[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
April 21, 2008
No. 07-10727 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-20818-CR-ASG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TAURUS GETER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 21, 2008)
Before CARNES, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Taurus Geter appeals his conviction and sentence for conspiring to possess
with the intent to distribute at least five grams of heroin, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C). Geter argues that the district court improperly admitted
unfairly prejudicial testimony from a confidential informant (“CI”) and
cooperating witness Elston Orjuna concerning activities that occurred outside the
dates of the conspiracy as charged in the indictment. Geter contends that the
testimony was not inextricably intertwined with the charged conspiracy and asserts
that any probative value was outweighed by its highly prejudicial effect. Second,
Geter argues that, at best, the evidence presented at trial established his presence in
the area where drug transactions occurred and his association with another accused
person. Geter contends that, excluding the prejudicial testimony concerning events
outside the scope of the charged conspiracy, this evidence, without more, is
insufficient to prove that he participated in an illegal agreement to distribute
heroin.
Third, Geter argues that the CI’s testimony concerning a co-conspirator’s
statement referencing an earlier federal indictment gave the jurors the false
impression that he had committed other crimes and should not be permitted to
escape justice. Geter asserts that the lapse between the statement and the district
court’s curative instruction was too great to remedy any potential prejudice and
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contends that, as a result, the district court erred by denying his motion for mistrial.
Last, Geter argues that his 210-month sentence, based on his status as a career
offender, was unreasonable in light of the amount of drugs actually involved in the
offense.
For the reasons set forth more fully below, we affirm Geter’s conviction and
sentence.
I. Admission of Testimony Concerning Events
Outside the Dates of the Charged Conspiracy
We review the district court’s evidentiary rulings for abuse of discretion.
United States v. Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006), cert. denied, 127
S.Ct. 1305 (2007). “[W]hen employing an abuse-of-discretion standard, we must
affirm unless we find that the district court has made a clear error of judgment, or
has applied the wrong legal standard.” United States v. Frazier, 387 F.3d 1244,
1259 (11th Cir. 2004) (en banc). 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). Rule 404(b) is not
applicable, however, “where the evidence concerns the context, motive, and set-up
of the crime and is linked in time and circumstances with the charged crime, or
forms an integral and natural part of an account of the crime, or is necessary to
complete the story of the crime for the jury.” United States v. Smith, 122 F.3d
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1355, 1359 (11th Cir. 1997). “[E]vidence is inextricably intertwined with the
evidence regarding the charged offense it if forms an “integral an natural part of
the witness’s accounts of the circumstances surrounding the offenses for which the
defendant was indicted.” United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir.
2007) (quotation omitted). “Nonetheless, evidence of criminal activity other than
the charged offense, whether inside or outside the scope of Rule 404(b), must still
satisfy the requirements of Rule 403.” Id. (citation omitted). Under Rule 403,
relevant evidence “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice . . . .” Fed.R.Evid. 403.
a. Geter’s Violent Threats to Competitors
At trial, the CI testified that Geter protected his “territory” by threatening
competitors. The CI further testified that, one week after a controlled buy on
December 15, 2004, he observed Geter threatening a man, noting that the man had
been selling drugs marked with the symbol of another supplier. Although this
testimony concerned events that were, admittedly, outside the time frame of the
charged conspiracy, it was nevertheless “on or about” December 16, 2004, the date
charged in the indictment. See United States v. Pope, 132 F.3d 684, 688-89 (11th
Cir. 1998) (holding that “time is not an essential element of the offense, so long as
the government establishes that the conduct occurred reasonably near the date that
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the indictment mentions”). Thus, the CI’s testimony is, arguably, linked in time
with the charged conspiracy, and the district court did not abuse its discretion in
admitting it as intrinsic evidence. See Edouard, 485 F.3d at 1346; Smith, 122 F.3d
at 1359. Moreover, even accepting Geter’s argument that the probative value of
such testimony was outweighed by its prejudicial effect, “it is doubtful that [the
CI’s] testimony caused any unfair prejudice.” Edouard, 485 F.3d at 1346. “[I]n a
criminal trial, relevant evidence is inherently prejudicial; it is only when unfair
prejudice substantially outweighs probative value that [Rule 403] permits
exclusion.” Id. (quotation and alteration omitted). This is particularly true in light
of the remaining evidence of Geter’s guilt, discussed below.
b. Geter’s Pre-2004 Drug Distribution
Here, the indictment alleged that Geter conspired with others to possess with
the intent to distribute heroin “on or about October 21, 2004, and continuing
through on or about December 16, 2004.” At trial, Orjuna testified that, from 1998
until October 2003, he sold heroin for Geter on a daily basis. Orjuna noted that
Geter led an organization consisting of two lieutenants and multiple sellers, who
sold specifically-marked heroin at various locations in Overtown. Orjuna noted
that Geter gave drugs to the lieutenants, who distributed them to the sellers and
collected the drugs proceeds, which they returned to Geter. Orjuna also identified
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the key participants in the organization, including Geter and his two lieutenants,
“Zeus” and Thomas Jerry. Orjuna’s testimony is consistent with the CI’s account
of the events that occurred within the time frame of the charged conspiracy. The
CI testified that he contacted Geter and, eventually, began to sell drugs for him on
14th Street in Overtown. Geter employed two lieutenants, Zeus and Jerry, who
coordinated the distribution of the drugs, which Geter packaged in specially-
marked bags, and collected the drug proceeds at the end of each shift. Jerry
provided the CI with packs of heroin, and assigned him to work on a specific street
corner with another seller, Dominick Jagne. The CI sold the heroin as instructed
and returned the proceeds to Jerry.
Although Orjuna’s employment with Geter ended with his arrest in October
2003, before the time frame of the charged conspiracy, this separation does not
automatically make his testimony extrinsic. See United States v. Muscatell, 42
F.3d 627, 630 (11th Cir. 1995). In Muscatell, we held that testimony regarding a
continuing course of conduct “involving the same principal actors, in the same
roles, employing the same modus operandi,” was properly admissible as intrinsic
evidence, despite the fact that some of the acts occurred outside the time frame of
the charged offenses. Id. at 630-31. We reasoned that “[o]ther transactions
connected with the offenses charged have long been used to show a general
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pattern, the necessary criminal intent, or the guilty knowledge of the defendant.”
Id. at 631 (quotation omitted). Moreover, evidence of prior drug dealings is highly
probative of intent in later charges of conspiracy to distribute a controlled
substance. United States v. Diaz-Lizaraza, 981 F.2d 1216, 1224 (11th Cir. 1993).
Accordingly, the district court did not abuse its discretion in admitting Orjuna’s
testimony because it established the intent and motive behind the instant
conspiracy, demonstrated a pattern of ongoing conduct involving Geter and his co-
conspirators, and was integral to the explanation of the circumstances surrounding
the charged conspiracy.
II. Sufficiency of the Evidence
We review de novo “whether there is sufficient evidence to support the
jury’s verdict.” United States v. Ortiz, 318 F.3d 1030, 1036 (11th Cir. 2003). We
will affirm the jury’s verdict “if a reasonable trier of fact could conclude that the
evidence establishes guilt beyond a reasonable doubt.” Id. (quotation omitted). On
review, 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. (quotation omitted). We are “bound by the jury’s credibility determinations,
and by its rejection of the inferences raised by the defendant.” United States v.
Peters, 403 F.3d 1263, 1268 (11th Cir. 2005). “The evidence need not exclude
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every hypothesis of innocence or be completely inconsistent with every conclusion
other than guilt because a jury may select among constructions of the evidence.”
United States v. Bailey, 123 F.3d 1381, 1391 (11th Cir. 1997).
Conspiracy to possess heroin with the intent to distribute requires the
government to prove beyond a reasonable doubt “(1) that a conspiracy existed;
(2) that the defendant knew of it; and (3) that the defendant, with knowledge,
voluntarily joined it.” United States v. Molina, 443 F.3d 824, 828 (11th Cir. 2006)
(quotation omitted).
Although presence is a permissible factor to be considered in determining
whether a defendant conspired with another, “it is well settled that mere presence
will not support a conviction.” United States v. Charles, 313 F.3d 1278, 1284
(11th Cir 2002). “Mere presence, guilty knowledge, even sympathetic
observation” and close association with a co-conspirator are insufficient, without
more, to support a conviction for conspiracy to distribute drugs. United States v.
Lyons, 53 F.3d 1198, 1201 (11th Cir. 1995). Yet, such factors may raise a
permissible inference of participation in a conspiracy, which the jury may consider
as a “material and probative factor . . . in reaching its decision.” United States v.
Hernandez, 896 F.2d 513, 518 (11th Cir. 1990).
Here, the evidence presented at trial, viewed in the light most favorable to
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the government, supports a finding that the jury in this case could reasonably
conclude that Geter was more than a “sympathetic observer” and, thus, that a
conspiracy between Geter and the CI existed. See Lyons, 53 F.3d at 1201. The
record indicates that the CI contacted Geter, who eventually asked him to sell
heroin at 1943 Northwest 2nd Court. The CI asked Geter if he could sell drugs on
14th Street instead and Geter consented. The CI met Geter and one of his
lieutenants, Jerry, at 1971 Northwest 2nd Court (“the 1971 building”). Jerry
coordinated the distribution of drugs to the sellers and collected the drug proceeds
at the end of each shift. Jerry assigned the CI to work with another seller, Jagne,
on 14th Street.
The CI set up two controlled buys with undercover officers from the DEA
and the City of Miami Police Department. The CI arrived at the 1971 building at
the beginning of each shift, where Jerry instructed him to see Jagne, who had
already picked up the drugs that were to be sold that night. The CI sold the drugs,
which were marked with symbols identifying Geter as the source, to the
undercover officers and brought the proceeds back to Jerry. The CI requested
additional drugs after the first controlled buy, but Jerry advised that he had to wait
for Geter to package the drugs. Geter did not fulfill the CI’s request. Undercover
officers observed Geter at the 1971 building during each of the controlled buys.
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Geter often sat in a car parked in front of the building, and was also seen sitting
under the stairwell. The officers also observed Jerry as he collected the drug
proceeds and gave them to a person sitting in a car in front of the building. Based
on these facts, the jury could conclude that Geter employed the CI and others in a
heroin distribution operation, packaged the heroin in specially-marked baggies,
provided those drugs to lieutenants, oversaw the distribution of those drugs to
various sellers, and ultimately received the proceeds from each sale. Accordingly,
the evidence was sufficient to establish that an agreement existed between Geter
and the CI to possess with the intent to distribute at least five grams of heroin.
III. Denial of Motion for Mistrial
We review the denial of a motion for a mistrial for abuse of discretion.
United States v. Diaz, 248 F.3d 1065, 1101 (11th Cir. 2001). “If a district court
issues a curative instruction, we will reverse only if the evidence is so highly
prejudicial as to be incurable by the trial court’s admonition.” Id. (quotation and
citation omitted). Jurors are presumed to follow the court’s instructions. United
States v. Ramirez, 426 F.3d 1344, 1352 (11th Cir. 2005). In addition, “prejudicial
testimony will not mandate a mistrial when there is other significant evidence of
guilt which reduces the likelihood that the otherwise improper testimony had a
substantial impact on the verdict of the jury.” United States v. Saget, 991 F.2d
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702, 708 (11th Cir. 1993) (quotation omitted).
During questioning by the government, the CI testified that one of Geter’s
lieutenants, Zeus, told him not to refer to Geter by his last name, noting that “a
federal indictment come out every three years and that they done previously beat
the federal indictment.” The district court gave curative instructions as to the CI’s
testimony, directing the jury to disregard any statements regarding federal
indictments. Moreover, as discussed above, there was significant evidence of
Geter’s guilt which reduces the likelihood that the testimony had a substantial
impact on the jury’s verdict. Saget, 991 F.2d at 708. Accordingly, the CI’s
statement regarding a previous federal indictment in the instant case is not so
highly prejudicial as to be incurable by the district court’s curative instructions,
and the district court did not abuse its discretion in denying a mistrial based on this
testimony.
IV. Reasonableness of Geter’s 210-month Sentence
We review the final sentence imposed by the district court for
reasonableness. United States v. Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005).
Unreasonableness may be procedural, when the court’s procedure does not follow
Booker’s requirements, or substantive. See Gall v. United States, 552 U.S. ___,
128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007); United States v. Hunt, 459 F.3d 1180,
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1182 n.3 (11th Cir. 2006). The Supreme Court has explained that a sentence may
be procedurally unreasonable if the district court improperly calculates the
guideline imprisonment range, treats the Guidelines as mandatory, fails to consider
the appropriate statutory factors, bases the sentence on clearly erroneous facts, or
fails to adequately explain its reasoning. Gall, 552 U.S. at ___, 128 S.Ct. at 597.
The Court also has explained that the substantive reasonableness of a sentence is
reviewed under an abuse-of-discretion standard. Id. It has suggested that review
for substantive reasonableness under this standard involves inquiring whether the
factors in 18 U.S.C. § 3553(a) support the sentence in question. Id. at ___, 128
S.Ct. at 600.
When imposing a sentence, the district court must first correctly calculate
the Guidelines. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005).
Second, the district court must consider the following factors to determine a
reasonable sentence:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
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Id. (citing 18 U.S.C. § 3553(a)).
“[T]here is a range of reasonable sentences from which the district court may
choose” and the burden of establishing that the sentence is unreasonable in light of
the record and the § 3553(a) factors lies with the party challenging the sentence.
Talley, 431 F.3d at 788. We have held that a sentence within the guidelines range
is neither per se reasonable, nor entitled to a presumption of reasonableness. See
id. at 786-88; Hunt, 459 F.3d at 1185.
Geter does not challenge the district court’s finding that he qualified as a
career offender or otherwise challenge the procedural reasonableness of his
sentence on appeal. Nevertheless, the record demonstrates that the district court
correctly calculated the advisory guideline range, expressly considered the
§ 3553(a) factors, and sufficiently explained its reasons for imposing a 210-month
sentence. See Gall, 552 U.S. at ___, 128 S.Ct. at 597.
Similarly, Geter also has not established that his sentence is substantively
unreasonable. See Hunt, 459 F.3d at 1182 n.3; Gall, 552 U.S. at ___, 128 S.Ct. at
597. Geter’s 210-month sentence was at the low-end of the advisory guideline
range. The record indicates that the district court considered several factors,
including the nature and seriousness of the instant offense and the relatively small
amount of heroin involved, along with Geter’s significant criminal history in
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determining that a Guidelines sentence, within the career offender range, was
appropriate. Therefore, the § 3553(a) factors supported the district court’s
sentence, and the court did not abuse its discretion. See Gall, 552 U.S. at ___, 128
S.Ct. at 597. Thus, viewing the sentencing proceeding as a whole, Geter’s
sentence is reasonable.
In light of the foregoing, Geter’s conviction and sentence are
AFFIRMED.
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