2008); United States v. Haile, 685 F.3d 1211, 1217 (11th Cir. 2012), cert.

denied, 133 S. Ct. 1723 (2013) and cert. denied, 133 S. Ct. 1724 (2013) (stating

that “the enhanced penalties [under the statute] are triggered in one of two ways:

9
Mack does not argue that the evidence was insufficient as to whether he took a
substantial step toward the commission of the crime. The evidence presented to the jury
concerning Mack’s knowledge of the drugs also supports Mack’s conviction on the attempted
possession count.

24
 Case: 12-16602 Date Filed: 07/24/2014 Page: 25 of 70

under the ‘during and in relation to . . . uses or carries’ prong, or under the ‘in

furtherance of . . . possesses’ prong.” Id.

All Defendants were charged with carrying a firearm during and in relation

to a drug trafficking crime and with possessing a firearm in furtherance of a drug

trafficking crime, in violation of 18 U.S.C. §§ 924(c) and 2. The district judge

instructed the jury on aiding and abetting under 18 U.S.C. § 2 for the section

924(c) charge. The jury found Mack guilty of carrying a firearm during and in

relation to the drug trafficking crime, in violation of 18 U.S.C. § 924(c). Bryant

and McLendon were found guilty of possessing a firearm in furtherance of the

drug trafficking crime, in violation of 18 U.S.C. §§ 924(c) and 2.

1. Sufficiency of the Evidence as to Mack

Mack argues that there is no evidence that he carried a firearm during and in

relation to the drug trafficking crime. In order to show that a person carried a

firearm “in relation to” a crime, the firearm must have “facilitate[d], or [had] the

potential of facilitating, the drug trafficking offense”; “its presence or involvement

cannot be the result of accident or coincidence.” United States v. Novaton, 271

F.3d 968, 1013 (11th Cir. 2001) and United States v. Timmons, 283 F.3d 1246,

1251 (11th Cir. 2002) (both citing Smith v. United States, 508 U.S. 223, 237-38,

113 S. Ct. 2050, 2058-29 (1993)). “The phrase ‘in relation to’ is expansive.”

25
 Case: 12-16602 Date Filed: 07/24/2014 Page: 26 of 70

Novaton, 271 F.3d at 1013; see also Timmons, 283 F.3d at 1251-52 (noting that

the “during and in relation to” requirement “was intended to be a limiting phrase

to ‘prevent the misuse of the statute [from] penaliz[ing] those whose conduct does

not create the risks of harm [–i.e., combining drugs and guns–] at which the statute

aims’”) (quoting Muscarello v. United States, 524 U.S. 125, 132, 118 S. Ct. 1911,

1916 (1998)).

We conclude there was sufficient evidence to support Mack’s conviction on

the firearm charge. It is undisputed that Mack was carrying his firearm

approximately two hours before the actual drug transportation. He knew of the

illegal nature of the conspiracy, and he understood that his police officer status

was a necessary condition to his participation in the deal. In light of this evidence,

it was reasonable for the jury to conclude that Mack carried a firearm in relation to

the drug trafficking conspiracy.

Mack argues that the firearm had no role in the offense, and that, even if he

carried a firearm, it was solely an incident of his wearing his police uniform. Our

holding in Novaton defeats this argument. In that case, we found that a police

officer, who admitted to carrying his service firearm during the events at issue,

“furthered the drug trafficking conspiracy by providing protection for and

escorting co-conspirators to and from the Novaton residence while [the co-

26
 Case: 12-16602 Date Filed: 07/24/2014 Page: 27 of 70

conspirators] were transporting drugs or drug proceeds.” Novaton, 271 F.3d at

1013. Similarly, Mack’s carrying his service firearm was necessary to facilitate

the drug transportation in the present case, regardless of whether its purpose was

to avoid interdiction from law enforcement or also to provide security for the

cargo from potential thieves. Even if Mack carried the firearm merely as a

necessary accessory to his police uniform, he did so with the recognition that his

carrying his “police-issued service firearm,” id., combined with his full uniform

and his marked police cruiser, would signal to other law enforcement officers that

he was one of them—just another police officer on legitimate business. At the

very least, the presence of the firearm had the potential for facilitating the

conspiracy. See id. (finding that the defendant’s police-issued service firearm

“facilitated, or had the potential for facilitating” the conspiracy).10 Accordingly,

10
Mack attempts to distinguish Novaton, in which there was evidence that the officer was
responsible for directly protecting the drugs and drug proceeds. See 271 F.3d at 982. Mack
asserts that his whole role was limited to driving his police car. Mack’s argument misses the
mark. It is clear that the evidence of the involvement of the police officer in Novaton exceeded
the threshold of proof required to show that the firearm was carried “in relation to” the offense.
In the present case, Agent Jackson told Bryant that Jackson wanted uniformed officers in marked
police vehicles “in case there was officers that would interdict the loads.” Mack’s appearance (in
full uniform and armed) and his conduct (escorting the drugs according to plan) clearly had the
potential for facilitating the offense.

27
 Case: 12-16602 Date Filed: 07/24/2014 Page: 28 of 70

the jury verdict finding Mack guilty of carrying a firearm during and in relation to

the drug trafficking crime, in violation of 18 U.S.C. § 924(c), must be upheld.11

2. Sufficiency of the Evidence as to Bryant and McLendon

Bryant contends that there is no evidence that either he or his co-defendants

possessed or carried a firearm. We have already concluded that a reasonable jury

could find that Mack carried a firearm on January 14, 2012. Accordingly, Bryant’s

culpability on the firearm charge turns on proof of his aiding and abetting in

Mack’s firearm offense under 18 U.S.C. § 2.12

18 U.S.C. § 2(a) provides that “[w]hoever . . . aids, abets, counsels,

commands, induces or procures [a crime’s] commission, is punishable as a

principal.” 18 U.S.C. § 2(a). To prove aiding and abetting in a section 924(c)

case in this circuit, the government must show that (1) the substantive offense was

11
Mack contends that we should analyze the “during” and “in relation to” elements of
section 924(c) separately. He argues that there is no evidence that he carried the firearm while he
was actually escorting the drugs. Our analysis in Novaton and in Timmons focused exclusively
on the “in relation to” requirement because in both of those cases, there was no question that the
firearm was carried during the drug trafficking offense. See Novaton, 271 F.3d at 1013 (the
defendant admitted that he carried his firearm “during the events involved in this case”);
Timmons, 283 F.3d at 1251 (“[t]here is little question that . . . [the defendant carried the firearm
“during” the drug trafficking offense] as the gun was sold along with the drugs”). Even though
Mack denies carrying his firearm during the actual transportation, it is undisputed that he carried
his weapon during the January 14, 2012 meeting; thus, he was armed “during the events involved
in this case.” See Novaton, 271 F.3d at 1013.
12
Although there is some evidence in the record suggesting that Bryant may have carried
a firearm on January 14, 2012, we affirm the district court’s denial of Bryant’s Rule 29 motion
on an aiding and abetting theory.

28
 Case: 12-16602 Date Filed: 07/24/2014 Page: 29 of 70

committed; (2) that the defendant associated himself with the underlying criminal

venture; and (3) that he committed some act that furthered the crime. See

Bazemore v. United States, 138 F.3d 947, 949 (11th Cir. 1998) (citing United

States v. Hamblin, 911 F.2d 551, 557 (11th Cir. 1990)). In addition, the defendant

must have known that a firearm was being used or carried by a co-conspirator. Id.;

see also Rutledge v. United States, 138 F.3d 1358, 1359 (11th Cir. 1998).13

The United States Supreme Court recently clarified the showing of intent

required for conviction of an aiding and abetting violation under section 924(c).

Rosemond v. United States, 134 S. Ct. 1240 (Mar. 5, 2014). Rosemond involved a

“drug deal gone bad,” after either the defendant (Rosemond) or one of his

confederates (it was unclear who) fired a gun at the putative drug buyers. Id. at

1243. Rosemond was charged with violating 18 U.S.C. § 924(c) by using or

carrying a firearm in connection with a drug trafficking offense, or, in the

13
In Rutledge we phrased the third element of aiding and abetting as a requirement to
show that the defendant “committed some act related to the gun,” as opposed to some act which
facilitated the crime. 138 F.3d at 1359; cf., e.g., United States v. Pareja, 876 F.2d 1567, 1570
(11th Cir. 1989). We derived this requirement from cases discussing the need to link the
defendant to the gun. Bazemore, 138 F.3d at 949 (explaining that “section 924(c) does not
permit ‘guilt by association.’”) (citation omitted). In Bazemore, we effectively subsumed the
proof necessary to show that the defendant facilitated the carrying of a firearm in the evidence
required to establish the defendant’s knowledge of the firearm. Id. at 950 (“[O]nce knowledge
on the part of the aider and abettor is established, it does not take much to satisfy the facilitation
element.”) (internal quotation marks and citation omitted). We have held that the “facilitation
element” can be met by the defendant “knowingly benefit[ting] from the protection afforded by
the firearm.” Id.

29
 Case: 12-16602 Date Filed: 07/24/2014 Page: 30 of 70

alternative, aiding and abetting that crime under 18 U.S.C. § 2. Id. At trial, the

district judge rejected Rosemond’s proposed instructions that a guilty verdict

required the jury to find that the defendant “intentionally [facilitated or

encouraged the firearm’s use], as opposed to [merely] the predicate drug offense.”

Id. at 1244. Instead, the jury was instructed that Rosemond was guilty of aiding

and abetting a section 924(c) offense if “(1) [he] knew his cohort used a firearm in

the drug trafficking crime, and (2) [he] knowingly and actively participated in the

drug trafficking crime.” Id. (internal quotation marks and citation omitted). He

was convicted by the jury, and the United States Court of Appeals for the Tenth

Circuit affirmed. Id. at 1244-45.

The United States Supreme Court reversed Rosemond’s § 924(c)

conviction. Id. at 1252. Writing for the majority, Justice Kagan first concluded

that the district court correctly instructed the jury that Rosemond could be

convicted of aiding and abetting, even if he facilitated only the drug element, not

the gun element, of the section 924(c) offense. Id. at 1247-48. Justice Kagan then

clarified the proof necessary for the intent element of aiding and abetting a section

924(c) violation—i.e., the defendant’s knowledge that a co-conspirator will carry a

gun. Id. at 1249. “[The d]efendant’s knowledge of a firearm must be advance

knowledge”—that is, knowledge at a time when the accomplice “can attempt to

30
 Case: 12-16602 Date Filed: 07/24/2014 Page: 31 of 70

alter [the] plan, . . . withdraw from the enterprise[, or] go ahead with his role in the

venture.” Id. An accomplice’s knowledge of “a confederate’s design to carry a

gun” is not “advance” if it does not afford him “a realistic opportunity to quit the

crime.” Id. Accordingly, Justice Kagan concluded that the district court’s jury

instructions were erroneous because they did not direct the jury to determine when

Rosemond obtained the requisite knowledge and to decide whether Rosemond

knew about the gun in sufficient time to withdraw from the crime. Id. at 1251-52.

We are now called upon to determine the effect of Rosemond on the

analytical framework employed in cases alleging aiding and abetting a section

924(c) offense. The literal meaning of the requirement that the defendant’s

knowledge of the firearm be “advance” is obvious. In addition, Rosemond’s

holding that “the affirmative” act or “facilitation” requirement for aiding and

abetting a section 924(c) violation is met by the defendant’s participation in the

drug deal itself and that no act directed to the use of the firearm is required makes

clear that the government is not required to show that the defendant “committed

some act related to the gun” (as opposed to the substantive offense). See

Rosemond, 134 S. Ct. at 1247-48.

Applying the familiar framework, as modified by Rosemond, to the present

case, we have no trouble concluding that the evidence against Bryant and

31
 Case: 12-16602 Date Filed: 07/24/2014 Page: 32 of 70

McLendon was sufficient to sustain a guilty verdict for their aiding and abetting in

Mack’s section 924(c) offense. First, the substantive offense was committed by

Mack carrying a firearm during and in relation to the drug trafficking crime.14

Next, it is evident that Bryant knowingly associated himself with the drug

trafficking conspiracy. And, we have already concluded that the evidence

showing McLendon’s knowledge of the drug transport was sufficient to sustain his

guilty verdict. Third, there is ample evidence of various “affirmative acts,” by

both Bryant and McLendon which furthered the drug conspiracy. Id. at 1247-48.

Bryant organized the transportation of large quantities of narcotics and enlisted

police officers to assist him. McLendon was the “point man” to the police

officers, and he actively participated in the scheme by collecting and dropping off

the drugs on two occasions.

Finally, Bryant knew well in advance that a firearm would be carried; in

fact, he recruited Mack to participate in the offense based on Agent Jackson’s

explicit request for uniformed policemen. Mack arrived at the January 14, 2012

meeting in full uniform; his service weapon was holstered at his waist. The

14
While Mack was specifically convicted of carrying a firearm during and in relation to
the drug trafficking crime, McLendon and Bryant were convicted of possessing a firearm in
furtherance of the crime (on an aiding-and-abetting theory). These verdicts are not necessarily
inconsistent. Based on the particular facts in this case the evidence of Mack’s conduct supports
both types of firearm offense convictions.

32
 Case: 12-16602 Date Filed: 07/24/2014 Page: 33 of 70

breakfast ended approximately two hours before Bryant, accompanied by

McLendon, picked up the drugs. It is obvious that Bryant had advance knowledge

“that enable[d] him to make the relevant legal (and indeed, moral) choice.”

Rosemond, 134 S. Ct. at 1249.

Unlike Bryant, McLendon was not present at the January 14, 2012 meeting,

and could not have observed Mack’s openly displayed firearm. Nevertheless,

according to the testimony of agents conducting the surveillance, Mack’s marked

patrol car trailed the vehicle in which Bryant and McLendon were riding, and was

either directly behind or a few cars behind it from the moment that vehicle left

Miami Beach and drove north to the drop-off location. Furthermore, there was

telephone communication between the patrol car and Bryant and McLendon’s

vehicle throughout the duration of the escort. Accordingly, a reasonable jury

could have concluded that McLendon, to whom Bryant referred as his “point man”

to the police officers and who was in a vehicle that was loaded with the drugs,

believed that the police cruiser following closely over the course of eight or ten

miles was driven by an armed police officer.

The question, under the Rosemond test, is whether McLendon’s knowledge

that Mack was carrying a firearm, was “advance,” such that it gave McLendon

sufficient time to walk away from the crime. This inquiry implicates the practical

33
 Case: 12-16602 Date Filed: 07/24/2014 Page: 34 of 70

difficulties of delineating the exact contours of Rosemond’s “advance knowledge”

directive.

As to McLendon, we answer the question in the affirmative. After the

conclusion of the morning meeting (which McLendon did not attend), Bryant and

McLendon jointly collected the drugs that were to be moved. Moreover,

McLendon knew that they were transporting drugs that afternoon, that the drugs

would be escorted by a police officer (as was the case during the first

transportation on December 21, 2011), and that the participation of a uniformed

(and likely armed) officer was essential to the success of the drug conspiracy.

McLendon had a realistic opportunity to either not enter the vehicle at all, or to

exit it before it embarked upon its route. He made a conscious choice to proceed.

His knowledge of the gun was sufficiently advance. Compare these circumstances

with the illustration in Rosemond involving a defendant in a section 924(c)

prosecution who “agrees to participate in a drug sale on the express condition that

no one brings a gun to the place of exchange” and whose knowledge is not

sufficiently “advance” for purposes of conviction if one of his confederates arrives

at the meeting carrying a concealed gun in his jacket. Rosemond, 134 S. Ct. at

1251. As a result, Bryant’s and McLendon’s guilty verdicts for aiding and

abetting in Mack’s firearm offense under section 924(c) are affirmed.

34
 Case: 12-16602 Date Filed: 07/24/2014 Page: 35 of 70

IV. Mack’s Motion to Sever

A. Standard of Review

Mack argues that because Bryant’s testimony would have contradicted the

government’s case and exonerated Mack, the district court’s refusal to sever the

trials was an abuse of discretion which deprived Mack of a fair trial. We review

the denial of a motion for severance for abuse of discretion. United States v.

Kennard, 472 F.3d 851, 858-59 (11th Cir. 2006). “Appellate courts are reluctant

to second-guess trial court refusals to grant a severance." United States v. Pepe,

747 F.2d 632, 650-51 (11th Cir. 1984) (citations omitted).

B. Discussion

Bryant’s “exculpatory statements” concern Mack’s alleged lack of

knowledge of the contents of the cargo escorted by Mack. They consist of (1)

Bryant’s statements to the arresting officers,15 and (2) the additional statements he

made to the prosecutors before trial, in which he asserted that Mack was told he

was following cash, not drugs.

At the outset of trial, the court ruled that post-arrest statements “that include

inculpatory statements about other defendants” could not be used in opening

15
Mack also made post-arrest statements averring that he thought he was following cash,
not drugs. Mack’s statements to the arresting officers are not at issue here.

35
 Case: 12-16602 Date Filed: 07/24/2014 Page: 36 of 70

statements or otherwise mentioned by counsel. The district judge cautioned

counsel that failure to abide by the Bruton rule16 would have dire consequences for

counsel, including contempt sanctions and jail time. The judge emphasized, on

several occasions, the importance of counsel’s compliance with his ruling. Mack

points to the following colloquy between the district court and counsel for Mack:

THE COURT: . . . So there will be no mention by a defense lawyer of
any statement that inculpates another defendant. You, of course, can
talk about your own client and what he did.

Any question about that? Unless you want free room and board,
that’s the way it’s going to be.

MR. ROUVIERE: Your Honor, may I address the Court?

THE COURT: Do you understand what I said?

MR. ROUVIERE: I do understand, Your Honor, but that raises --

THE COURT: Then just abide by it.

MR. ROUVIERE: But Judge, it raises another issue that needs to be
raised.

THE COURT: I don’t want to deal with another issue. I want to deal
with these issues first.

MR. ROUVIERE: Well, it is with this issue, Judge.

16
The Bruton rule bars the admission of incriminating statements made by nontestifying
co-defendants at a joint trial. See United States v. Thayer, 204 F.3d 1352, 1355 (11th Cir. 2000)
(explaining the Bruton rule) (citing Bruton v. United States, 391 U.S. 123, 135-36, 88 S. Ct.
1620 (1968)).

36
 Case: 12-16602 Date Filed: 07/24/2014 Page: 37 of 70

THE COURT: What didn’t you understand about how I ruled?

MR. ROUVIERE: Exculpatory statements made --

THE COURT: I haven’t gotten to that yet.

MR. ROUVIERE: Okay. Well, Judge, it may lead to a motion to
sever, because some things happened over the weekend.

THE COURT: . . . . Exculpatory statements cannot come in because
they’re hearsay. A defendant’s own exculpatory statements made
after arrest cannot come in, because it’s rank hearsay.
[ . . .]
But you cannot bring in a defendant’s inculpatory statement that
includes guilt of another defendant, and you cannot bring in a
defendant’s exculpatory statement.

Any problems with that? Any misunderstanding? Because I’m
serious about this. Not only would there be a mistrial, the reason
there will be a mistrial is because the lawyer is going to have a lot of
time of consultation with a client if the client is in jail. If the client is
not in jail, we’re going to have the reverse. The client is going to
have to seek permission to see the lawyer in jail. So don’t violate this
when I’ve been giving you a warning. Please don’t do it.
[...]

THE COURT: What are you going to say that you think is
questionable that may impinge upon your liberty?

MR. STONICK: Nothing, Judge.

THE COURT: Okay. No, if there is, ask me now because I mean it.

MR. ROUVIERE: Judge, I do have a question.

THE COURT: Okay.

37
 Case: 12-16602 Date Filed: 07/24/2014 Page: 38 of 70

MR. ROUVIERE: A statement from one codefendant exculpating
another codefendant --

THE COURT: Can’t come in, cannot come in. It’s hearsay.

MR. ROUVIERE: Your Honor, then at this point in time I would –

[ . . .]

MR. ROUVIERE: Your Honor, at this time on behalf of Daniel
Mack, I would make a motion to sever Daniel Mack from this trial,
and I need to explain to the Court on the record why.

THE COURT: Well, why didn’t you do it before?

MR. ROUVIERE: Well, Your Honor --

THE COURT: That’s the first thing you need to explain.

MR. ROUVIERE: Well, Your Honor, I sent an email. I knew that a
statement was made post arrest. However --

THE COURT: What statement? It can’t come in. Even in a separate
trial, it can’t come in.

MR. ROUVIERE: Well, Judge, only if I can call the other defendant
as a witness in a separate trial. Because at this time, he has a Fifth
Amendment right to remain silent.

THE COURT: And he also has a Fifth Amendment right afterwards.

MR. ROUVIERE: Not if his case is over, Judge.

[...]

THE COURT: What if he’s found guilty?

MR. ROUVIERE: He can still testify, Judge.

38
 Case: 12-16602 Date Filed: 07/24/2014 Page: 39 of 70

THE COURT: He can also say, I ain’t testifying, I’m going to take an
appeal, or I’m not going to testify.

[ . . . ] (discussing the duration of a defendant’s appeal and the filing of a
petition for writ of certiorari to the United States Supreme Court)

MR. ROUVIERE: Judge, however, apparently on Friday evening, there was
a meeting between the Government, the agents, Mr. Bryant wherein in that
statement, he made a statement –

THE COURT: In what statement?

[...]

MR. ROUVIERE: Mr. Bryant made a statement to the Government
and the agents that, in fact, my client was told that what was in the car
at the time was cash.

THE COURT: Who told him?

MR. ROUVIERE: Mr. Bryant.

THE COURT: So Mr. Bryant says that he told Mr. Mack, . . .

THE COURT: He’s following cash. Okay.

MR. ROUVIERE: Yes, sir. And that was made in a post arrest
statement. However, now it’s been made in a secondary meeting with
the Government and I believe Judge under Rule --

THE COURT: Well, is Mr. Bryant going to testify in this trial?

MR. ROUVIERE: I don’t know if Mr. Bryant is going to testify.

THE COURT: Have you asked his lawyer?

MR. ROUVIERE: They weren’t able to tell me yes or no at this point.

39
 Case: 12-16602 Date Filed: 07/24/2014 Page: 40 of 70

THE COURT: Well, how about if I ask him? Okay. Mr. Stonick, is
your client going to testify?

MR. STONICK: Judge, at this point we reserve our right to testify or
not. I cannot indicate if my client will testify.

THE COURT: There you go. So then you can ask him all you want
about that. Just don’t mention it until he testifies. Resolved. Motion
for severance denied.

The defendant has indicated that he’s going to testify. And then if he
doesn’t bring it up, you can cross-examine him and even lead him if
you want. . . .

[...]

THE COURT: Do you have a severance motion?

MR. ROUVIERE: An oral one, Judge. My system has been down.

THE COURT: It doesn’t have to be in writing unless you knew
before.

What would be the possible grounds? Defendant says he’s going to
testify. You question him. If he doesn’t testify, then you can make it
at that point, but as of now, it’s denied as premature.

As noted above, Mack’s alternative motion for new trial based on the denial

of severance and his motion for leave to file an affidavit that he expected to

receive from Bryant were filed on October 17, 2012, a week after the conclusion

of the trial. Mack submitted Bryant’s November 5, 2012 affidavit to the district

court on November 12, 2012, in conjunction with Mack’s second renewed motion

40
 Case: 12-16602 Date Filed: 07/24/2014 Page: 41 of 70

for a new trial or in the alternative, motion to alter, amend, or correct order

denying motion for a new trial and judgment of acquittal.17

In this circuit, the rule about joint trials is that “defendants who are indicted

together are usually tried together.” United States v. Browne, 505 F.3d 1229,

1268 (11th Cir. 2007) (citing, inter alia, Zafiro v. United States, 506 U.S. 534,

537–38, 113 S. Ct. 933, 937 (1993)). “That rule is even more pronounced in

conspiracy cases where the refrain is that ‘defendants charged with a common

conspiracy should be tried together.’” United States v. Lopez, 649 F.3d 1222,

1234 (11th Cir. 2011) (citations omitted).

A severance should be granted if “there is a serious risk that a joint trial

17
In his affidavit, Bryant averred as follows:
1. My name is Henry Bryant and I am a co-defendant in the above styled case and this
affidavit is based upon my own personal knowledge.
2. At all times between December 1, 2011 to April 4, 2012, during the events that
have lead to this case, I never discussed with Daniel Mack anything about dealing in
narcotics or escorting narcotics.
3. Daniel Mack, at all times, was lead [sic] to believe, by me, that the item in the car
he was escorting was money and money only.
4. If I was not a co-defendant and my trial had taken place first and had been called
to testify at a separate trial for Daniel Mack, I would have testified on behalf of
Daniel Mack that he was never advised or told by me that the items he was to escort
were narcotics.
5. I presented myself to the AUSA’s Waugh and Dwyer Friday, September 28, 2012
before trial and expressed to them that at no time did I ever have any conversation
about narcotics with Daniel Mack.
6. Upon my arrest in this case, I advised the agents who interviewed me that I had
told Daniel Mack that he was escorting cash for a Miami Beach night club owner.

41
 Case: 12-16602 Date Filed: 07/24/2014 Page: 42 of 70

would compromise a specific trial right of one of the defendants.” Zafiro, 506

U.S. at 539, 113 S. Ct. at 938. “[A] defendant might suffer prejudice if essential

exculpatory evidence that would be available to a defendant tried alone were

unavailable in a joint trial.” Id. (citing Tifford v. Wainwright, 588 F.2d 954 (5th

Cir. 1979)); see also United States v. Cobb, 185 F.3d 1193, 1197 (11th Cir. 1999)

(“To justify severance, the defendant must ‘demonstrate that a joint trial will result

in specific and compelling prejudice to the conduct of his defense.’”) (citation

omitted). A defendant’s burden of demonstrating “compelling prejudice”

stemming from the denial of a motion to sever is a heavy one. Pepe, 747 F.2d at

651.

As part of that “heavy burden,” a movant seeking severance in reliance on

the exculpatory testimony of a co-defendant must show: (1) a bona fide need for

the testimony; (2) the substance of the desired testimony; (3) the exculpatory

nature and the effect of the desired testimony; and (4) that the co-defendant would

indeed have testified at a separate trial. Novaton, 271 F.3d at 989 (quotation

marks and citation omitted). After the defendant makes that showing, the district

court must still weigh the significance of the testimony against considerations of

judicial economy. Id. Whether severance is proper in light of concerns of judicial

administration requires the court to assess (1) the significance of the testimony in

42
 Case: 12-16602 Date Filed: 07/24/2014 Page: 43 of 70

relation to the defenses, (2) the extent of the prejudice caused by the absence of

the testimony, (3) the effect of severance on judicial economy and the

administration of justice, and (4) the timeliness of the motion. United States v.

DiBernardo, 880 F.2d 1216, 1228 (11th Cir. 1989) (quotation marks and citation

omitted).

We consider Mack’s challenge to the district court’s denial of his oral

motion made at the opening of the trial in light of the district judge’s knowledge of

the facts at the time he ruled on the motion. Byrd v. Wainwright, 428 F.2d 1017,

1018 (5th Cir. 1970).18 With that in mind, we turn to the four elements set forth in

this circuit’s framework for analyzing a motion to sever, and conclude that the first

three requirements are met here.

First, it cannot seriously be doubted that Mack had a bona fide need for

Bryant’s testimony and that Bryant’s proposed testimony would have had an

exculpatory effect. Indeed, Mack needed that testimony to contradict the

numerous statements confirming Mack’s knowledge of the details of the offense

which Bryant made to the undercover officers and which were presented to the

jury.

18
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding all decisions of the former Fifth Circuit issued on or before September 30,
1981.

43
 Case: 12-16602 Date Filed: 07/24/2014 Page: 44 of 70

As to the substance of Bryant’s testimony, we note that, at the time of the

motion, a movant is required to make a concrete showing of what the co-defendant

would say if he took the stand in a separate trial. See Pepe, 747 F.2d at 652

(affirming the district court’s denial of the defendants’ severance motions because,

inter alia, the defendants did not “proffer what [the co-conspirator’s] testimony

would be [if they were tried separately].”) We will assume, for purposes of

assessing the specificity of Bryant’s proffered testimony only, that Bryant’s

proposed testimony was reflected in his post-trial affidavit. The government

characterizes the statements contained in that affidavit as “conclusory and self-

serving” and as “lacking strong credibility.” As we explained in Novaton, the

conclusory nature of an affidavit consists of “bare exculpatory denials [of the

charges in the indictment], devoid of any specific exonerative facts.” Novaton,

271 F.3d at 990 (internal quotation marks and citation omitted) (rejecting as

“conclusory” the co-conspirator’s affidavit that stated only that the police officer

who provided protection for the drugs in that case “did not conspire with me, or to

my knowledge with anyone else, to possess with intent to distribute cocaine”). Id.

By contrast, Bryant’s affidavit specifically states that “during the events that have

lead to this case, I never discussed with Daniel Mack anything about dealing in

narcotics or escorting narcotics,” that “Daniel Mack, at all times, was lead [sic] to

44
 Case: 12-16602 Date Filed: 07/24/2014 Page: 45 of 70

believe, by me, that the item in the car he was escorting was money and money

only,” and that Bryant would have testified to that effect in a separate trial.

Therefore, the substance of Bryant’s proposed testimony is not unduly conclusory.

There are, however, legitimate concerns with respect to the credibility of

Bryant’s affidavit. That is not because, as the government suggests, the affidavit

is utterly devoid of statements contrary to Bryant’s penal interest. See Pepe, 747

F.2d at 651 (rejecting an affidavit by a co-defendant that, in addition to being

conclusory, was “of dubious credibility because it was in no way contrary to [the

co-defendant’s] own [penal] interests”); see also Novaton, 271 F.3d at 990-91

(same). Rather, two other facts substantially undermine the credibility of the

statements contained in Bryant’s affidavit: (1) he did not submit the affidavit until

the trial was over; and (2) he submitted a similar affidavit in favor of McLendon,

even though Bryant’s statements to the arresting officers and to the prosecutors

concerned only Mack’s knowledge.19

19
As to McLendon, Bryant’s affidavit states that, during the events at issue, Bryant did
not discuss with McLendon anything about drugs. Bryant also avers that he led McLendon to
believe he was transporting money, and that he would have testified to that effect in a separate
trial. From this point on, the contents of Bryant’s affidavit as to McLendon begin to differ from
those submitted in support of Mack’s motion. Specifically, Bryant affirms that he told his
attorney “numerous times” that he never discussed transporting drugs with McLendon. He
further states that, upon his arrest, he advised the agents that he had “told [his] alleged Co-
Defendants [(without mentioning McLendon’s name)] that they believed it was cash for a Miami
Beach Night Club owner.” In contrast, in the affidavit that he submitted for Mack, Bryant
specifically states that he made the exculpatory statements to the arresting officers and the
prosecutors concerning Mack’s knowledge (emphasis added).

45
 Case: 12-16602 Date Filed: 07/24/2014 Page: 46 of 70

Notwithstanding our observations, we need not decide whether the “dubious

credibility” of Bryant’s affidavit is outcome determinative with respect to Mack’s

motion to sever. This is so because Mack has not shown that he established a

likelihood Bryant would have testified in a separate trial.

A movant “must establish . . . that the designated co-defendant will in fact

testify at a separate trial.” United States v. Morrow, 537 F.2d 120, 135 (5th Cir.

1976). “Movant . . . need only demonstrate a ‘likelihood’ of future testimony by

his co-defendant . . . . ” Id. n.9 (citations omitted); see also Cobb, 185 F.3d at

1199 (“Our concern with whether a co-defendant will testify for the defendant in a

separate trial is limited to determining whether the co-defendant is likely to testify,

not whether he is certain to do so.”) (emphasis in original) (citations omitted).

“The court is not required to sever where the possibility of the codefendant’s

testifying is merely colorable”; the possibility of such testimony must be “more

than a gleam of possibility in the defendant’s eye.” Byrd, 428 F.2d at 1022.

It is clear from the transcript of the October 2, 2012 jury trial proceedings

that Mack’s counsel did not advise the district court judge that Bryant would

testify for Mack in a separate trial. Instead, counsel engaged in a theoretical

debate with the district court over whether a defendant, whose trial was over,

could testify for a co-defendant in a separate trial. Counsel then brought Bryant’s

46
 Case: 12-16602 Date Filed: 07/24/2014 Page: 47 of 70

statement to the prosecutors to the court’s attention. At no time did counsel state

or even imply that Bryant would, or might, testify for Mack at a separate trial. Cf.

Cobb, 185 F.3d at 1199-1200 (reversing the district court’s denial of the

defendant’s motion for severance because the co-conspirator’s counsel stated that

he was willing to testify on the defendant’s behalf in a separate trial, even though

his own conviction was awaiting appeal). While the statements (or lack thereof)

of Mack’s counsel at the outset of the jury trial reflected a “merely colorable”

possibility that Bryant may testify in a separate trial, they fall short of establishing

a likelihood of such testimony.20

Apparently relying on Cobb, 185 F.3d 1193, Mack faults the district court

for not inquiring sua sponte whether Bryant would testify for Mack in a separate

trial. In Cobb, we considered the district court’s inquiry whether the co-

conspirator would be willing to testify on the defendant’s behalf only to examine

the district court’s interpretation of the co-conspirator’s offer to testify “as

20
Mack’s contentions that the mere existence of Bryant’s statements to the arresting
officers and to the prosecutors establish a likelihood of future testimony in a separate trial are
unsupported by any authority. In addition, United States v. Martinez, 486 F.2d 15 (5th Cir. 1973)
upon which Mack relies is inapposite. There, our predecessor court quoted an observation made
by the United States Court of Appeals for the Fourth Circuit that “‘a severance is obligatory
where one defendant’s case rests heavily on the exculpatory testimony of his co-defendant,
willing to give such testimony but for the fear that by taking the stand in the joint trial he would
jeopardize his own defense.’” Martinez, 486 F.2d at 23 (quoting United States v. Shuford, 454
F.2d 772, 776 (4th Cir. 1971)) (emphasis added). In the present case, at the time of the motion, it
was by no means clear that Bryant was willing to testify in the joint trial; in fact, Bryant’s
counsel stated that he could not indicate if his client would testify.

47
 Case: 12-16602 Date Filed: 07/24/2014 Page: 48 of 70

conditioned on [the co-conspirator’s] case being tried first.” Id. at 1198. Nothing

in Cobb supports Mack’s sweeping presumption that any part of the burden in a

motion to sever, that is specifically allotted to the movant, see Novaton, 271 F.3d

at 989, should be shifted to the district judge. Similarly, Mack’s reliance on

certain language contained in Byrd is misguided. See Byrd, 428 F.2d at 1019 n.1

(remarking that there may be error if, “in a sufficiently extreme case of prejudice,

[the trial judge fails] on his own motion to reopen the question of severance,

where, after denial, the circumstances have sufficiently changed”). In the present

case, the circumstances concerning the likelihood of Bryant’s testimony in a new

trial did not change conclusively until November 12, 2012—the date on which

Mack filed his second renewed motion for a new trial, along with Bryant’s

affidavit. This was a full month after the conclusion of the joint trial. Cf. id. at

1019 (discussing events that occurred at the trial).

The district court did ask whether Bryant was going to testify in the joint

trial. The judge noted that if Bryant did testify, his statements could be addressed

during cross-examination, and that if he did not take the stand, Mack could make

his motion to sever at that time. Mack did not renew his motion to sever during

the trial. His alternative motion for new trial based on the denial of severance was

filed a week after the jury returned a guilty verdict. Cf. Cobb, 185 F.3d at 1197

48
 Case: 12-16602 Date Filed: 07/24/2014 Page: 49 of 70

(where the district court denied the defendant’s motion on the morning of the trial

and the defendant renewed it at the close of the government’s case). Importantly,

Mack did not even file his motion for leave to file an affidavit until a week after

the conclusion of the trial. And, he did not produce Bryant’s affidavit until a

month after he had filed the motion for leave. Cf. Pepe, 747 F.2d at 650 (where

the district court noted that there was “some likelihood” that the co-defendants

would testify for the defendant based on the co-defendants’ affidavits from their

grand jury testimony); and Byrd, 428 F.2d at 1022 (noting that “[t]he unsupported

possibility that (exculpatory testimony of a co-defendant) might be forthcoming

does not make the denial of a motion for severance erroneous”) (internal quotation

marks and citation omitted); see also United States v. Neal, 27 F.3d 1035, 1047

(5th Cir. 1994) (holding that the defendants demonstrated that a co-defendant

would have testified on their behalf in a separate trial when that co-defendant

submitted an affidavit in favor of the defendants and “extensively testified in

camera” that one of the defendants did not participate in the controlled substance

conspiracy).

Because Mack has not made the requisite showing that severance in the

present case was proper, we need not address the judicial economy considerations.

We feel compelled to point out, however, that, were we to examine those factors,

49
 Case: 12-16602 Date Filed: 07/24/2014 Page: 50 of 70

we would have grave doubts whether Mack’s motion to sever was timely. Even

though Bryant’s statements to the prosecutors were made on the Friday before the

trial, his motion was based, in part, on his statements to the arresting officers, of

which counsel for Mack knew well in advance of trial. Counsel conceded that

“[he] knew a statement [that Mack was told by Bryant that he was following cash]

was made post arrest.” The district judge inquired whether counsel for Mack had

filed a severance motion and invited him to explain why he had not done so. After

the judge stated that “[the motion] doesn’t have to be in writing unless you knew

before,” he considered, and ultimately denied, counsel’s oral motion.

Mack correctly points out that the district court did not deny his motion on

timeliness grounds, although he easily could have done so, in light of counsel’s

advance knowledge of the statements to the arresting officers. See Cobb, 185 F.3d

at 1200 (noting that the district court would likely have been justified in finding

that the severance motion was untimely because the defendant amended his initial

motion, which was filed well before trial, with his intention to seek the co-

conspirator’s exculpatory statement on the morning of trial). Although we held in

Cobb that a district court’s failure to deny a motion for severance on untimeliness

grounds requires us to review the district court’s decision on the merits, id., the

circumstances in the present case are distinguishable. The district court apparently

50
 Case: 12-16602 Date Filed: 07/24/2014 Page: 51 of 70

assumed that counsel had just learned of the grounds underlying the motion (i.e.,

Bryant’s statements to the prosecutors). Thus, he did not question counsel’s

failure to file a motion to sever based on Bryant’s statements to the arresting

officers, and counsel did not bring this omission to the court’s attention.

Our comments on the timeliness of Mack’s motion only buttress our

conclusion that this is not “one of those rare cases,” in which the defendant raises

“a compelling argument that he suffered ‘prejudice resulting in the denial of a fair

trial flow[ing] from the failure to grant the motion’ for severance.” Cobb, 185

F.3d at 1197-98 (concluding that the defendant presented such an argument where

the sole evidence against him consisted of another defendant’s testimony).

Accordingly, we hold that district court did not abuse its discretion by denying

Mack’s motion to sever.

V. Mack’s and McLendon’s Motions for New Trial

As noted, one week after the trial, Mack renewed his motion for judgment

of acquittal, or alternative motion for new trial based on the denial of severance.

After that motion was denied, Mack filed a second renewed motion for a new trial,

or in the alternative, motion to alter, amend, or correct order denying motion for a

new trial and judgment of acquittal. McLendon also filed a motion, adopting

51
 Case: 12-16602 Date Filed: 07/24/2014 Page: 52 of 70

Mack’s motion to overturn the jury verdict and to grant a new trial.21 In support of

their respective motions, both Mack and McLendon presented the aforementioned

affidavits from Bryant. Mack and McLendon challenge the district court’s denial

of their respective motions for new trial.

A. Standard of Review

This court reviews the denial of a motion for new trial for abuse of

discretion. United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006).

B. Discussion

To succeed on a motion for a new trial based on newly discovered

evidence, the movant must establish that (1) the evidence was discovered after

trial, (2) the failure of the defendant to discover the evidence was not due to a lack

of due diligence, (3) the evidence is not merely cumulative or impeaching, (4) the

evidence is material to issues before the court, and (5) the evidence is such that a

new trial would probably produce a different result. United States v. Gates, 10

F.3d 765, 767 (11th Cir. 1993), modified on reh’g in part, 20 F.3d 1550 (11th Cir.

1994) (citation omitted). “The failure to satisfy any one of these elements is fatal

to a motion for a new trial.” United States v. Lee, 68 F.3d 1267, 1274 (11th Cir.

1995) (citation omitted).

21
McLendon did not join in Mack’s oral motion to sever that was made at the outset of
trial.

52
 Case: 12-16602 Date Filed: 07/24/2014 Page: 53 of 70

The subject evidence in the instant case was not discovered after trial. The

defense knew of the substance of Bryant’s exculpatory statements as early as the

government’s pretrial motion in limine and Mack’s oral motion to sever made on

October 2, 2012, the first day of the trial. See DiBernardo, 880 F.2d at 1225

(reiterating that newly-available exculpatory testimony of a co-defendant is not

synonymous with newly discovered evidence sufficient to grant a Rule 33 motion

where the defendants benefitting from the exculpatory testimony were well aware

of the proposed testimony prior to trial); cf. Gates, 10 F.3d at 767-68 (concluding

that the “newly discovered” evidence requirement was met when the defendant did

not discover until six months after the trial that his co-conspirator would exculpate

him, and where there was no evidence in the record that the defendant “knew or

had access to knowledge that [the co-conspirator] would exculpate him”).

The defense argues that DiBernardo is distinguishable because it involved a

pretrial affidavit. 880 F.2d at 1219. But both Mack and McLendon knew of the

substance of Bryant’s exculpatory testimony prior to the inception of the trial.

Mack’s counsel argued at the sentencing proceedings on December 19, 2012 that

he made the oral motion to sever on the first day of trial because “we had believed

that Mr. Bryant would testify as he did when he was arrested and as he also did in

the meeting with the Government the Friday night before the trial . . . .” Similarly,

53
 Case: 12-16602 Date Filed: 07/24/2014 Page: 54 of 70

during the same proceedings, McLendon’s counsel stated that he joined in Mack’s

oral motion to sever “when we were doing our pretrial arguments for the reason

that clearly Mr. Bryant could have been a witness [. . . and] because I was under

the impression that he might be able to get an exculpatory [affidavit].”

Furthermore, in his motion for leave filed only a week after the joint trial was

over, Mack stated that he anticipated obtaining an affidavit from Bryant regarding

Mack’s lack of knowledge of the drugs. This timing further buttresses Mack’s and

McLendon’s knowledge of the proposed testimony before the trial was over.

Thus, the exculpatory statements in Bryant’s affidavits do not qualify as “newly

discovered” evidence for purposes of Rule 33.

In addition to Mack’s and McLendon’s failure to show that the evidence

was discovered after the trial, we are not persuaded that Bryant’s proposed

testimony would probably produce a different outcome in McLendon’s case.

Gates, 10 F.3d at 767.22 A jury might not be receptive to Bryant’s proffered

testimony, which is inconsistent with the multiple statements he gave to the

undercover agents. As already noted, the credibility of Bryant’s proposed

testimony is further called into question by his failure to refer to both Mack and

22
We make no determination in this regard in Mack’s case.

54
 Case: 12-16602 Date Filed: 07/24/2014 Page: 55 of 70

McLendon in, at least some of, his post-arrest statements.23 See id. at 768

(cautioning that “post-trial exculpatory statements given by a convicted

co-defendant must be viewed with care” because “a jury might find [the

co-defendant] to be not a credible witness”).

Because Mack and McLendon have not shown that Bryant’s statements

were “newly discovered evidence” and that they would probably lead to a different

outcome, at least in McLendon’s case, we do not address the other elements

required to establish entitlement to a new trial.

VI. The District Court’s Failure to Admit Bryant’s Exculpatory Statements

Mack24 asserts that Bryant’s post-arrest statements regarding Mack’s lack of

knowledge of the drugs were admissible, under Federal Rule of Evidence 806, to

impeach Bryant's inconsistent co-conspirator statements to the undercover agents.

The problem for Mack and McLendon is that they never presented this argument

to the district court.

A. Standard of Review

23
In his affidavit in support of McLendon’s motion for new trial, Bryant does not state, as
he did with respect to Mack, that he told the prosecutors that he had never discussed drugs with
McLendon.
24
In his brief, McLendon also challenges the exclusion of Bryant’s exculpatory statements
as to Mack, and adopts the arguments made by Mack on that issue. McLendon argues that the
exculpatory statements would have established Mack’s innocence, which in turn would have
vitiated the grounds for McLendon’s conviction of the firearm charge.

55
 Case: 12-16602 Date Filed: 07/24/2014 Page: 56 of 70

A district court’s evidentiary rulings are generally reviewed for abuse of

discretion. United States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005). Absent

contemporaneous objection to evidentiary matter, “we do not apply the customary

abuse of discretion standard”; rather, we limit our review to “a search for ‘plain

error.’” Calderon, 127 F.3d at 1334; see also United States v. Sorondo, 845 F.2d

945, 949 (11th Cir. 1988) (“the plain error rule must apply when, as here, a party

states an inaccurate objection just as when a party states no objection at all”).

“Plain error occurs where (1) there is an error; (2) that is plain or obvious;

(3) affecting the defendant’s substantial rights in that it was prejudicial and not

harmless; and (4) that seriously affects the fairness, integrity, or public reputation

of the judicial proceedings.” United States v. Johnson, 694 F.3d 1192, 1195 (11th

Cir. 2012) (internal quotation marks and citation omitted).

B. Discussion

Federal Rule of Evidence 806 states:

When a hearsay statement -- or a statement described in Rule
801(d)(2)(C), (D), or (E) -- has been admitted in evidence, the
declarant's credibility may be attacked, and then supported, by any
evidence that would be admissible for those purposes if the declarant
had testified as a witness. The court may admit evidence of the
declarant's inconsistent statement or conduct, regardless of when it
occurred or whether the declarant had an opportunity to explain or
deny it. If the party against whom the statement was admitted calls
the declarant as a witness, the party may examine the declarant on the
statement as if on cross-examination.

56
 Case: 12-16602 Date Filed: 07/24/2014 Page: 57 of 70

FED. R. EVID. 806.

The record shows that numerous out-of-court statements made by Bryant to

the undercover agents were entered into evidence and used by the government to

establish Mack’s guilty knowledge. We have no difficulty concluding that

Bryant’s post-arrest statements—that he told Mack that they were transporting

money and that he had never discussed narcotics with Mack—were inconsistent,

as required by Rule 806, with the recorded statements (which were played for the

jury), in which Bryant said that Mack “knows exactly what we’re doing” and

which were used to convict Mack of the drug charges. See United States v. Grant,

256 F.3d 1146, 1153-55 (11th Cir. 2001).25

It bears repeating that the discussion at the opening of the trial concerning

Bryant’s remarks to the arresting agents and the prosecutor was general and

25
We agree with Mack that Grant, 256 F.3d 1146, which involved a drug trafficking
conspiracy, squarely resolves the inconsistency issue here. In Grant, we considered a challenge
to the district court’s refusal to admit a co-conspirator’s exculpatory affidavit introduced by the
defendant (Wilson) for impeachment purposes. The district court had found that the statements
in the affidavit were not sufficiently inconsistent with the co-conspirators inculpatory statements
admitted through the testimony of a Customs Service agent. Id. at 1153. We disagreed, and
concluded that the government had used Wilson’s co-conspirator statements to establish the
existence of a conspiracy, and the statements in Wilson’s affidavit were “inconsistent with the
existence of any conspiracy at all, and for that reason were inconsistent with his co-conspirator
statements.” Id. at 1154-55.
Similarly here, the prosecution used Bryant’s statements admitted through the agents to
demonstrate that Mack knew the conspiracy involved drugs. Bryant’s post-arrest statements
directly contradict Bryant’s statements to the undercover agents concerning Mack’s knowledge
of the drugs.

57
 Case: 12-16602 Date Filed: 07/24/2014 Page: 58 of 70

hypothetical in nature. There was no formal proffer of evidence or offer of a

stipulation. Thus, Bryant’s counsel had no opportunity to object. We are not at all

confident that Bryant’s counsel would not have objected to any mention of his

(Bryant’s) prior statement to the jury because the statements are at least mildly

inculpatory as to Bryant¯he was telling the agents and the prosecutor that he had

never told Mack that drugs would be involved in the deal; only cash would be

involved. The question which must be asked is: how would Bryant know what

was going to be involved in the deal unless he was himself culpable? Finally, we

note that there was no formal tender of evidence for the district court to rule on.

Mack has failed to demonstrate plain error by the district court.

VII. Defendants’ Cumulative Error Argument26

Defendants contend that a number of instances of prosecutorial misconduct,

combined with improper government witness testimony and erroneous judicial

rulings, amount to a cumulative error, impairing their fair trial and due process

rights under the Fifth and Sixth Amendments to the United States Constitution and

warranting reversal of the jury verdict.

A. Standard of Review

The question whether cumulative errors have deprived the defendant of a

26
This argument, raised by McLendon, was also adopted by Mack and Bryant.

58
 Case: 12-16602 Date Filed: 07/24/2014 Page: 59 of 70

fair trial is reviewed de novo. United States v. Dohan, 508 F.3d 989, 993 (11th

Cir. 2007) (citation omitted). “In addressing a claim of cumulative error, we must

examine the trial as a whole to determine whether the [defendant] was afforded a

fundamentally fair trial.” Calderon, 127 F.3d at 1333 (citation omitted).

B. Discussion

In order to establish cumulative error warranting reversal, each incident

must constitute error in itself. United States v. Waldon, 363 F.3d 1103, 1110

(11th Cir. 2004) (“If there are no errors or a single error, there can be no

cumulative error.”) (internal quotation marks and citation omitted). We consider

(1) whether each complained of incident constitutes error; and (2) if so, whether

the cumulative effect of all errors mandates a reversal.

1. Prosecutorial Misconduct

“‘To find prosecutorial misconduct, a two-pronged test must be met: (1) the

remarks must be improper, and (2) the remarks must prejudicially affect the

substantial rights of the defendant.’” United States v. Epps, 613 F.3d 1093, 1100

(11th Cir. 2010) (quoting United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir.

1991)). “[R]emarks prejudicially affect the substantial rights of the defendant

when they ‘so infect[ ] the trial with unfairness as to make the resulting conviction

a denial of due process.’” Eyster, 948 F.2d at 1206 (citation omitted).

59
 Case: 12-16602 Date Filed: 07/24/2014 Page: 60 of 70

Defendants contend that the prosecutorial misconduct in this case consists

of, inter alia, the following burden-shifting statements:

(1) In its closing argument, the government commented on the lack of

evidence that Mack and McLendon believed they were transporting money (as

opposed to cocaine), and that Mack was just trying to help a friend move money.

(2) In its rebuttal closing argument, the government denigrated defense

counsel and characterized Mack and McLendon’s defense of “lack of knowledge”

as a “red herring.”

(3) At the very conclusion of its rebuttal, the prosecutor stated:

Finally, ladies and gentlemen, all three defense counsel dealt with this
instruction here. And they said: Proof beyond a reasonable doubt is
proof so convincing that you would be willing to rely and act on it
without hesitation in the most important of your own affairs.
[. . . ]
I think an important affair in life would be the choice to transport drugs.
That’s life changing. You could go to jail for a very long, very short time,
who knows. But it could maybe take you away from your family. But it
could also bring you riches. That’s one of the most important of your own
affairs. Am I going to act legally or am I going to act illegally? . . .

(followed by McLendon’s counsel objecting and the court overruling the

objection). The prosecutor continued by stating:

The most important of your own affairs was the choice to bring a
co-conspirator and not a witness.
[. . .]
The most important affairs of your life, ladies and gentlemen, were those
choices that Henry Bryant made. Those actions, ladies and gentlemen,

60
 Case: 12-16602 Date Filed: 07/24/2014 Page: 61 of 70

coupled with all of the other recordings prove beyond a reasonable doubt
that all three of these men are guilty.

McLendon again objected to these comments, and his objection was again

overruled.

During closing arguments, “prosecutors must refrain from making

burden-shifting arguments which suggest that the defendant has an obligation to

produce any evidence or to prove innocence.” United States v. Simon, 964 F.2d

1082, 1086 (11th Cir. 1992) (citation omitted). However, “prejudice from the

comments of a prosecutor which may result in a shifting of the burden of proof can

be cured by a court’s instruction regarding the burden of proof.” Id. (citations

omitted).

There is no error as to the first and second “burden-shifting” statements.

The government prefaced its statement that no evidence was presented concerning

Mack’s and McLendon’s knowledge that the transport involved money by stating:

The defendant has no burden whatsoever. He doesn’t have to produce
any such evidence, but there’s no evidence in this case that Daniel
Mack thought they were transporting money. That’s speculation.
That’s conjecture, and reasonable doubt is not speculation. It’s not
conjecture.

(emphasis added).

However, in the third instance, the district court improperly overruled the

objection by McLendon’s counsel because the prosecution asked the jury to equate

61
 Case: 12-16602 Date Filed: 07/24/2014 Page: 62 of 70

their own situation to Defendants’ respective situations. However, the court

properly instructed the jury on the burden of proof, and nothing in the record

indicates that the jury disregarded the court’s instructions. See Simon, 964 F.2d

at 1087 (“a prejudicial remark may be rendered harmless by curative instructions

to the jury”) (internal quotation marks and citations omitted). Accordingly, there

is no reason to think that the remarks prejudicially affected the substantial rights of

Defendants.

2. Improper Government Witness Testimony

We turn next to Defendants’ enumeration of incidents involving improper

government witness testimony.

(1) Agent Jackson “vouched” for the government during his testimony about

the “disappearance” of the sham cocaine when he stated: “I don’t know where it’s

at. . . . I’m sure the FBI has it in custody. We don’t let kilograms of cocaine walk

. . . I’m sure it could be provided.”

Defense counsel did not object at the time of the “improper vouching.” In

addition, defense counsel asked Agent Jackson about the whereabouts of the sham

cocaine six times (in one form or another), even after Jackson had already told

counsel that he himself did not know where the sham drugs were and that counsel

would have to direct that question to the case agent. This is not the kind of

62
 Case: 12-16602 Date Filed: 07/24/2014 Page: 63 of 70

“improper vouching taint[ing] the trial” that we have held may constitute a

reversible error. See Eyster, 948 F.2d at 1207-08 (reversing based on the

prosecutor’s improper vouching for the credibility of a government witness).

(2) Det. Tyson testified that “you would never see money packaged in that

manner,” even though he acknowledged that his prior investigatory experience is

in drug trafficking, not money laundering. The court overruled defense counsel’s

objection on the basis of Tyson’s experience in other undercover drug deals. The

court then pointed out that the defense could cross-examine Tyson as to his

experience in money laundering operations. We find no error.

(3) Det. Tyson criticized defense counsel in front of the jury when counsel

questioned him about his statement to McLendon and Bryant that “this [is]

money.” Counsel finds the following statement by Tyson to be objectionable:

“[s]ee, what we have, ladies and gentlemen, the attorney is trying to say that –.”

A careful review of the transcript shows no improper criticism of the

defense counsel by the agent or by the court. Defense counsel objected to Tyson’s

statement as being “not responsive to the question.” When the court attempted to

clarify what the question was, defense counsel withdrew the question. There is no

error.

3. Erroneous Judicial Rulings

63
 Case: 12-16602 Date Filed: 07/24/2014 Page: 64 of 70

Two of the three judicial rulings challenged by Defendants concern the

district court’s exclusion of Bryant’s post-arrest statements and the denial of

Mack’s motions to sever and for new trial and of McLendon’s motion for new

trial. We have previously found no abuse of discretion as to those two rulings as

discussed in Parts IV, V, and VI.

The final purportedly erroneous judicial ruling concerns the cross-

examination of Agent Jackson concerning Taurus Barron. Barron was an

unindicted police officer who was involved in escorting the transportation of sham

cocaine during the same period as Defendants. Defendants argue that the district

court restricted Jackson’s cross-examination concerning Barron’s purported

statements to other law enforcement officers that Barron was told he was escorting

money, not drugs.

We conclude that the district court did not improperly restrict Agent

Jackson’s cross-examination concerning statements made by Barron. The

transcript shows that defense counsel asked Jackson whether he knew that Barron

asserted that he was told the transportation involved cash. The government

objected on the grounds of hearsay. The court asked defense counsel whose

statements counsel wanted to introduce. Counsel stated that he was talking about

“the statement of the other police officers,” and Jackson confirmed that he was

64
 Case: 12-16602 Date Filed: 07/24/2014 Page: 65 of 70

present at the time the statement was made.27 The court then inquired of the

prosecutor whether she had introduced a “statement of that agent,” to which she

responded that she had only introduced statements made by Jackson and Tyson.

After confirming with defense counsel that the statements he was attempting to

introduce were not Jackson’s or Tyson’s, but were in fact Barron’s, the court

sustained the hearsay objection. We find no abuse of discretion.

Defense counsel then proceeded to question Jackson about Jackson’s

knowledge concerning whether Barron had ever been charged in the case. Jackson

stated that he did not know because he did not conduct surveillance during the

operation and was not involved in any arrests in the case. The government

objected to that line of questioning because any additional answer Jackson could

have given would have been hearsay. The court properly sustained the objection.

In sum, most of the purported errors enumerated by McLendon are not

errors at all.28 The cumulative effect of the sole remaining error involving the

27
Despite defense counsel’s use of the plural form, it does appear that defense counsel
was referring to Barron’s statement concerning his knowledge, not that of other police officers.
28
This conclusion applies to the following additional incidents briefly mentioned by
Defendants. First, Defendants highlight the prosecutor’s comment in opening statement: “[I]f
anyone watches t.v., you see cocaine. It’s packaged in a brick form, kilogram square form,
wrapped in tape.” Although this comment was not proper, there was no objection, and no harm
was done.
Second, Defendants point to Agent Jackson’s testimony as to defendant Bryant’s “belief”
and “knowledge” concerning the drugs. As Defendants point out, however, the district court did
sustain the motion to strike as well as the ensuing objection by Bryant’s counsel, and the

65
 Case: 12-16602 Date Filed: 07/24/2014 Page: 66 of 70

prosecutor asking the jury to put themselves in Defendants’ positions does not

come close to requiring a reversal.

VIII. Bryant’s Sentence

A. Standard of Review

We review the reasonableness of a sentence under an abuse of discretion

standard. United States v. Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013). The

abuse of discretion standard “allows a range of choice for the district court, so

long as that choice does not constitute a clear error of judgment.” Id. (internal

quotation marks and citation omitted).

B. Discussion

Bryant first argues that his 264-month total sentence is procedurally

unreasonable because the court denied his motion for a downward departure below

the applicable 248- to 295-month range based on the government’s sentencing

factor manipulation. He further argues that his total sentence is substantively

government discontinued the line of questioning concerning Bryant’s “belief” and “knowledge.”
Third, the government elicited testimony from Det. Tyson about the value of cocaine
without establishing any foundation for Tyson’s knowledge. Defense counsel did not object to
Tyson’s statement, and we find no error. See United States v. Costa, 691 F.2d 1358, 1361 (11th
Cir. 1982) (testimony from an experienced D.E.A. agent regarding the street value of cocaine is
not prejudicial error, even in light of the failure to qualify the agent as an expert).
Finally, Defendants object to the prosecutor’s attempt to clarify to whom Bryant was
referring when he told Jackson “[w]e’ve been in this thing together for —since we’ve been eight
years old.” Defense counsel’s objection was overruled. A close review of the transcript reveals
that the prosecutor’s question concerned Agent Jackson’s understanding of Bryant’s statement.
Thus, the district court did not err in overruling defense counsel’s objection.

66
 Case: 12-16602 Date Filed: 07/24/2014 Page: 67 of 70

unreasonable because it is excessive.

The sole basis of Bryant’s procedural unreasonableness claim is that the

government engaged in sentencing factor manipulation when it conducted the

reverse-sting operation in an outrageous and reprehensible manner. Bryant

submits that the government’s conduct was outrageous because of the large

amount of sham cocaine that was used and the fact that the agents allowed Bryant

to complete a second run instead of arresting him after the first one.

We have never vacated a sentence based on alleged sentencing factor

manipulation. See United States v. Docampo, 573 F.3d 1091, 1097-98 (11th Cir.

2009) (reiterating that courts in this circuit have yet to “recognize[] a defense of

sentencing factor manipulation or [to] permit[] its application”) (citations

omitted); see also United States v. Ciszkowski, 492 F.3d 1264, 1271 (11th Cir.

2007) (listing examples of conduct held not to constitute sentencing factor

manipulation).

Bryant acknowledges that the authority in this circuit weighs heavily against

his position. Moreover, he concedes that the government’s conduct in this case

does not amount to sentencing manipulation under this circuit’s precedent. See

United States v. Sanchez, 138 F.3d 1410, 1414 (11th Cir. 1998) (the government’s

decision as to the drug quantity in a sting operation does not amount to sentencing

67
 Case: 12-16602 Date Filed: 07/24/2014 Page: 68 of 70

manipulation); Ciszkowski, 492 F.3d at 1271 (the government did not engage in

sentencing manipulation when it provided a defendant with a silencer-equipped

firearm in a sting operation involving murder-for-hire, although the gun triggered

a mandatory 30-year minimum sentence where the gun or the silencer was not

completely unrelated to the criminal act). Nevertheless, Bryant argues that we

should reconsider our position and “set limits on how far the government may go

to create crimes and prosecute people.” Bryant cites no authority, nor can he, in

support of that argument, and he fails to explain why his case warrants such a

shift. Accordingly, his “procedural” challenge to his sentence is rejected.

Bryant’s 264-month total sentence is also substantively reasonable. It is

near the low end of the applicable 248- to 295-month total range, as well as the

low end of the underlying Sentencing Guidelines sentence. Thus, this court would

ordinarily expect the sentence to be reasonable. See United States v. Hunt, 526

F.3d 739, 746 (11th Cir. 2008) (a sentence falling within the Guidelines range is

not automatically presumed to be reasonable; however, such a sentence ordinarily

is expected to be reasonable). In addition, Bryant’s sentence is well below the

statutory maximum penalty of life imprisonment—another indication that it is

reasonable. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).

Finally, the record shows that the district court considered the section

68
 Case: 12-16602 Date Filed: 07/24/2014 Page: 69 of 70

3553(a) factors and the facts of the case, and declined to vary below the

Guidelines range, stating:

[a]fter having heard from all parties and having adopted the
guidelines. . . I don’t think a sentence below the guideline is
appropriate at all. So my question here is, where within the guidelines
between 188 and 235 months [on Counts 1-3] I should sentence the
defendant. I’m not going to go below the guidelines to 180 months,
because I don’t think it would be appropriate in the exercise of my
discretion.
But by the same token, the top of the guidelines with the other 60 months
would be 24 years and 7 months, I think that’s too much under the facts of
this case, and it doesn’t really serve the interest of society under 3553(a).

The seriousness of Bryant’s criminal conduct supports that decision: he

organized the transportation of large quantities of serious narcotics, and enlisted

police officers to assist him. Moreover, he did so as an active public servant

whose job was to protect the public, not to foster criminal elements within it. In

light of the foregoing, Bryant’s bare assertion that his guidelines-range sentence is

excessive is insufficient to demonstrate an abuse of discretion by the court.

Accordingly, the district judge did not abuse his discretion by denying Bryant’s

request for a downward variance, and Bryant’s sentence is affirmed.

IX. Conclusion

We affirm the district court’s denial of Defendants’ Rule 29 motions, and

affirm Defendants’ convictions. We also affirm the district court’s denial of

Mack’s motion to sever and of Mack’s and McLendon’s motions for new trial.

69
 Case: 12-16602 Date Filed: 07/24/2014 Page: 70 of 70

We hold that the district court’s refusal to admit Bryant’s post-arrest statements

for impeachment purposes does not constitute plain error. We further find no

cumulative error warranting reversal. Finally, we affirm the district court’s denial

of Bryant’s request for a downward variance and affirm Bryant’s sentence.

70