                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-10531         ELEVENTH CIRCUIT
                                   Non-Argument Calendar        MAY 20, 2011
                                 ________________________        JOHN LEY
                                                                  CLERK
                          D.C. Docket No. 3:09-cr-00076-TJC-JRK-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                Plaintiff-Appellee,

                                             versus

KEITH LARON BROOKS,

lllllllllllllllllllll                                             Defendant-Appellant.
                                ________________________

                          Appeal from the United States District Court
                              for the Middle District of Florida
                                ________________________


                                        (May 20, 2011)

Before BARKETT, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

         Keith Laron Brooks appeals his conviction for being a felon in possession

of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). On appeal, Brooks
raises five arguments: (1) sufficient evidence does not support the jury’s verdict

that he unlawfully possessed a firearm; (2) the district court erred in admitting

(a) Erik Berger’s testimony that Brooks previously possessed a firearm and

(b) Brooks’s 2003 felony conviction for cocaine distribution, pursuant to

Fed.R.Evid. 404(b); (3) the district court abused its discretion in denying his

motion to sever his drug count from his firearm count; (4) the district court erred

in denying his motion to suppress; and (5) the district court erred in denying his

motion to compel the identity of a non-testifying confidential informant (“CI”).

After careful review, we affirm.

                                          I.

      First, Brooks contends that the government did not show that he had actual

or constructive possession of the firearm because it failed to show that he had

ownership, dominion, or control over the room in which officers found the

firearm. He argues that mere presence is insufficient where, as here, there was no

other incriminating evidence, especially where the jury found that Brooks did not

have control over the shotgun shell, the bullets, or the drugs found in the same

room as the firearm.

      We review de novo whether there is sufficient evidence in the record to

support a jury’s verdict in a criminal trial, viewing the evidence in the light most

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favorable to the government, and drawing all reasonable factual inferences in

favor of the jury’s verdict. United States v. Beckles, 565 F.3d 832, 840 (11th

Cir.), cert denied, 130 S.Ct. 272 (2009). Accordingly, the evidence will be

sufficient to support a conviction if a reasonable trier of fact could find that the

evidence established guilt beyond a reasonable doubt. Id.

      To establish a violation of 18 U.S.C. § 922(g)(1), the government must

prove three elements: (1) that the defendant was a convicted felon, (2) that the

defendant was in knowing possession of a firearm, and (3) that the firearm was in

or affecting interstate commerce. Id. at 841. Here, Brooks contests only the

second element – that he did knowingly possessed the firearm.

      “The government need not prove actual possession in order to establish

knowing possession; it need only show constructive possession through direct or

circumstantial evidence.” Id. (quotation omitted). “Constructive possession

exists when the defendant exercises ownership, dominion, or control over the item

or has the power and intent to exercise dominion or control.” Id. However, “a

defendant’s mere presence in the area of [an object] or awareness of its location is

not sufficient to establish possession.” Id. (quotation omitted).

      Here, viewing the evidence in the light most favorable to the government,

the government presented substantial evidence to show that Brooks had dominion

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or control over the bedroom in which officers found the firearm, and thus, that he

knowingly possessed the firearm. The government presented evidence that

(1) Brooks was at the trailer on June 30, 2008, January 4, 2009, and on January 16,

2009; (2) when officers executed the search warrant, Brooks ran back into the

house and headed toward the room with the firearm where officers detained him;

(3) Berger went to the trailer multiple times to buy crack cocaine from Brooks; (4)

officers discovered Brooks’s Florida ID card as well as his mail in the room

containing the firearm; (5) Brooks’s mother told officers at the scene that Brooks

lived in the back bedroom; and (6) Berger had seen Brooks with a gun before.

Further, in taped conversations from jail, Brooks asked people to get his property

from the trailer, including Brooks’s tools and an amplifier under his bed as well as

a fish tank, a grill, and speakers. It is sufficiently clear that Brooks exercised

control over the items located in the back bedroom, including the firearm. See

United States v. Brown, 587 F.3d 1082, 1091-92 (11th Cir. 2009) (holding that

sufficient evidence supported firearm conviction where officers found firearms,

ammunition, drug paraphernalia, cash, and defendant’s Florida identification card

and prison identification card in bedroom of defendant’s mother’s house).

      Finally, Brooks’s contention that the insufficiency of the evidence is

demonstrated by inconsistent jury verdicts is without merit. It is well settled that

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juries are entitled to reach compromises and that “consistency in the verdict is not

necessary.” United States v. Odom, 252 F.3d 1289, 1298 (11th Cir. 2001)

(quotation omitted). Inconsistent verdicts do not defeat a defendant’s conviction,

and “sufficiency-of-the-evidence review involves assessment by the courts of

whether the evidence adduced at trial could support any rational determination of

guilty beyond a reasonable doubt, a review that is independent of the jury’s

determination that evidence on another count was insufficient.” United States v.

Veal, 153 F.3d 1233, 1252-53 (11th Cir. 1998) (quotations omitted). Here, the

jury specifically found that Brooks knowingly possessed the firearm and sufficient

evidence supports this determination.

                                         II.

      Second, Brooks argues that the district court erred in admitting (a) Erik

Berger’s testimony that Brooks previously possessed a firearm and (b) Brooks’s

2003 felony conviction for cocaine distribution, pursuant to Fed.R.Evid. 404(b).

      We review for abuse of discretion a district court’s decision to admit

evidence pursuant to Rule 404(b). United States v. Brown, 587 F.3d 1082,

1090-91 (11th Cir. 2009). We apply a three-part test to determine whether

extrinsic evidence of prior bad acts is admissible under Rule 404(b):




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             First, the evidence must be relevant to an issue other than
             the defendant’s character; Second, the act must be
             established by sufficient proof to permit a jury finding that
             the defendant committed the extrinsic act; [and] Third, the
             probative value of the evidence must not be substantially
             outweighed by its undue prejudice, and the evidence must
             meet the other requirements of Rule 403.

United States v. Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005). “To determine

whether the evidence is more probative than prejudicial, a district court must

engage in a common sense assessment of all the circumstances surrounding the

extrinsic offense, including prosecutorial need, overall similarity between the

extrinsic act and the charged offense, as well as temporal remoteness.” Brown,

587 F.3d at 1091 (quotation omitted). Although the district court has a great

degree of discretion in weighing probative value and prejudice under Rule 403, we

have “also recognized that Rule 403 is an extraordinary remedy which the district

court should invoke sparingly, and the balance . . . should be struck in favor of

admissibility.” United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003)

(quotation omitted).

Berger’s Testimony

      The district court did not abuse its discretion in admitting Berger’s

testimony. By pleading not guilty and presenting a mere presence defense, Brooks

placed his intent squarely at issue. The government had the burden of proving

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knowing possession of a firearm, and to do so, it sought admission of evidence

that Brooks had knowingly possessed a firearm at another recent time. See United

States v. Jernigan, 341 F.3d 1273, 1281 (11th Cir. 2003) (permitting admission of

defendant’s prior felon in possession of firearm conviction to prove “knowing

possession of a firearm” element of charged offense). Further, the probative value

of Berger’s testimony outweighed any prejudicial effect it might have had.

Brooks’s possession of a firearm at the same trailer where officers only months

later discovered a firearm is probative that Brooks knowingly possessed the

firearm. See Brown, 587 F.3d at 1091. Moreover, because the government’s case

relied primarily on circumstantial evidence, the government needed Berger’s

testimony. See id.

Brooks’s 2003 conviction

      The district court also did not abuse its discretion in admitting Brooks’s

2003 drug conviction, as we have held that “[e]vidence of prior drug dealings is

highly probative of intent to distribute a controlled substance.” United States v.

Cardenas, 895 F.2d 1338, 1344 (11th Cir. 1990) (quotation omitted). This is

especially true where, as here, the government needed the evidence to establish the

defendant’s intent. See id. at 1343-44. Further, the two offenses were

substantially similar, and while six years separated the two offenses, this does not

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diminish the evidence’s probative value because Brooks was in prison for the

majority of this time. Accordingly, the evidence’s probative value outweighed any

prejudice that the evidence might have had.

                                          III.

      Brooks contends that by not severing his two counts, the district court

prejudiced him, as shown by its deadlock on the drug count. We review the denial

of a motion to sever for abuse of discretion. United States v. Hammond, 781 F.2d

1536, 1539 (11th Cir. 1986). We use a two-step analysis to determine whether

separate charges were properly tried at the same time. United States v. Walser, 3

F.3d 380, 385 (11th Cir. 1993). First, the government must demonstrate that the

initial joinder of offenses was proper under Fed.R.Crim.P. 8(a). Id. Fed.R.Crim.P.

8(a) permits the joinder of offenses “if the offenses charged . . . are of the same or

similar character, or are based on the same act or transaction, or are connected

with or constitute parts of a common scheme or plan.” Brooks does not dispute

that the initial joinder was proper. The firearm count was based on the same act or

transaction as the drug charge, because the weapon and drugs were found at the

same time and the same place as the drugs. See Fed.R.Crim.P. 8(a).

      Second, we must determine whether the district court abused its discretion

by denying the motion to sever. Walser, 3 F.3d at 385. Fed.R.Crim.P. 14 permits

                                           8
relief from prejudicial joinder, including severance of counts, “if the joinder of

offenses . . . in an indictment . . . appears to prejudice a defendant.” We, however,

“will not reverse the denial of a severance motion absent a clear abuse of

discretion resulting in compelling prejudice against which the district court could

offer no protection.” Walser, 3 F.3d at 385. “[M]ore than some prejudice must be

shown; the appellant must demonstrate that he received an unfair trial and suffered

compelling prejudice.” Id. at 386 (quotation omitted). “This is a heavy burden,

and one which mere conclusory allegations cannot carry.” Id. (quotation omitted).

“The test for assessing compelling prejudice is whether under all the

circumstances of a particular case it is within the capacity of jurors to follow a

court’s limiting instructions and appraise the independent evidence against a

defendant solely on that defendant’s own acts, statements, and conduct in relation

to the allegations contained in the indictment and render a fair and impartial

verdict.” Id. at 386-87. Severance is not required when the possible prejudice

may be cured through a cautionary instruction. Id. at 387. Absent evidence to the

contrary, we presume that a jury was able to follow the district court’s instructions

and evaluate the evidence on each count independently. See id.

      Here, Brooks has failed to show that he suffered compelling prejudice from

the joinder of Counts One and Two. The fact that the jury failed to reach a verdict

                                          9
on the drug count and found Brooks guilty of the felon-in-possession charge as to

the firearm but not the ammunition demonstrates that the jury considered each

count separately. See United States v. York, 428 F.3d 1325, 1334 (11th Cir. 2005)

(holding that district court did not abuse its discretion in denying motion to sever

where court instructed jury to consider each count separately and where “the jury

acquitted [the defendant] on two of the thirteen counts, evincing that it considered

each count separately.”). Further, even Brooks concedes that if the firearm count

was tried separately the jury would have known that he was a convicted felon.

Thus, Brooks has not carried his heavy burden of showing compelling prejudice

and an unfair trial. Accordingly, the district court did not commit a clear abuse of

discretion by denying Brooks’s motion to sever.

                                          IV.

      Next, Brooks raises various arguments related to the district court’s denial

of his motion to suppress. Pursuant to Fed.R.Crim.P. 59(b)(2), which became

effective in 2005, a defendant’s failure to file specific written objections to a

magistrate’s recommendations within ten days (now amended to fourteen days)

after being served with the recommendation, or by some other date set by the

court, constitutes a waiver of his right to appellate review.

      Because Brooks did not file objections to the magistrate judge’s report and

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recommendation, we conclude that he waived appellate review of the denial of his

motion to suppress.

                                          V.

      Brooks contends that the district court erred in denying his motion because

he needed to confront the CI to challenge the search warrant.

      Ordinarily, we review for an abuse of discretion the district court’s ruling

that the government need not disclose the identity of a confidential informant.

United States v. Gutierrez, 931 F.2d 1482, 1490 (11th Cir. 1991). But, “[t]he law

is settled that appellate courts are without jurisdiction to hear appeals directly from

federal magistrates.” United States v. Schultz, 565 F.3d 1353, 1359 (11th Cir.

2009) (citing United States v. Renfro, 620 F.2d 497, 500 (5th Cir. 1980)). In

Renfro, a magistrate judge acting under 28 U.S.C. 636(b)(1)(A) issued a ruling

against the defendant on a pretrial discovery motion. Schultz, 565 F.3d at 1359.

We held that we lacked jurisdiction to review the magistrate judge’s ruling

because the defendant had not promptly appealed it to the district court. Id.

      Here, because Brooks never appealed the magistrate’s ruling denying his

motion to compel the CI’s identity, we lack jurisdiction to now consider the merits

of this holding. See Schultz, 565 F.3d at 1359. Accordingly, we affirm.




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AFFIRMED.1




1
    Brooks’s request for oral argument is denied.

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