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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-13702
________________________
D.C. Docket No. 1:08-cr-00371-ODE-AJB-2
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellee,
versus
STEVEN BERNARD JORDAN,
a.k.a. Steven Dodson,
a.k.a. Ladarius Timmons,
llllllllllllllllllllllllllllllllllllllllDefendant - Appellant.
________________________
No. 10-13703
________________________
D.C. Docket No. 1:08-cr-00371-ODE-AJB-4
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellee,
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versus
BENJAMIN D. SMARR,
llllllllllllllllllllllllllllllllllllllllDefendant - Appellant.
________________________
No. 10-13747
________________________
D.C. Docket No. 1:08-cr-00371-ODE-AJB-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellee,
versus
CALVIN THOMAS FURLOW,
llllllllllllllllllllllllllllllllllllllllDefendant - Appellant.
________________________
No. 10-13748
________________________
D.C. Docket No. 1:08-cr-00371-ODE-AJB-3
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellee,
versus
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ADRIAN ANTOINE CAMPBELL,
llllllllllllllllllllllllllllllllllllllllDefendant - Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
________________________
(August 21, 2012)
Before WILSON and EDMONDSON, Circuit Judges, and VINSON,* District
Judge.
PER CURIAM:
The defendants, Steven Bernard Jordan, Benjamin D. Smarr, Calvin Thomas
Furlow, and Adrian Antoine Campbell, were convicted after a week-long jury trial
of a cocaine drug conspiracy and related offenses. They bring this direct appeal,
challenging their convictions and sentences on numerous grounds. After review,
and with the benefit of oral argument1, we affirm.
I.
Evidence admitted during the trial permitted the jury to find the following
facts:
*
Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
1
Case Nos. 10-13703 (Smarr) and 10-13748 (Campbell) went to oral argument; Case
Nos. 10-13702 (Jordan) and 10-13747 (Furlow) were submitted on the briefs.
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At the time relevant to this case, J.C. Pitts was a detective with the DeKalb
County, Georgia, Police Department. He was assigned to the High Intensity Drug
Trafficking Areas Task Force, which is a joint state and federal program focused
on investigating large scale drug trafficking organizations. On January 8, 2007,
Detective Pitts received a telephone call from an agent with the Drug Enforcement
Administration in Anderson County, South Carolina. The agent told Detective
Pitts about a recently-arrested drug dealer, Mario Woods, who had agreed to
become a confidential informant and provide information about drug transactions
in DeKalb County in exchange for leniency in a criminal case that was pending
against him in South Carolina. Thereafter, Detective Pitts met with Woods and
learned that, over the preceding four months, Woods had bought cocaine from one
of the defendants, Calvin Thomas Furlow, on a regular basis. These transactions --
- which occurred two to three times each week, and involved between two to seven
kilograms each time --- took place at Furlow’s residence at 1123 Redan Way in
Stone Mountain, Georgia. After partially verifying this information,2 and
conducting preliminary surveillance of Furlow’s house, Detective Pitts decided
2
Detective Pitts verified that Furlow lived at 1123 Redan Way, and he listened to some
previously recorded phone conversations from January 5-7, 2007 (before Woods first talked to
Detective Pitts) in which Furlow told Woods that he was in the process of trying to obtain more
cocaine.
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that he would use Woods to make a controlled buy of five kilograms of cocaine
from Furlow “like the ones that had been going on for months . . . [and] arrest all
parties involved[.]”
For a couple of weeks before the controlled buy, Detective Pitts monitored a
series of telephone calls between Woods and Furlow in which the two men tried to
finalize the deal. Furlow informed Woods during these conversations --- some of
which were recorded, some of which were not --- that he had two general sources
of cocaine supply: a Hispanic man in Kennesaw, Georgia (his “primary source of
supply”), and his “cousin” who drove a Department of Transportation dump truck
(his “secondary source of supply”).1 At some point during their discussions (it is
not clear exactly when) Furlow told Woods that “his cousin that drive [sic] the
dump truck had to bring it [the cocaine].” However, on January 23, 2007, Furlow
informed Woods that his “secondary source of supply had not come through,” but
that his “primary source of supply out of Kennesaw” now had enough cocaine to
complete the deal. Furlow told Woods that he was planning to drive to Kennesaw
“first thing in the morning” to pick up the drugs.
At approximately 8:30 the next morning, January 24, 2007, Detective Pitts
1
As will be discussed, this “secondary source of supply” was subsequently identified as
defendant Adrian Antoine Campbell. Although Furlow referred to him as his cousin, there does
not appear to be any evidence in the record of a familial relationship between the two men.
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set up surveillance of Furlow’s house on 1123 Redan Way. He positioned himself
in an unmarked police car across the street from the house next door to Furlow’s
residence, pointing in the direction of both houses. Detective Pitts explained that
he was to be “the eye” of the operation, which meant that he was there to observe
the scene and, in his words, report “anything” and “everything” he saw by police
radio to other officers who were waiting in vehicles nearby. The surveillance team
had expected that Furlow would leave for Kennesaw early in the morning to meet
his primary supplier (as he had told Woods), and they planned to follow him there
“to identify that particular source of supply.” Detective Pitts thus testified that the
surveillance team on Redan Way that morning was expecting to conduct “mobile
surveillance.” However, Furlow did not leave his house that morning and, in fact,
nothing happened for several hours.
At around 3:05 that afternoon, a red Ford Focus drove past Furlow’s house
and backed into the driveway of the house next door, across from where Detective
Pitts was parked. Detective Pitts “immediately became suspicious” of the vehicle
because, based on his earlier surveillance, he believed that house was vacant. The
car did not pull all the way in, but rather it stopped near the end of the driveway ---
about 20 feet from Detective Pitts’s car. Due to the close proximity between the
two vehicles, Detective Pitts “slumped down” in his seat so that he would not be
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seen. Even from this position, however, he had an unobstructed view of the Ford
Focus and could see the occupants “pretty clearly.” There were two men in the
vehicle: Defendants Benjamin D. Smarr, the driver and registered owner, and
Steven Bernard Jordan, the passenger. Neither man got out of the car; they just
“talk[ed] back and forth . . . for a few minutes.”
While the car was parked in the driveway, Detective Pitts observed Jordan
retrieve a black bag from somewhere in the vehicle. After holding and “messing
with the top” for a few minutes, Jordan passed the black bag to Smarr, who then
exited the car and walked across the yard to Furlow’s house. The bag was “heavy
and flat on the sides” and large enough to hold five kilograms of cocaine. When he
got to Furlow’s front porch, Smarr talked to someone at the door for a few
minutes, after which Smarr handed the bag off “very quickly” and immediately
returned to his car.4
4
From his position across the street --- and because the front door of Furlow’s house was
inset --- Detective Pitts was not able to see who Smarr talked and gave the bag to. However, he
was able to see this person’s arm and “a white sleeve.” Photographs introduced into evidence at
trial show that Furlow was wearing a shirt with white sleeves. During re-direct, Detective Pitts
testified that it was Furlow’s sleeve he saw at the door when Smarr brought the bag to the house.
As will be noted further infra, there is some disagreement as to whether Detective Pitts
told the other officers over the radio that he saw Smarr drop the black bag off at Furlow’s house.
Detective Pitts testified that he did, but the officers on the other end of his transmissions did not
recall him mentioning Smarr or the black bag. In either event, Detective Pitts testified that “[a]t
that particular time it was very suspicious, but I did not know for a fact that cocaine was in that
bag.” Indeed, at that time the agents were still operating under the assumption that Furlow was
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Smarr got back in the driver’s seat when he returned to the car, and he and
Jordan “sat there conversing in the vehicle.” At no point did they exit the car and
go up the driveway to the house where they were parked. Several minutes later, at
approximately 3:35 p.m., a Department of Transportation dump truck pulled up
and stopped in front of 1123 Redan Way. Detective Pitts testified “I immediately
thought to myself based upon the previous phone conversations that this must be
the secondary supplier he [Furlow] had been referring to throughout all the entire
phone calls.” Defendant Adrian Antoine Campbell was the sole occupant of the
truck. He exited the vehicle, retrieved a traffic vest and paper lunch bag from the
passenger side --- the latter of which, Detective Pitts testified, was not big enough
to carry five kilograms of cocaine5 --- and entered Furlow’s house. Five minutes
later, Campbell left the residence without the traffic vest or the lunch bag, and he
walked across the yard to the Ford Focus parked next door. He stood outside of
the vehicle and talked to Smarr and Jordan. At or around the same time that
Campbell exited the house (Detective Pitts testified that it occurred “almost
simultaneously”), Furlow called Woods and told him “the cocaine was at the
going to leave to get the cocaine from his primary source of supply in Kennesaw.
5
Five kilograms is a little more than eleven pounds. The lunch bag that Campbell carried
into the house (which was not photographed or booked into evidence) was described at trial as a
“small brown . . . little lunch sack.”
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house, and he was ready to conduct the transaction. He even told him to hurry.”
Woods arrived at Furlow’s house a few minutes later.
When he got to the house, Woods immediately recognized both the red Ford
Focus and Campbell. He testified that “every time” he bought cocaine from
Furlow at his house the red Ford Focus was parked (rear-side first) in the driveway
of the house next door, as it was on this occasion, and he remembered seeing
Campbell at the car --- along with another man he could not identify --- during at
least one prior drug transaction. Woods, who was wearing a wire, then had the
following recorded exchange with Detective Pitts:
Mario Woods: Hey, yeah that’s the cousin right there
man, the dude that normally bring it. So ya’ll better get
that red car too.
Detective Pitts [to the other officers]: 38. The guy from
the dump truck is talking to this little four-door red car in
the driveway next door. The car next door may be the
one holding it. The little red four-door car next door,
that’s going to need to be taken down also, [Woods]
recognized the car and said that’s the cousin. If this red
car goes mobile, this is the one that we want to take, the
little red four-door newer model car. I can’t tell what
kind it is. That’s who the dump truck guy is talking to.
It’s been sitting in the driveway next door for about
twenty minutes.
As Woods approached the house, he testified that Campbell said something to him
(he did not recall what). Woods then went into Furlow’s house and saw the
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cocaine in the kitchen, “sitting on the side of the floor by the counter.” Furlow
moved the drugs up to the counter, after which Woods verified that it was cocaine,
made an excuse to leave the house (telling Furlow that he had to go to his truck
and get the money), and gave law enforcement a pre-arranged signal that the drugs
were there.
At that time, the officers executed a search warrant on Furlow’s house.
Upon entering the house, Detective Pitts saw five large “bricks” of cocaine on the
kitchen counter. The black bag --- now empty --- was lying right next to and
“touching” the cocaine. The traffic vest that Campbell brought into the house was
on a table next to the kitchen counter. Detectives found a bag containing 117
grams of cocaine in the cupboard, and they recovered a handgun, an assault rifle,
and a shotgun in the master bedroom. Furlow attempted to flee, but he was
apprehended in the rear of the house. The other three defendants were arrested
outside. A bag containing 250 grams of cocaine (apparently from a different batch
than the five kilograms inside the kitchen) was found on the floorboard of
Campbell’s dump truck, and more than $7,000 in cash was found in his jacket
pocket. The detectives found $2,300 in cash in Jordan’s pocket. No drugs or
money were found on Smarr.
The defendants were later charged with conspiracy to possess with intent to
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distribute cocaine, and with possession with intent to distribute cocaine. It was the
government’s theory that Smarr and Jordan brought the drugs to Furlow’s house in
the black bag, while Campbell was the “broker” of the deal. Furlow was separately
charged with possession of firearm by a convicted felon.6
The defendants each pled not guilty, and, as the case progressed, they began
to have conflicting defenses. Smarr, Jordan, and Campbell each claimed that they
were merely present at Furlow’s house while others were responsible for the
drugs. Smarr and Jordan pointed the finger at Campbell, contending that he could
have brought the cocaine into Furlow’s house concealed in the traffic vest.
Meanwhile, Campbell argued that the cocaine had already been brought into the
house by the time he arrived, perhaps by Smarr in the black bag. Prior to trial,
Campbell moved to sever his case from the others. That motion was denied, and
the case proceeded to a five-day jury trial. The government called Detective Pitts
and Woods as their main witnesses, along with, inter alia, two chemists who
testified that the “bricks” of cocaine found in Furlow’s kitchen weighed a total of
5.0395 kilograms.
6
Furlow was also charged with conspiracy to possess with intent to distribute marijuana
(which was severed prior to trial), and possession of firearms in furtherance of a drug trafficking
crime (which was dismissed on his motion for directed verdict). Neither of these two charges is
at issue in this appeal.
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Prior to trial, and after the evidence closed and after the jury was instructed
on the law, Smarr requested that the district court instruct the jury on his theory of
defense, to wit, that he was “merely present” at the scene. Despite a lengthy back-
and-forth, however, the parties could not agree on a theory of defense instruction.
After the court determined that it had “exhausted all of the possibilities to give a
theory of the defense charge,” it declined to give a mere presence instruction after
explaining: “I think I will just rest on the charge that’s already been given which
does completely cover the concepts that you all are interested in as far as the
theory of the defense goes.”
Before the jury started deliberating, the district judge commented to the jury
that she had been told there was “cocaine residue” in the black bag, and thus it was
not going to be sent into the jury room during their deliberations (although the jury
could see it if they asked).7 Shortly after retiring to the jury room, the jury sent a
note asking if it was “certain” that there were cocaine traces inside the black bag
and, if so, whether the traces could be considered as evidence. The district court
responded as follows:
The answer to your question is no. There is no evidence
7
The comment about cocaine residue was apparently based on a statement from one of
the government attorneys, who advised the court that there may have been residue in the black
bag because counsel had placed the cocaine bricks in the bag during trial.
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that any such cocaine trace has ever --- such alleged
cocaine trace has ever been tested to see if it’s cocaine.
Furthermore, I have to point out to you that there is no
evidence that the [black] bag when it was taken from the
scene had any cocaine trace in it. There’s just no
evidence in the record about that.
The [black] bag which is still here in the courtroom and
which I have not looked inside myself was handled
during the court proceedings by one or more of counsel,
I don’t recall exactly, and it may be that now it has some
traces of something in it, and so out of an abundance of
caution, we’re not giving you the [black] bag.
Again, as I said, if you want to look inside it you could.
The court security officer will bring it to you, but there
really is no evidentiary significance at this point whether
there is or is not traces of something inside the bag
because there’s been no actual evidence put in on that
point.
The jury subsequently found all four defendants guilty on the two drug counts. In
a special verdict form, the jury attributed at least five kilograms of cocaine to
Furlow and Campbell, while it attributed only 500 grams or more of cocaine to
Jordan and Smarr. The jury also found Furlow guilty of possession of a firearm by
a convicted felon. The defendants then proceeded to sentencing.
At sentencing, the district court found that the government established by
preponderance of the evidence that (contrary to what the jury had found) Smarr
and Jordan were responsible for the five kilograms of cocaine. The district court
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reasoned:
I think that because the black bag which Mr. Smarr
carried into Mr. Furlow’s house and which Mr. Jordan
handed to Mr. Smarr so that he could carry it into the
house very likely contained the same amount that the lab
came up with, the 5.0395.
Thus, all defendants were held responsible for five kilograms. Furlow, Campbell,
and Jordan were sentenced to the statutory minimum mandatory sentence of 240
months incarceration, followed by ten years supervised release.8 Smarr, who had
no prior criminal record, was sentenced to the statutory minimum mandatory
sentence of ten years incarceration, followed by five years supervised release. The
defendants now appeal.
II.
The defendants have collectively raised nine issues on appeal, but only the
following four warrant discussion:
(1) Whether there was sufficient evidence to support the
jury’s verdict on the conspiracy and the possession with
intent to distribute charges (Smarr and Campbell);
(2) Whether the district court erred in refusing to sever
Campbell’s trial from the other defendants (Campbell);
(3) Whether the district court erred when it commented
8
Furlow also received a 10-year sentence on the firearm charge, to run concurrently with
the drug sentences.
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on there being “cocaine residue” in the black bag (Smarr
and Jordan); and
(4) Whether the district court erred in refusing to give a
“mere presence” theory of defense instruction (Smarr).9
III.
A. Sufficiency of the evidence
Smarr and Campbell contend that the evidence was insufficient to convict
them of the conspiracy and possession offenses. “In reviewing the sufficiency of
the evidence underlying a conviction, we consider the evidence ‘in the light most
favorable to the government, with all inferences and credibility choices drawn in
the government’s favor.’” United States v. DuBose, 598 F.3d 726, 729 (11th Cir.
2010) (citation omitted). In deciding if there was sufficient evidence, the question
is whether “‘reasonable minds could have found guilt beyond a reasonable doubt,
not whether reasonable minds must have found guilt beyond a reasonable doubt.’”
United States v. Bacon, 598 F.3d 772, 775 (11th Cir. 2010) (citation omitted)
9
Two of the five issues that do not warrant discussion are sentencing arguments: Smarr
and Jordan challenge, as contrary to the jury verdict, the quantity of cocaine that was attributed to
them at sentencing, and Campbell and Furlow challenge the constitutionality of their statutory
minimum mandatory sentences. But, the defendants have all but conceded in their briefs and/or
at oral argument that the sentencing arguments are foreclosed by binding circuit precedent. Thus,
whatever the possible merits of those two arguments, they are rejected on the basis of our prior
panel rule. United States v. Smith, 122 F.3d 1355, 1359 (11th Cir. 1997) (“Under the prior panel
precedent rule, we are bound by earlier panel holdings . . . unless and until they are overruled en
banc or by the Supreme Court.”).
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(emphasis in original).
To convict someone of conspiracy, the government must show with proof
beyond a reasonable doubt “(1) that a conspiracy existed; (2) that [the defendant]
knew about the conspiracy; and (3) that [he] knowingly joined the conspiracy.”
United States v. Garcia-Bercovich, 582 F.3d 1234, 1237 (11th Cir. 2009); accord
United States v. McDowell, 250 F.3d 1354, 1365 (11th Cir. 2001). The knowledge
requirement will be satisfied when the government establishes that the defendant
was aware of the essential nature of the conspiracy. See United States v. Ndiaye,
434 F.3d 1270, 1294 (11th Cir. 2006). Mere presence at the scene of a crime and
close association with a co-conspirator does not establish knowing participation,
but knowledge can be established through the surrounding circumstances, such as
acts committed by the defendant that furthered the purpose of the conspiracy. See
United States v. Vera, 701 F.2d 1349, 1357 (11th Cir. 1983). Thus, agreement and
participation in the conspiracy do not have to be explicit, but can be “inferred from
circumstantial evidence.” See United States v. Prince, 883 F.2d 953, 957 (11th Cir.
1989). To be sure, “[b]ecause of the clandestine nature of most conspiracies, they
must often be proven using circumstantial evidence.” United States v. Humphrey,
34 F.3d 551, 555 (7th Cir. 1994).
Based on the evidence, admittedly circumstantial, presented in this case, a
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reasonable jury could have determined that Smarr and Campbell knowingly and
willfully conspired to possess with intent to distribute cocaine. Taking Smarr first,
the evidence, viewed in the light most favorable to the government, showed that
he parked his red Ford Focus (rear-side first) in the driveway of an apparently-
vacant house next door to Furlow’s residence. After sitting in the car for several
minutes (without ever attempting to get out of the car and go up to the house
where it was parked), his passenger, Jordan, “mess[ed] with” the top of a black
bag and passed it to Smarr, who proceeded to walk across the yard and “quickly”
deliver that bag to Furlow. Smarr then returned to his car and, rather than leave, he
continued to wait in the vehicle for several minutes. When the confidential
informant arrived shortly thereafter he recognized Smarr’s vehicle as having been
parked in exactly the same way at the exact same location “every time” that he
bought cocaine from Furlow at his house.10 The cocaine was found minutes later in
Furlow’s kitchen, in very close proximity to the now-empty black bag.11 This
10
To the extent the defendants argue on appeal, as they did at trial, that Woods was an
admitted cocaine dealer whose “self-serving testimony” (given in exchange for leniency in his
then-pending criminal case) was not credible, we need only say that credibility determinations are
the sole province of the jury --- regardless of the character and possible motivations of the
witness. United States v. Hewitt, 663 F.2d 1381, 1385 (11th Cir. 1981) (jury entitled to believe
the self-serving testimony of “scoundrels, liars and brigands” given in exchange for immunity).
11
Smarr emphasized in his briefs and at oral argument that the black bag was touching
and lying next to the cocaine only after Furlow moved the cocaine from the kitchen floor to the
counter. The evidence is not clear whether the cocaine was moved from the floor to the table in
the bag. (The prosecutor asked Woods that question on direct examination, but defense counsel
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evidence was sufficient to sustain the guilty verdict as to Smarr.
Smarr does not make much of an effort to deny that the above evidence ---
viewed in the government’s favor --- was sufficient to support the guilty verdict.
Rather, he challenges the believability of the central and most important piece of
that evidence: Detective Pitts’ testimony about the black bag. Smarr argues that
Detective Pitts was either mistaken about what he saw, or he deliberately lied and
“retrospectively created [a] story” in order “to make the evidence fit his theory” of
the case. This argument was made during trial, but Detective Pitts testified that he
could see what happened “pretty clearly” and he was “positive” and “one hundred
percent certain” that he saw Jordan give the bag to Smarr, who took it to the house
and gave it to Furlow. By its guilty verdict, the jury necessarily believed Detective
Pitts. Indeed, if the jury did not believe that Smarr and Jordan had brought the bag
and that it contained (at least some of) the cocaine, the remaining evidence against
them (e.g., parking in the driveway next door, and talking to Campbell when he
left Furlow’s house) would have been insufficient to convict. Although the jury
verdict is not without problems and ambiguities in some respects, as will be noted
objected on leading grounds. The district court sustained the objection and the question was not
re-phrased). Regardless, it is clear that the bag was in the kitchen and in relative close proximity
to the cocaine (even when it was on the floor). More notably, in contrast to what Detective Pitts
testified to having seen outside the house mere minutes before, the bag was “completely empty”
when the agents entered the house.
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further infra, it is manifest that they believed Detective Pitts when he testified that
he saw Smarr and Jordan with the black bag. Smarr concedes as much in his brief
when he states that “for the jury to bring back a guilty verdict against Mr. Smarr, it
had to believe Detective Pitts.” As we explained in the context of Woods’
testimony, see note 10 supra, an appellate court cannot second guess a jury’s
decision to believe a witness. United States v. Andrews, 953 F.2d 1312, 1318
(11th Cir. 1992) (whether to believe a witness “is the sole province of the jury”
and court of appeals “will not overturn a jury’s decision to believe a witness”).
The evidence against Campbell was also sufficient to sustain his conspiracy
conviction, on the government’s “brokerage theory.” Campbell, the government
contends, was the one who arranged for the cocaine to be delivered to Furlow by
Smarr and Jordan. The evidence at trial established that Campbell (who drove the
Department of Transportation dump truck) was Furlow’s “secondary source of
supply.” Woods testified that earlier on, when he and Furlow were still trying to
arrange the cocaine deal, Furlow had told him that his supplier who “drive[s] the
dump truck had to bring it.” A reasonable jury could have found, based on the
evidence, that Campbell had entered Furlow’s house minutes before Furlow told
Woods that he was finally ready to complete the transaction, and that he
(Campbell) was in the kitchen where the cocaine was later found, as evidenced by
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his leaving the traffic vest behind on the table. “Almost simultaneously” as
Campbell left the house and went outside to meet with Smarr and Jordan, Furlow
called Woods and told him that the cocaine was now available for pick-up. When
Woods arrived at the house he immediately recognized Campbell as having been
present for, and waiting at the red Ford Focus during, at least one prior drug deal.
When Campbell was arrested, he had more than $7,000 in cash in his pocket and
cocaine (albeit from a different batch) in his dump truck. A jury is “free to choose
between or among the reasonable conclusions to be drawn from the evidence[.]’”
United States v. Garcia, 447 F.3d 1327, 1334 (11th Cir. 2006) (citation omitted).
The jury had ample evidence to support a finding of joint participation by Smarr
and Jordan, with Campbell as the broker, in delivering the cocaine to Furlow.12
The evidence was likewise sufficient to support the substantive offense of
possession with intent to distribute cocaine. To support a conviction for this
offense, the government must prove “‘(1) knowing (2) possession of a controlled
12
In the course of arguing that the evidence was not sufficient to sustain his conviction,
Campbell notes that the agents had expected Furlow to leave his house that morning to get the
cocaine from his “primary source of supply” in Kennessaw. All that shows, however, is that the
plan changed. Indeed, as indicated above, Woods testified at trial that at some point during their
preliminary phone calls Furlow told Woods that his secondary supplier who “drive[s] the dump
truck had to bring it.” Whatever the reason for the changes in plan on January 24th (or, perhaps,
the switch back to the original plan), the evidence was enough for the jury to find that, despite
what the agents had expected and planned for that morning, Furlow arranged to get the cocaine
from his secondary source (via Jordan and Smarr) instead of his driving to Kenessaw to get the
drugs directly from his primary source.
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substance (3) with intent to distribute it.’” United States v. Freyre-Lazaro, 3 F.3d
1496, 1504 (11th Cir. 1993) (citation omitted). Possession can be joint or sole and
actual or constructive. E.g., United States v. Crawford, 906 F.2d 1531, 1535 (11th
Cir. 1990).
The same evidence that was sufficient to sustain the conspiracy charge, as
set forth above, is enough to sustain the possession with intent to distribute charge
against the defendants as joint possessors. Further, the evidence also supports the
conviction of each defendant on an aider and abettor theory. It is unchallenged that
Furlow possessed the cocaine found in his kitchen. The defendants were charged
in the indictment with aiding and abetting each other to distribute this cocaine, and
the district court instructed the jury on aider and abetter liability. To convict under
an aider and abetter theory, the government had to establish that the defendants
“associated themselves with the [cocaine distribution] venture and sought by their
actions to make the venture a success.” See Freyre -Lazaro, 3 F.3d at 1504. The
defendants’ participation in the drug conspiracy “was sufficient to support their
convictions for possession with intent to distribute cocaine on an aiding and
abetting theory.” See id.; see also United States v. Farris, 77 F.3d 391, 395 (11th
Cir. 1996) (rejecting a sufficiency-of-the-evidence challenge to conspiracy charge,
then holding: “The evidence, which is sufficient to support the conspiracy charge,
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supports the possession charge because it shows [defendant] to have been an aider
and abettor.”).
We recognize that to some extent the jury’s verdict does not fit together
very neatly. As previously indicated, the jury clearly believed Detective Pitts’
testimony about the black bag, or it would not have found Smarr and Jordan
guilty. However, since the jury credited that testimony, it raises the question: why
did the jurors not hold Smarr and Jordan responsible for all five kilograms, as they
did Furlow and Campbell? At the sentencing hearing, the lawyers and the court
speculated about possible reasons for this apparent inconsistency, including the
possibility that the jury concluded that certain of the cocaine “bricks” were carried
in the black bag, while one or more others were brought by Campbell under his
traffic vest. Under this possible explanation, Smarr/Jordan and Campbell each
brought less than five kilograms; but, Campbell was also responsible for the
cocaine found in his truck, and, as Furlow’s supplier, the cocaine found in the
cupboard as well (thus making him responsible for more cocaine than Smarr and
Jordan). We need not decide or speculate on what the jury was thinking with
regard to its quantitative verdicts. Whatever the jury was thinking, the evidence
was sufficient to support Smarr’s and Jordan’s convictions of conspiracy and
possession with intent to distribute cocaine, and the district judge’s attribution to
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them of the full five kilograms for sentencing purposes was supported by a
preponderance of the evidence. See United States v. Faust, 456 F.3d 1342, 1348
(11th Cir. 2006) (post-Booker courts can continue to consider relevant acquitted
conduct proved by a preponderance of the evidence).
B. Severance
Prior to trial, Campbell moved to sever his trial from the other defendants,
and his motion was denied. Campbell argues on appeal that the district court erred
in refusing to sever because the government had a “strong case” against Furlow on
the drug and firearm charges, while it had a “weak case” against him and the other
defendants. Trying these cases together, Campbell maintains, created “intolerable
tension” between the defendants that ultimately resulted in “antagonistic
defenses.”
In determining if a joint trial (or severance) is appropriate, the district court
must “balance the prejudice that a defendant may suffer from a joint trial, against
the public’s interest in judicial economy and efficiency.” United States v. Cross,
928 F.2d 1030, 1037 (11th Cir. 1991). “This court is reluctant to reverse a district
court’s denial of severance, particularly in conspiracy cases, as generally ‘persons
who are charged together should also be tried together.’” United States v.
Knowles, 66 F.3d 1146, 1158 (11th Cir. 1995) (citation omitted); accord, e.g.,
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United States v. Leavitt, 878 F.2d 1329, 1340 (11th Cir. 1989) (“coconspirators
should usually be tried together”). We review the district court’s denial of a
motion for severance for clear abuse of discretion. See United States v. Hill, 643
F.3d 807, 828 (11th Cir. 2011). To prevail, “defendant must carry the ‘heavy
burden’ of demonstrating that he ‘suffered compelling prejudice’ and received an
unfair trial.” United States v. Kennard, 472 F.3d 851, 858-59 (11th Cir. 2006)
(citation omitted). A defendant meets his burden by showing that the jury “was
unable to sift through the evidence and ‘make an individualized determination as
to each defendant.’” United States v. Schlei, 122 F.3d 944, 984 (11th Cir. 1997)
(citation omitted). This is not easily shown, particularly if the jury is instructed to
consider the charges and evidence against each defendant separately. See id.
Indeed, “the strong presumption is that jurors are able to compartmentalize
evidence by respecting limiting instructions specifying the defendants against
whom the evidence may be considered.” United States v. Blankenship, 382 F.3d
1110, 1123 (11th Cir. 2004).
Campbell has not carried his “heavy burden” of showing that he “suffered
compelling prejudice” by being tried along with his co-defendants. The evidence
implicated all four of them, and under the government’s “brokerage theory,” there
were no obvious antagonistic defenses. Even if it is assumed, however, that he and
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the other defendants had antagonistic defenses, the Supreme Court has made clear
that “antagonistic defenses are not prejudicial per se.” See Zafiro v. United States,
506 U.S. 534, 538, 113 S. Ct. 933, 122 L. Ed. 2d 317 (1993). To the extent that he
argues there was prejudice because the government had little evidence against him
(the case was “weak”), while it had much more evidence against Furlow (the case
was “strong”), even if true, that does not qualify as prejudice. “The mere fact that
there may be an enormous disparity in the evidence [against one of the defendants]
compared to the other defendants is not a sufficient basis for reversal. A defendant
does not suffer compelling prejudice, sufficient to mandate a severance, simply
because much of the evidence at trial is applicable only to co-defendants.” Schlei,
122 F.3d at 984 (quotation marks and citation omitted). Further, the district court
properly instructed the jury that it must separately consider each defendant, each
charged offense, and all the evidence related thereto. Those instructions mitigated
any possible prejudice. See id. (district court “avoided any potential prejudice” by
issuing substantively identical instructions).
For these reasons, the district court did not clearly abuse its discretion in
denying Campbell’s motion for severance.
C. District court’s comment on “cocaine residue” in the black bag
The district court told the jury that it would not send the black bag into the
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jury room during deliberations because it had “cocaine residue” in it. Smarr and
Jordan argue that this comment was error, and the government impliedly agrees.
However, showing error is not enough to warrant reversal. “Reversal is warranted
only if the court made prejudicial comments that had a clear effect on the jury and
amounted to the denial of a fair trial.” United States v. Tampas, 493 F.3d 1291,
1303 (11th Cir. 2007).
Smarr’s lawyer maintained during the trial (and on this appeal) that there is
insufficient evidence that Smarr carried the black bag to Furlow’s house. It is his
contention that Detective Pitts --- the only witness who testified that he did so ---
fabricated the story in a convenient attempt to tie all four defendants together and
explain their joint presence at the scene of the crime. Smarr argues that Detective
Pitts did not tell the other officers over the radio that he had seen Smarr carry the
bag to Furlow’s house, see note 4, supra, and he notes that Detective Pitts told the
officers that the Ford Focus “may be the one holding it” (present tense) after he
purportedly saw Smarr give the bag to Furlow, thereby suggesting that Detective
Pitts made the story up after-the-fact. Smarr thus contends that the district court’s
comment about there being “cocaine residue” in the bag impermissibly bolstered
the only witness at trial who testified to having seen him with that bag.
The jurors were apparently confused by the court’s comment. Indeed, they
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sent a question back to the judge shortly after they began their deliberations and
asked: “Is it certain that there is cocaine trace inside of the black plastic bag, and
are we allowed to consider that as evidence?” The judge replied: “The answer to
your question is no. There is no evidence that any such cocaine trace has ever ---
such alleged cocaine trace has ever been tested to see if it’s cocaine.” The judge
further emphasized: “I have to point out to you that there is no evidence that the
[black] bag when it was taken from the scene had any cocaine trace in it. There’s
just no evidence in the record about that.”
While the district court may have erred in making the “cocaine residue”
comment, the error was harmless as it was corrected by the court’s answer to the
jury’s question, which unequivocally stated that “[t]here is no evidence” that the
black bag ever had any trace of cocaine in it.13 “Viewing the record in its entirety,
the prejudicial effect of the comment, if any, appears negligible and, in light of the
evidence, could not have affected the jury’s verdict.” United States v. Williams,
13
Smarr contends that this word choice (“there is no evidence”) implied to the jury that,
while there was no evidence introduced on this point, the district judge must have been “privy” to
information that was not provided to the jury. This argument is unpersuasive, however, as the
jury was instructed in its final charge that the jurors “must make your decision based only on the
testimony and evidence presented during the trial.” The jurors were further instructed that “you
must consider only the evidence admitted. The term ‘evidence’ includes the sworn testimony of
the witnesses, any exhibits admitted into the record and any stipulations of fact agreed on by the
parties.” It is axiomatic that “[a] jury is presumed to follow its instructions. Similarly, a jury is
presumed to understand [and accept] a judge’s answer to its question.” Weeks v. Angelone, 528
U.S. 225, 234, 120 S. Ct. 727, 145 L. Ed. 2d 727 (2000) (citations omitted).
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530 F.2d 1157, 1158 (5th Cir. 1976) (binding precedent under Bonner v. City of
Prichard, Ala., 661 F.2d 1206 (11th Cir. 1981) (en banc)).
D. District court’s failure to give theory of defense instruction
Finally, Smarr contends that the district court erred in refusing to give his
theory of defense jury instruction. His first proposed instruction was as follows:
Mr. Smarr’s theory of defense is that he did not
participate in the possession with the intent to distribute,
nor the distribution of, any amount of cocaine, either as a
direct participant or as part of a conspiracy. Mr. Smarr
was merely present at the time other individuals may
have been engaging in a drug transaction. If you find that
Mr. Smarr did not possess or distribute the drugs, or if
you simply have a reasonable doubt about whether he
participated in the possession or distribution of drugs,
then you are obligated to find him not guilty on Counts 1
and 2.
The district court initially tried to accommodate Smarr’s request. There was a
lengthy back-and-forth discussion between the judge and the attorneys --- before
and after the jury was charged --- but agreement on the language of the instruction
could not be reached. Smarr then proposed an amended instruction which stressed
his theory that “Campbell brought the five kilograms of cocaine to the location.”
The district judge ultimately declined to give a theory of defense instruction ---
apparently out of concern over whether and to what extent a similar instruction
would need to be given for the other defendants --- and concluded that “I think I
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will just rest on the charge that’s already been given which does completely cover
the concepts that you all are interested in as far as the theory of the defense goes.”
“District courts have broad discretion in formulating jury instructions[.]”
United States v. Mintmire, 507 F.3d 1273, 1293 (11th Cir. 2007). Refusal to give a
requested theory-of-defense instruction is reviewed for an abuse of discretion. See,
e.g., United States v. Arias–Izquierdo, 449 F.3d 1168, 1185 (11th Cir. 2006). The
district court abuses its discretion and commits reversible error in failing to give a
requested jury instruction only if:
(1) the requested instruction was a correct statement of
the law, (2) its subject matter was not substantially
covered by other instructions, and (3) its subject matter
dealt with an issue in the trial court that was so important
that failure to give it seriously impaired the defendant's
ability to defend himself.
Hill, 643 F.3d at 850 (citation omitted); accord, e.g., United States v. Paradies, 98
F.3d 1266, 1286 (11th Cir. 1996).
The district court did not abuse its broad discretion in refusing to give the
jury Smarr’s theory-of-defense instruction because the substance of his proposed
instruction was “substantially covered” by those instructions that were given. The
court instructed the jury on the conspiracy count that “mere presence at the scene
of a transaction or event or the mere fact that certain persons may have associated
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with each other and may have discussed common aims and interests does not
standing alone establish proof of a conspiracy.” Similarly, as for the possession
with intent to distribute cocaine count, the district court instructed the jury that
“[m]ere presence at the scene of a crime or even knowledge that a crime is being
committed are not enough to establish that defendant either directed or aided and
abetted the crime.”
Smarr argues, however, that his proposed instruction was not “substantially
covered” by the ones that were given. He contends that his instruction --- after it
was amended to address the district court’s initial concerns --- went beyond “mere
presence” in the sense that it “involved pointing the finger at someone else,
namely one of his co-defendants.” This argument is not persuasive. As a matter of
common sense and logic, the fact that Smarr pled not guilty and his trial attorney
argued that he just happened to be at Furlow’s house at the time of the deal (and
had nothing to do with the cocaine that had been brought there) can only mean that
he was, in fact, “pointing the finger at someone else.” After all, if he did not bring
the cocaine, that necessarily means someone else did. The district court instructed
the jury that, to be found guilty of the conspiracy and possession with intent to
distribute charges, Smarr must have acted “knowingly” (i.e., “voluntarily and
intentionally and not because of mistake or accident”) and “willfully” (i.e.,
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“voluntarily and purposely with specific intent to do something the law forbids,
that is, with bad purpose to disobey or disregard the law”). These instructions
adequately and necessarily covered Smarr’s theory of defense that someone else
was responsible for bringing the cocaine to Furlow’s house. To be sure, if
Campbell had brought the drugs and Smarr was merely --- and innocently ---
present at the scene, the jury could not have found that he acted knowingly and
willfully. See United States v. Woodard, 531 F.3d 1352, 1364-65 (11th Cir. 2008)
(observing and holding same).14
Accordingly, the district court did not abuse its broad discretion in refusing
to give Smarr’s theory-of-defense instruction.
IV.
We raise, sua sponte, the issue of clerical errors in the judgment and remand
with instructions that the district court correct the errors. United States v. Diaz,
190 F.3d 1247, 1251-53 (11th Cir. 1999) (remanding because the judgment
14
Smarr argues that Woodard is “inapplicable” because the instruction in that case only
covered a “mere presence” theory of defense, while, as noted above, he insists that his proposed
instruction “involved pointing the finger at someone else.” Once again, that argument must fail.
Every time that a defendant pleads not guilty and claims to have been merely present at the scene
of a crime he is necessarily “pointing the finger at someone else.” The defendant in Woodard
certainly was. Indeed, as was noted in that decision, Woodard’s defense was based on the claim
that one of his co-defendants, Spencer, “was the one who was involved in marijuana trafficking;
Woodard was simply visiting at Spencer’s residence when the police raid occurred --- he was, in
short, at the wrong place at the wrong time.” Id. at 1359.
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reflected the wrong offense). However, correction of the judgment must “not
prejudice the defendant in any reversible way.” Id. at 1252.
Here, the jury convicted Smarr and Jordan of conspiracy and possession
with intent to distribute offenses involving 500 grams or more of cocaine (but less
than five kilograms), which is the amount punishable under Title 21, United States
Code, Section 841(b)(1)(B). However, the written judgment for each defendant
lists Section 841(b)(1)(A), rather than Section 841(b)(1)(B). Although, as
previously discussed, the district court found by a preponderance of the evidence
that they were responsible for five kilograms or more of cocaine for purposes of
sentencing, they were not found guilty of the greater amount by the jury. Thus, the
judgments do not reflect the basis of their convictions, but rather contain a clerical
error which requires remand for correction. See Diaz, 190 F.3d at 1252.
Accordingly, we vacate and remand with instructions to revise the written
judgment.
V.
For the foregoing reasons, the district court’s judgment is AFFIRMED, but
REMANDED with instructions to correct the clerical error in judgment.
32