                 Case: 10-13702         Date Filed: 08/21/2012   Page: 1 of 32




                                                                      [DO NOT PUBLISH]

                   IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________

                                        No. 10-13702
                                  ________________________

                        D.C. Docket No. 1:08-cr-00371-ODE-AJB-2

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellee,

versus

STEVEN BERNARD JORDAN,
a.k.a. Steven Dodson,
a.k.a. Ladarius Timmons,

llllllllllllllllllllllllllllllllllllllllDefendant - Appellant.



                                 ________________________

                                        No. 10-13703
                                  ________________________

                        D.C. Docket No. 1:08-cr-00371-ODE-AJB-4

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellee,
                 Case: 10-13702         Date Filed: 08/21/2012   Page: 2 of 32

versus

BENJAMIN D. SMARR,

llllllllllllllllllllllllllllllllllllllllDefendant - Appellant.


                                 ________________________

                                       No. 10-13747
                                 ________________________

                        D.C. Docket No. 1:08-cr-00371-ODE-AJB-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellee,

versus

CALVIN THOMAS FURLOW,

llllllllllllllllllllllllllllllllllllllllDefendant - Appellant.


                                 ________________________

                                        No. 10-13748
                                  ________________________

                        D.C. Docket No. 1:08-cr-00371-ODE-AJB-3

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellee,

versus

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ADRIAN ANTOINE CAMPBELL,

llllllllllllllllllllllllllllllllllllllllDefendant - Appellant.
                                      ________________________

                      Appeals from the United States District Court
                          for the Northern District of Georgia
                             ________________________

                                     (August 21, 2012)

Before WILSON and EDMONDSON, Circuit Judges, and VINSON,* District
Judge.

PER CURIAM:

         The defendants, Steven Bernard Jordan, Benjamin D. Smarr, Calvin Thomas

Furlow, and Adrian Antoine Campbell, were convicted after a week-long jury trial

of a cocaine drug conspiracy and related offenses. They bring this direct appeal,

challenging their convictions and sentences on numerous grounds. After review,

and with the benefit of oral argument1, we affirm.

                                               I.

         Evidence admitted during the trial permitted the jury to find the following

facts:


         *
         Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
         1
        Case Nos. 10-13703 (Smarr) and 10-13748 (Campbell) went to oral argument; Case
Nos. 10-13702 (Jordan) and 10-13747 (Furlow) were submitted on the briefs.

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       At the time relevant to this case, J.C. Pitts was a detective with the DeKalb

County, Georgia, Police Department. He was assigned to the High Intensity Drug

Trafficking Areas Task Force, which is a joint state and federal program focused

on investigating large scale drug trafficking organizations. On January 8, 2007,

Detective Pitts received a telephone call from an agent with the Drug Enforcement

Administration in Anderson County, South Carolina. The agent told Detective

Pitts about a recently-arrested drug dealer, Mario Woods, who had agreed to

become a confidential informant and provide information about drug transactions

in DeKalb County in exchange for leniency in a criminal case that was pending

against him in South Carolina. Thereafter, Detective Pitts met with Woods and

learned that, over the preceding four months, Woods had bought cocaine from one

of the defendants, Calvin Thomas Furlow, on a regular basis. These transactions --

- which occurred two to three times each week, and involved between two to seven

kilograms each time --- took place at Furlow’s residence at 1123 Redan Way in

Stone Mountain, Georgia. After partially verifying this information,2 and

conducting preliminary surveillance of Furlow’s house, Detective Pitts decided



       2
         Detective Pitts verified that Furlow lived at 1123 Redan Way, and he listened to some
previously recorded phone conversations from January 5-7, 2007 (before Woods first talked to
Detective Pitts) in which Furlow told Woods that he was in the process of trying to obtain more
cocaine.

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that he would use Woods to make a controlled buy of five kilograms of cocaine

from Furlow “like the ones that had been going on for months . . . [and] arrest all

parties involved[.]”

       For a couple of weeks before the controlled buy, Detective Pitts monitored a

series of telephone calls between Woods and Furlow in which the two men tried to

finalize the deal. Furlow informed Woods during these conversations --- some of

which were recorded, some of which were not --- that he had two general sources

of cocaine supply: a Hispanic man in Kennesaw, Georgia (his “primary source of

supply”), and his “cousin” who drove a Department of Transportation dump truck

(his “secondary source of supply”).1 At some point during their discussions (it is

not clear exactly when) Furlow told Woods that “his cousin that drive [sic] the

dump truck had to bring it [the cocaine].” However, on January 23, 2007, Furlow

informed Woods that his “secondary source of supply had not come through,” but

that his “primary source of supply out of Kennesaw” now had enough cocaine to

complete the deal. Furlow told Woods that he was planning to drive to Kennesaw

“first thing in the morning” to pick up the drugs.

       At approximately 8:30 the next morning, January 24, 2007, Detective Pitts


       1
        As will be discussed, this “secondary source of supply” was subsequently identified as
defendant Adrian Antoine Campbell. Although Furlow referred to him as his cousin, there does
not appear to be any evidence in the record of a familial relationship between the two men.

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set up surveillance of Furlow’s house on 1123 Redan Way. He positioned himself

in an unmarked police car across the street from the house next door to Furlow’s

residence, pointing in the direction of both houses. Detective Pitts explained that

he was to be “the eye” of the operation, which meant that he was there to observe

the scene and, in his words, report “anything” and “everything” he saw by police

radio to other officers who were waiting in vehicles nearby. The surveillance team

had expected that Furlow would leave for Kennesaw early in the morning to meet

his primary supplier (as he had told Woods), and they planned to follow him there

“to identify that particular source of supply.” Detective Pitts thus testified that the

surveillance team on Redan Way that morning was expecting to conduct “mobile

surveillance.” However, Furlow did not leave his house that morning and, in fact,

nothing happened for several hours.

      At around 3:05 that afternoon, a red Ford Focus drove past Furlow’s house

and backed into the driveway of the house next door, across from where Detective

Pitts was parked. Detective Pitts “immediately became suspicious” of the vehicle

because, based on his earlier surveillance, he believed that house was vacant. The

car did not pull all the way in, but rather it stopped near the end of the driveway ---

about 20 feet from Detective Pitts’s car. Due to the close proximity between the

two vehicles, Detective Pitts “slumped down” in his seat so that he would not be

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seen. Even from this position, however, he had an unobstructed view of the Ford

Focus and could see the occupants “pretty clearly.” There were two men in the

vehicle: Defendants Benjamin D. Smarr, the driver and registered owner, and

Steven Bernard Jordan, the passenger. Neither man got out of the car; they just

“talk[ed] back and forth . . . for a few minutes.”

       While the car was parked in the driveway, Detective Pitts observed Jordan

retrieve a black bag from somewhere in the vehicle. After holding and “messing

with the top” for a few minutes, Jordan passed the black bag to Smarr, who then

exited the car and walked across the yard to Furlow’s house. The bag was “heavy

and flat on the sides” and large enough to hold five kilograms of cocaine. When he

got to Furlow’s front porch, Smarr talked to someone at the door for a few

minutes, after which Smarr handed the bag off “very quickly” and immediately

returned to his car.4


       4
          From his position across the street --- and because the front door of Furlow’s house was
inset --- Detective Pitts was not able to see who Smarr talked and gave the bag to. However, he
was able to see this person’s arm and “a white sleeve.” Photographs introduced into evidence at
trial show that Furlow was wearing a shirt with white sleeves. During re-direct, Detective Pitts
testified that it was Furlow’s sleeve he saw at the door when Smarr brought the bag to the house.

        As will be noted further infra, there is some disagreement as to whether Detective Pitts
told the other officers over the radio that he saw Smarr drop the black bag off at Furlow’s house.
Detective Pitts testified that he did, but the officers on the other end of his transmissions did not
recall him mentioning Smarr or the black bag. In either event, Detective Pitts testified that “[a]t
that particular time it was very suspicious, but I did not know for a fact that cocaine was in that
bag.” Indeed, at that time the agents were still operating under the assumption that Furlow was

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           Smarr got back in the driver’s seat when he returned to the car, and he and

Jordan “sat there conversing in the vehicle.” At no point did they exit the car and

go up the driveway to the house where they were parked. Several minutes later, at

approximately 3:35 p.m., a Department of Transportation dump truck pulled up

and stopped in front of 1123 Redan Way. Detective Pitts testified “I immediately

thought to myself based upon the previous phone conversations that this must be

the secondary supplier he [Furlow] had been referring to throughout all the entire

phone calls.” Defendant Adrian Antoine Campbell was the sole occupant of the

truck. He exited the vehicle, retrieved a traffic vest and paper lunch bag from the

passenger side --- the latter of which, Detective Pitts testified, was not big enough

to carry five kilograms of cocaine5 --- and entered Furlow’s house. Five minutes

later, Campbell left the residence without the traffic vest or the lunch bag, and he

walked across the yard to the Ford Focus parked next door. He stood outside of

the vehicle and talked to Smarr and Jordan. At or around the same time that

Campbell exited the house (Detective Pitts testified that it occurred “almost

simultaneously”), Furlow called Woods and told him “the cocaine was at the



going to leave to get the cocaine from his primary source of supply in Kennesaw.
       5
          Five kilograms is a little more than eleven pounds. The lunch bag that Campbell carried
into the house (which was not photographed or booked into evidence) was described at trial as a
“small brown . . . little lunch sack.”

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house, and he was ready to conduct the transaction. He even told him to hurry.”

Woods arrived at Furlow’s house a few minutes later.

      When he got to the house, Woods immediately recognized both the red Ford

Focus and Campbell. He testified that “every time” he bought cocaine from

Furlow at his house the red Ford Focus was parked (rear-side first) in the driveway

of the house next door, as it was on this occasion, and he remembered seeing

Campbell at the car --- along with another man he could not identify --- during at

least one prior drug transaction. Woods, who was wearing a wire, then had the

following recorded exchange with Detective Pitts:

            Mario Woods: Hey, yeah that’s the cousin right there
            man, the dude that normally bring it. So ya’ll better get
            that red car too.

            Detective Pitts [to the other officers]: 38. The guy from
            the dump truck is talking to this little four-door red car in
            the driveway next door. The car next door may be the
            one holding it. The little red four-door car next door,
            that’s going to need to be taken down also, [Woods]
            recognized the car and said that’s the cousin. If this red
            car goes mobile, this is the one that we want to take, the
            little red four-door newer model car. I can’t tell what
            kind it is. That’s who the dump truck guy is talking to.
            It’s been sitting in the driveway next door for about
            twenty minutes.

As Woods approached the house, he testified that Campbell said something to him

(he did not recall what). Woods then went into Furlow’s house and saw the

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cocaine in the kitchen, “sitting on the side of the floor by the counter.” Furlow

moved the drugs up to the counter, after which Woods verified that it was cocaine,

made an excuse to leave the house (telling Furlow that he had to go to his truck

and get the money), and gave law enforcement a pre-arranged signal that the drugs

were there.

      At that time, the officers executed a search warrant on Furlow’s house.

Upon entering the house, Detective Pitts saw five large “bricks” of cocaine on the

kitchen counter. The black bag --- now empty --- was lying right next to and

“touching” the cocaine. The traffic vest that Campbell brought into the house was

on a table next to the kitchen counter. Detectives found a bag containing 117

grams of cocaine in the cupboard, and they recovered a handgun, an assault rifle,

and a shotgun in the master bedroom. Furlow attempted to flee, but he was

apprehended in the rear of the house. The other three defendants were arrested

outside. A bag containing 250 grams of cocaine (apparently from a different batch

than the five kilograms inside the kitchen) was found on the floorboard of

Campbell’s dump truck, and more than $7,000 in cash was found in his jacket

pocket. The detectives found $2,300 in cash in Jordan’s pocket. No drugs or

money were found on Smarr.

      The defendants were later charged with conspiracy to possess with intent to

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distribute cocaine, and with possession with intent to distribute cocaine. It was the

government’s theory that Smarr and Jordan brought the drugs to Furlow’s house in

the black bag, while Campbell was the “broker” of the deal. Furlow was separately

charged with possession of firearm by a convicted felon.6

       The defendants each pled not guilty, and, as the case progressed, they began

to have conflicting defenses. Smarr, Jordan, and Campbell each claimed that they

were merely present at Furlow’s house while others were responsible for the

drugs. Smarr and Jordan pointed the finger at Campbell, contending that he could

have brought the cocaine into Furlow’s house concealed in the traffic vest.

Meanwhile, Campbell argued that the cocaine had already been brought into the

house by the time he arrived, perhaps by Smarr in the black bag. Prior to trial,

Campbell moved to sever his case from the others. That motion was denied, and

the case proceeded to a five-day jury trial. The government called Detective Pitts

and Woods as their main witnesses, along with, inter alia, two chemists who

testified that the “bricks” of cocaine found in Furlow’s kitchen weighed a total of

5.0395 kilograms.



       6
          Furlow was also charged with conspiracy to possess with intent to distribute marijuana
(which was severed prior to trial), and possession of firearms in furtherance of a drug trafficking
crime (which was dismissed on his motion for directed verdict). Neither of these two charges is
at issue in this appeal.

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       Prior to trial, and after the evidence closed and after the jury was instructed

on the law, Smarr requested that the district court instruct the jury on his theory of

defense, to wit, that he was “merely present” at the scene. Despite a lengthy back-

and-forth, however, the parties could not agree on a theory of defense instruction.

After the court determined that it had “exhausted all of the possibilities to give a

theory of the defense charge,” it declined to give a mere presence instruction after

explaining: “I think I will just rest on the charge that’s already been given which

does completely cover the concepts that you all are interested in as far as the

theory of the defense goes.”

       Before the jury started deliberating, the district judge commented to the jury

that she had been told there was “cocaine residue” in the black bag, and thus it was

not going to be sent into the jury room during their deliberations (although the jury

could see it if they asked).7 Shortly after retiring to the jury room, the jury sent a

note asking if it was “certain” that there were cocaine traces inside the black bag

and, if so, whether the traces could be considered as evidence. The district court

responded as follows:

              The answer to your question is no. There is no evidence


       7
        The comment about cocaine residue was apparently based on a statement from one of
the government attorneys, who advised the court that there may have been residue in the black
bag because counsel had placed the cocaine bricks in the bag during trial.

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             that any such cocaine trace has ever --- such alleged
             cocaine trace has ever been tested to see if it’s cocaine.

             Furthermore, I have to point out to you that there is no
             evidence that the [black] bag when it was taken from the
             scene had any cocaine trace in it. There’s just no
             evidence in the record about that.

             The [black] bag which is still here in the courtroom and
             which I have not looked inside myself was handled
             during the court proceedings by one or more of counsel,
             I don’t recall exactly, and it may be that now it has some
             traces of something in it, and so out of an abundance of
             caution, we’re not giving you the [black] bag.

             Again, as I said, if you want to look inside it you could.
             The court security officer will bring it to you, but there
             really is no evidentiary significance at this point whether
             there is or is not traces of something inside the bag
             because there’s been no actual evidence put in on that
             point.

The jury subsequently found all four defendants guilty on the two drug counts. In

a special verdict form, the jury attributed at least five kilograms of cocaine to

Furlow and Campbell, while it attributed only 500 grams or more of cocaine to

Jordan and Smarr. The jury also found Furlow guilty of possession of a firearm by

a convicted felon. The defendants then proceeded to sentencing.

      At sentencing, the district court found that the government established by

preponderance of the evidence that (contrary to what the jury had found) Smarr

and Jordan were responsible for the five kilograms of cocaine. The district court

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reasoned:

              I think that because the black bag which Mr. Smarr
              carried into Mr. Furlow’s house and which Mr. Jordan
              handed to Mr. Smarr so that he could carry it into the
              house very likely contained the same amount that the lab
              came up with, the 5.0395.

Thus, all defendants were held responsible for five kilograms. Furlow, Campbell,

and Jordan were sentenced to the statutory minimum mandatory sentence of 240

months incarceration, followed by ten years supervised release.8 Smarr, who had

no prior criminal record, was sentenced to the statutory minimum mandatory

sentence of ten years incarceration, followed by five years supervised release. The

defendants now appeal.

                                               II.

       The defendants have collectively raised nine issues on appeal, but only the

following four warrant discussion:

              (1) Whether there was sufficient evidence to support the
              jury’s verdict on the conspiracy and the possession with
              intent to distribute charges (Smarr and Campbell);

              (2) Whether the district court erred in refusing to sever
              Campbell’s trial from the other defendants (Campbell);

              (3) Whether the district court erred when it commented


       8
         Furlow also received a 10-year sentence on the firearm charge, to run concurrently with
the drug sentences.

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               on there being “cocaine residue” in the black bag (Smarr
               and Jordan); and

               (4) Whether the district court erred in refusing to give a
               “mere presence” theory of defense instruction (Smarr).9

                                                III.

A. Sufficiency of the evidence

       Smarr and Campbell contend that the evidence was insufficient to convict

them of the conspiracy and possession offenses. “In reviewing the sufficiency of

the evidence underlying a conviction, we consider the evidence ‘in the light most

favorable to the government, with all inferences and credibility choices drawn in

the government’s favor.’” United States v. DuBose, 598 F.3d 726, 729 (11th Cir.

2010) (citation omitted). In deciding if there was sufficient evidence, the question

is whether “‘reasonable minds could have found guilt beyond a reasonable doubt,

not whether reasonable minds must have found guilt beyond a reasonable doubt.’”

United States v. Bacon, 598 F.3d 772, 775 (11th Cir. 2010) (citation omitted)



       9
          Two of the five issues that do not warrant discussion are sentencing arguments: Smarr
and Jordan challenge, as contrary to the jury verdict, the quantity of cocaine that was attributed to
them at sentencing, and Campbell and Furlow challenge the constitutionality of their statutory
minimum mandatory sentences. But, the defendants have all but conceded in their briefs and/or
at oral argument that the sentencing arguments are foreclosed by binding circuit precedent. Thus,
whatever the possible merits of those two arguments, they are rejected on the basis of our prior
panel rule. United States v. Smith, 122 F.3d 1355, 1359 (11th Cir. 1997) (“Under the prior panel
precedent rule, we are bound by earlier panel holdings . . . unless and until they are overruled en
banc or by the Supreme Court.”).

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(emphasis in original).

      To convict someone of conspiracy, the government must show with proof

beyond a reasonable doubt “(1) that a conspiracy existed; (2) that [the defendant]

knew about the conspiracy; and (3) that [he] knowingly joined the conspiracy.”

United States v. Garcia-Bercovich, 582 F.3d 1234, 1237 (11th Cir. 2009); accord

United States v. McDowell, 250 F.3d 1354, 1365 (11th Cir. 2001). The knowledge

requirement will be satisfied when the government establishes that the defendant

was aware of the essential nature of the conspiracy. See United States v. Ndiaye,

434 F.3d 1270, 1294 (11th Cir. 2006). Mere presence at the scene of a crime and

close association with a co-conspirator does not establish knowing participation,

but knowledge can be established through the surrounding circumstances, such as

acts committed by the defendant that furthered the purpose of the conspiracy. See

United States v. Vera, 701 F.2d 1349, 1357 (11th Cir. 1983). Thus, agreement and

participation in the conspiracy do not have to be explicit, but can be “inferred from

circumstantial evidence.” See United States v. Prince, 883 F.2d 953, 957 (11th Cir.

1989). To be sure, “[b]ecause of the clandestine nature of most conspiracies, they

must often be proven using circumstantial evidence.” United States v. Humphrey,

34 F.3d 551, 555 (7th Cir. 1994).

      Based on the evidence, admittedly circumstantial, presented in this case, a

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reasonable jury could have determined that Smarr and Campbell knowingly and

willfully conspired to possess with intent to distribute cocaine. Taking Smarr first,

the evidence, viewed in the light most favorable to the government, showed that

he parked his red Ford Focus (rear-side first) in the driveway of an apparently-

vacant house next door to Furlow’s residence. After sitting in the car for several

minutes (without ever attempting to get out of the car and go up to the house

where it was parked), his passenger, Jordan, “mess[ed] with” the top of a black

bag and passed it to Smarr, who proceeded to walk across the yard and “quickly”

deliver that bag to Furlow. Smarr then returned to his car and, rather than leave, he

continued to wait in the vehicle for several minutes. When the confidential

informant arrived shortly thereafter he recognized Smarr’s vehicle as having been

parked in exactly the same way at the exact same location “every time” that he

bought cocaine from Furlow at his house.10 The cocaine was found minutes later in

Furlow’s kitchen, in very close proximity to the now-empty black bag.11 This

       10
          To the extent the defendants argue on appeal, as they did at trial, that Woods was an
admitted cocaine dealer whose “self-serving testimony” (given in exchange for leniency in his
then-pending criminal case) was not credible, we need only say that credibility determinations are
the sole province of the jury --- regardless of the character and possible motivations of the
witness. United States v. Hewitt, 663 F.2d 1381, 1385 (11th Cir. 1981) (jury entitled to believe
the self-serving testimony of “scoundrels, liars and brigands” given in exchange for immunity).
       11
          Smarr emphasized in his briefs and at oral argument that the black bag was touching
and lying next to the cocaine only after Furlow moved the cocaine from the kitchen floor to the
counter. The evidence is not clear whether the cocaine was moved from the floor to the table in
the bag. (The prosecutor asked Woods that question on direct examination, but defense counsel

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evidence was sufficient to sustain the guilty verdict as to Smarr.

       Smarr does not make much of an effort to deny that the above evidence ---

viewed in the government’s favor --- was sufficient to support the guilty verdict.

Rather, he challenges the believability of the central and most important piece of

that evidence: Detective Pitts’ testimony about the black bag. Smarr argues that

Detective Pitts was either mistaken about what he saw, or he deliberately lied and

“retrospectively created [a] story” in order “to make the evidence fit his theory” of

the case. This argument was made during trial, but Detective Pitts testified that he

could see what happened “pretty clearly” and he was “positive” and “one hundred

percent certain” that he saw Jordan give the bag to Smarr, who took it to the house

and gave it to Furlow. By its guilty verdict, the jury necessarily believed Detective

Pitts. Indeed, if the jury did not believe that Smarr and Jordan had brought the bag

and that it contained (at least some of) the cocaine, the remaining evidence against

them (e.g., parking in the driveway next door, and talking to Campbell when he

left Furlow’s house) would have been insufficient to convict. Although the jury

verdict is not without problems and ambiguities in some respects, as will be noted



objected on leading grounds. The district court sustained the objection and the question was not
re-phrased). Regardless, it is clear that the bag was in the kitchen and in relative close proximity
to the cocaine (even when it was on the floor). More notably, in contrast to what Detective Pitts
testified to having seen outside the house mere minutes before, the bag was “completely empty”
when the agents entered the house.

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further infra, it is manifest that they believed Detective Pitts when he testified that

he saw Smarr and Jordan with the black bag. Smarr concedes as much in his brief

when he states that “for the jury to bring back a guilty verdict against Mr. Smarr, it

had to believe Detective Pitts.” As we explained in the context of Woods’

testimony, see note 10 supra, an appellate court cannot second guess a jury’s

decision to believe a witness. United States v. Andrews, 953 F.2d 1312, 1318

(11th Cir. 1992) (whether to believe a witness “is the sole province of the jury”

and court of appeals “will not overturn a jury’s decision to believe a witness”).

      The evidence against Campbell was also sufficient to sustain his conspiracy

conviction, on the government’s “brokerage theory.” Campbell, the government

contends, was the one who arranged for the cocaine to be delivered to Furlow by

Smarr and Jordan. The evidence at trial established that Campbell (who drove the

Department of Transportation dump truck) was Furlow’s “secondary source of

supply.” Woods testified that earlier on, when he and Furlow were still trying to

arrange the cocaine deal, Furlow had told him that his supplier who “drive[s] the

dump truck had to bring it.” A reasonable jury could have found, based on the

evidence, that Campbell had entered Furlow’s house minutes before Furlow told

Woods that he was finally ready to complete the transaction, and that he

(Campbell) was in the kitchen where the cocaine was later found, as evidenced by

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his leaving the traffic vest behind on the table. “Almost simultaneously” as

Campbell left the house and went outside to meet with Smarr and Jordan, Furlow

called Woods and told him that the cocaine was now available for pick-up. When

Woods arrived at the house he immediately recognized Campbell as having been

present for, and waiting at the red Ford Focus during, at least one prior drug deal.

When Campbell was arrested, he had more than $7,000 in cash in his pocket and

cocaine (albeit from a different batch) in his dump truck. A jury is “free to choose

between or among the reasonable conclusions to be drawn from the evidence[.]’”

United States v. Garcia, 447 F.3d 1327, 1334 (11th Cir. 2006) (citation omitted).

The jury had ample evidence to support a finding of joint participation by Smarr

and Jordan, with Campbell as the broker, in delivering the cocaine to Furlow.12

       The evidence was likewise sufficient to support the substantive offense of

possession with intent to distribute cocaine. To support a conviction for this

offense, the government must prove “‘(1) knowing (2) possession of a controlled


       12
          In the course of arguing that the evidence was not sufficient to sustain his conviction,
Campbell notes that the agents had expected Furlow to leave his house that morning to get the
cocaine from his “primary source of supply” in Kennessaw. All that shows, however, is that the
plan changed. Indeed, as indicated above, Woods testified at trial that at some point during their
preliminary phone calls Furlow told Woods that his secondary supplier who “drive[s] the dump
truck had to bring it.” Whatever the reason for the changes in plan on January 24th (or, perhaps,
the switch back to the original plan), the evidence was enough for the jury to find that, despite
what the agents had expected and planned for that morning, Furlow arranged to get the cocaine
from his secondary source (via Jordan and Smarr) instead of his driving to Kenessaw to get the
drugs directly from his primary source.

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substance (3) with intent to distribute it.’” United States v. Freyre-Lazaro, 3 F.3d

1496, 1504 (11th Cir. 1993) (citation omitted). Possession can be joint or sole and

actual or constructive. E.g., United States v. Crawford, 906 F.2d 1531, 1535 (11th

Cir. 1990).

      The same evidence that was sufficient to sustain the conspiracy charge, as

set forth above, is enough to sustain the possession with intent to distribute charge

against the defendants as joint possessors. Further, the evidence also supports the

conviction of each defendant on an aider and abettor theory. It is unchallenged that

Furlow possessed the cocaine found in his kitchen. The defendants were charged

in the indictment with aiding and abetting each other to distribute this cocaine, and

the district court instructed the jury on aider and abetter liability. To convict under

an aider and abetter theory, the government had to establish that the defendants

“associated themselves with the [cocaine distribution] venture and sought by their

actions to make the venture a success.” See Freyre -Lazaro, 3 F.3d at 1504. The

defendants’ participation in the drug conspiracy “was sufficient to support their

convictions for possession with intent to distribute cocaine on an aiding and

abetting theory.” See id.; see also United States v. Farris, 77 F.3d 391, 395 (11th

Cir. 1996) (rejecting a sufficiency-of-the-evidence challenge to conspiracy charge,

then holding: “The evidence, which is sufficient to support the conspiracy charge,

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supports the possession charge because it shows [defendant] to have been an aider

and abettor.”).

      We recognize that to some extent the jury’s verdict does not fit together

very neatly. As previously indicated, the jury clearly believed Detective Pitts’

testimony about the black bag, or it would not have found Smarr and Jordan

guilty. However, since the jury credited that testimony, it raises the question: why

did the jurors not hold Smarr and Jordan responsible for all five kilograms, as they

did Furlow and Campbell? At the sentencing hearing, the lawyers and the court

speculated about possible reasons for this apparent inconsistency, including the

possibility that the jury concluded that certain of the cocaine “bricks” were carried

in the black bag, while one or more others were brought by Campbell under his

traffic vest. Under this possible explanation, Smarr/Jordan and Campbell each

brought less than five kilograms; but, Campbell was also responsible for the

cocaine found in his truck, and, as Furlow’s supplier, the cocaine found in the

cupboard as well (thus making him responsible for more cocaine than Smarr and

Jordan). We need not decide or speculate on what the jury was thinking with

regard to its quantitative verdicts. Whatever the jury was thinking, the evidence

was sufficient to support Smarr’s and Jordan’s convictions of conspiracy and

possession with intent to distribute cocaine, and the district judge’s attribution to

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them of the full five kilograms for sentencing purposes was supported by a

preponderance of the evidence. See United States v. Faust, 456 F.3d 1342, 1348

(11th Cir. 2006) (post-Booker courts can continue to consider relevant acquitted

conduct proved by a preponderance of the evidence).

B. Severance

       Prior to trial, Campbell moved to sever his trial from the other defendants,

and his motion was denied. Campbell argues on appeal that the district court erred

in refusing to sever because the government had a “strong case” against Furlow on

the drug and firearm charges, while it had a “weak case” against him and the other

defendants. Trying these cases together, Campbell maintains, created “intolerable

tension” between the defendants that ultimately resulted in “antagonistic

defenses.”

      In determining if a joint trial (or severance) is appropriate, the district court

must “balance the prejudice that a defendant may suffer from a joint trial, against

the public’s interest in judicial economy and efficiency.” United States v. Cross,

928 F.2d 1030, 1037 (11th Cir. 1991). “This court is reluctant to reverse a district

court’s denial of severance, particularly in conspiracy cases, as generally ‘persons

who are charged together should also be tried together.’” United States v.

Knowles, 66 F.3d 1146, 1158 (11th Cir. 1995) (citation omitted); accord, e.g.,

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United States v. Leavitt, 878 F.2d 1329, 1340 (11th Cir. 1989) (“coconspirators

should usually be tried together”). We review the district court’s denial of a

motion for severance for clear abuse of discretion. See United States v. Hill, 643

F.3d 807, 828 (11th Cir. 2011). To prevail, “defendant must carry the ‘heavy

burden’ of demonstrating that he ‘suffered compelling prejudice’ and received an

unfair trial.” United States v. Kennard, 472 F.3d 851, 858-59 (11th Cir. 2006)

(citation omitted). A defendant meets his burden by showing that the jury “was

unable to sift through the evidence and ‘make an individualized determination as

to each defendant.’” United States v. Schlei, 122 F.3d 944, 984 (11th Cir. 1997)

(citation omitted). This is not easily shown, particularly if the jury is instructed to

consider the charges and evidence against each defendant separately. See id.

Indeed, “the strong presumption is that jurors are able to compartmentalize

evidence by respecting limiting instructions specifying the defendants against

whom the evidence may be considered.” United States v. Blankenship, 382 F.3d

1110, 1123 (11th Cir. 2004).

      Campbell has not carried his “heavy burden” of showing that he “suffered

compelling prejudice” by being tried along with his co-defendants. The evidence

implicated all four of them, and under the government’s “brokerage theory,” there

were no obvious antagonistic defenses. Even if it is assumed, however, that he and

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the other defendants had antagonistic defenses, the Supreme Court has made clear

that “antagonistic defenses are not prejudicial per se.” See Zafiro v. United States,

506 U.S. 534, 538, 113 S. Ct. 933, 122 L. Ed. 2d 317 (1993). To the extent that he

argues there was prejudice because the government had little evidence against him

(the case was “weak”), while it had much more evidence against Furlow (the case

was “strong”), even if true, that does not qualify as prejudice. “The mere fact that

there may be an enormous disparity in the evidence [against one of the defendants]

compared to the other defendants is not a sufficient basis for reversal. A defendant

does not suffer compelling prejudice, sufficient to mandate a severance, simply

because much of the evidence at trial is applicable only to co-defendants.” Schlei,

122 F.3d at 984 (quotation marks and citation omitted). Further, the district court

properly instructed the jury that it must separately consider each defendant, each

charged offense, and all the evidence related thereto. Those instructions mitigated

any possible prejudice. See id. (district court “avoided any potential prejudice” by

issuing substantively identical instructions).

      For these reasons, the district court did not clearly abuse its discretion in

denying Campbell’s motion for severance.

C. District court’s comment on “cocaine residue” in the black bag

      The district court told the jury that it would not send the black bag into the

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jury room during deliberations because it had “cocaine residue” in it. Smarr and

Jordan argue that this comment was error, and the government impliedly agrees.

However, showing error is not enough to warrant reversal. “Reversal is warranted

only if the court made prejudicial comments that had a clear effect on the jury and

amounted to the denial of a fair trial.” United States v. Tampas, 493 F.3d 1291,

1303 (11th Cir. 2007).

      Smarr’s lawyer maintained during the trial (and on this appeal) that there is

insufficient evidence that Smarr carried the black bag to Furlow’s house. It is his

contention that Detective Pitts --- the only witness who testified that he did so ---

fabricated the story in a convenient attempt to tie all four defendants together and

explain their joint presence at the scene of the crime. Smarr argues that Detective

Pitts did not tell the other officers over the radio that he had seen Smarr carry the

bag to Furlow’s house, see note 4, supra, and he notes that Detective Pitts told the

officers that the Ford Focus “may be the one holding it” (present tense) after he

purportedly saw Smarr give the bag to Furlow, thereby suggesting that Detective

Pitts made the story up after-the-fact. Smarr thus contends that the district court’s

comment about there being “cocaine residue” in the bag impermissibly bolstered

the only witness at trial who testified to having seen him with that bag.

      The jurors were apparently confused by the court’s comment. Indeed, they

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sent a question back to the judge shortly after they began their deliberations and

asked: “Is it certain that there is cocaine trace inside of the black plastic bag, and

are we allowed to consider that as evidence?” The judge replied: “The answer to

your question is no. There is no evidence that any such cocaine trace has ever ---

such alleged cocaine trace has ever been tested to see if it’s cocaine.” The judge

further emphasized: “I have to point out to you that there is no evidence that the

[black] bag when it was taken from the scene had any cocaine trace in it. There’s

just no evidence in the record about that.”

       While the district court may have erred in making the “cocaine residue”

comment, the error was harmless as it was corrected by the court’s answer to the

jury’s question, which unequivocally stated that “[t]here is no evidence” that the

black bag ever had any trace of cocaine in it.13 “Viewing the record in its entirety,

the prejudicial effect of the comment, if any, appears negligible and, in light of the

evidence, could not have affected the jury’s verdict.” United States v. Williams,


       13
           Smarr contends that this word choice (“there is no evidence”) implied to the jury that,
while there was no evidence introduced on this point, the district judge must have been “privy” to
information that was not provided to the jury. This argument is unpersuasive, however, as the
jury was instructed in its final charge that the jurors “must make your decision based only on the
testimony and evidence presented during the trial.” The jurors were further instructed that “you
must consider only the evidence admitted. The term ‘evidence’ includes the sworn testimony of
the witnesses, any exhibits admitted into the record and any stipulations of fact agreed on by the
parties.” It is axiomatic that “[a] jury is presumed to follow its instructions. Similarly, a jury is
presumed to understand [and accept] a judge’s answer to its question.” Weeks v. Angelone, 528
U.S. 225, 234, 120 S. Ct. 727, 145 L. Ed. 2d 727 (2000) (citations omitted).

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530 F.2d 1157, 1158 (5th Cir. 1976) (binding precedent under Bonner v. City of

Prichard, Ala., 661 F.2d 1206 (11th Cir. 1981) (en banc)).

D. District court’s failure to give theory of defense instruction

      Finally, Smarr contends that the district court erred in refusing to give his

theory of defense jury instruction. His first proposed instruction was as follows:

             Mr. Smarr’s theory of defense is that he did not
             participate in the possession with the intent to distribute,
             nor the distribution of, any amount of cocaine, either as a
             direct participant or as part of a conspiracy. Mr. Smarr
             was merely present at the time other individuals may
             have been engaging in a drug transaction. If you find that
             Mr. Smarr did not possess or distribute the drugs, or if
             you simply have a reasonable doubt about whether he
             participated in the possession or distribution of drugs,
             then you are obligated to find him not guilty on Counts 1
             and 2.

The district court initially tried to accommodate Smarr’s request. There was a

lengthy back-and-forth discussion between the judge and the attorneys --- before

and after the jury was charged --- but agreement on the language of the instruction

could not be reached. Smarr then proposed an amended instruction which stressed

his theory that “Campbell brought the five kilograms of cocaine to the location.”

The district judge ultimately declined to give a theory of defense instruction ---

apparently out of concern over whether and to what extent a similar instruction

would need to be given for the other defendants --- and concluded that “I think I

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will just rest on the charge that’s already been given which does completely cover

the concepts that you all are interested in as far as the theory of the defense goes.”

      “District courts have broad discretion in formulating jury instructions[.]”

United States v. Mintmire, 507 F.3d 1273, 1293 (11th Cir. 2007). Refusal to give a

requested theory-of-defense instruction is reviewed for an abuse of discretion. See,

e.g., United States v. Arias–Izquierdo, 449 F.3d 1168, 1185 (11th Cir. 2006). The

district court abuses its discretion and commits reversible error in failing to give a

requested jury instruction only if:

             (1) the requested instruction was a correct statement of
             the law, (2) its subject matter was not substantially
             covered by other instructions, and (3) its subject matter
             dealt with an issue in the trial court that was so important
             that failure to give it seriously impaired the defendant's
             ability to defend himself.

Hill, 643 F.3d at 850 (citation omitted); accord, e.g., United States v. Paradies, 98

F.3d 1266, 1286 (11th Cir. 1996).

      The district court did not abuse its broad discretion in refusing to give the

jury Smarr’s theory-of-defense instruction because the substance of his proposed

instruction was “substantially covered” by those instructions that were given. The

court instructed the jury on the conspiracy count that “mere presence at the scene

of a transaction or event or the mere fact that certain persons may have associated



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with each other and may have discussed common aims and interests does not

standing alone establish proof of a conspiracy.” Similarly, as for the possession

with intent to distribute cocaine count, the district court instructed the jury that

“[m]ere presence at the scene of a crime or even knowledge that a crime is being

committed are not enough to establish that defendant either directed or aided and

abetted the crime.”

      Smarr argues, however, that his proposed instruction was not “substantially

covered” by the ones that were given. He contends that his instruction --- after it

was amended to address the district court’s initial concerns --- went beyond “mere

presence” in the sense that it “involved pointing the finger at someone else,

namely one of his co-defendants.” This argument is not persuasive. As a matter of

common sense and logic, the fact that Smarr pled not guilty and his trial attorney

argued that he just happened to be at Furlow’s house at the time of the deal (and

had nothing to do with the cocaine that had been brought there) can only mean that

he was, in fact, “pointing the finger at someone else.” After all, if he did not bring

the cocaine, that necessarily means someone else did. The district court instructed

the jury that, to be found guilty of the conspiracy and possession with intent to

distribute charges, Smarr must have acted “knowingly” (i.e., “voluntarily and

intentionally and not because of mistake or accident”) and “willfully” (i.e.,

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“voluntarily and purposely with specific intent to do something the law forbids,

that is, with bad purpose to disobey or disregard the law”). These instructions

adequately and necessarily covered Smarr’s theory of defense that someone else

was responsible for bringing the cocaine to Furlow’s house. To be sure, if

Campbell had brought the drugs and Smarr was merely --- and innocently ---

present at the scene, the jury could not have found that he acted knowingly and

willfully. See United States v. Woodard, 531 F.3d 1352, 1364-65 (11th Cir. 2008)

(observing and holding same).14

       Accordingly, the district court did not abuse its broad discretion in refusing

to give Smarr’s theory-of-defense instruction.

                                              IV.

       We raise, sua sponte, the issue of clerical errors in the judgment and remand

with instructions that the district court correct the errors. United States v. Diaz,

190 F.3d 1247, 1251-53 (11th Cir. 1999) (remanding because the judgment



       14
           Smarr argues that Woodard is “inapplicable” because the instruction in that case only
covered a “mere presence” theory of defense, while, as noted above, he insists that his proposed
instruction “involved pointing the finger at someone else.” Once again, that argument must fail.
Every time that a defendant pleads not guilty and claims to have been merely present at the scene
of a crime he is necessarily “pointing the finger at someone else.” The defendant in Woodard
certainly was. Indeed, as was noted in that decision, Woodard’s defense was based on the claim
that one of his co-defendants, Spencer, “was the one who was involved in marijuana trafficking;
Woodard was simply visiting at Spencer’s residence when the police raid occurred --- he was, in
short, at the wrong place at the wrong time.” Id. at 1359.

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reflected the wrong offense). However, correction of the judgment must “not

prejudice the defendant in any reversible way.” Id. at 1252.

      Here, the jury convicted Smarr and Jordan of conspiracy and possession

with intent to distribute offenses involving 500 grams or more of cocaine (but less

than five kilograms), which is the amount punishable under Title 21, United States

Code, Section 841(b)(1)(B). However, the written judgment for each defendant

lists Section 841(b)(1)(A), rather than Section 841(b)(1)(B). Although, as

previously discussed, the district court found by a preponderance of the evidence

that they were responsible for five kilograms or more of cocaine for purposes of

sentencing, they were not found guilty of the greater amount by the jury. Thus, the

judgments do not reflect the basis of their convictions, but rather contain a clerical

error which requires remand for correction. See Diaz, 190 F.3d at 1252.

Accordingly, we vacate and remand with instructions to revise the written

judgment.

                                          V.

      For the foregoing reasons, the district court’s judgment is AFFIRMED, but

REMANDED with instructions to correct the clerical error in judgment.




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