[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-17224 ELEVENTH CIRCUIT
OCTOBER 19, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-20108-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNSON THELISMA,
a.k.a. Haitian Boy,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 19, 2009)
Before DUBINA, Chief Judge, BIRCH and FAY, Circuit Judges.
PER CURIAM:
Appellant Johnson Thelisma appeals his conviction and sentence for
conspiracy to possess with intent to distribute crack cocaine, in violation of 21
U.S.C. §§ 846 and 841(b)(1)(A)(iii). On appeal, Thelisma argues that the district
court abused its discretion by (1) denying his motion to exclude evidence seized in
a search of his alleged co-conspirator’s home, (2) admitting evidence of his prior
drug convictions, and (3) refusing to admit as evidence a document from another
alleged co-conspirator’s sentencing proceedings. He also argues that his sentence
was unconstitutional.
I.
Thelisma first argues that the district court abused its discretion by denying
his motion to exclude evidence that police officers seized in a search of his alleged
co-conspirator’s home. He contends that the evidence should have been excluded
because he withdrew from the conspiracy several months prior to the search.
“We review a district court’s evidentiary rulings for clear abuse of
discretion.” United States v. Perez-Oliveros, 479 F.3d 779, 783 (11th Cir. 2007).
“An evidentiary ruling will stand unless the complaining party has shown a
substantial prejudicial effect.” United States v. Breitweiser, 357 F.3d 1249, 1254
(11th Cir. 2004) (internal quotation marks omitted). Federal Rule of Evidence 402
provides that “[a]ll relevant evidence is admissible, except as otherwise provided”
by law. Fed.R.Evid. 402. However, relevant evidence “may be excluded if its
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probative value is substantially outweighed by the danger of unfair prejudice[.]”
Fed.R.Evid. 403.
Generally, a conspirator is responsible for all the reasonably foreseeable acts
of his co-conspirators that are done in furtherance of the conspiracy. United States
v. Peeples, 23 F.3d 370, 373 (11th Cir. 1994). Withdrawal from the conspiracy is
an affirmative defense. United States v. Gonzalez, 940 F.2d 1413, 1427 (11th Cir.
1991). To establish the affirmative defense of withdrawal from the conspiracy, the
defendant has the substantial burden of proving that (1) he took affirmative steps,
“inconsistent with the objectives of the conspiracy, to disavow or to defeat the
objectives of the conspiracy; and (2) that he made a reasonable effort to
communicate those acts to his co-conspirators or that he disclosed the scheme to
law enforcement authorities.” United States v. Starrett, 55 F.3d 1525, 1550 (11th
Cir. 1995). The defense is not available if the defendant merely ceased to
participate in the conspiracy. United States v. Hogan, 986 F.2d 1364, 1375 (11th
Cir. 1993). Although Thelisma would not have been responsible for his co-
conspirators’ actions after his withdrawal, he did not present any evidence that he
took affirmative steps to disavow or defeat the conspiracy. At most, the evidence
showed that he no longer participated in the conspiracy after a certain point, but
lack of participation is not sufficient to establish withdrawal. Thus, we conclude
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that the evidence was relevant, and the district court did not abuse its discretion by
allowing the government to present it.
II.
Next, Thelisma argues that the district court abused its discretion by
allowing the government to introduce evidence of his prior cocaine and marijuana
convictions to prove his intent to commit the present drug offense. He urges that
his intent was not at issue because he denied any involvement with the conspiracy.
He further submits that the government introduced the prior convictions only to
show his bad character.
We review a district court’s admission of evidence of a defendant’s prior
bad acts under Fed.R.Evid. 404(b) for abuse of discretion. United States v.
Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003). Federal Rule of Evidence 404(b)
provides: “[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. 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). We employ the following three-part test in
determining whether evidence of extrinsic bad acts is admissible under
Rule 404(b):
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First, the evidence must be relevant to an issue other than the
defendant’s character. Second, as part of the relevance analysis, there
must be sufficient proof so that a jury could find that the defendant
committed the extrinsic act. Third, the evidence must possess
probative value that is not substantially outweighed by its undue
prejudice, and the evidence must meet the other requirements of
[Fed.R.Evid.] 403.
Jernigan, 341 F.3d at 1280.
In order to support a conspiracy conviction under 21 U.S.C. § 846, the
government must establish that (1) a conspiracy existed, (2) the defendant had
knowledge of it, and (3) he voluntarily became a part of it. United States v.
Thompson, 422 F.3d 1285, 1290 (11th Cir. 2005). When a defendant pleads not
guilty, intent becomes a material issue. United States v. Hernandez, 896 F.2d 513,
522 (11th Cir. 1990). Evidence of a crime similar to the one charged is relevant to
proving intent. United States v. Montes-Cardenas, 746 F.2d 771, 780 (11th Cir.
1984). Moreover, evidence of prior drug dealing is highly probative of intent in
later conspiracy and distribution charges. United States v. Diaz-Lizaraza, 981 F.2d
1216, 1224 (11th Cir. 1993). In assessing the third prong, “a court should consider
the differences between the charged and extrinsic offenses, their temporal
remoteness, and the government’s need for the evidence to prove intent.” Id.
at 1225. Furthermore, a district court may limit the prejudicial value of evidence
by giving a limiting instruction to the jury. Hernandez, 896 F.2d at 523.
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First, we conclude that by pleading not guilty, Thelisma put his intent at
issue. Second, Thelisma has not argued that the evidence was insufficient to prove
that he committed the prior acts. Finally, the prior convictions were probative of
his intent because they involved prior drug dealing. Moreover, the district court
limited any prejudice caused by the introduction of the convictions by instructing
the jury as to the limited purpose of the evidence. Accordingly, we conclude that
the district court did not abuse its discretion by allowing the prior conviction
evidence.
III.
Thelisma also argues that the district court abused its discretion by refusing
to allow him to introduce a response made by the government in his alleged
co-conspirator’s sentencing proceedings. He contends that the response was
admissible as a party-opponent admission. Alternatively, he urges that it was
relevant to impeach the testimony of the co-conspirator, who testified at
Thelisma’s trial.
As noted above, we “review a district court’s evidentiary rulings for clear
abuse of discretion.” Perez-Oliveros, 479 F.3d at 783. Relevant evidence may be
excluded at trial if the probative value of the evidence is substantially outweighed
by, as relevant here, confusion of the issues or considerations of undue delay or
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waste of time. Fed.R.Evid. 403.
Hearsay is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Fed.R.Evid. 801(c). Hearsay generally is not admissible.
Fed.R.Evid. 802. However, admissions by a party opponent generally are not
considered hearsay, even if they otherwise meet the definition.
Fed.R.Evid. 801(d). Prior inconsistent statements of a witness are admissible to
impeach that witness. United States v. Sisto, 534 F.2d 616, 622 (5th Cir. 1976).
Addressing whether a defendant could introduce statements made by a
prosecutor in his codefendant’s earlier trial, we held that the statements were not
admissible because (1) the earlier comments were not statements of fact, and
(2) the earlier comments were not clearly inconsistent with the government’s
position in the second trial. United States v. DeLoach, 34 F.3d 1001, 1005-06
(11th Cir. 1994).
We conclude from the record that the government’s response in the other
case was not inconsistent with its position in Thelisma’s trial that he also
participated in the conspiracy. Moreover, the response was not relevant to impeach
the co-conspirator’s testimony because the co-conspirator did not make the
statement that Thelisma sought to introduce. Accordingly, we conclude that the
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district court did not abuse its discretion by denying Thelisma’s motion to admit
the response as evidence in his trial.
IV.
Finally, Thelisma argues that his mandatory life sentence was
unconstitutional because (1) it amounted to cruel and unusual punishment, (2) the
enhancement based on prior convictions not proven to the jury violated the Fifth
and Sixth Amendments, and (3) the statutory sentence violated the
separation-of-powers doctrine by removing discretion from the sentencing court.
We review questions of constitutional law de novo. United States v. Brown,
364 F.3d 1266, 1268 (11th Cir. 2004). Mandatory life sentencing for repeat drug
offenses does not constitute cruel and unusual punishment or violate due process.
United States v. Willis, 956 F.2d 248, 250-51 (11th Cir. 1992). Mandatory
minimum sentencing also does not violate the separation-of-powers doctrine.
United States v. Holmes, 838 F.2d 1175, 1178 (11th Cir. 1988).
The Supreme Court has held that the government is not required to allege in
the indictment or prove beyond a reasonable doubt that a defendant had prior
convictions in order for the district court to use the convictions to enhance the
defendant’s sentence. Almendarez-Torres v. United States, 523 U.S. 224, 228-35,
118 S. Ct. 1219, 1223-26, 140 L. Ed. 2d 350 (1998). The Court subsequently held
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that the Constitution requires that “[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed.
2d 435 (2000) (emphasis added). After Apprendi, we have held that Almendarez-
Torres remains good law and must be followed until the Supreme Court determines
otherwise. United States v. Guadamuz-Solis, 232 F.3d 1363, 1363 (11th Cir.
2000).
Because all of Thelisma’s arguments were precluded by precedent, we
conclude that the district court did not err in imposing a mandatory life sentence.
For the above-stated reasons, we affirm Thelisma’s conviction and sentence.
AFFIRMED.
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