                                                         [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                        FILED
                    FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                     MARCH 6, 2008
                                                  THOMAS K. KAHN
                            No. 07-12336
                                                       CLERK
                        Non-Argument Calendar
                      ________________________

                    D. C. Docket No. 06-00012-CR-N

UNITED STATES OF AMERICA,


                                                  Plaintiff-Appellee,

                                  versus

DEMETRIUS J. HAWKINS,
TERRENCE CORNELIUS,

                                                  Defendants-Appellants.

                      ________________________

               Appeals from the United States District Court
                   for the Middle District of Alabama
                     _________________________

                           (March 6, 2008)

Before CARNES, BARKETT and WILSON, Circuit Judges.

PER CURIAM:
      Demetrius J. Hawkins and Terrence Cornelius, through counsel, appeal their

convictions for conspiracy to possess with the intent to distribute marijuana, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii), 846. On appeal, we consider

(1) whether the district court erroneously failed to grant Cornelius’s motion to

suppress his confession on the ground that the government failed to establish that

he had waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,

16 L. Ed. 2d 694 (1966); (2) whether the district court abused its discretion and

violated Hawkins’s Sixth Amendment right to confrontation by refusing to permit

continued cross-examination of a trial witness; (3) whether sufficient evidence

supported Cornelius’s conviction; and (4) whether Hawkins’s ineffective

assistance claim is cognizable on direct appeal.

                                           I.

      Cornelius argues that the district court admitted a statement he made to

federal agents in violation of his Fifth Amendment right against self-incrimination.

“We apply a mixed standard of review to the denial of a defendant’s motion to

suppress, reviewing the district court’s findings of fact for clear error and its

application of law to those facts de novo.” United States v. Lyons, 403 F.3d 1248,

1250 (11th Cir. 2005). Moreover, “all facts are construed in the light most

favorable to the prevailing party below.” United States v. Bervaldi, 226 F.3d 1256,



                                            2
1262 (11th Cir. 2000).

       When a suppression issue is raised for the first time on appeal, we have

either declined to consider the issue, see United States v. Cooper, 203 F.3d 1279,

1284 n.2 (11th Cir. 2000), or have reviewed the issue for plain error, see United

States v. Young, 350 F.3d 1302, 1305 (11th Cir. 2003). We will, in our discretion,

correct plain error where there is (1) error, (2) that is plain, and (3) that affects

substantial rights, but only if (4) the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings. United States v. Arbolaez, 450 F.3d

1283, 1291 (11th Cir. 2006) (per curiam). The burden of proving prejudice rests

with the non-objecting defendant. See United States v. Olano, 507 U.S. 725, 735,

113 S. Ct. 1770, 1778, 123 L. Ed. 2d 508 (1993).

       An accused has effectively waived his Miranda rights if he: (1) voluntarily

relinquished them as the product of a free and deliberate choice, rather than

through intimidation, coercion, or deception; and (2) made his decision with a full

awareness of both the nature of the right being abandoned and the consequences of

the decision to abandon it. United States v. Barbour, 70 F.3d 580, 585 (11th Cir.

1995). A waiver is effective where the “totality of the circumstances surrounding

the interrogation reveal both an uncoerced choice and the requisite level of

comprehension. . . .” Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141,



                                             3
89 L. Ed. 2d 410 (1986) (internal quotation marks omitted). Accordingly, “an

express written or oral statement of waiver of the right to remain silent or of the

right to counsel is usually strong proof of the validity of that waiver, but is not

inevitably either necessary or sufficient to establish waiver.” North Carolina v.

Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 1757, 60 L. Ed. 2d 286 (1979).

      Upon review of the record, and upon consideration of the briefs of the

parties, we discern no reversible error. Although Cornelius contends that no

evidence was presented at the suppression hearing that he was Mirandized, it was

not an issue at the hearing and is not grounds for reversing on appeal. Even under

plain error review, we conclude that Cornelius’s substantial rights were not

affected. See Young, 350 F.3d at 1305. The evidence showed that he was advised

of his rights post-arrest and chose to make statements. Furthermore, sufficient

evidence supported his conviction even without his confession.

                                           II.

      Hawkins asserts that the district court’s improper limitation of the cross-

examination of co-defendant Troy Williams prevented the jury from accurately

judging Williams’s veracity, specifically concerning his criminal history. Williams

had prior convictions and was indicted as a conspirator, but he denied knowing

Cornelius or Hawkins.



                                            4
         A district court has discretionary authority to limit cross-examination, and

review is for an abuse of discretion. United States v. Burke, 738 F.2d 1225, 1227

(11th Cir. 1984). Evidentiary objections that were not timely raised at trial are

reviewed for plain error. United States v. Edouard, 485 F.3d 1324, 1343 (11th Cir.

2007).

         In reviewing issues under Federal Rule of Evidence 403, we view the

evidence “in a light most favorable to its admission, maximizing its probative

value and minimizing its undue prejudicial impact.” Id. at 1344 n.8 (internal

quotation marks omitted).

         For the purpose of attacking the character for truthfulness of a
         witness, (1) evidence that a witness other than an accused has been
         convicted of a crime shall be admitted, subject to Rule 403, if the
         crime was punishable by death or imprisonment in excess of one year
         under the law under which the witness was convicted . . . .

Fed. R. Evid. 609. Relevant evidence is “evidence having any tendency to make

the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” Fed. R.

Evid. 401. Relevant evidence may be excluded, however, if its probative value is

substantially outweighed by, inter alia, considerations of undue delay, waste of

time, or needless presentation of cumulative evidence. Fed. R. Evid. 403.

Nevertheless, “Rule 403 is an extraordinary remedy, which should be used only



                                             5
sparingly, and the balance should be struck in favor of admissibility.” Edouard,

485 F.3d at 1344 n.8 (internal quotation marks and brackets omitted).

      Because only Cornelius’s counsel objected to the limits placed on the cross-

examination of co-defendant Williams, Hawkins raises this issue for the first time

on appeal and review is for plain error. See Edouard, 485 F.3d at 1343.

Williams’s criminal record was analyzed during direct examination. Thus, to the

extent that Hawkins argues that he had specific questions to ask Williams that had

not been asked previously, the district court did not plainly err because Williams’s

criminal history had been sufficiently elicited. Accordingly, the district court did

not abuse its discretion when it refused to permit continued cross-examination at

trial regarding Williams’s criminal record.

                                         III.

      Hawkins contends that the district court’s refusal to admit the nature and

number of Williams’s convictions violated his Sixth Amendment right to

confrontation. Constitutional objections that are not timely raised, including

Confrontation Clause objections, are reviewed only for plain error. Arbolaez, 450

F.3d at 1291. Although a district court has discretionary authority to limit cross-

examination, it must permit sufficient cross-examination to satisfy the Sixth

Amendment’s Confrontation Clause. Burke, 738 F.2d at 1227. The Confrontation



                                           6
Clause is satisfied once sufficient information is elicited from a witness and the

jury “can adequately gauge the witnesses’ credibility.” Id. at 1227.

      Because Hawkins did not raise a Confrontation Clause objection below,

review of this claim is for plain error as well. Arbolaez, 450 F.3d at 1291. The

number and nature of Williams’s past crimes were elicited during direct

examination, Cornelius’s counsel was permitted to cross-examine Williams, and

Hawkins has not specified how the absence of any additional information affected

his substantial rights. We thus conclude that Williams was sufficiently cross-

examined regarding his criminal history to enable the jury to adequately gauge his

credibility. Accordingly, Hawkins’s Sixth Amendment right to confrontation was

not violated.

                                         IV.

      Cornelius argues that the evidence was insufficient to support his conviction.

We review challenges to the sufficiency of the evidence in criminal cases de novo,

viewing the evidence in the light most favorable to the government. United States

v. Futrell, 209 F.3d 1286, 1288 (11th Cir. 2000).

      “After the government closes its evidence or after the close of all the

evidence, the court on the defendant’s motion must enter a judgment of acquittal of

any offense for which the evidence is insufficient to sustain a conviction.” Fed. R.



                                           7
Crim. P. 29(a). The relevant question in reviewing the denial of a motion for

acquittal “is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.

Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). “A conviction must be upheld unless the

jury could not have found the defendant guilty under any reasonable construction

of the evidence.” United States v. Chastain, 198 F.3d 1338, 1351 (11th Cir. 1999).

“It is not necessary that the evidence exclude every reasonable hypothesis of

innocence or be wholly inconsistent with every conclusion except that of guilt.”

United States v. Faust, 456 F.3d 1342, 1345 (11th Cir.), cert. denied, 127 S. Ct.

615, 166 L. Ed. 2d 456 (2006). Credibility determinations are the sole province of

the jury and we may not revisit that question. Chastain, 198 F.3d at 1351.

      In order to sustain Cornelius’s conspiracy conviction under 21 U.S.C.

§§ 841 and 846, the government must have offered sufficient evidence to prove

beyond a reasonable doubt that: (1) an illegal agreement existed to possess with

intent to distribute a controlled substance – here, identified as marijuana in the

indictment; (2) Cornelius knew of the agreement; and (3) Cornelius knowingly and

voluntarily joined the agreement. See United States v. Charles, 313 F.3d 1278,

1284 (11th Cir. 2002) (per curiam). Although the government was not required to



                                           8
prove that Cornelius knew every detail or participated in every stage of the

conspiracy, it must have established that he “knew the essential nature of the

conspiracy.” Id. (internal quotation marks omitted). The government was not

required to prove an overt act in furtherance of the 21 U.S.C. § 846 conspiracy.

United States v. Baker, 432 F.3d 1189, 1200 n.3 (11th Cir. 2005).

      “The existence of an agreement may be proven by circumstantial evidence,

including inferences from the conduct of the alleged participants or from

circumstantial evidence of a scheme.” United States v. Silvestri, 409 F.3d 1311,

1328 (11th Cir. 2005) (internal quotation marks omitted). In fact, an entire

“[c]onspiracy may be proven by circumstantial evidence and the extent of

participation in the conspiracy or extent of knowledge of details in the conspiracy

does not matter if the proof shows the defendant knew the essential objective of the

conspiracy.” United States v. Gupta, 463 F.3d 1182, 1194 (11th Cir. 2006)

(internal quotation marks omitted), cert. denied, 127 S. Ct. 2446, 167 L. Ed. 2d

1132 (2007). Furthermore, the government is not required to “prove that each

conspirator agreed with every other conspirator, knew of his fellow conspirators,

was aware of all of the details of the conspiracy, or contemplated participating in

the same crime.” United States v. Browne, 505 F.3d 1229, 1274 (11th Cir. 2007).

      Sufficient evidence supported Cornelius’s conviction. The evidence



                                          9
presented at trial against Cornelius included, among other evidence, co-conspirator

testimony, recorded telephone conversations between Cornelius and a co-

conspirator, DEA agent testimony that Cornelius and a co-conspirator engaged in

behavior consistent with the recorded telephone calls, and Cornelius’s post-arrest

statement that he was on his way to get at least twenty pounds of marijuana when

he was arrested. That evidence established beyond a reasonable doubt that an

illegal agreement existed to possess with intent to distribute marijuana and that

Cornelius not only knew of the agreement but knowingly and voluntarily joined it.1

                                                 V.

       Finally, Hawkins argues for the first time on appeal that his trial counsel

provided ineffective assistance. “Claims of ineffective assistance of counsel

generally are not considered for the first time on direct appeal unless the record is

sufficiently developed.” United States v. Le, 256 F.3d 1229, 1241 (11th Cir.

2001). “When an ineffective-assistance claim is brought on direct appeal,

appellate counsel and the court must proceed on a trial record not developed



       1
         We likewise conclude that Cornelius’s claims that the two verdicts here were
inconsistent, and that Canady’s testimony was incredible as a matter of law, are meritless. See
United States v. Thompson, 422 F.3d 1285, 1291 (11th Cir. 2005) (holding that testimony is not
incredible as a matter of law merely because the witness has consistently lied, engaged in
criminal activities, and testified with the belief that he would benefit); United States v. Andrews,
850 F.2d 1557, 1561 (11th Cir. 1988) (en banc) (holding that inconsistent verdicts on separate
charges against a single defendant and also with respect to jointly tried co-defendants are not
grounds for setting the verdicts aside).

                                                 10
precisely for the object of litigating or preserving the claim and thus often

incomplete or inadequate for this purpose.” Massaro v. United States, 538 U.S.

500, 504-05, 123 S. Ct. 1690, 1694, 155 L. Ed. 2d 714 (2003).

      Although the transcripts of the first and second trials are included in the

record on appeal, the record has not been developed precisely for the object of

litigating an ineffective assistance of counsel claim. See Id. Accordingly, we will

not address this claim on direct appeal.

      For the reasons set forth above, we affirm the convictions of Hawkins and

Cornelius.

AFFIRMED.




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