[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14865 ELEVENTH CIRCUIT
MAY 26, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-00021-CR-5-RDP-PWG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES EDWARD PUCKETT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(May 26, 2009)
Before MARCUS, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Charles Edward Puckett appeals his conviction for conspiracy to distribute
and possess with intent to distribute 50 grams or more of methamphetamine, in
violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). On appeal, Puckett argues that (1)
the admissible evidence presented at trial was insufficient to support his
conviction; (2) the district court abused its discretion in giving a curative
instruction rather than granting a request for a mistrial when a government witness
gave inadmissible hearsay testimony; and (3) the imposition of a mandatory
minimum sentence under 18 U.S.C. § 841(b) offends the separation of powers
doctrine and the Eighth Amendment to the United States Constitution.
I.
Puckett argues that the evidence at trial failed to support that he knowingly
or voluntarily participated in the conspiracy.
“Sufficiency of the evidence is a question of law that we review de novo.”
United States v. Gupta, 463 F.3d 1182, 1193 (11th Cir. 2006). In reviewing the
sufficiency of the evidence, we consider “the evidence in the light most favorable
to the government.” United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005)
(per curiam). “All reasonable inferences and credibility choices must be made in
favor of the government and the jury’s verdict.” Id. We must affirm “unless,
under no reasonable construction of the evidence, could the jury have found the
[defendant] guilty beyond a reasonable doubt.” Id. “The evidence need not
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exclude 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).
To support a conspiracy conviction under 21 U.S.C. § 846, the government
must establish beyond a reasonable doubt that (1) a conspiracy existed, (2) the
defendant had knowledge of it, and (3) he knowingly and voluntarily joined it.
United States v. Thompson, 422 F.3d 1285, 1290 (11th Cir. 2005) (quotation marks
and citation omitted), vacated on other grounds by Stratton v. United States, 128 S.
Ct. 859 (2008). Puckett appears to challenge only the last two elements. “A
defendant’s knowing participation in a conspiracy may be established through
proof of surrounding circumstances such as acts committed by the defendant which
furthered the purpose of the conspiracy.” United States v. Bain, 736 F.2d 1480,
1485 (11th Cir. 1984). While mere presence or close association with a
co-conspirator does not suffice to established knowing participation in a
conspiracy, “[p]resence is, however, a material and probative factor which the jury
may consider in reaching its decision.” Id. Moreover, “[g]uilt may exist even
when the defendant plays only a minor role and does not know all the details of the
conspiracy.” United States v. Perez-Tosta, 36 F.3d 1552, 1557 (11th Cir. 1994).
Considering the evidence in the light most favorable to the Government and
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the jury’s verdict of conviction, a reasonable jury could find that Puckett
knowingly and voluntarily joined the conspiracy. First, as to knowledge of the
conspiracy, Puckett lived with Angie Rollins when she purchased and sold large
quantities of methamphetamine from William Byrum.1 In fact, Puckett watched as
Ms. Rollins retrieved the methamphetamine from a canister in her backyard and
packaged it for resale. Second, as to being a knowing and voluntary participant in
the conspiracy, the evidence established that, on several occasions, Puckett
retrieved the methamphetamine from the canister in the backyard, assisted Rollins
in repackaging the drugs by handing her bags and securing the bags, and returned
the drugs in the canister to the backyard. As such, because a reasonable jury could
have concluded that Puckett knew of the conspiracy and knowingly and voluntarily
participated in that conspiracy, we reject Puckett’s claim that the evidence was
insufficient to support his conviction.
II.
Puckett argues that his motion for a mistrial should have been granted
because the prejudicial impact of a government witness’s inadmissible hearsay
statement outweighed the district court’s curative instruction, as the only other
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The Government charged and indicted Puckett, Rollins, and Byrum together with
conspiracy to possess with the intent to distribute 50 grams or more of methamphetamine. Ms.
Rollins pled guilty and testified against Puckett. During the course of the investigation, Mr.
Byrum cooperated with the Government.
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evidence supporting his knowing participation in the conspiracy was the testimony
of his alleged co-conspirator.
We review the denial of a motion for a mistrial for abuse of discretion.
United States v. Ramirez, 426 F.3d 1344, 1353 (11th Cir. 2005) (per curiam).
Further, “[t]he decision whether to grant a mistrial lies within the sound discretion
of a trial judge as he or she is in the best position to evaluate the prejudicial effect
of improper testimony.” United States v. Perez, 30 F.3d 1407, 1410 (11th Cir.
1994) (per curiam). A defendant is entitled to a grant of mistrial only upon a
showing of substantial prejudice. United States v. Chastain, 198 F.3d 1338, 1352
(11th Cir. 1999). Prejudicial testimony is less likely to mandate a mistrial “when
there is other significant evidence of guilt which reduces the likelihood that the
otherwise improper testimony had a substantial impact upon the verdict of the
jury.” United States v. Rouco, 765 F.2d 983, 992 (11th Cir. 1985) (quotation
omitted). Where the district court issues a curative instruction, we will overturn
the district court’s refusal to declare a mistrial only where the evidence is so highly
prejudicial as to be incurable. United States v. Dodd, 111 F.3d 867, 870 (11th Cir.
1997). In making that determination, we presume that the jury followed the district
court’s curative instructions. Ramirez, 426 F.3d at 1352.
On direct examination, a witness for the Government, Special Agent
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Frederick Gasbarro of the U.S. Drug Enforcement Administration, testified that
Byrum told him that Rollins and Puckett obtained methamphetamine from Byrum.2
Counsel for Puckett objected and the district court sustained the objection and
instructed the jury to disregard the testimony. In addition, after the district court
denied Puckett’s motion for a mistrial, the district court gave a curative instruction
to the jury and again reminded them to disregard the testimony. In order for
Puckett to prevail on this issue, he must show that the curative instruction failed to
cure the prejudicial effect of the statement. See Dodd, 111 F.3d at 870. Puckett
has failed to do so. Presuming that the jury followed the district court’s
instructions to disregard the improper testimony, the district court’s curative
instruction appeared to alleviate any prejudicial impact of the inadmissible hearsay
2
The exchange between counsel for the Government and Special Agent Gasbarro
transpired in this way:
Q: Did [Byrum] agree to make any telephone calls on that
day?
A: Yes.
Q: Did there come occasion on that day that he spoke to Ms.
Rollins?
A: Yes.
Q: And how do you know that?
A: I was there. I listened to the call when it was made. I set
up the equipment to make the call.
Q: And what was the point of that call?
A: It was to - he had indicated to us Ms. Rollins and Mr.
Puckett had obtained some methamphetamine from him a
few days earlier -
R. at 158.
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statement. Considering the discretion given to the district court to gauge the
prejudicial effect of improper testimony as well as the other admissible evidence
sufficient to support Puckett’s conviction, we conclude that district court did not
abuse its discretion by refusing to grant a mistrial.
III.
Lastly, Puckett argues that the district court’s imposition of a mandatory
minimum sentence under 18 U.S.C. § 841(b) offends the separation of powers
doctrine and the Eighth Amendment to the U.S. Constitution. “We review
questions of constitutional law de novo.” United States v. Brown, 364 F.3d 1266,
1268 (11th Cir. 2004).
Precedent forecloses both constitutional arguments. As to the separation of
powers, we have held that statutory mandatory minimum sentences do not violate
the separation of powers doctrine, explaining that “[i]t is for Congress to say what
shall be a crime and how that crime shall be punished.” United States v. Holmes,
838 F.2d 1175, 1178 (11th Cir. 1988) (citation omitted). As to the Eighth
Amendment, we have rejected arguments that mandatory life sentences under 21
U.S.C. § 841(b)(1)(A) constitute cruel and unusual punishment in violation of the
Eight Amendment as “without merit.” United States v. Willis, 956 F.2d 248, 251
(11th Cir. 1992) (per curiam); see also United States v. Johnson, 451 F.3d 1239,
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1243 (11th Cir. 2006) (per curiam) (“In general, a sentence within the limits
imposed by statute is neither excessive nor cruel and unusual under the Eighth
Amendment.”) (citation omitted). Accordingly, we find that our precedent
forecloses Puckett’s constitutional arguments.
IV.
Based on a review of the record and the parties’ briefs, we discern no
reversible error. Accordingly, we affirm Puckett’s conviction and sentence.
AFFIRMED.
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