[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 25, 2005
No. 04-13549 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-20859-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTHUR ADAMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 25, 2005)
Before BLACK, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Arthur Adams appeals his conviction for the following four counts:
conspiracy to import five kilograms or more of cocaine, a violation of 21 U.S.C. §
963; aiding and abetting the importation of five kilograms or more of cocaine, a
violation of 21 U.S.C. § 952(a); conspiracy to possess with intent to distribute five
kilograms or more of cocaine, a violation of 21 U.S.C. § 846; and aiding and
abetting the possession with intent to distribute five kilograms or more of cocaine,
a violation of 21 U.S.C. § 841 (a)(1). Adams argues that the evidence was
insufficient to support his conviction on each count. He also challenges the
district court’s denial of his request for a mistrial after the government engaged in
what he alleged to be the improper bolstering of a witness. Finally, Adams
challenges the court’s refusal to permit him to recross-examine a witness.
I. Sufficiency of the evidence
On appeal, Adams argues that the evidence was legally insufficient to
support his conviction on each of the four counts and that therefore the district
court erred in denying his motion for judgment of acquittal. Adams asserts that he
“played a significantly minor role in the predicate acts leading to the couriers’
departure” and submits that “[t]he evidence does not otherwise connect [him] to a
conspiracy to import cocaine.” He contends that the fact that he paid a drug
courier’s rent and purchased each of the drug couriers’ airline tickets and
passports was “not conclusive of conspiracy.” Instead, he points to others as the
2
prime movers of the conspiracy. Adams also argues that the evidence was
insufficient to prove that he possessed cocaine with intent to distribute the drug.
“Whether the record contains sufficient evidence to support the jury’s
verdict is a question of law that we review de novo.” United States v. Calderon,
127 F.3d 1314, 1324 (11th Cir. 1997). “[T]he 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.
To prove a defendant guilty of conspiracy, “‘the government must prove
beyond a reasonable doubt that: (1) a conspiracy existed; (2) appellants knew of
the essential objectives of the conspiracy; and (3) appellants knowingly and
voluntarily participated in the conspiracy.’” Id. at 1326 (citation omitted).
“Participation in a criminal conspiracy need not be proved by direct evidence; a
common purpose and plan may be inferred from a ‘development and collection of
circumstances.’” United States v. Perez-Tosta, 36 F.3d 1552, 1557 (11th Cir.
1994) (quoting Glasser v. United States, 315 U.S. 60, 80 (1942)). The
government may establish a defendant’s knowing participation in the conspiracy
through proof of surrounding circumstances, such as acts the defendant committed
that furthered the purpose of the conspiracy. United States v. Matthews, 168 F.3d
1234, 1245 (11th Cir. 1999).
3
Furthermore, even if there are many conspirators, a defendant’s guilt can be
established if his contact extends to only a few or even one of the co-conspirators.
United States v. Toler, 144 F.3d 1423, 1427-28 (11th Cir. 1998). A defendant can
be convicted even if his participation in the scheme is slight in comparison to that
of other co-conspirators. Id. at 1428. Finally, testimony of a co-conspirator, even
if uncorroborated, is sufficient to support a conviction so long as it is not, on its
face, incredible or insubstantial. United States v. Diaz, 248 F.3d 1065, 1093-94
(11th Cir. 2001).
To prove aiding and abetting, the government must establish: (1) that the
substantive offense took place; (2) that the defendant associated himself with the
crime; and (3) that the defendant committed an act that furthered the crime.
United States v. Camargo-Vergara, 57 F.3d 993, 1001 (11th Cir. 1995). “Aiding
and abetting encompasses activities intended to ensure the success of the
underlying substantive crime. . . .” United States v. Perez, 922 F.2d 782, 786
(11th Cir. 1991).
The elements of importation of cocaine are the knowing or intentional
importation of cocaine into the United States from anyplace outside thereof.
United States v. Ballard, 586 F.2d 1060, 1065, n.7 (5th Cir. 1978). Likewise, the
elements of possession with intent to distribute cocaine are the knowing or
4
intentional possession of cocaine with the intention to distribute the drug. Id. at
1065, n.8. To prove possession with intent to distribute cocaine, the government
must prove both possession and an intent to distribute. United States v. Bain, 736
F.2d 1480, 1486-87 (11th Cir. 1984). Possession may be actual or constructive
and may be proved by circumstantial evidence. Id. at 1487. An intent to distribute
can be inferred from drug quantity. Id. at 1486.
Despite Adams’ arguments to the contrary, there was sufficient evidence to
support his conviction on each of the four counts. The evidence presented at trial
demonstrated that Adams did not merely join, but initiated, the conspiracy that
lead to the importation and possession of cocaine. Adams performed several overt
acts, which were revealed through testimony at trial, in furtherance of the
conspiracy. For example, codefendant Bilal Ansari testified that Adams solicited
Ansari to find women to work as cocaine couriers from Guyana. Further
testimony revealed that Adams offered to pay the drug couriers money, thereby
motivating the couriers to participate and assist in the conspiracy. He also
supplied airline tickets and passports for the couriers as further inducement to
participate in the conspiracy.
Although the evidence in the record is not explicit, a reasonable jury could
infer that Adams supplied the contacts in Guyana who provided the couriers with
5
cocaine, or that he was a conduit of information that ultimately reached the
suppliers. The fact that Adams never physically possessed any cocaine is
irrelevant to the possession-related counts because he assisted the couriers in their
obtaining physical possession of cocaine. Accordingly, the evidence was
sufficient to establish that Adams conspired to import and possess cocaine with
the intent to distribute it and that he aided and abetted the importation and
possession of cocaine with the intent to distribute the drug.
II. Bolstering the credibility of a witness
Adams further argues that the district court improperly permitted the
government to bolster or vouch for one of its witnesses. In particular, Adams
argues that the prosecutor bolstered or vouched for the credibility of Mohammed
Alauddin during a series of questions regarding the name of the person to whom
Alauddin sent money orders. Adams submits that the district court should have
granted his requested mistrial because the prosecutor indicated a personal belief in
Alauddin’s credibility.
“The test for whether a witness has been improperly bolstered is ‘whether
the jury could reasonably believe that the prosecutor was indicating a personal
belief in the witness’ credibility.’” United States v. Knowles, 66 F.3d 1146, 1161
(11th Cir. 1995) (citation omitted). “[T]his test may be satisfied in two ways:
6
First, the prosecution may place the prestige of the government behind the witness,
by making explicit personal assurances of the witness’ veracity. Secondly, a
prosecutor may implicitly vouch for the witness’ veracity by indicating that
information not presented to the jury supports the testimony.” Id.
The government’s questioning of Mohammed Alauddin did not violate
either prong of this test and does not constitute improper bolstering. During his
cross-examination of Alauddin, Adams challenged Alauddin’s credibility by
attempting to imply that the government had worked with Alauddin to
manufacture his testimony that he was told to send Western Union money orders
to someone named “Arthur Adams.” The portion of the government’s redirect
examination at issue here involved nothing more than the government’s legitimate
attempt to rehabilitate Alauddin by asking Alauddin to explain the process by
which his memory of Adam’s name was refreshed. Moreover, the prosecutor
never issued a personal assurance regarding Alauddin’s credibility. No reasonable
jury could believe that this line of questioning put the prestige of the government
behind the witness or indicated that the prosecutor was implying that there was
evidence beyond what was presented to the jury to support the witness’ testimony.
Accordingly, the district court did not err in refusing to exclude this evidence and
in denying Adams’ request for mistrial.
7
III. Denial of recross-examination
Finally, Adams argues that the district court erred when it prohibited him
from recross-examination of Bilal Ansari concerning Ansari’s tax problems, which
were first revealed during the government’s redirect examination of Ansari.
Adams contends that this prevented him from demonstrating the possible bias of
the witness.
“In all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend. VI. Accordingly,
“[t]he defendant must be permitted sufficient cross-examination to allow a jury to
adequately assess the witness’ credibility. . . .” United States v. Ross, 33 F.3d
1507, 1517 (11th Cir. 1994). However, “a defendant has no constitutional right to
recross-examination.” Id. at 1518. “A defendant nonetheless does have a limited
right to recross-examination where a new matter is brought out on redirect
examination.” Id. “When material new matters are brought out on redirect
examination, the Confrontation Clause of the Sixth Amendment mandates that the
opposing party be given the right of recross-examination on those new matters.”
Id. (citation and quotation omitted).
Ansari’s testimony during redirect examination that his financial troubles
were tax-related does not qualify as a new, material matter that warrants granting
8
Adams the right of recross-examination. Ansari previously testified as to his
financial problems during both the government’s direct examination and Adams’
initial cross-examination of him. However, during Adams’ initial cross-
examination of Ansari, Adams failed to inquire as to the specifics of those
financial problems. The fact that Ansari’s financial problems were tax-related was
not a new matter brought forth during redirect examination. Rather, it was a minor
detail related to a matter already disclosed that Adams failed to explore further
during the initial cross-examination. Accordingly, the district court did not err in
denying Adams the opportunity to recross-examine Ansari.
IV. Conclusion
Upon review of the record and consideration of the briefs of the parties, we
discern no reversible error. The evidence presented at trial was sufficient to
establish that Adams conspired to import and possess cocaine with the intent to
distribute it and took overt acts manifesting such intent. Those overt acts
demonstrated that Adams aided and abetted the importation and possession of
cocaine with the intent to distribute the drug. The government did not improperly
bolster Alauddin’s credibility, but simply rehabilitated him following attacks on
his credibility and assertions that evidence had been fabricated. Finally, the
district court did not err in denying the recross-examination of Ansari concerning
9
a non-material matter that Adams could have questioned Ansari about during his
original cross-examination. Accordingly, we affirm Adams’ convictions.
AFFIRMED.
10