                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________           FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-13561         ELEVENTH CIRCUIT
                                                        APRIL 14, 2010
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                           CLERK

                     D. C. Docket No. 08-80109-CR-KLR

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

CEDRIC PAULK,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                                (April 14, 2010)

Before BLACK, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Cedric Paulk appeals his convictions for two counts of possession with
intent to distribute crack cocaine within 1000 feet of a school, in violation of 21

U.S.C. §§ 841(a)(1) and 860(a).1 Paulk raises two issues on appeal. First, he

argues that the district court erred in denying his motion for judgment of acquittal

based on insufficient evidence. He asserts that Officer Davis’s testimony was

circumstantial and insufficient to establish the element of distribution since he only

saw what he believed to be a hand-to-hand transaction involving narcotics, but

could not give specific details. Instead, Paulk asserts an alternate theory that he

was purchasing, not selling, narcotics at the time Officer Davis witnessed the

transaction. Second, Paulk argues that the district court erred in dismissing a juror

with limited understanding of English, asserting that the court did not give a reason

for the dismissal and failed to establish that the juror was unable to understand the

proceedings. Upon review of the record and the parties’ briefs, we affirm.

                                                I.

       We review de novo whether there is sufficient evidence to support a jury’s

verdict, “viewing the evidence and all reasonable inferences and credibility choices

in the light most favorable to the government.” United States v. Anderson, 289

F.3d 1321, 1325 (11th Cir. 2002). “[I]t is not necessary that the evidence exclude


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        Paulk was also convicted of possession of a firearm by a convicted felon, in violation of
18 U.S.C. §§ 922(g)(1) and 924(e)(1). Because he does not challenge that conviction or his
sentence on appeal, however, any claims in this respect are waived. See United States v.
Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998).

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every reasonable hypothesis of innocence or be wholly inconsistent with every

conclusion except that of guilt, provided that a reasonable trier of fact could find

that the evidence established guilt beyond a reasonable doubt.” Id. at 1326

(citation and quotation omitted).

      To convict a defendant of possession with intent to distribute crack cocaine

within 1000 feet of a school, in violation of 21 U.S.C. §§ 841(a)(1) and 860(a), the

government must prove beyond a reasonable doubt four elements: “(1) knowledge;

(2) possession; . . . (3) intent to distribute;” and (4) that the offense occurred within

1000 feet of a school. United States v. Mercer, 541 F.3d 1070, 1076 (11th Cir.

2008) (per curiam), cert. denied 129 S. Ct. 954 (2009) (citations omitted); 21

U.S.C. §§ 841(a)(1) & 860(a). In determining whether the government has

established an intent to distribute, the jury may consider a number of factors,

including a defendant’s flight from police, the presence of plastic baggies, the

amount of drugs found, the lack of equipment associated with drug consumption,

and an officer’s testimony regarding hand-to-hand exchanges of money and drugs.

See United States v. Garcia-Bercovich, 582 F.3d 1234, 1238 (11th Cir. 2009), cert.

denied ___ S. Ct. ___ (No. 09-8611, Feb. 22, 2010) (stating the jury may consider

a defendant’s flight from police as evidence of guilt); Mercer, 541 F.3d at 1076

(holding evidence of plastic jeweler bags together with drug ledger, amount of



                                            3
drugs, and lack of paraphernalia to consume drugs was sufficient to support jury’s

finding of intent to distribute, and absence of money and digital scales was “not

outcome determinative” in light of other evidence); Anderson, 289 F.3d at 1325–26

(holding evidence sufficient to establish intent to distribute when, among other

things, officer witnessed hand-to-hand transactions in which money and drugs

were involved).

      In this case, the government presented Officer Davis’s testimony that he saw

Paulk, who was in a “high crime” area known for narcotics sales, transfer three to

five yellow baggies to a man who was holding cash. Paulk attempted to disguise

his identity by wearing a wig, and once he spotted Officer Davis, he pulled a

bandana over his face. The evidence showed that in an effort to flee from the

police, Paulk drove away from Officer Davis, attempted to pull a gun on Officer

Suarez, and, after crashing his car, attempted to run away on foot. Once Paulk was

apprehended, the officers found a sunglasses case in his pocket which contained a

Crazy Glue container holding crack cocaine, various baggies containing powder

cocaine, marijuana, and oxycodone, as well as several empty baggies. No evidence

was presented demonstrating Paulk had any paraphernalia associated with drug

consumption. Although Paulk was found with almost no money, that is not

indicative of innocence, particularly since he drove away before the hand-to-hand



                                          4
transaction was complete. See Mercer, 541 F.3d at 1076. Accordingly, we

conclude there was sufficient evidence, when viewed in the light most favorable to

the government, to prove beyond a reasonable doubt that Paulk had the requisite

intent to distribute crack cocaine within 1000 feet of a school.

                                            II.

         “When facts arise before the start of deliberations that cast doubt on a juror’s

ability to perform [his] duties, the district court bears discretion to excuse the juror

and replace [him] with an alternate.” United States v. Smith, 918 F.2d 1501, 1512

(11th Cir. 1990) (citations omitted). “We review the exercise of this discretion to

ensure that the District Court did not discharge the juror without factual support, or

for a legally irrelevant reason so as to amount to a showing of bias or prejudice to

the defendant.” United States v. Puche, 350 F.3d 1137, 1152 (11th Cir. 2003)

(citation and quotation omitted). A juror’s inability to understand and speak

English is a legally relevant reason for dismissal. See 28 U.S.C. § 1865(b)(2), (3)

(deeming persons “unable to read, write, and understand the English language with

a degree of proficiency sufficient to fill out satisfactorily the juror qualification

form” and those “unable to speak the English language” unqualified to serve on a

jury).

         The district court’s conclusion that juror Pierre Cadet’s English was



                                             5
sufficiently limited to warrant dismissal is supported by the record. When it was

brought to the district court’s attention that Cadet may have limited understanding

of English, the district court conducted an interview, allowing each party to

question him. Although Cadet was able to understand and speak some English, he

admitted his English was limited and that he had not mentioned it during voir dire

in part because he had not fully understood the questions being asked. He

expressed concern that he would not be able to understand what was being said

during the trial, and that, in fact, he had not completely understood Officer Davis’s

testimony. In light of this information, the district court’s decision to dismiss juror

Cadet was reasonable and not an abuse of discretion. Paulk mentions that the

dismissal of Cadet led to an 11-member jury, rather than a jury of 12. However,

Paulk consented to an 11-member jury, and such an unforeseen event does not

render the district court’s decision to dismiss Cadet an abuse of discretion. By

dismissing him, the district court was ensuring that every member of the jury

would be able to understand the testimony and argument presented at trial and

meaningfully participate in jury deliberations. Therefore, we affirm.



      AFFIRMED.




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