[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-15528 JULY 8, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-00145-CR-ORL-28-DAB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDMON JEROME BURTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 8, 2009)
Before BIRCH, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Edmon Jerome Burton appeals his convictions for conspiracy to possess
with intent to distribute cocaine base, 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A),
and (b)(1)(C) (“Count 1”); possession with intent to distribute cocaine and cocaine
base, 21 U.S.C. § 841(a)(1), (b)(1)(A), and (b)(1)(C) (“Count 2”); and possession
of a firearm by a convicted felon, 18 U.S.C. §§ 922(g)(1) and 924(a)(2)
(“Count 5”). On appeal, Burton argues that: (1) the evidence presented at trial was
insufficient to support his convictions for Counts 1, 2, and 5; and (2) the district
court erred under Rule 404(b) of the Federal Rules of Evidence by admitting into
evidence two prior state-court convictions he had for possession of cocaine and
carrying a concealed firearm. After thorough review, we affirm.
“We review de novo the denial of a motion for acquittal and the sufficiency
of the evidence to sustain a conviction, viewing the evidence in the light most
favorable to the government and drawing all reasonable inferences and credibility
choices in favor of the jury’s verdict.” United States v. Tampas, 493 F.3d 1291,
1297-98 (11th Cir. 2007) (quotation omitted). “The jury is free to choose among
alternative reasonable interpretations of the evidence, and the government’s proof
need not exclude every reasonable hypothesis of innocence.” Id. at 1298
(quotation and citation omitted). “We affirm if a reasonable juror could have
concluded that the evidence established [Burton’s] guilt beyond a reasonable
doubt.” Id. “[W]e review the evidentiary rulings of the trial court only for a clear
abuse of discretion.” United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir.
2009). Under “the deferential abuse-of-discretion standard we must affirm unless
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we find that the district court has made a clear error of judgment, or has applied the
wrong legal standard.” Id. (quotation omitted).
First, we find no merit in Burton’s claim that the evidence presented at trial
was insufficient to support his convictions for Counts 1, 2, and 5. To support a
conspiracy conviction under 21 U.S.C. § 846 (Count 1), “the government must
prove beyond a reasonable doubt that: (1) a conspiracy existed; (2) appellant[]
knew of the essential objectives of the conspiracy; and (3) appellant[] knowingly
and voluntarily participated in the conspiracy.” United States v. Calderon, 127
F.3d 1314, 1326 (11th Cir. 1997) (quotation omitted). “To satisfy this burden, the
government need not prove that the defendant knew all of the details or
participated in every aspect of the conspiracy. Rather, the government must only
prove that the defendant knew the essential nature of the conspiracy.” United
States v. Miranda, 425 F.3d 953, 959 (11th Cir. 2005) (quotation and alterations
omitted). “Because the crime of conspiracy is predominantly mental in
composition, it is frequently necessary to resort to circumstantial evidence to prove
its elements.” United States v. Arias-Izquierdo, 449 F.3d 1168, 1182 (11th Cir.
2006) (quotation omitted). “[C]lose association with a co-conspirator or mere
presence at the scene of the illegal activity, standing alone, is insufficient to
support a conspiracy conviction.” United States v. Jiminez, 564 F.3d 1280, 1285
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(11th Cir. 2009) (quotation omitted). However, mere presence is “material, highly
probative, and not to be discounted.” United States v. Gamboa, 166 F.3d 1327,
1332 (11th Cir. 1999) (quotation omitted).
“To support a conviction for possession with intent to distribute [(Count 2)],
the government must prove (1) knowing (2) possession of a controlled substance
(3) with intent to distribute it.” United States v. Farris, 77 F.3d 391, 395 (11th Cir.
1996). “Possession can be either actual or constructive and can be either joint or
sole.” United States v. Iglesias, 915 F.2d 1524, 1528 (11th Cir. 1990). “A
defendant has actual possession of a substance when he has direct physical control
over the contraband.” United States v. Woodard, 531 F.3d 1352, 1360 (11th Cir.
2008) (quotation omitted). “A defendant’s constructive possession of a substance
can be proven by a showing of ownership or dominion and control over the drugs
or over the premises on which the drugs are concealed.” Id. (quotation omitted).
Where the presence of a large amount of drugs is undisputed, the proof required to
sustain a conviction for conspiracy to distribute narcotics also is sufficient to
uphold a conviction for possession. See United States v. Cruz-Valdez, 773 F.2d
1541, 1544 (11th Cir. 1985).
Finally, to prove a violation of § 922(g)(1) (Count 5), the government must
prove “beyond a reasonable doubt that the defendant knowingly possessed a
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firearm and had been previously convicted of a felony.” United States v. Gunn,
369 F.3d 1229, 1235 (11th Cir. 2004). Here, Burton does not dispute that he
previously had been convicted of a felony.
As with drugs, “[a] defendant has constructive possession if he exercises
ownership, dominion, or control over the firearm. A defendant also has
constructive possession if he has the power and intention to exercise dominion or
control. The defendant may exercise that dominion and control either directly or
through others.” Id. (citations omitted). “[A] person who owns or exercises
dominion and control over a residence in which contraband is concealed may be
deemed to be in constructive possession of the contraband.” United States v.
Molina, 443 F.3d 824, 829 (11th Cir. 2006) (quotation and ellipsis omitted).
“However, a defendant’s mere presence in the area of contraband or awareness of
its location is not sufficient to establish possession.” United States v. Thompson,
473 F.3d 1137, 1142 (11th Cir. 2006) (quotation omitted).
As for Count 1, the government put on evidence that: (1) Burton lived at, or
had dominion or control over, the residence where the drugs were found, see
United States v. Faust, 456 F.3d 1342, 1346 (11th Cir. 2006) (holding that
sufficient evidence supported that the defendant had dominion or control over the
premises when, inter alia, Faust appeared at the door when police arrived, police
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discovered items that belonged to him in the house, another individual stated that
he lived there, and he could gain access to the residence at will); (2) officers found
over 50 grams of cocaine base, over 400 grams of cocaine hydrochloride, cash,
guns, and various items consistent with drug distribution, including plastic bags,
razor blades, two digital scales, and beakers, in the home, and Burton was found
with 2.7 grams of cocaine base on his person, which supports that Burton knew of
and was a part of the drug distribution, see Miranda, 425 F.3d at 959 (holding that,
“where large quantities of drugs are present a prudent smuggler is not likely to
suffer the presence of unaffiliated bystanders” (quotation omitted)); and (3)
officers found Burton in the room where over 50 grams of cocaine base were in
plain view on the floor, and an agent testified that Burton would have had to be
within 10 feet of the crack cocaine, see id. at 960 (analyzing evidence of Miranda’s
habitation in an apartment and his running to a bedroom where drugs and guns
were located and determining that the “jury was . . . free to infer from the totality
of the circumstances that Mr. Miranda’s role in the conspiracy was to guard the
large quantity of drugs stored in the back bedroom, and that his motive in running
to that room, which had no outside exit, was to attempt to arm himself and to
conceal or destroy the drugs”).1 This evidence, taken in a light most favorable to
1
Although Burton argues that it was a “reasonable hypothesis” that he did not know of
the crack cocaine until he ran into the room, we have said that, “[i]n rebutting the government’s
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the government, was sufficient for a reasonable juror to conclude that Burton
conspired to distribute and to possess with intent to distribute over 50 grams of
cocaine base and a quantity of cocaine hydrochloride. See United States v. Lynch,
934 F.2d 1226, 1231 (11th Cir. 1991) (“[T]he jury may have inferred, from
Lynch’s attendance at a drug deal in his own home and evidence demonstrating his
knowledge that cocaine was present in his home, that Lynch knowingly and
voluntarily participated, with criminal intent, in the conspiracy to distribute
cocaine.”); Tampas, 493 F.3d at 1297-98.
As for Count 2, because the evidence was sufficient to sustain Burton’s
drug-conspiracy conviction in Count 1, the evidence was sufficient to support his
conviction for possession with intent to distribute 50 grams or more of cocaine
base and a detectable amount of cocaine hydrochloride. See Cruz-Valdez, 773
F.2d at 1544; Lynch, 934 F.2d at 1231 (“Because the presence of cocaine was
uncontested, the evidence establishing Lynch’s participation in the conspiracy also
sufficed to prove his possession of the cocaine with intent to distribute.”). As
discussed above, the evidence was also sufficient to conclude that Burton had
dominion or control over the residence, so that the jury could find that he had
evidence it is not enough for a defendant to put forth a reasonable hypothesis of innocence,
because the issue is not whether a jury reasonably could have acquitted but whether it reasonably
could have found guilt beyond a reasonable doubt.” Jiminez, 564 F.3d at 1285 (quotation and
alteration omitted).
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constructive possession of the cocaine base and cocaine hydrochloride present in
the house. See Woodard, 531 F.3d at 1360; Tampas, 493 F.3d at 1298. Thus,
sufficient evidence supported Burton’s conviction as to Count 2.
Likewise, as for Count 5, because the evidence was sufficient to support that
Burton had dominion or control over the residence and participated in the drug
conspiracy, the evidence also supports that Burton constructively possessed the
three firearms that were in the kitchen drawer, which were near the items
associated with drug distribution, as the jury could infer that he had the power to
exercise dominion or control over the firearms. See Thompson, 473 F.3d
at 1143-44 (upholding convictions for possession of firearms by a convicted felon
and possession of firearms in furtherance of a drug-trafficking crime because, inter
alia, two handguns were “readily available, although hidden, in the living room
where drugs were being packaged for sale”); Faust, 456 F.3d at 1346 (holding that
the government presented sufficient evidence that Faust lived at the residence, or at
least maintained dominion or control over the premises, such that sufficient
evidence supported his conviction for constructively possessing drugs found
throughout the house). In short, construing the evidence in the light most favorable
to the government, a reasonable juror could find beyond a reasonable doubt that
Burton was guilty of Counts 1, 2, and 5. See Tampas, 493 F.3d at 1298.
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We also reject Burton’s claim that the district court erred under Federal
Rule of Evidence 404(b) by admitting into evidence his two prior state-court
convictions. Rule 404(b) provides,
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident . . . .
Fed.R.Evid. 404(b). “Rule 404(b) is a rule of inclusion, and that accordingly
404(b) evidence, like other relevant evidence, should not lightly be excluded when
it is central to the prosecution’s case.” United States v. Jernigan, 341 F.3d 1273,
1280 (11th Cir. 2003) (quotation omitted).
In reviewing 404(b) decisions, we apply a three-part test for
admissibility of such evidence: (1) the evidence must be relevant to an
issue other than the defendant’s character; (2) there must be sufficient
proof so that the factfinder could find that the defendant committed
the extrinsic act; and (3) the evidence must possess probative value
that is not substantially outweighed by undue prejudice.
United States v. Perez, 443 F.3d 772, 779 (11th Cir. 2006). Here, Burton does not
challenge the second prong of the three-part test.
We have said that “in every conspiracy case, a not guilty plea renders the
defendant’s intent a material issue” and that “[e]vidence of such extrinsic evidence
as may be probative of a defendant’s state of mind is admissible unless the
defendant affirmatively takes[] the issue of intent out of the case.” United States v.
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Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005) (quotation, alterations, and
ellipsis omitted); see also United States v. Butler, 102 F.3d 1191, 1195 (11th Cir.
1997) (“Intent is always at issue when a defendant pleads not guilty to a conspiracy
charge.”); Calderon, 127 F.3d at 1330-31 (determining that intent was at issue
when the defendant argued that he was “merely present at the scene of the drug
activity”).
Under the third prong of the balancing test, “the probative value of the
evidence must not be substantially outweighed by unfair prejudice.” Jernigan, 341
F.3d at 1282 (quotation omitted) (emphasis in original). “This determination lies
within the sound discretion of the district judge and calls for a common sense
assessment of all the circumstances surrounding the extrinsic offense, including
prosecutorial need, overall similarity between the extrinsic act and the charged
offense, as well as temporal remoteness.” Id. (quotation and alteration omitted).
We have noted that “temporal remoteness is an important factor” and that a
defendant “bears a heavy burden in demonstrating an abuse of the court’s broad
discretion in determining if an extrinsic offense is too remote to be probative.”
Matthews, 431 F.3d at 1311 (quotation omitted).
Here, under the first prong of our Rule 404(b) test, Burton’s prior
convictions for possession of cocaine and carrying a concealed firearm were
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relevant to show Burton’s intent, knowledge, or lack of accident or mistake with
respect to the instant drug-conspiracy and drug- and gun-possession charges. See
id. (holding that an “arrest for distribution of cocaine was relevant to the intent at
issue in the charged conspiracy to distribute cocaine”); Jernigan, 341 F.3d at 1282
(noting that “the fact that Nelson knowingly possessed a firearm in a car on a
previous occasion makes it more likely that he knowingly did so this time as well,
and not because of accident or mistake” (emphasis in original)).
Burton has also failed to meet the third prong of the test, which requires a
showing that the district court abused its discretion in determining that the
probative value of his prior convictions was not substantially outweighed by unfair
prejudice. See Perez, 443 F.3d at 779. As an initial matter, the prior convictions
for possession of cocaine and carrying a concealed firearm were similar to the
drug-conspiracy and drug- and gun-possession charges for which Burton was being
tried. See Matthews, 431 F.3d at 1311 (noting that our “precedent regards virtually
any prior drug offense as probative of the intent to engage in a drug conspiracy”).
In addition, the prior offenses took place two years or less before the grand jury
handed down the indictment on the instant charges. See id. at 1312 (holding that
the district court did not abuse its discretion in finding than an eight-year period
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from an arrest to the beginning of the charged conspiracy was “proximate enough
to be more probative than prejudicial”).
Moreover, pursuant to a request by defense counsel, the district court gave
the jury a limiting instruction after admitting the evidence of the prior convictions,
stating that the prior convictions were “admitted for the sole purpose of
establishing defendant’s guilt, intent and lack of mistake,” and “must not be
considered [] as proof of defendant’s character or of his propensity to commit
crime.” This limiting instruction further supports that the district court did not
abuse its discretion in allowing the evidence to be admitted. See United States v.
Lamons, 532 F.3d 1251, 1267 (11th Cir.) (“Any prejudicial value was further
reduced by the limiting instruction given by the district court during the jury
charge.”), cert. denied, 129 S. Ct. 524 (2008). Because Burton’s prior convictions
were relevant to an issue other than his character and their probative value was not
substantially outweighed by unfair prejudice, the district court did not abuse its
discretion under Rule 404(b) in allowing the prior convictions to be admitted into
evidence.
AFFIRMED.
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