 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 17, 2008               Decided March 6, 2009

                         No. 05-3201

                UNITED STATES OF AMERICA,
                        APPELLEE

                               v.

                      JAMES T. FOSTER,
                        APPELLANT


         Appeal from the United States District Court
                 for the District of Columbia
                      (No. 02cr00395-02)



    Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for the appellant. A. J. Kramer, Federal Public
Defender, was on brief. Neil H. Jaffee, Assistant Federal Public
Defender, entered an appearance.
    Christopher R. Kavanaugh, Assistant United States
Attorney, argued the cause for the appellee. Jeffrey A. Taylor,
United States Attorney, and Roy W. McLeese III, Elizabeth
Trosman, and Patricia Stewart, Assistant United States
Attorneys, were on brief.
   Before: GINSBURG and HENDERSON, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
    Opinion for the Court by Circuit Judge HENDERSON.
                                   2


     KAREN LECRAFT HENDERSON, Circuit Judge: James Foster
was convicted of one count of unlawful distribution of cocaine
and one count of possessing with intent to distribute (PWID) 50
grams or more of cocaine base. The district court sentenced
Foster to 12 years’ incarceration on each count to run
concurrently. Foster appeals the judgment, arguing that the
district court erred in denying his motion for a mistrial on the
distribution count based on a government witness’s surprise
testimony at trial. He also challenges the sufficiency of the
evidence to support his conviction on the PWID count. For the
following reasons, we affirm the judgment of conviction.
                                   I.
    On August 21, 2002, the appellant, James Foster, and Debra
Waldrop, his wife at the time,1 were arrested. On September 19,
2002, a federal grand jury returned an indictment charging
Foster and Waldrop with two counts of distribution of cocaine
base, once on June 27, 2002, and the second time on August 12,
2002, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).2
The indictment also charged Foster and Waldrop with one count
of PWID 50 grams or more of cocaine base on August 21, 2002,


     1
     At trial Foster’s mother testified that Foster and Waldrop were
married and living together during the first part of 2002. Foster’s
mother testified that Foster came to live with her in approximately
June 2002.
     2
      21 U.S.C. § 841(a)(1) makes it “unlawful for any person
knowingly or intentionally . . . to manufacture, distribute, or dispense,
or possess with intent to manufacture, distribute, or dispense, a
controlled substance.” 21 U.S.C. § 841(b)(1)(C) provides that “[i]n
the case of a [schedule I or II controlled substance], . . . [a] person
[violating § 841(a)] shall be sentenced to a term of imprisonment of
not more than 20 years.”
                                3

in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii).3
Both were also charged with aiding and abetting on each count
under 18 U.S.C. § 2. Waldrop was charged with an additional
count of distributing cocaine base on August 15, 2002. She
pleaded guilty to all four counts and was sentenced to 70
months’ imprisonment on three counts and 120 months’
imprisonment on one count to run concurrently. Foster pleaded
not guilty to all counts.
      Foster’s jury trial commenced on November 10, 2003. The
government’s primary witness was Detective Lavinia Quigley,
an undercover narcotics officer with the District of Columbia
(District) Metropolitan Police Department (MPD). Sometime
before June 27, 2002, Quigley received information from a
“special employee” that drugs were being sold at an apartment
in the District. On June 27, 2002, Quigley went to the apartment
and knocked on the window. A black male opened the door and
Quigley entered. Waldrop was sitting on a couch in the
apartment. Quigley asked for $60 worth of cocaine base. The
male removed a plastic bag containing cocaine base from a
bottle and placed the bag on the table. Waldrop opened a black
pouch, took out a plastic bag containing cocaine base and broke
off a piece. The male gave Quigley a lottery ticket in which to
wrap the piece of cocaine base. Quigley gave Waldrop $60 and
left the apartment. Quigley was in the apartment approximately
five minutes. She sat a few feet from the man and Waldrop and
testified that the lighting was like that in the courtroom. In
court, Quigley identified Foster as the male at the apartment on
June 27, 2002.


    3
      21 U.S.C. § 841(b)(1)(A)(iii) provides that in the case of a
violation of § 841(a) involving “50 grams or more of a mixture or
substance . . . which contains cocaine base,” the person “shall be
sentenced to a term of imprisonment which may not be less than 10
years or more than life.”
                                4

     Quigley returned to the apartment on August 12, 2002 and
purchased more cocaine base from Waldrop. Quigley observed
Foster sleeping on a bed in the living room during the
transaction. At the close of the government’s case, the court
granted Foster’s motion for judgment of acquittal as to the
second count (the August 12th transaction) based on insufficient
evidence tying Foster to the sale. Quigley also purchased
cocaine base from Waldrop on August 15, 2002, but Foster was
not in the apartment at the time and was not charged. Following
the August 15th transaction, Quigley obtained a search warrant.
     Quigley returned to the apartment the final time on August
21, 2002. Foster opened the door and let Quigley in. Foster sat
next to Waldrop on one couch and Quigley sat on another couch.
Quigley told Waldrop she wanted to purchase three “eight balls”
of cocaine base. Trial Tr. at 43, United States v. Foster, Cr. No.
02-395 (D.D.C. Nov. 12, 2003) (Tr. 11/12/03am). Waldrop
went into a back room in the apartment and came back with a
blue pouch containing several plastic bags. Before Quigley
could complete the transaction, a black female knocked at the
front door. Foster answered the door and the woman told him
she wanted to make a buy. Quigley testified that “Mr. Waldrop
[sic] went next to Ms. Foster [sic], picked up a ziploc off the
table and handed it to the black female.” Id. at 44. On cross-
examination, Quigley testified that “Ms. Waldrop had already
given [the woman] the zip” before Waldrop and the woman
discussed the payment. Id. at 84. Quigley then testified that
“Mr. Foster gave the black female the ziploc containing crack
cocaine.” Id. Quigley clarified that “Mr. Foster handed [the
black female] the drugs and [Waldrop] took the money.” Id. at
86. On redirect, the prosecutor asked Quigley “who actually
handed the female who came into the apartment the small packet
of drugs she asked for?” Id. at 92. Quigley replied, “Ms.
Waldrop, I mean Mr. Foster.” Id. The woman and Waldrop
were discussing the price when MPD officers knocked on the
door and entered the apartment to execute the search warrant.
                                5

Waldrop ran to the bathroom with the blue pouch to flush the
drugs but Quigley convinced her to place the blue pouch in the
toilet tank.
     The MPD officers arrested Foster and Waldrop. They
seized a blue pouch containing 50 grams of cocaine base from
the toilet tank; four ziploc bags containing 0.82 grams of
cocaine base from a tray in the living room; ten ziploc bags
containing 2 grams of cocaine base from a container on the
television; a plate on a shelf underneath the television containing
0.50 grams of cocaine base residue, a razor blade and empty
ziplocs; and a bag containing 0.19 grams of cocaine base in
plain view on an end table. The officers also found a District
Department of Human Services identification card belonging to
Foster, a marriage license attesting to the marriage of Waldrop
and Foster in a dresser drawer in the bedroom and male clothing
in the bedroom.
     During cross-examination, defense counsel questioned
Quigley regarding the black male present at the June 27, 2002
transaction.
    Q: Okay, now this black male was somebody you
    didn’t know from the past or well let me just say this
    black male was somebody that you didn’t know
    correct?
    A: I knew him from the previous buy, from a previous
    buy, yes.
    Q: June 27th was your first buy in this investigation,
    is that correct?
    A: Okay, it wasn’t – I met Mr. Foster.
    Q: Can we –
    A: Can I say –
                               6

         Mr. Sussman [defense counsel]: Can we stop for
    a second and approach?
         The Court: Yes, just one moment.
         (Bench conference.)
         Mr. Sussman: I have no idea where she’d [sic]
    going, but it sounds like there was a previous
    relationship which was never disclosed.
        The Court: I think there’s a question of dates
    actually.
        Ms. Lerner [prosecutor]: Well, I think it’s partly
    she was introduced to a special employee.
         Mr. Sussman: Did she actually meet them?
         Ms. Lerner: I believe so. I found that out this
    afternoon, I mean this morning. I can’t speak with Mr.
    Foster I didn’t ask for details because I didn’t think
    that I would go into that. I’m sorry Your Honor, I
    didn’t think that was relevant and I was not going to go
    into that. I wasn’t planning on it.
Tr. 11/12/03am at 56-57. Defense counsel then continued the
cross-examination without questioning Quigley further
regarding the previous drug transaction and the prosecutor did
not raise the matter on redirect. Following the lunch break,
defense counsel requested a mistrial because of Quigley’s
surprise testimony. He claimed Quigley’s testimony weakened
Foster’s mistaken identification defense. The government stated
that it had no intention of using Quigley’s testimony regarding
the prior drug transaction. The court denied Foster’s motion for
a mistrial and gave the following curative instruction as
specifically requested by the defense:
    We kept you [the jury] waiting a little bit because we
    were having a discussion about what we thought was
                                7

    some confusion in the testimony of Detective Quigley,
    and so I just after our discussion wanted to give you an
    instruction from the Court, and that is that the first
    event in this investigation and the first event on which
    you are to concern yourself occurred on June 27 of
    2002. And if it appeared that there was any testimony
    about anything prior to that date, it’s totally irrelevant
    and should be disregarded by the jury.
Trial Tr. at 13-14, United States v. Foster, Cr. No. 02-395
(D.D.C. Nov. 12, 2003) (Tr. 11/12/03pm). Foster presented two
alibi witnesses who testified that he was with them at the time
of the alleged drug transaction on June 27, 2002. Before jury
deliberations, Foster moved for a judgment of acquittal on the
two remaining counts (June 27 and August 21), which motion
the court denied.
     The jury returned a guilty verdict against Foster on count
one, distribution of cocaine base on June 27, 2002, and count
four, PWID 50 grams or more of cocaine base on August 21,
2002. Foster moved for a new trial on count one based on
Quigley’s surprise testimony, which motion the district court
denied. Foster was sentenced to 144 months’ imprisonment on
each count (concurrent). Foster timely appealed.
                               II.
     We review the district court’s evidentiary rulings and denial
of the mistrial motion for abuse of discretion. United States v.
Watson, 409 F.3d 458, 462 (D.C. Cir. 2005) (evidentiary
rulings); United States v. McLendon, 378 F.3d 1109, 1112 (D.C.
Cir. 2004) (denial of mistrial). We review the sufficiency of the
evidence to determine whether “‘any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.’” United States v. Dykes, 406 F.3d 717, 721
(D.C. Cir. 2005) (quoting United States v. Arrington, 309 F.3d
40, 48 (D.C. Cir. 2002)). “In making this determination, ‘the
                                8

prosecution’s evidence is to be viewed in the light most
favorable to the government, drawing no distinction between
direct and circumstantial evidence, and giving full play to the
right of the jury to determine credibility, weigh the evidence and
draw justifiable inferences of fact.’” Id. (quoting United States
v. Foster, 783 F.2d 1087, 1088 (D.C. Cir. 1986)).
                                A.
     Foster first contends that the district court erred in not
declaring a mistrial after Quigley unexpectedly testified that she
had met Foster during a drug buy before June 27, 2002. “‘A
mistrial is a severe remedy—a step to be avoided whenever
possible, and one to be taken only in circumstances manifesting
a necessity therefor.’” McLendon, 378 F.3d at 1112 (quoting
United States v. Clarke, 24 F.3d 257, 270 (D.C. Cir. 1994)).
The “most important consideration in ruling on a motion for a
mistrial is the extent to which the defendant was unfairly
prejudiced.” Id. In determining whether the defendant was
“unfairly prejudiced,” we consider “the force of the unfairly
prejudicial evidence, whether that force was mitigated by
curative instructions, and the weight of the admissible evidence
that supports the verdict.” Id. (citing United States v. Eccleston,
961 F.2d 955, 959-60 (D.C. Cir. 1992)). Stated differently, “‘we
must determine with fair assurance that the judgment was not
substantially swayed by the error.’” United States v. Spinner,
152 F.3d 950, 961 (D.C. Cir. 1998) (quoting Clarke, 24 F.3d at
267).
     Foster asserts that he was unfairly prejudiced by Quigley’s
testimony because the testimony weakened his mistaken
identification defense on the first count and he had no
opportunity to rebut the testimony because it was unexpected.
Evidence that Quigley had met Foster previously made it less
likely that she mistakenly identified him as the man at the
apartment on June 27, 2002. Foster also claims that he was
unfairly prejudiced because Quigley’s testimony suggested an
                                   9

improper ground for conviction. While Quigley testified only
that she “knew [Foster] from the previous buy” and not that he
had participated in the buy, Tr. 11/12/03am at 56, the testimony
created a risk that the jury would convict Foster of a crime other
than that charged, “‘or that, uncertain of guilt, it w[ould] convict
anyway because a bad person deserves punishment.’” Old Chief
v. United States, 519 U.S. 172, 181 (1997) (quoting United
States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982)). The
government argues that Foster suffered little, if any, prejudice
because Quigley’s testimony was “tentative, confusing, and
stopped immediately.” Appellee’s Br. 16. The prosecutor did
not question Quigley about the testimony on rebuttal or refer to
Quigley’s testimony in closing argument. Cf. Spinner, 152 F.3d
at 960-62 (admission of prior bad acts evidence without notice
not harmless in part because prosecutor referred to evidence in
closing argument). Because the government does not contest
that any prejudice resulting from the testimony would be unfair
prejudice, Appellee’s Br. 16-23, we assume without deciding
that any prejudice was unfair.4


     4
      Foster characterizes Quigley’s testimony as Rule 404(b)
evidence and the government does not argue otherwise. See Fed. R.
Evid. 404(b) (prior bad acts evidence “not admissible to prove the
character of a person in order to show action in conformity therewith”
but may be admissible for other purposes “provided that upon request
by the accused, the prosecution in a criminal case shall provide
reasonable notice in advance of trial . . . of the general nature of any
such evidence it intends to introduce at trial”). Some courts question
whether Rule 404(b) excludes—or requires advance notice of—
testimony elicited by defense counsel on cross-examination regarding
prior bad acts evidence the government did not use on direct. See
United States v. Jones, 145 F.3d 959, 964 (8th Cir. 1998) (Rule 404(b)
does not bar admission of prior bad acts evidence elicited by defense
counsel on cross-examination (citing United States v. Kragness, 830
F.2d 842, 866 n.23 (8th Cir. 1987)). Because the government does not
raise the issue, we do not reach it.
                                10

     Any unfair prejudice resulting from Quigley’s testimony,
however, was effectively countered by the court’s curative
instruction. “We normally presume that a jury will follow an
instruction to disregard inadmissible evidence inadvertently
presented to it, unless there is an overwhelming probability that
the jury will be unable to follow the court’s instructions and a
strong likelihood that the effect of the evidence would be
devastating to the defendant.” Greer v. Miller, 483 U.S. 756,
767 n.8 (1987), cited in McLendon, 378 F.3d at 1114 n.6. In
McLendon, the defendant was charged with distributing cocaine
base. 378 F.3d at 1110. The government presented testimony
regarding ammunition found in the defendant’s home. Id. at
1111. The district court instructed the jury to “disregard” the
evidence regarding the ammunition. Id. The court later clarified
to the jury that the defendant was not charged with possession
of any ammunition and instructed it again to “disregard the
question and disregard the answer.” Id. at 1112. On appeal, we
found that “[g]iven the brevity of the offending testimony and
the clarity of the district court’s instructions, we have no reason
to doubt the validity of that presumption in this case.” Id. at
1114. Similarly, Quigley’s testimony was brief and the district
court clearly instructed the jury to disregard any evidence about
any events before June 27, 2002. The court gave the curative
instruction promptly and did not repeat Quigley’s testimony,
factors weighing in favor of our conclusion that the instruction
was effective. Cf. United States v. Slade, 627 F.2d 293, 308
(D.C. Cir. 1980) (curative instruction ineffective because given
day after inadmissible evidence presented and district court
repeated inadmissible evidence during instruction).
     The weight of the admissible evidence supporting the
verdict also supports the district court’s denial of the mistrial
motion on count one. Quigley testified that on June 27, 2002,
she was in the apartment with Foster and Waldrop for a “little
under five minutes,” that she sat only a few feet from Foster and
that the lighting was like that in the courtroom. Tr. 11/12/03am
                                11

at 34. Quigley noted in her buy report the man’s approximate
height, age and weight and that he had brown eyes and a dark
complexion. Id. at 65-66. Her failure to detail in her buy report
more specific characteristics of the man does not mean she did
not remember him sufficiently to identify him in court. Quigley
also testified that she saw Foster again on August 12 and August
21, 2002, supporting her identification of Foster as the man
present on June 27, 2002. See United States v. Gaines, 436 F.2d
150, 153 (D.C. Cir. 1970) (rejecting mistaken identification
defense because “undercover officer made a positive, in-court
identification of the appellant and further buttressed the
identification with his testimony that he had seen the appellant
a number of times both before and after the alleged sale”).
     During deliberations, the jury asked to see Quigley’s buy
report for the June 27, 2002 transaction and was told that the
report was not in evidence. The jury also sent three notes to the
judge indicating that it was “at a stalemate on the first count,”
the third note indicating that the jury was “irrevocably
deadlocked.” Trial Tr. at 8-9, United States v. Foster, Cr. No.
02-395 (D.D.C. Nov. 18, 2003). After receiving a Thomas
deadlock instruction, the jury convicted Foster on both counts.
See United States v. Lloyd, 515 F.3d 1297, 1301 (D.C. Cir.
2008) (citing United States v. Thomas, 449 F.2d 1177 (D.C. Cir.
1971) (en banc)). Foster argues that the jury’s request and notes
indicate that the evidence that Foster was the man present at the
June 27th transaction was weak. Nevertheless, the other
evidence supporting the guilty verdict on count one is sufficient
to uphold it. Cf. McLendon, 378 F.3d at 1115 (denying mistrial
motion “[i]n light of th[e] strong evidence of [defendant’s] guilt,
coupled with the judge’s curative instructions”).
    In sum, Foster was not unfairly prejudiced by Quigley’s
challenged testimony because the strength of the testimony was
weak due to its fleeting and ambiguous nature, any prejudice
was mitigated by the curative instruction and other evidence
                                 12

supported the verdict. Accordingly, we conclude that the district
court did not abuse its discretion in denying Foster’s motion for
a mistrial on count one.
                                 B.
     Foster challenges the sufficiency of the evidence to support
his conviction on count four—PWID 50 grams or more of
cocaine base on August 21, 2002. To convict Foster on this
count, the government was required to show Foster “knowingly
or intentionally . . . possess[ed] with intent to . . . distribute, or
dispense, a controlled substance.” 21 U.S.C. § 841(a)(1).
Possession may be actual or constructive. United States v.
Evans, 888 F.2d 891, 895 (D.C. Cir. 1989) (citing United States
v. Raper, 676 F.2d 841, 847 (D.C. Cir. 1982)). “Constructive
possession requires that the defendant knew of, and was in a
position to exercise dominion and control over, the contraband,
‘either personally or through others.’” United States v. Byfield,
928 F.2d 1163, 1166 (D.C. Cir. 1991) (emphasis omitted)
(quoting Raper, 676 F.2d at 847). Control may be shown by
“‘some action, some word, or some conduct that links the
individual to the narcotics and indicates that he had some stake
in them, some power over them.’” Id. (quoting United States v.
Pardo, 636 F.2d 535, 549 (D.C. Cir. 1980)). “Mere proximity
to the drugs or association with others possessing drugs will not
suffice.” Id. A jury may infer that a person constructively
possesses the items in his dwelling even if he shares the
dwelling with others. Dykes, 406 F.3d at 721; see also United
States v. Morris, 977 F.2d 617, 620 (D.C. Cir. 1992) (“A jury is
entitled to infer that a person exercises constructive possession
over items found in his home.” (citing United States v. Jenkins,
928 F.2d 1175, 1179 (D.C. Cir. 1991))).
     Foster argues that there was insufficient evidence to prove
that he actually or constructively possessed 50 grams or more of
cocaine base. As noted by the government, to find possession,
the jury must have found that Foster possessed the 50 grams of
                               13

cocaine base in the blue pouch Waldrop placed in the toilet tank.
Foster notes that Waldrop had actual possession of the blue
pouch. He also claims that Waldrop conducted the drug
transactions with Quigley and the other woman on August 21,
2002 without his participation. Foster characterizes Quigley’s
testimony to the contrary as equivocal. Quigley’s testimony that
Foster gave cocaine base to the other woman, however, was not
equivocal. She merely corrected herself as she testified and the
jury reasonably credited her account. See Jenkins, 928 F.2d at
1178 (“Credibility determinations may rest on a witness’s
demeanor and, for that reason, are for the jury, not us.”).
Foster’s conduct “‘links [him] to the narcotics and indicates that
he had some stake in them.’” Byfield, 928 F.2d at 1166 (quoting
Pardo, 636 F.2d at 549).
     In addition to Foster’s conduct on August 21, 2002, the fact
that drugs and drug paraphernalia were in plain sight supports an
inference that he constructively possessed the drugs. See Dykes,
406 F.3d at 721 (jury could infer that defendant constructively
possessed drugs found in his bedroom); Jenkins, 928 F.2d at
1179 (jury could infer defendant constructively possessed drugs
found in her home in part because some drugs and drug
paraphernalia were in plain sight). Moreover, the evidence
supported a finding that Foster lived in the apartment. Foster
was married to Waldrop, he was in the apartment on two
occasions before August 21, 2002 and his identification card,
marriage certificate and articles of male clothing were found in
the apartment. Accordingly, we conclude that the district court
did not abuse its discretion in denying Foster’s motion for a
judgment of acquittal on count four.
                                 14

    For the foregoing reasons, we affirm the district court’s
judgment of conviction.5
                                                        So ordered.




     5
      We note that Foster was also charged with aiding and abetting
on both counts that went to the jury and on which he was ultimately
convicted, and the evidence was sufficient to convict Foster of aiding
and abetting on both counts. See 18 U.S.C. § 2 (“Whoever commits
an offense against the United States or aids, abets, counsels,
commands, induces or procures its commission, is punishable as a
principal.”).
