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                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-11908
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 3:11-cr-00037-LC-4



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

TRENTON A. COPELAND,

                                                         Defendant-Appellant.

                      ________________________

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

                              (May 9, 2013)

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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      Trenton A. Copeland appeals his conviction and life sentence for conspiracy

to distribute and possess with the intent to distribute five kilograms or more of

cocaine. Copeland argues on appeal that the court should have given his requested

instructions with regards to Fed.R.Evid. 404(b) evidence and multiple conspiracies,

and thus his theory of defense. After thorough review, we affirm.

      We typically review a district court’s refusal to give a requested jury

instruction for abuse of discretion. United States v. Palma, 511 F.3d 1311, 1314-

15 (11th Cir. 2008). A district court’s decision will not be disturbed on abuse of

discretion review if its decision falls within a range of possible conclusions that do

not constitute a clear error of judgment. United States v. Lopez, 649 F.3d 1222,

1236 (11th Cir. 2011). The issue of whether a jury instruction correctly stated the

law or misled the jury is reviewed de novo. United States v. Daniels, 685 F.3d

1237, 1244 (11th Cir. 2012), petition for cert. filed, (U.S. Sep. 28, 2012) (No. 12-

6556). However, where a defendant fails to object to a jury instruction, we review

for plain error. United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000).

We have held that the presentation of a request for an instruction, and the court’s

specific denial thereof, is sufficient to preserve the issue for appeal. United States

v. Morris, 20 F.3d 1111, 1114 n.3 (11th Cir. 1994).

      First, we are unpersuaded by Copeland’s claim that the district court abused

its discretion in refusing to give his requested instruction concerning Fed.R.Evid.


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404(b) evidence. A refusal to give a requested jury instruction warrants reversal

only if: (1) the requested instruction was substantively correct; (2) the instruction

was not covered elsewhere in the charge; and (3) the failure to give the instruction

substantially impaired the defendant’s ability to effectively present a defense.

Palma, 511 F.3d at 1315. A trial court is given broad discretion in formulating its

charge to the jury, but a defendant is entitled to have instructions given relating to

a theory of defense where there is any foundation in the evidence to support them.

Whether there was sufficient evidence to warrant a particular instruction is

reviewed in the light most favorable to the accused. Id.

      We have held that it is not error to give the pattern instruction on Rule

404(b) evidence. See United States v. Dominguez, 661 F.3d 1051, 1072-73 (11th

Cir. 2011), cert. denied, 132 S.Ct. 2711 (2012). Where the government offers

“similar transaction” evidence in regard to a specific, substantive count of

indictment, it can be error for the court to deny the defendant’s request for a

limiting instruction. United States v. Gonzalez, 975 F.2d 1514, 1517-18 (11th Cir.

1992). That error may impair the defendant’s ability to present a defense, and

constitute reversible abuse of discretion, where all of the other evidence of the

substantive count was circumstantial, and no other part of the charge covered or

addressed the issue. Id.




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      Neither arrest nor incarceration automatically triggers withdrawal from a

conspiracy. United States v. Gonzalez, 940 F.2d 1413, 1427 (11th Cir. 1991).

Withdrawal is an affirmative defense that a defendant must prove by his own

affirmative steps to disavow or defeat the conspiratorial objectives. Id.

      Here, Copeland’s suggested instruction -- this Circuit’s pattern instruction

on Rule 404(b) evidence -- was generally a substantively correct statement of the

law. However, it is not clear from the record, nor did the district court ever rule,

that the evidence that Copeland complains of was, in fact, extrinsic to the

conspiracy as charged in the indictment. Therefore, it is not clear that, as applied

to the facts of his case, Copeland presented the court with an instruction containing

a correct statement of the law.

      In any event, the court did not abuse its discretion in not giving the

instruction under the next two parts of the test found in Palma. See Palma, 511

F.3d at 1315. 1 Copeland’s argument for why the charge was necessary was that it

would avoid the risk that the jury would conflate Copeland’s actions separate from

the charged conspiracy with his actions that actually furthered the charged

conspiracy. That risk was substantially covered by the court’s instruction that

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       In this instance, we review the court’s alleged error in failing to give a Rule
404(b) limiting instruction for abuse of discretion. Copeland requested that the
court give the instruction, and, even though the court never explicitly said that it
would not give the instruction, its subsequent failure to do so constituted an
implicit ruling, sufficient to preserve the issue for appellate review. See Morris, 20
F.3d at 1114 n.3.
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Copeland could only be found guilty if the government proved that he “joined the

conspiracy charged in this indictment, rather than some other conspiracy that may

have been mentioned during the trial.” While the charge would have explained the

appropriate but limited use of this evidence, defense counsel was content to wait

until the end of the trial for any explanation at all.

      The failure to give Copeland’s additional instruction also did not impair

Copeland from presenting his defense that: (1) all of the evidence linking Copeland

to the charged conspiracy came from cooperating witnesses who had a reason to

lie; and (2) all of the other direct evidence linking Copeland to drugs was outside

the scope of the indictment. It was a jury question whether the two seizures

showed continuing conduct that was part of the conspiracy as charged in the

indictment, and the court’s instructions did not impair Copeland’s ability to

adequately defend himself on that point to the jury. Therefore, the court did not

abuse its discretion.

      Nor do we agree with Copeland’s argument that the district court abused its

discretion in refusing to give an instruction concerning multiple conspiracies. For

starters, where the defendant expressly agrees with the court’s given instruction,

any claimed error is waived and we will not review it. Daniels, 685 F.3d at 1244.

Further, the district court generally should instruct the jury on a theory of defense

where there is some basis in the evidence and legal support for the instruction.


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United States v. Zlatogur, 271 F.3d 1025, 1030 (11th Cir. 2001). In determining if

there is a proper evidentiary foundation, we view the evidence in the light most

favorable to the defendant. United States v. Williams, 728 F.2d 1402, 1404 (11th

Cir. 1984). A specific theory of defense charge is not warranted where the charge

adequately covers the substance of the requested instruction. See United States v.

Jones, 933 F.2d 1541, 1544 (11th Cir. 1991).

      As the record shows, Copeland initially requested two separate full

instructions on multiple conspiracies and his theory of defense. However, in

discussing the jury charge with the court, Copeland stated that the court only

needed to give one charge or the other, but not both. After the court suggested that

it would give a modified, one sentence instruction, Copeland argued that the

court’s instruction would be sufficient if it added that: “The government must

show an interdependence among the alleged co-conspirators in order to prove that

the indicted conspiracy was a single, unified conspiracy as opposed to a series of

small or uncoordinated conspiracies . . . .” Therefore, Copeland assented to the

court’s given instruction with the exception of its omission of the sentence

involving a “single, unified conspiracy.” As a result, Copeland has waived any

argument concerning the rest of his initially requested instruction, and we review

only the court’s failure to give the “single, unified conspiracy” instruction. See

Daniels, 685 F.3d at 1244.


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      The court’s instruction that the jury must convict Copeland only if the

charged conspiracy was proven adequately covered Copeland’s requested

instruction.   Copeland’s requested charge that the government must prove a

“single, unified conspiracy as opposed to a series of small or uncoordinated

conspiracies” is arguably redundant to the court’s instruction that the court must

find that Copeland “joined the conspiracy charged in this indictment.” While the

court could have given that instruction, it was not an abuse of discretion to not give

an instruction that was substantially covered elsewhere. See Palma, 511 F.3d at

1315. That rationale applies with equal force to a requested theory of defense

charge. See Jones, 933 F.2d at 1544. Based on the given instructions, Copeland’s

argument that the jury could have convicted based on evidence of a separate

conspiracy is unpersuasive. Accordingly, we affirm Copeland’s conviction.

      AFFIRMED.




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