United States v. Bishop Capers

Case: 10-14332 Date Filed: 02/14/2013 Page: 1 of 41

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

Nos. 10-14332; 10-14521; 10-15074
________________________

D.C. Docket Nos. 1:09-cr-20673-DLG-10;
1:09-cr-20673-DLG-1;
1:09-cr-20673-DLG-30

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

versus

BISHOP CAPERS,
LEON ANTHONY FREDERICK,
LARRY LITTLE,

Defendants–Appellants.

________________________

Appeals from the United States District Court
for the Southern District of Florida
________________________

(February 14, 2013)

Before TJOFLAT, MARTIN and FAY, Circuit Judges.

MARTIN, Circuit Judge:
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Bishop Capers, Leon Anthony Frederick, and Larry Little appeal their

convictions for conspiracy to possess with intent to distribute cocaine and crack

cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1), possession with intent to

distribute cocaine and crack cocaine in violation of 21 U.S.C. § 841(a)(1), and

other counts. Mr. Capers and Mr. Little also appeal their sentences. After careful

review, and with the benefit of oral argument, we affirm Mr. Frederick’s

convictions and sentence; we affirm Mr. Capers’s convictions, and remand his case

for resentencing under the Fair Sentencing Act (FSA); and we affirm Mr. Little’s

convictions, and remand his case for resentencing under the FSA.

I. BACKGROUND AND PROCEDURAL HISTORY

This case followed a two-year investigation into a cocaine trafficking

organization operating out of the Coconut Grove neighborhood in Miami, Florida.

The investigation resulted in a series of indictments charging as many as thirty

defendants with various drug conspiracy and substantive offenses. Of those

originally indicted, many pleaded guilty and agreed to cooperate by testifying for

the government. Mr. Frederick, Mr. Capers, and Mr. Little went to trial on the

forty-three count second superseding indictment. That indictment charged each

with conspiracy to possess with intent to distribute five kilograms of cocaine and

fifty grams of crack cocaine (Count 1), and a number of counts of possession with

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intent to distribute cocaine and crack cocaine. 1 Mr. Frederick was also charged

with possession of a firearm in furtherance of a drug trafficking crime in violation

of 18 U.S.C. § 924(c)(1)(A)(ii) and 21 U.S.C. § 841(a)(1), (Count 42), and

possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1),

(Count 43).

Trial began on June 7, 2010. The government presented evidence that Mr.

Frederick was the leader of the Coconut Grove drug distribution operation. From

2007 to 2009, Mr. Frederick and a partner, Ronald Burke,2 operated out of a

duplex at 3171/3173 Carter Street. Mr. Burke testified that he sold small amounts

of cocaine and crack to retail purchasers, and that Mr. Frederick sold quantities

consistent with wholesale distribution. Mr. Burke testified that together, he and

Mr. Frederick sold approximately $1,500–7,000 of cocaine and crack cocaine from

the Carter Street location each day.

Evidence collected from wiretaps of Mr. Burke’s and Mr. Frederick’s cell

phones from January to March 2009 factored significantly in the government’s

case against Mr. Frederick. Calls intercepted during these wiretaps included

discussions between Mr. Frederick and Mr. Burke about police presence, whether

1
The defendants were also charged with aiding and abetting the possession and distribution of
narcotics in each of the substantive counts of possession with intent to distribute, in violation of
18 U.S.C. § 2.
2
Mr. Burke, a co-defendant in the original indictment, pleaded guilty and testified for the
government.
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to shut down operations, and what to do with the drugs. They also included a

number of conversations about specific drug transactions, with many requests by

Mr. Burke for more drugs to supply their retail purchasers.

In support of the firearms offenses, the government introduced evidence that

an AK-47 was recovered during a search of Mr. Frederick’s condominium in

Sunny Isles, Miami. The Sunny Isles search also turned up two kilograms of

cocaine, empty baggies with cocaine residue, $47,000 cash, and documents bearing

Mr. Frederick’s name.

The evidence against Mr. Capers showed that he was one of Mr. Burke’s

regular customers, that he was addicted to crack cocaine, that he tended to

purchase crack in .1 gram (“dime”) units for $10 each, and that he usually

purchased around ten dimes at a time. There was also testimony that Mr. Capers

bought the dime amounts for $10 from Mr. Burke, and then resold (“juggled”)

them for $20 at locations outside Coconut Grove.

Regarding Mr. Little, several witnesses testified that he also juggled crack

cocaine. The government also introduced evidence that its confidential informant

(CI) purchased crack directly from Mr. Little and that Mr. Little shepherded

customers—including the CI—to other drug dealers.

Mr. Frederick’s theory of defense was primarily that the government lacked

sufficient, credible evidence to convict him of the alleged charges. Mr. Capers and

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Mr. Little each relied heavily on assertions that they were retail purchasers and end

users of crack cocaine, “and therefore did not knowingly and willfully possess the

drugs with the intent to distribute after they were obtained or knowingly and

willfully conspir[e] with others to distribute after the drugs were obtained.” Mr.

Frederick, Mr. Capers, and Mr. Little did not testify at trial.

Following the ten-day trial, the jury deliberated for two days. On June 23,

2010, the jury returned its verdicts, convicting each defendant of most of the

offenses charged. The jury convicted Mr. Frederick of the conspiracy charged in

Count 1, all but one of the nineteen distribution counts as charged in Counts 10–

13, 16–24, 28, 30–31, 33, 39 and 41, 3 and the firearms violations alleged in Counts

42 and 43. The jury convicted Mr. Capers of a lesser included offense of the

conspiracy charged in Count 1, 4 and four counts of possession with intent to

distribute “detectable” amounts of crack cocaine as charged in Counts 16, 17, 18,

and 20. Likewise, the jury convicted Mr. Little of a lesser included offense of the

conspiracy charge, 5 and two counts of possession and distribution of five grams of

crack as alleged in Counts 37 and 38.

3
Count 39 alleged that Frederick possessed with intent to distribute fifty grams of crack; the
jury convicted him of possession and distribution of only five grams of crack.
4
Specifically, the jury found that Capers conspired to possess and distribute only five grams of
crack, rather than “five kilograms of cocaine and 50 grams of crack cocaine” as charged.
5
As with Mr. Capers, the jury found that Mr. Little conspired to possess and distribute only five
grams of crack.
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Mr. Capers was sentenced on September 1, 2010. At sentencing, he faced a

guideline range of 360 months to life imprisonment based on a total offense level

of 37 and a criminal history category of VI. However, having determined that Mr.

Capers “was in the lower third of [defendants] in terms of culpability,” “was a

crack addict,” and that “[m]ost of the drugs purchased were for [his] own use,” the

District Court imposed a below guidelines sentence of concurrent terms of 225

months imprisonment on Counts 1, 16–18, and 20. The District Court did not

apply the August 3, 2010 Fair Sentencing Act to its calculation of Mr. Capers’s

guideline range. The District Court did, however, “consider[] the fact” that “under

that new statute, [Mr. Capers’s] guidelines would be 262–327 months.”

Mr. Frederick was sentenced on September 8, 2010. He faced a guideline

range of 444 months to life imprisonment based on application of the career

offender enhancement, U.S.S.G. §§ 4B1.1(c)(2)(A) and 5G1.2(e). The District

Court sentenced Mr. Frederick to concurrent terms of life imprisonment on Counts

1, 10, and 31; 360 months imprisonment on Counts 11–13, 16–24, 28, 30, 33, 39,

and 41; and 120 months imprisonment on Count 43, with a consecutive term of 60

months on Count 42.

Mr. Little was sentenced on October 13, 2010. He faced a guideline range

of the 360 months to life imprisonment based on a total offense level of 37 and a

criminal history category of VI. Over Little’s objection, the court did not apply the

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FSA to the calculation of his guideline range, determining that the FSA was not

retroactive to offenses committed before it was enacted. However, due to the fact

that Mr. Little’s convictions involved quantities of drugs that totaled “less than one

ounce,” the court imposed a below-guideline sentence of concurrent terms of 327

months imprisonment on Counts 1, 37, and 38.

Mr. Capers, Mr. Frederick, and Mr. Little each filed timely notices of

appeal. Their appeals were then consolidated.

II. DISCUSSION

We consider each of the arguments raised by Mr. Frederick, Mr. Capers, and

Mr. Little in turn.

A. GUILT PHASE

1. Mr. Frederick

Mr. Frederick raises five issues. He argues that the District Court erred by:

(1) denying his motion to suppress wiretap evidence; (2) denying his motion for

judgment of acquittal for insufficient evidence; (3) denying his various motions for

mistrial; and (4) denying his motion for a new trial. Finally, he contends that

cumulative error throughout the proceedings denied him a fair trial.

a. The District Court’s Denial of Mr. Frederick’s
Motion to Suppress Wiretap Evidence

The government’s case against Mr. Frederick (and the others) was based in

significant part on evidence derived from the wiretap. Prior to trial, Mr. Frederick
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moved “for entry of an Order suppressing wiretap evidence, [and] other evidence

[derived from the wiretap] under the ‘fruits of the poisonous tree’ doctrine.” As

the basis for his motion, Mr. Frederick alleged that “[t]he Government’s Affidavit

in support of its Application to wiretap [his] cell phone contain[ed] . . . misleading

statements made recklessly.”

The District Court referred Mr. Frederick’s motion to the Magistrate Judge,

who recommended that the motion to suppress be denied because Frederick had

not established that the wiretap affidavit would fail for want of probable cause

absent the alleged “misleading statements.” The District Court adopted the

Magistrate Judge’s report and recommendation without discussion and entered an

order denying Mr. Frederick’s motion to suppress.

Here, Mr. Frederick reasserts his claim that “the Wiretap Affidavit contained

misrepresentations or omissions which required suppression of the wiretap

evidence.” Alternatively, Mr. Frederick argues that “at a minimum, [he] should

have been afforded a full and fair . . . [evidentiary] hearing” on this issue, pursuant

to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978).

“In reviewing a district court’s ruling on a motion to suppress evidence, we

review factual findings for clear error and the court’s application of law to those

facts de novo.” United States v. Goddard, 312 F.3d 1360, 1362 (11th Cir. 2002).

“The facts are construed in the light most favorable to the prevailing party.” Id.

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“[I]n reviewing a denial of a motion to suppress, we review the entire record,

including trial testimony.” United States v. Newsome, 475 F.3d 1221, 1224 (11th

Cir. 2007). Franks v. Delaware provides, in pertinent part, that

where the defendant makes a substantial preliminary showing that a
false statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the warrant
affidavit, and if the allegedly false statement is necessary to the
finding of probable cause, the Fourth Amendment requires that a
hearing be held at the defendant’s request. In the event that at that
hearing the allegation of perjury or reckless disregard is established by
the defendant by a preponderance of the evidence, and, with the
affidavit’s false material set to one side, the affidavit’s remaining
content is insufficient to establish probable cause, the search warrant
must be voided and the fruits of the search excluded to the same
extent as if probable cause was lacking on the face of the affidavit.

438 U.S. at 155–56, 98 S. Ct. at 2676 (emphasis added).6

Mr. Frederick argues that three paragraphs of the forty-page warrant affidavit

contained “misleading statements,” such that the wiretap evidence should have been

suppressed. But Mr. Frederick has not explained how the purported misleading

statements were “necessary to the finding of probable cause.” Id. If probable cause

still exists once the statements identified as misleading are extracted from the warrant,

there is no need to conduct a hearing and no Franks violation. Id. at 171–72, 98 S. Ct.

at 2684–85; see also United States v. Gamory, 635 F.3d 480, 492 (11th Cir. 2011).

Because Mr. Frederick failed to do this analysis, he has abandoned any claim that

6
The rule in Franks has since been held applicable to affidavits submitted in support of court-
ordered electronic surveillance. E.g., United States v. Perez, 661 F.3d 568, 581 n.18 (11th Cir.
2011).
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“the allegedly false statement[s] [were] necessary to the finding of probable

cause.” Franks, 438 U.S. at 155–56, 98 S. Ct. at 2676. He therefore cannot prevail

in his arguments that the District Court erred in failing to suppress this evidence,

and in failing to afford him a full evidentiary hearing on the issue. See Holland v.

Gee, 677 F.3d 1047, 1066 (11th Cir. 2012) (“The law is by now well settled in this

Circuit that a legal claim or argument that has not been briefed before the court is

deemed abandoned and its merits will not be addressed.” (quotation marks and

alterations omitted)).

b. Sufficiency of the Evidence

At the close of the government’s case-in-chief, Mr. Frederick moved for

judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. The

District Court denied Mr. Frederick’s motion. Mr. Frederick argues here that this

ruling was error as to Counts 10–13, 16–20, 23, 28, 30, 31, 33, 39, and 41, and the

firearms offenses as alleged in Counts 42 and 43.7

We review de novo a District Court’s denial of judgment of acquittal on

sufficiency of evidence grounds, considering the evidence in the light most

favorable to the Government, and drawing all reasonable inferences and credibility

choices in the Government’s favor. United States v. Friske, 640 F.3d 1288, 1290–

7
Mr. Frederick does not argue on appeal that the District Court erred in denying his Rule 29
motion as to Count 1 (conspiracy), or Counts 21, 22, and 23 (possession with intent to distribute
cocaine).
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91 (11th Cir. 2011). “A jury’s verdict cannot be overturned if any reasonable

construction of the evidence would have allowed the jury to find the defendant

guilty beyond a reasonable doubt.” United States v. Herrera, 931 F.2d 761, 762

(11th Cir. 1991). “The evidence need not be inconsistent with every reasonable

hypothesis except guilt, and the jury is free to choose between or among the

reasonable conclusions to be drawn from the evidence presented at trial.” United

States v. Poole, 878 F.2d 1389, 1391 (11th Cir. 1989). But “[w]hen the

government relies on circumstantial evidence, reasonable inferences, not mere

speculation, must support the conviction.” United States v. Mendez, 528 F.3d 811,

814 (11th Cir. 2008).

We have little trouble rejecting Frederick’s claim that there was insufficient

evidence to convict him of the substantive drug counts in the indictment. To

support a conviction under 21 U.S.C. § 841(a)(1), the government must show that

the defendant had (1) knowing (2) possession of the drugs and (3) an intent to

distribute them. See United States v. Cochran, 683 F.3d 1314, 1322 (11th Cir.

2012). The evidence at trial overwhelmingly demonstrated that Mr. Frederick and

Mr. Burke operated a drug distribution network generating upwards of $1,500

revenue each day from the 3171/3173 duplex. Frederick was the “boss man” and

was intimately involved in the day-to-day operations of the Coconut Grove drug

ring. He was solely responsible for sales of the “big stuff,” and shared

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responsibility with Burke for distribution of the “small stuff.” The jury heard

testimony about this from several co-conspirators, and received a number of

transcripts of phone conversations between Mr. Burke and Mr. Frederick detailing

the specific drug transactions underlying the challenged counts. Viewing this

evidence in the light most favorable to the government, it was not unreasonable for

the jury to conclude that Mr. Frederick knowingly possessed the drugs charged in

these counts, and intended to distribute them.

We also have little trouble rejecting Frederick’s claim that there was

insufficient evidence of possession to convict him of the drug and gun offenses

resulting from the search of his Sunny Isles condominium, based on his argument

that “there was no proof [he] ever exercised any dominion or control over the

drugs and firearms at issue in those counts.” It is well established that possession

can be either actual or constructive, and that “‘[c]onstructive possession’ of a thing

occurs if a person doesn’t have actual possession of it, but has both the power and

the intention to take control over it later.” Cochran, 683 F.3d at 1316 (quoting

11th Cir. Pattern Jury Instructions (Criminal), Special Instruction 6 (2010)). Here,

the jury received evidence that in addition to drugs and the gun, Drug Enforcement

Agency (DEA) agents recovered several pieces of Mr. Frederick’s identification,

and mail sent to him at the condominium. This evidence was sufficient for the jury

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to reasonably determine that Frederick possessed “both the power and intention to

take control” of the drugs and gun recovered in the condominium. Id.

c. The District Court’s Denial of Mr. Frederick’s
Motions for Mistrial

In the course of his trial, Mr. Frederick filed three written motions for

mistrial alleging a number of discovery violations, Jencks Act violations, Giglio

violations, Rule 404(b) violations, and a failure to correct misleading testimony.

The government responded to the allegations in Mr. Frederick’s motions and the

District Court denied relief on all grounds. On appeal, Mr. Frederick argues that

the District Court erred in failing to grant his motions for mistrial.

We review a District Court’s decision not to grant a mistrial for abuse of

discretion. United States v. Emmanuel, 565 F.3d 1324, 1334 (11th Cir. 2009). “A

mistrial should be granted if the defendant’s substantial rights are prejudicially

affected. This occurs when there is a reasonable probability that, but for the

[alleged error], the outcome of the trial would have been different.” United States

v. Newsome, 475 F.3d 1221, 1227 (11th Cir. 2007) (quotation marks omitted).

“[W]hen the record contains sufficient independent evidence of guilt, any error

was harmless.” Id.

Mr. Frederick’s claim that the District Court abused its discretion in denying

his motions for mistrial does not prevail. First, any failure by the government to

comply with the requirements of the Standing Discovery Order was rendered
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harmless by the substantial independent evidence of Mr. Frederick’s guilt. Second,

Mr. Frederick’s claim that the government failed to comply with the Jencks Act, 18

U.S.C. § 3500, is not persuasive because the material the government failed to turn

over—specifically, the 1999 federal grand jury testimony of government’s witness

Donald Grant related to the murder of Grant’s sister—was not related in any way

to the subject matter of Grant’s testimony in this trial. See id. § 3500(b) (requiring

the government, upon motion of the defendant, to “produce any statement . . . of

the [government’s] witness in the possession of the United States which relates to

the subject matter as to which the witness has testified.” (emphasis added)).

Third, Mr. Frederick offers nothing to rebut the government’s statement to the

District Court that it had fully complied with its obligations under Giglio v. United

States, 405 U.S. 150, 92 S. Ct. 763 (1972), so we would be hard-pressed to say that

the District Court abused its discretion by relying on those representations as true.

Fourth, the Federal Rule of Evidence 404(b) violations alleged by Mr. Frederick

involved criminal activities inextricably intertwined with the criminal conspiracy

and therefore not governed by the requirements for admission of evidence under

Rule 404(b). See United States v. Foster, 889 F.2d 1049, 1054–55 (11th Cir. 1989)

(holding that evidence of specific uncharged drug trafficking offenses were not

extrinsic to prosecution for conspiracy to possess and distribute cocaine where the

events occurred within the time period of the alleged conspiracy and were

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demonstrative of the conspirators’ conduct). Finally, Mr. Frederick impeached the

government’s witness on precisely the misleading testimony that he now claims the

government failed to correct. In sum, the district court did not abuse its discretion

in denying Mr. Frederick’s various motions for mistrial.

d. The District Court’s Denial of Mr. Frederick’s
Motion for New Trial

After the jury returned its verdict, Mr. Frederick filed a Motion for New

Trial pursuant to Federal Rule of Criminal Procedure 33. In support of that

motion, Mr. Frederick incorporated the same grounds that he alleged in his three

written motions for mistrial, discussed above. The government opposed in writing.

Although there is no docket entry, we gather that the District Court denied this

motion. Mr. Frederick appeals this denial.

We review the District Court’s denial of a motion for a new trial for abuse of

discretion. United States v. Hernandez, 433 F.3d 1328, 1332 (11th Cir. 2005). We

have already concluded that the District Court did not abuse its discretion in

denying Mr. Frederick’s motions for mistrial on these grounds. For those same

reasons, it also did not abuse its discretion in denying Mr. Frederick’s motion for

new trial on these grounds.

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e. Cumulative Error

Finally, Mr. Frederick contends that “cumulative error warrant[s] reversal of

his convictions.” Specifically, he draws our attention to “the Judge’s failure to

grant a mistrial” and “additional errors involv[ing] evidentiary rulings.”

“The cumulative error doctrine provides that an aggregation of non-

reversible errors (i.e., plain errors failing to necessitate reversal and harmless

errors) can yield a denial of the constitutional right to a fair trial, which calls for

reversal.” United States v. Baker, 432 F.3d 1189, 1223 (11th Cir. 2005) (quotation

marks omitted). “The harmlessness of cumulative error is determined by

conducting the same inquiry as for individual error—courts look to see whether the

defendant’s substantial rights were affected.” Id. (quotation marks omitted).

Mr. Frederick cannot prevail on his claim that cumulative error deprived him

of a fair trial. First, for reasons explained, the District Court committed no error,

plain or otherwise, in denying his various motions for mistrial. Second, even if we

assume without deciding that the various evidentiary rulings Mr. Frederick

complains of were erroneous, he has failed to demonstrate, or offer any

explanation, for how the aggregate effect of these errors substantially influenced

the outcome of his trial, as required to establish that cumulative error rendered his

trial unfair. See id. at 1223–24. Thus, Mr. Frederick’s cumulative error argument

fails.

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2. Mr. Capers

Mr. Capers argues that the evidence presented against him was legally

insufficient to establish he was part of the conspiracy, or to sustain his convictions

for possession with intent to distribute crack as alleged in the substantive counts.

He also argues that the District Court abused its discretion when it denied his

motion for a new trial.

a. Sufficiency of the Evidence

At the end of the government’s case-in-chief, Mr. Capers moved for a Rule

29 Judgment of Acquittal. The District Court denied the motion.

i. Evidence Supporting the Conspiracy
Conviction

Mr. Capers was convicted of conspiracy to distribute cocaine and crack

cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1). To be convicted of

conspiracy to distribute narcotics, “the Government must establish beyond a

reasonable doubt: 1) the existence of an agreement among two or more persons; 2)

that the defendant knew of the general purpose of the agreement; and 3) that the

defendant knowingly and voluntarily participated in the agreement.” United States

v. Simpson, 228 F.3d 1294, 1298 (11th Cir. 2000).

Mr. Capers’s theory of defense was that he was a retail purchaser of crack

cocaine and therefore did not knowingly and willfully conspire to possess and

distribute the drugs he purchased from different people in Coconut Grove.
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Consistent with his theory at trial, Mr. Capers argues here that the “[t]he testimony

of the[] accomplice witnesses did not establish [his] involvement in the distribution

of the crack cocaine he bought” because “[e]ven if credence is given to the

Government’s contention that he resold the cocaine elsewhere, that inference did

not make him part of the conspiracy.” Essentially, Mr. Capers argues that his

conspiracy conviction must be overturned because the government failed to prove

that “[he] was part of the distribution chain flowing from Frederick through

Burke.”

In evaluating Mr. Capers’s argument, we have concluded that even if we

credit his assertions that the drugs purchased directly from Ronald Burke were

entirely for personal use, there remains substantial evidence that he was aware of

and knew the general purpose of the drug ring headed by Mr. Frederick and Mr.

Burke, and that he was a knowing and voluntary participant in the objectives of

that ring. See Simpson, 228 F.3d at 1298. The jury heard testimony to the effect

that Mr. Capers regularly made purchases of crack and cocaine in amounts

consistent with redistribution. Included in the wiretap evidence were two

conversations between Mr. Capers and Mr. Burke about the possibility of

purchasing distribution level amounts of cocaine and crack. Specifically, Mr.

Capers asked about purchasing a $50–75 bag of powder cocaine and about

purchasing an “eight-ball” (3.4 grams) of crack. On each occasion, Mr. Burke

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referred Mr. Capers to Mr. Frederick. There was no evidence that Mr. Capers

completed either of these particular purchases, but the jury heard from a number of

witnesses that he dealt directly with Mr. Frederick as often as three to four times

per week. Jimmy Tucker, another cooperating witness, testified that Mr. Capers

was familiar with Mr. Frederick’s price for wholesale amounts of powder cocaine,

and that he was frustrated that the price had risen from $800 to $900/ounce. Mr.

Tucker also testified that Mr. Capers’s drug dealing activity was at a level above

that of a “petty juggler”; the implication being that Mr. Capers purchased larger

amounts of crack for redistribution, similar to Mr. Tucker. Finally, the jury heard

evidence of conversations between Mr. Capers and Mr. Burke in which Capers

warned Burke about police activity in the area around Coconut Grove, indicating

Capers’s interest in the continued operation of the drug ring.

Based on this evidence, it was not unreasonable for the jury to determine

that Mr. Capers knew of the existence of an agreement between Mr. Burke and Mr.

Frederick to distribute drugs in Coconut Grove; that he knew of the general

purpose of the agreement; and that he knowingly and voluntarily participated in the

objectives of that agreement. See Simpson, 228 F.3d at 1298. This being the case,

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the District Court did not abuse its discretion when it denied his motion for

judgment of acquittal on the conspiracy count. 8

ii. Evidence Supporting the Possession with Intent
to Distribute Convictions

Mr. Capers was also convicted of four counts of possession with intent to

distribute “detectable” amounts of crack in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(C), as alleged in Counts 16, 17, 18, and 20. As we have set out above, in

order to prove that a defendant possessed narcotics with an intent to distribute, the

government must show that the defendant had knowing possession of the drugs

and intent to distribute them. Cochran, 683 F.3d at 1322.

Each of Mr. Capers’s possession and distribution convictions involved

purchases of crack from Ronald Burke. Mr. Capers argues that the evidence was

not sufficient to sustain these convictions because (1) “the government failed to

prove the . . . offenses occurred on [the dates alleged]” insofar as it established

only that he was invited to go to Burke’s apartment to purchase crack cocaine, not

8
Mr. Capers suggests that the juggling he engaged in was limited to the “common practice” by
drug addicts of “buy[ing] a ‘dime’, and cut[ting] it into two ‘nickels’ . . . then consum[ing] one
and sell[ing] the other.” Mr. Capers argues that such petty juggling, intended merely to finance a
drug users’ habit, is insufficient “[a]s a matter of law . . . [to] make him a member of the
conspiracy.” We need not decide whether this type of juggling alone would be insufficient as a
matter of law to sustain a conspiracy conviction, however, because the evidence at trial was
sufficient for a jury to conclude that Mr. Capers operated at a level above that of a “petty
juggl[er].” Jimmy Tucker testified to the effect that Mr. Capers regularly purchased large
amounts of crack from Mr. Frederick, and that he broke those larger units down for resale
outside the Grove which, Mr. Capers concedes, is enough to prove involvement in a conspiracy
to distribute narcotics.
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that he did; and (2) he purchased crack cocaine in unit sizes “consistent [only] with

personal use and not consistent with redistribution.” In other words, Mr. Capers

contends that the government failed to prove that he possessed the drugs in

question and, in any event, failed to prove he had the intent to distribute the drugs

he did possess.

1) Proof of Possession

“[Possession] can be proven by either direct or circumstantial evidence.”

United States v. Poole, 878 F.2d 1389, 1391–92 (11th Cir. 1989). The government

never got drugs directly from Capers. Instead, as proof that Capers possessed the

“detectable” amounts of crack at issue in Counts 16, 17, 18, and 20 it offered

circumstantial evidence, consisting of recordings of phone conversations between

Mr. Burke and Mr. Capers arranging for purchases of crack cocaine on the dates

charged, as well as Burke’s testimony that he completed these transactions with

Capers on those dates. Viewed in the light most favorable to the government, a

jury could reasonably conclude that Capers possessed the drugs at issue in these

counts.

2) Proof of Intent to Distribute

The intent to distribute element of § 841(a)(1) can also be proved through

circumstantial evidence. Poole, 878 F.2d at 1391–92. “Intent to distribute can be

proven circumstantially from, among other things, the quantity of cocaine and the

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existence of implements such as scales commonly used in connection with the

distribution of cocaine.” Id. at 1392.

As stated, the government did not recover narcotics of any amount from Mr.

Capers. Neither did it recover any illicit implements. Instead, as circumstantial

proof that Mr. Capers intended to redistribute the drugs that he purchased from Mr.

Burke, the government relies on “testimony from co-conspirators regarding

Capers’ juggling activities.”

As stated, Mr. Capers purchased the drugs underlying Counts 16, 17, 18 and

20 from Ronald Burke. Mr. Burke testified that Capers was a “friend” and a

“customer,” “mostly a [crack] smoker,” and a “drug addict.” Mr. Burke also

testified that he did not know what Mr. Capers did with the crack once he sold it to

him, but that “[a]s far as [he was] concerned,” Capers smoked it. Without more,

there would have been little basis to conclude that Mr. Capers intended to

distribute the drugs that he purchased from Mr. Burke.

But the jury also heard testimony from two other co-conspirators—Jimmy

Tucker and Otis Walker—that Mr. Capers resold the crack he purchased in

Coconut Grove. The jury received evidence that Mr. Burke tended to sell Mr.

Capers ten or eleven dime bags of crack at a time, and that Burke sold these

quantities to Capers on the dates alleged in Counts 16, 17, 18, and 20. Based on

this evidence, and viewed in the light most favorable to the government, the jury

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could reasonably infer that Mr. Capers intended to redistribute at least some of the

crack he purchased from Mr. Burke. Therefore, Mr. Capers’s convictions for

counts 16, 17, 18, and 20 are affirmed.

b. Motion for New Trial

Following the jury’s verdict, Mr. Capers filed a timely motion for a new trial

pursuant to Rule 33. The District court denied the motion. On appeal, Mr. Capers

argues this was an abuse of discretion because there was insufficient evidence to

support his conspiracy conviction; it was “manifest injustice” for the government

to base its conspiracy case against him on his juggling activities; and it was

prosecutorial misconduct for the assistant United States attorney (AUSA) to

comment on Mr. Capers’s juggling in her closing argument.

Our examination leads us to conclude that the evidence was sufficient to

sustain Mr. Capers’s conspiracy conviction. Further, there is simply no authority

for Mr. Capers’s claim that it was “manifest injustice” for the government to

prosecute him for conspiracy on a theory that he juggled cocaine where, as here,

witnesses testified that Mr. Capers purchased distribution-level amounts of crack

from Mr. Frederick and sold it for higher prices in other locations. Finally, insofar

as Jimmy Tucker and Otis Walker each testified to the effect that Mr. Capers

operated at a level above that of a “petty juggl[er],” it was permissible for the

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AUSA to argue in closing that he engaged in such behavior. In sum, the district

court did not abuse its discretion in denying Mr. Capers’s motion for a new trial.

3. Mr. Little

Mr. Little also raises a number of issues on appeal. He argues that his

convictions should be reversed because: (1) the District Court quashed his

subpoena seeking production of his interview with police; (2) the District Court

erroneously admitted certain evidence and, in any event, the evidence was

insufficient to sustain his conviction; (3) the AUSA’s closing argument was so

inflammatory as to require reversal; and (4) cumulative error denied him a fair

trial.

a. The Quashed Subpoena

The government’s investigation into the Coconut Grove drug ring involved

the cooperation of CIs. In September 2008, one of the CIs was killed. Miami

police took the lead in investigating the homicide, and at one point interviewed Mr.

Little in connection with the case.

Based on information obtained from the government through pre-trial

discovery, Mr. Little anticipated that the homicide would factor into this case.

Thus, in October 2008, Mr. Little sought production of information related to the

Miami Police Department’s investigation. Specifically, Mr. Little wanted a copy

of the recording of his police interview. Mr. Little believed that The First 48, a

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reality TV show, possessed a copy and requested a subpoena be served on its

producers—A & E Television Networks, LLC (AETN) and ITV Studios, Inc.

(ITV)—pursuant to Federal Rule of Criminal Procedure 17. The subpoena

requested production of “[a]ll photographs, video and/or audio recordings of

interviews of [thirty named individuals including Larry Little], made in connection

with the filming of The First 48, in relation to the homicide investigation

concerning [the CI].”

The District Court granted Mr. Little’s request in part, ordering that the

subpoena be issued, but that all documents and materials be “receive[d] [by the

court] and review[ed] . . . in camera to make a determination that production of the

materials to [Little] is appropriate under Federal Rule of Criminal Procedure

17(c).” Upon receipt of the subpoena, AETN and ITV filed a motion to quash,

acknowledging that they had a tape of Mr. Little’s interview, but asserting that they

were shielded from having to produce the tape by the qualified journalists’

privilege. The District Court granted this motion, holding that Mr. Little had failed

to make the required showing to overcome the qualified journalists’ privilege. On

appeal, Mr. Little argues that this was an abuse of discretion because he “met the

test articulated by the Eleventh Circuit to overcome [the] . . . privilege.” In the

alternative, he suggests that application of the qualified journalists’ privilege in this

instance violated his right to compulsory due process.

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We review a District Court’s decision to quash a Rule 17 subpoena for abuse

of discretion. See United States v. Silverman, 745 F.2d 1386, 1397 (11th Cir.

1984). Our Circuit recognizes a qualified privilege for journalists, allowing them

to resist compelled disclosure of their professional news gathering efforts. This

privilege shields reporters in both criminal and civil proceedings. United States v.

Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986) (applying privilege in criminal

racketeering trial); Miller v. Transamerican Press, Inc., 621 F.2d 721, 726 (5th Cir.

1980), cert. denied, 450 U.S. 1041, 101 S. Ct. 1759 (1981) (applying privilege in

civil libel suit).9 In granting AETN’s and ITV’s motion to quash Mr. Little’s Rule

17 subpoena, the District Court applied the test articulated in Caporale, where we

said “that information may only be compelled from a reporter claiming privilege if

the party requesting the information can show that it is highly relevant, necessary

to the proper presentation of the case, and unavailable from other sources.” 806

F.2d at 1504.

The District Court determined that Mr. Little did not make the evidentiary

showing necessary to overcome the privilege because (1) the recorded

interrogation sought was not “highly relevant” to Mr. Little’s case to the extent that

he was charged with “offenses relating to a drug conspiracy, not a homicide” and

“the drug transactions occurred nearly a year after the homicide”; and (2) Mr.

9
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
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Little “failed to establish that he [could] not obtain the information from other

sources, such as the police who conducted the interviews.” The court did not

address whether the recordings were “necessary to the proper presentation of [Mr.

Little’s] case.” Caporale, 806 F.2d at 1504. On appeal, Mr. Little contests each of

the District Court’s findings.

Even if we credit Mr. Little’s argument that the District Court erred in

determining that the interrogation video was not highly relevant to his defense, his

claim still fails because he has not established that the materials were unavailable

from another source. For reasons unknown to us, Mr. Little never attempted to get

the interview from the agency that conducted it—the Miami Police Department—

until August 18, 2010, almost two months after his trial was over. Miami police

maintained a copy of the interview, and the record indicates that the District Court

stood willing to enforce a subpoena against the Police Department. Thus, because

Mr. Little failed to demonstrate that the interview was otherwise “unavailable from

other sources,” the District Court did not abuse its discretion in quashing his

motion to compel from AETN and ITV.

Mr. Little’s alternative argument—that his convictions should be overturned

because the test articulated in Caporale is not consistent with the Sixth

Amendment’s “right to compulsory process”—is equally unpersuasive. The Sixth

Amendment guarantees that a criminal defendant shall “have compulsory process

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for obtaining witnesses in his favor.” U.S. Const. amend. VI. But before there can

be a violation of the right to compulsory process, a criminal defendant must

“establish some colorable need” for the evidence to be compelled. Cf. Hoskins v.

Wainwright, 440 F.2d 69 (5th Cir. 1971) (“The right to compulsory process is not

absolute, and a state may require that a defendant requesting such process at state

expense establish some colorable need for the person to be summoned, lest the

right be abused by those who would make frivolous requests.”). Mr. Little never

requested that the District Court subpoena the interview from the Miami Police

Department. That being the case, Mr. Little cannot “establish some colorable

need” for why he required that the interview be obtained from AETN and ITV,

rather than the Miami Police Department. See id.

b. Evidentiary Issues

Mr. Little points to a number of evidentiary issues that he claims require

reversal of his convictions. Because the effect of certain purported errors is

compounding, we consider errors associated with each offense of conviction in

turn.

i. Count 1, Conspiracy

At the conclusion of the government’s case-in-chief, Mr. Little moved for

judgment of acquittal on his conspiracy charge. The District Court denied his

motion. Mr. Little argues that this was error because there was insufficient

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evidence to sustain his conspiracy conviction. He also contends that his conspiracy

conviction should be reversed because the District Court abused its discretion in

denying his motion for mistrial based on the admission of impermissible Rule

404(b) evidence.

At trial, Mr. Little advanced the same theory of defense as Mr. Capers,

specifically that he was a user of crack cocaine and “therefore did not knowingly

and willfully possess the drugs with the intent to distribute after they were obtained

or knowingly and willfully conspire[] with others to distribute after the drugs were

obtained.” In the light most favorable to the government, however, the evidence

was sufficient to convict Mr. Little of conspiracy for the same reasons that it was

sufficient to convict Mr. Capers. Like Mr. Capers, Mr. Little engaged in more than

just “petty juggling.” Four co-conspirators independently testified that Mr. Little

purchased significant amounts of crack in Coconut Grove and resold it to outsiders.

Continuing this theme, Jimmy Tucker testified that he fronted drugs to Mr. Little,

and that Little paid him back with the profits he earned by reselling them. Also,

co-conspirator George Merrill testified that Mr. Little brought him customers,

including the CI, on at least fifteen occasions during the time period of the

conspiracy. Drawing all reasonable inferences in favor of the jury’s verdict, it was

reasonable for the jury to infer from this evidence that Mr. Little was aware of the

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conspiracy and its object, and that he knowingly and voluntarily participated in it.

Therefore, sufficient evidence existed to sustain his conviction for Count 1.

Likewise we reject Mr. Little’s Rule 404(b) argument as to his conspiracy

conviction. Although the District Court admitted testimony from cooperating

witnesses that Mr. Little engaged in a number of drug transactions between 2007

and 2009 that did not result in substantive charges, we have already explained that

Rule 404(b) only applies to “extrinsic evidence.” See Edouard, 485 F.3d at 1343.

Each of the “violation[s]” alleged by Mr. Little involved testimony about

uncharged criminal conduct relating to the distribution of drugs during the time

period of the alleged conspiracy. This evidence was not “extrinsic” to Mr. Little’s

case, and therefore not subject to the same requirements for admission as Rule

404(b) evidence. Id. Therefore, the District Court did not abuse its discretion in

denying his motion for mistrial.10

ii. Counts 37 and 38, Possession with Intent to
Distribute Crack on July 28 and August 3, 2009

Mr. Little was convicted of two counts of possessing with intent to distribute

five grams of crack cocaine (Counts 37 and 38). For each of those counts, he

argues that the District Court erroneously admitted certain exhibits, and that

10
Mr. Little also suggests that his “right to due process” was violated when the District Court
admitted evidence of these uncharged transactions. However, Mr. Little failed to brief this
argument, or to offer any explanation at all as to why this would be the case. Thus, we will not
consider this undeveloped claim here. See Holland, 677 F.3d at 1066.
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without these exhibits, the evidence was not sufficient to prove that he committed

the offenses alleged.

1) Count 37, Possession with Intent to
Distribute Crack on July 28, 2009

For Count 37, the government offered as evidence video and audio

recordings of Mr. Little shepherding the CI to Otis Walker’s house, where the CI

purchased drugs from Walker. Over Mr. Little’s objection that the government

had failed to establish that the recording devices were in proper working order, the

District Court received these exhibits into evidence. Mr. Little points to this as

error.

“We review the district court’s admission of evidence for abuse of

discretion.” United States v. Trujillo, 146 F.3d 838, 843 (11th Cir. 1998). “Even

where an abuse of discretion is shown, non-constitutional evidentiary errors are not

grounds for reversal absent a reasonable likelihood that the defendant’s substantial

rights were affected.” United States v. Range, 94 F.3d 614, 620 (11th Cir. 1996)

(quotation marks omitted).

Generally, “the trial judge has broad discretion in determining whether to

allow a recording to be played before the jury.” United States v. Biggins, 551 F.2d

64, 66 (5th Cir. 1977). Still, “the party introducing a tape into evidence has the

burden of going forward with sufficient evidence to show that the recording is an

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accurate reproduction of the conversation recorded.” United States v. Sarro, 742

F.2d 1286, 1292 (11th Cir. 1984).

In order to authenticate a taped recording, the government, in a
criminal case, must show: (1) the competency of the operator; (2) the
fidelity of the recording equipment; (3) the absence of material
deletions, additions, or alterations in the relevant part of the tape; and
(4) the identification of the relevant speakers.

Id. “If there is independent evidence of the accuracy of the tape recordings

admitted at trial, we shall be extremely reluctant to disturb the trial court’s decision

even though at the time that decision was made the government had not carried its

particularized burden of going forward.” Biggins, 551 F.2d at 67.

The district court did not abuse its discretion in admitting the July 28

recording. Mr. Little’s argument that the government failed to produce evidence of

the “the fidelity of the recording equipment” is contradicted by the record. DEA

Agent Vattiato testified that he supplied the CI with audio-only and audio/video

equipment on July 28 and that the audio/video equipment was operating correctly.

Although Vattiato did not testify that the audio-only equipment was also operating

correctly, he did testify that he had the opportunity to watch the audio/video

recording, that the events in that recording were “encompassed” in the audio-only

recording, and that each recording “match[ed] the surveillance that [he] observed

that day.” From this testimony the District Court could infer that the audio-only

equipment was also working properly.

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Although the District Court did not abuse its discretion in admitting the

audio and video recordings of the July 28 transaction, we must still consider

whether it abused its discretion by denying Mr. Little’s motion for judgment of

acquittal for lack of sufficient evidence. Friske, 640 F.3d at 1290–91.

Mr. Little argues that there was insufficient evidence to convict him of

possession with intent to distribute crack on July 28 because the government failed

to prove the element of possession. Specifically, he contends that the government

cannot prove actual possession because “the cocaine was beyond [his] control” at

all times during the transaction, and the government cannot prove constructive

possession because he was forced to wait outside while the CI purchased the drugs

inside Otis Walker’s house, and the drugs were “clearly not under [his] direction or

control.”

We agree with Mr. Little that, on this record, the government failed to prove

the element of possession. It is clear from the video that the CI purchased the

drugs directly from Otis Walker and, thus, that they were never in Mr. Little’s

actual possession. It is equally clear that Mr. Little was forced to wait on Otis

Walker’s porch as Walker conducted the transaction with the CI inside.11 To prove

constructive possession, “the government must produce evidence showing

11
The government concedes that “Little was not allowed in Walker’s house” during the drug
deal. Otis Walker emphasized this point in his testimony at trial when he explained that he
forced Mr. Little to wait on the porch “[b]ecause he didn’t come to spend no money.”
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ownership, dominion, or control over the contraband itself or the [location] in

which contraband is concealed.” Wright, 392 F.3d at 1273 (quotation marks and

alterations omitted). Walker’s demand that Mr. Little stay outside, and Little’s

acquiescence to that demand, defeats any claim that Little exercised ownership,

dominion, or control over these drugs, or the location where they were concealed.

Cf. United States v. Clavis, 956 F.2d 1079, 1089 (11th Cir. 1992) (holding that

evidence was insufficient to prove constructive possession where the defendant

was in jail at the time the drugs were seized from his residence).

The government’s failure to prove that Mr. Little possessed the drugs at

issue in Count 37 does not end our inquiry, however, because Mr. Little was also

charged with aiding and abetting the distribution of narcotics on July 28, and the

jury was instructed on an aiding and abetting theory. To convict under a theory of

aiding and abetting, the Government must prove: (1) the substantive offense was

committed; (2) the defendant contributed to and furthered the offense; and (3) the

defendant intended to aid in its commission. United States v. Tagg, 572 F.3d 1320,

1324 (11th Cir. 2009). Additionally, our precedent provides that “in a prosecution

for aiding and abetting possession of [narcotics] with intent to distribute, there

must be evidence connecting the defendant with both aspects of the crime,

possession and intent to distribute.” United States v. Longoria, 569 F.2d 422, 425

(5th Cir. 1978).

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Mr. Little does not contest that a substantive offense occurred here. Instead,

he contends that the government cannot prove the remaining elements required to

convict him on an aiding and abetting theory because “[m]ere presence is all the

evidence showed in this transaction.” Mr. Little’s argument fails. As previously

discussed, Mr. Little was aware of and involved in the conspiracy to distribute

crack in Coconut Grove, along with Otis Walker 12 and Mr. Frederick. The audio

and video recordings are definitive that after meeting each other on the street, Mr.

Little walked the CI to Mr. Walker’s house, where the CI requested that Mr. Little

get Walker’s attention. Mr. Little then knocked on Otis Walker’s door, thereby

initiating the transaction. When Mr. Walker opened the door, the CI asked if

Walker “could help [him] out with something good,” at which point Walker and

the CI each entered the house, closing the door behind them. Once inside, the

video shows the CI purchasing crack from Mr. Walker.

Viewed in the light most favorable to the government, it was reasonable for

the jury to infer from this evidence that Mr. Little intentionally and successfully

shepherded the CI to Mr. Walker’s residence for the purpose of purchasing crack,

and that a crack transaction was completed. This was enough to prove that Mr.

Little intentionally “contributed to and furthered” Mr. Walker’s possession and

distribution of narcotics, see Tagg, 572 at 1324, and to connect him to each

12
Mr. Walker was an indicted co-conspirator who testified at trial that he received crack from
Mr. Burke and Mr. Frederick.
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element of Walker’s offense, see Longoria, 569 F.2d at 425. Therefore, the

evidence was sufficient to convict Mr. Little of Count 37 on a theory that he aided

and abetted the distribution of the drugs involved in that count.

2) Count 38, Possession with Intent to
Distribute Crack on August 3, 2009

Over Mr. Little’s objection for lack of sufficient foundation, the government

also introduced audio and video recordings of the alleged drug transaction between

Little and the CI at the Bermuda Market on August 3, 2009. These recordings

capture fragments of conversations between Mr. Little and the CI, the sound of

money being counted, and Mr. Little’s statement “I’ll go get 14.” After that, Mr.

Little is seen walking away. Agents testified that soon after he walked away, he

came back. Agents also testified that they later recovered fourteen dime bags of

crack from the CI.

Mr. Little argues again here that the audio and video recordings should not

have been admitted into evidence because the government failed to lay a proper

foundation. For the reasons that follow, we find this argument to have merit.

For the August 3 transaction, the government offered little proof of the

fidelity of the recording equipment. The extent of the evidence was Miami Police

Officer Jose Mercedes’s testimony that he gave the equipment to the CI before the

buy, recovered it after the buy, and then gave it to a colleague for conversion to a

CD. Although the government offered proof that agents independently observed
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the meeting between the CI and Mr. Little, thus corroborating the video portion,

neither Mr. Little nor the CI testified about this transaction and there was no

independent testimony to corroborate the audio of the encounter. Because there

was no testimony about the fidelity of the audio equipment, Sarro, 742 F.2d at

1292, and no independent evidence of the accuracy of the audio recordings,

Biggins, 551 F.2d at 67, the District Court should not have admitted the audio

portion of the tape. Compare United States v. Brown, 587 F.3d 1082, 1093 (11th

Cir. 2009) (“[W]here the agent laying the foundation can testify he or she heard the

original conversation that was being recorded and that it is the same as the one

being played at trial, this also provides sufficient evidence of authenticity.”).

Establishing that the district court abused its discretion in admitting the

audio recording, however, is not the end of the inquiry.

Even if [an evidentiary] ruling constitutes an abuse of discretion, it
will result in reversal only if the error was not harmless. An error is
harmless unless there is a reasonable likelihood that it affected the
defendant’s substantial rights. Stated another way, nonconstitutional
error will be harmless unless the court concludes from the record as a
whole that the error may have had a ‘substantial influence’ on the
outcome of the proceeding.

United States v. Bradley, 644 F.3d 1213, 1270 (11th Cir. 2011) (quotation marks

and citations omitted).

Here, we are not convinced that the District Court’s admission of the audio

had a substantial influence on the outcome of Mr. Little’s case. This is because in

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addition to the audio recording, the jury had: (1) the authenticated video recording

of the meeting between Mr. Little and the CI; (2) the agents’ testimony that they

independently observed that meeting; and (3) the agents’ testimony that they

prepared the CI for a controlled buy from Mr. Little, and that after the meeting they

recovered fourteen dime bags of crack from the CI. In the light most favorable to

the government, this evidence was sufficient to conclude that Mr. Little possessed

and distributed the drugs at issue in Count 38.

We also reject Mr. Little’s argument that the District Court erred in

admitting the fourteen dime bags recovered from the CI on August 3 because this

evidence was not relevant. Evidence is relevant if it has any tendency to make the

existence of any fact of consequence more or less probable than it would be

without the evidence, Fed. R. Evid. 401, and relevant evidence is generally

admissible, Fed. R. Evid. 402. Here, the dime bags of crack recovered from the CI

following the controlled buy were relevant because they tended to prove that Mr.

Little possessed and distributed narcotics on August 3, as alleged in Count 38.

c. Prosecutorial Misconduct

Mr. Little also contends that the AUSA’s closing argument was “so

improper so as to warrant reversal.” Mr. Frederick joins this argument. “Reversal

on the basis of prosecutorial misconduct requires that the misconduct be so

pronounced and persistent that it permeates the entire atmosphere of the trial.”

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United States v. Woods, 684 F.3d 1045, 1065 (11th Cir. 2012) (quotation marks

omitted). “For a claim of prosecutorial misconduct relating to the closing

argument to be successful, the argument must be improper and prejudicial to a

substantial right of the defendant.” Id. (quotation marks omitted). “A defendant’s

substantial rights are prejudiced if there is a reasonable probability that, but for the

improper remarks, the outcome of the trial would have been different.” Id.

Mr. Little and Mr. Frederick draw our attention to the following

“inflammatory” remarks, limited to the AUSA’s rebuttal argument: (1) “When

deals are made in hell, there are no angels present. And there are no angels in this

case, not the witnesses, not the defendants”; and (2) “If [co-conspirators testifying

for the government] are truthful and credible about one event, why are they

untruthful and uncredible about another? Solely because it incriminates them?

Well, that may be because they’re the devils in hell together.”

These remarks do not require us to reverse Mr. Little’s and Mr. Frederick’s

convictions. In context, it is clear that these remarks were not “intended to place

[the defendants] on a demonic plane” as Mr. Little argues; instead they were

offered to rebut defense counsels’ assertions in closing argument that the

government’s witnesses lacked credibility. In any event, there is little likelihood

that “but for [these] improper remarks, the outcome of the trial would have been

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different,” given the weight of the evidence against Mr. Little and Mr. Frederick.

Woods, 684 F.3d at 1065.

d. Cumulative Error

Finally, Mr. Little argues that his convictions should be reversed because

cumulative error rendered his trial “fundamentally unfair.” We are not persuaded.

For reasons explained, the only errors alleged by Mr. Little that stand up to

scrutiny are: (1) the District Court’s admission of the audio recording of the

August 3, drug transaction; and (2) the prosecutor’s remarks on rebuttal.

Individually, these errors were harmless as they related to Mr. Little’s convictions,

given the strength of the government’s case. The cumulative effect of these errors

on the jury’s verdict was also harmless, given the length of the trial, and the

strength of the government’s case. See Baker, 432 F.3d at 1223 (“The total effect

of the errors on the trial will depend, among other things, on the nature and number

of the errors committed; their interrelationship, if any, and combined effect; how

the district court dealt with the errors as they arose (including the efficacy—or lack

of efficacy—of any remedial efforts); the strength of the government’s case, and

the length of trial.”) (quotation marks and alteration omitted).

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B. SENTENCING PHASE

1. Mr. Capers and Mr. Little

Mr. Little and Mr. Capers each argue that the District Court erred when it

determined that the FSA did not apply to their respective sentencing guidelines

calculations because their crimes were committed prior to the Act being passed on

August 3, 2010. The government concedes that this was error, and we agree. See

United States v. Hudson, 685 F.3d 1260, 1260–61 (11th Cir. 2012) (en banc).

Therefore we vacate Mr. Little’s and Mr. Capers’s sentences and remand their

cases for resentencing in light of the FSA.

III. CONCLUSION

In sum, we reach the following conclusions: (1) Mr. Frederick’s convictions

and sentences are affirmed; (2) Mr. Capers’s convictions are affirmed, his

sentences are vacated, and his case is remanded for resentencing under the FSA;

(3) Mr. Little’s convictions are affirmed, his sentences are vacated, and his case is

also remanded for resentencing under the FSA.

For these reasons we

AFFIRM in part, VACATE in part, and REMAND for proceedings

consistent with this opinion.

41