[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 26, 2006
No. 05-15617 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00062-CR-T-17-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
COURTNEY T. DASHER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 26, 2006)
Before DUBINA, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Courtney T. Dasher appeals his convictions for (1) possession of a firearm
by a convicted felon, 18 U.S.C. §§ 922(g)(1) and 924(e)(1); and (2) possession
with intent to distribute five or more grams of crack cocaine, in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(B). He raises two arguments on appeal: First, he
contends that the district court abused its discretion by admitting testimony at trial
from a government witness, Franklin Curry, that Dasher had been selling drugs for
as long as Curry had known him.
Second, he argues that the district court abused its discretion by denying his
motion for a mistrial. The motion was made in connection with testimony by
another government witness, Justin Duralia, a special agent with the United States
Drug Enforcement Administration (“DEA”). Specifically, Duralia testified that he
believed that Dasher’s two prior convictions for possession with intent to distribute
cocaine made it more likely rather than less likely that Dasher was the owner of the
cocaine found at his residence.
Dasher claims that these two alleged errors were prejudicial and entitle him
to a new trial. We reject each argument and affirm.1
I.
Where the argument was preserved below, we review the district court’s
1
Following his conviction, Dasher was sentenced to 360 months’ imprisonment and 96
months’ supervised release. He does not raise any argument as to his sentence on appeal.
Accordingly, any argument Dasher might have had in this respect is waived. See United States
v. Silvestri, 409 F.3d 1311, 1338 n.18 (11th Cir. 2005).
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rulings on admission of evidence for an abuse of discretion. United States v.
Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000).
Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith.” Fed. R. Evid. 404(b). We have also developed a three-part test to
determine whether evidence is admissible under Rule 404(b): (1) the evidence
must be relevant to an issue other than the defendant’s character; (2) there must be
sufficient proof so that a jury could find that the defendant committed the extrinsic
act; and (3) the evidence must possess probative value that is not substantially
outweighed by its undue prejudice and meet the other requirements of Rule 403.
United States v. Matthews, 431 F.3d 1296, 1310-11 (11th Cir. 2005) (per curiam),
petition for cert. filed, 74 U.S.L.W. 3619 (U.S. Apr. 24, 2006) (No. 05-1355).
As to the first prong, we have held that “a defendant who enters a not guilty
plea makes intent a material issue, imposing a substantial burden on the
government to prove intent; the government may meet this burden with qualifying
[Rule] 404(b) evidence absent affirmative steps by the defendant to remove intent
as an issue.” United States v. Delgado, 56 F.3d 1357, 1365 (11th Cir. 1995). As to
the third prong, we have held that evidence of prior drug dealings is highly
probative of intent to distribute a controlled substance. United States v. Cardenas,
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895 F.2d 1338, 1344 (11th Cir. 1990). Also, determining whether the probative
value of evidence is substantially outweighed by its prejudicial impact “lies within
the sound discretion of the district judge.” United States v. Jernigan, 341 F.3d
1273, 1282 (11th Cir. 2003) (citation and internal quotations omitted).
In this case, the district court did not abuse its discretion by allowing Curry’s
testimony, even assuming that it was subject to the requirements of Rule 404(b).
Specifically, under the first part of the Rule 404(b) analysis, the evidence was
relevant to show Dasher’s intent to distribute the drugs, as charged in Count 1 of
the superceding indictment. See Delgado, 56 F.3d at 136. The second part of the
test is not at issue because Dasher does not dispute that there was sufficient proof
for the jury to find that he had been dealing drugs the entire time he had known
Curry.
As to the third prong, Dasher failed to demonstrate that this testimony was
“substantially prejudicial,” particularly given that: (1) he alleges only that the
combination of this evidence and the denial of his motion for a mistrial was
prejudicial, and, as noted below, there as no abuse of discretion as to the denial of
his motion for a mistrial; (2) we have ruled that evidence of prior drug dealings is
highly probative of intent to distribute a controlled substance; and (3) we have
stated that whether evidence is prejudicial in this respect “lies within the sound
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discretion of the district judge.” See Cardenas, 895 F.2d at 1344; see also Jernigan,
341 F.3d at 1282.
Based upon the foregoing, we find that the district court did not abuse its
discretion in admitting the testimony by Curry.
II.
“The decision to grant a mistrial lies within the sound discretion of the trial
judge since he is in the best position to evaluate the prejudicial effect of a
statement or evidence on the jury,” and we will reverse only for an abuse of
discretion. United States v. Blakey, 960 F.2d 996, 1000 (11th Cir. 1992). We
have stated that “[w]hen a curative instruction has been given to address some
improper and prejudicial evidence, we will reverse only if the evidence is so highly
prejudicial as to be incurable by the trial court’s admonition.” United States v.
Harriston, 329 F.3d 779, 787 n.4 (11th Cir. 2003) (per curiam) (internal quotation
marks and citations omitted).
Additionally, we will not reverse a conviction where alleged errors were
harmless. United States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005); see also
Fed. R. Crim. P. 52(a) (errors that do not affect substantial rights must be
disregarded). An error is harmless unless “there is a reasonable likelihood that [it]
affected the defendant’s substantial rights.” United States v. Hawkins, 905 F.2d
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1489, 1493 (11th Cir. 1990). Specifically, “[e]videntiary decisions do not
constitute reversible error unless a substantial right of the party is affected, and
errors that do not affect substantial rights must be disregarded.” United States v.
Frazier, 387 F.3d 1244, 1267 n.20 (11th Cir. 2004).
To obtain a conviction under 21 U.S.C. § 841(a)(1) and (b)(1)(B), the United
States must demonstrate that the defendant knowingly possessed a controlled
substance with intent to distribute it. See United States v. Wilson, 183 F.3d 1291,
1299 n.13 (11th Cir. 1999); 21 U.S.C. § 841(a)(1) and (b)(1)(B). To prove the
offense of possession of a firearm as a convicted felon, the government must show
that the defendant was a convicted felon, that he was in knowing possession of a
firearm, and that the firearm was in or affecting interstate commerce. See United
States v. Billue, 994 F.2d 1562, 1565 n.2 (11th Cir. 1993); 18 U.S.C. §§ 922(g)(1)
and 924(e)(1).
As an initial matter, the district court struck the question and partial response
by Duralia that formed the basis for Dasher’s motion for a mistrial, and instructed
the jury to disregard it. In this respect, the stricken testimony was essentially that
Duralia believed that Dasher’s prior convictions for possession with intent to
distribute cocaine increased the likelihood that he owned the cocaine at issue.
This testimony does not appear to be “so highly prejudicial as to be incurable” by
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the district court’s curative instruction. See Harriston, 329 F.3d at 787 n.4. This is
particularly true given that the government was then allowed to reframe the
question, and, in that manner, elicited what was basically the same response from
Duralia, of which Dasher does not complain on appeal.
Moreover, it cannot be said that the denial of Dasher’s motion for a mistrial,
even when considered along with the admission of the testimony by Curry (which,
as set forth above, was not an abuse of discretion) influenced the jury’s guilty
verdict. Specifically, even assuming arguendo that both of these evidentiary
rulings were in error, there was still ample evidence to support the jury’s guilty
verdict as to both charges.
As to Count 1, a realtor, Sergio Pletosu, testified that Dasher rented a
residence located at 1417 20th Street in Sarasota, Florida. Curry testified that he
then lived with Dasher at that location, and that the two sold crack cocaine from
the residence. Curry also testified that he and Dasher stored their crack cocaine in
their respective bedrooms, and that he had placed locks on the doors to those
rooms and given Dasher the key to Dasher’s bedroom.
Police Detective Grodoski testified that a key found in Dasher’s pocket fit
the padlock on the door of the a bedroom in the residence where 35.8 grams of
crack cocaine was found, along with items bearing Dasher’s name and likeness.
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Accordingly, there was ample evidence from which the jury could have determined
that Dasher knowingly possessed crack cocaine with intent to distribute it. See
Wilson, 183 F.3d at 1299 n.13; 21 U.S.C. § 841(a)(1) and (b)(1)(B).
As to count 2, Duralia testified that in September 2005, agents discovered in
Dasher’s possession a gun in a duffle bag, along with a wallet holding Dasher’s
Florida driver’s license, Dasher’s Florida identification card, and Dasher’s social
security card. Duralia also testified that Dasher admitted that the gun was his.2
The government presented copies of judgments evidencing prior felony
offenses by Dasher, which he did not dispute. Finally, Warren Randall, a special
agent with the Bureau of Alcohol, Tobacco, and Firearms (“ATF”), testified that
the firearm found in Dasher’s possession was manufactured in Spain. This
evidence was more than sufficient for the jury to have found that Dasher was guilty
of possession of a firearm by a convicted felon. See Billue, 994 F.2d at 1565 n.2;
18 U.S.C. §§ 922(g)(1) and 924(e)(1).
We therefore find that the district court’s denial of Dasher’s motion for a
mistrial was not an abuse of discretion.
AFFIRMED.
2
Duralia testified that Dasher made this confession after being read a warning pursuant
to Miranda v. Arizona, 384 U.S. 436 (1966). Dasher does not dispute this point.
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