                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                      FILED
                                                               U.S. COURT OF APPEALS
                                 No. 04-10439                    ELEVENTH CIRCUIT
                             Non-Argument Calendar                    JUNE 14, 2005
                           ________________________                 THOMAS K. KAHN
                                                                        CLERK
                      D. C. Docket No. 03-00016-CR-4-SPM

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

HERNANDEZ LOPAZ DANIELS,

                                                             Defendant-Appellant.


                           ________________________

                   Appeal from the United States District Court
                       for the Northern District of Florida
                         _________________________
                                 (June 14, 2005)


Before ANDERSON, CARNES and HULL, Circuit Judges.

PER CURIAM:

      Hernandez Lopaz Daniels was convicted by a jury of one count of

conspiring to possess and distribute more than 50 grams of cocaine base, in
violation of 21 U.S.C. § 846, and of two counts of distributing cocaine base, in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). He was sentenced to concurrent

terms of life in prison and 360 months in prison, respectively, to be followed by ten

years of supervised release. Daniels appeals both his conviction and his sentence.

We affirm his conviction, but vacate and remand his sentence in light of United

States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005).

                               I. Factual Background

      Constance Dupont was arrested in Havana, Florida (a small town in

Florida’s panhandle near Tallahassee) for possessing crack cocaine. In order to

avoid a long prison sentence, Dupont agreed to act as a confidential informant for

the police with regard to local drug activity.

      As part of her work as a CI, Dupont arranged to meet Daniels at the

Tallahassee Mall to buy crack cocaine. With law enforcement officers watching,

Daniels pulled up to the car of an unidentified couple waiting at the mall. The

couple gave Daniels their car and he took it to another area of the mall to pick up

Dupont. Daniels drove Dupont back to his car and the two then went elsewhere to

complete the transaction. Dupont bought 3.5 grams of crack cocaine for $250.00.

She recorded the transaction on a hidden tape recorder.




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      After Daniels dropped Dupont back at her car, where the undercover officer

was waiting for her, Daniels called Dupont on her cell phone, which was actually

the borrowed cell phone of the undercover officer. The officer answered by

mistake.

      A week later, Dupont tried to arranged another drug deal with Daniels. She

called Daniels on the undercover officer’s cell phone, but Daniels did not answer.

Daniels and his girlfriend, Iraima Green (who was Dupont’s cousin and who had

introduced Dupont and Daniels), then called Dupont nineteen times on the officer’s

cell phone using an option on his phone that disguised his number to the call

recipient. According to Green, Daniels did this to get the phone’s real owner to

answer and confirm his suspicion that Dupont was an informant for the police.

The next day, Dupont was found shot dead.

      A few months later, the police asked another CI, Nan Campbell, who along

with her husband had previously purchased drugs from Daniels, to buy more crack

cocaine from him. Campbell and her husband met Daniels and Green at an

abandoned convenience store in Chattahoochee, Florida, where they bought 0.9

grams of crack cocaine for $200.00. Campbell, like Dupont, recorded the

conversation.




                                         3
      Daniels was arrested a few months later on March 11, 2003. After searching

his home, law enforcement officers found ledgers recording Daniels’s drug

transactions from November 1997 to July 1999, including those with Campbell and

her husband. Vincent Burgess, a friend of Daniels, told the police that he had been

Daniels’s cocaine supplier during that period.

      While Daniels was awaiting trial, he was housed at the Federal Detention

Center in Tallahassee and shared a cell with Gary Joseph. Daniels told Joseph

during the course of their conversations that he had killed the informant in his case

to eliminate any potential prosecution. Daniels said that he had met the informant

in his case through the informant’s cousin, who was his girlfriend, and that he had

discovered the informant was working for law enforcement when he had called her

cell phone and a white man answered. Daniels also said that he was a drug dealer

and that he sold drugs to a number of long-term customers.

      Based on Daniels’s conversations with Joseph, his dealings with the

confidential informants, and the evidence collected at his home, Daniels was

indicted for one count of conspiring to possess and distribute more than fifty grams

of crack cocaine and three counts of distributing crack cocaine. After a three-day

trial, a jury convicted Daniels of the conspiracy count and two counts of

distribution. He was sentenced to life in prison for the conspiracy count and 360



                                          4
months in prison for the two distribution counts, all followed by ten years of

supervised release. Daniels appeals his conviction and sentence on multiple

grounds.

                         II. Sufficiency of the Indictment

      Daniels first contends that the district court erred by denying his motion to

dismiss the government’s indictment as to the conspiracy count. He argues that the

indictment was insufficient because it did not identify with whom he conspired to

possess and distribute drugs. We review the denial of a motion to dismiss an

indictment for an abuse of discretion. United States v. Pielago, 135 F.3d 703, 707

(11th Cir. 1998).

      We have held, when faced with a similar challenge by a defendant who

sought to dismiss his indictment on conspiracy charges, that “absent a discovery

order, the [government] has no general obligation to disclose the names of

unindicted co-conspirators who will not be called as witnesses.” United States v.

White, 846 F.2d 678, 693 (11th Cir. 1988); cf. United States v. Martinez, 96 F.3d

473, 477 (11th Cir. 1996) (upholding a defendant’s conviction where the

indictment alleges that the defendant conspired with “unknown persons”). Here,

Daniels did not seek to obtain the names of the unindicted co-conspirators and the

district court did not order their disclosure. Neither did the government call the



                                          5
unindicted co-conspirators as witnesses. Accordingly, the government’s

indictment in this case was sufficient, despite its failure to name the co-

conspirators. See White, 846 F.2d at 693.

          III. Admissibility of Evidence Concerning Dupont’s Murder

      Daniels next contends that the district court erred by admitting evidence

about Dupont’s murder because the evidence’s prejudicial effect substantially

outweighed its probative value. Specifically, Daniels argues that the evidence of

Dupont’s murder was not essential to the government’s case and only served to

confuse the jury. We review the district court’s evidentiary rulings for abuse of

discretion. United States v. Church, 955 F.2d 688, 700 (11th Cir. 1992).

      Daniels is right that evidence relevant to his guilt may be excluded if “its

probative value is substantially outweighed by the danger of unfair prejudice.”

Fed. R. Evid. 403. However, the district court’s discretion to exclude relevant

evidence under Rule 403 is “narrowly circumscribed.” Id. “Rule 403 is an

extraordinary remedy which should be used only sparingly since it permits the trial

court to exclude concededly probative evidence.” Id. (quotation omitted).

      This is especially true with regard to conspiracy cases. “The application of

Rule 403 in conspiracy cases to exclude potentially relevant evidence . . . because

it might cause jury confusion will usually be inconsistent with the general rule



                                           6
favoring admission of such evidence and allowing the jury to decide if it relates to

the indicted conspiracy.” United States v. Costa, 947 F.2d 919, 924 (11th Cir.

1991). For example, in United States v. Meester, 762 F.2d 867 (11th Cir. 1985),

the defendants, who were charged with conspiracy to import and distribute drugs,

challenged under Rule 403 the admission of evidence that the pilot who had

transported their drugs and money had been murdered prior to trial. Id. at 873–74.

We held that the prejudicial effect of the evidence of the pilot’s murder did not

substantially outweigh its probative value to the government to show the

defendants’ participation in and furtherance of the conspiracy, especially where the

district court gave a limiting instruction to the jury explaining the proper use of the

evidence in the jury’s deliberations. Id. at 875–76.

      Here, the evidence of Dupont’s murder was used for the same purpose.

Dupont’s involvement in Daniels’s conspiracy to sell crack cocaine was essential

to the government’s case and the government needed to explain why Dupont was

not testifying herself. Moreover, Daniels’s statements to Joseph that he had killed

Dupont were probative of his furtherance of the conspiracy by eliminating

someone who could have brought it to an end. And, like the court in Meester, the

district court here instructed the jury that the evidence of Dupont’s murder “should

only be considered for the drug offenses charged in the indictment. The defendant



                                           7
is not on trial in this case for homicide.” (R.3:424–25). Accordingly, we conclude

that the district court did not abuse its discretion by admitting this evidence.

                      IV. Motion for Judgment of Acquittal

      Daniels’s third contention is that the district court improperly denied his

motion for judgment of acquittal because there was insufficient evidence that he

conspired with other persons to sell crack cocaine, a necessary element of the

conspiracy charge. We will affirm the district court’s decision to deny a motion

for judgment of acquittal “if a reasonable trier of fact could conclude that the

evidence establishes the defendant’s guilt beyond a reasonable doubt.” United

States v. Rodriguez, 218 F.3d 1243, 1244 (11th Cir. 2000). “The evidence is

viewed in the light most favorable to the government and all reasonable inferences

and credibility choices are made in the government’s favor.” United States v.

Martinez, 83 F.3d 371, 373–74 (11th Cir. 1996) (citations omitted).

      With regard to the conspiracy charge, the government must provide evidence

such that a reasonable jury could conclude beyond a reasonable doubt that there

was an agreement between the defendant and one or more persons, and the object

of the agreement was to do either an unlawful act or a lawful act by unlawful

means. United States v. Smith, 289 F.3d 696, 706 (11th Cir. 2002). “The




                                           8
existence of the conspiracy and the defendant’s participation in it may be

established through circumstantial evidence.” Id.

      Here, the evidence that Daniels had entered into and furthered a conspiracy

with other persons was overwhelming. It showed that he: (1) partnered with his

friend Burgess from mid-1998 until April 1999 to sell Burgess’s drugs and split the

profits; (2) advanced large sums of cocaine to Henry Washington from 1998 to

2000 and tried to cook several ounces of crack cocaine for him; (3) was introduced

to Dupont by Green, who also accompanied him on several drug deals; (4) used the

car of an unidentified couple to facilitate the crack cocaine deal with Dupont at the

Tallahassee Mall; and (5) used Green and his brother to find out if Dupont was

working for the police, which led to Dupont’s murder. Viewing all the evidence in

the light most favorable to the government, it is clear that Daniels agreed with one

or more persons to further his crack cocaine business. It was not error for the

district court to deny his motion for judgment of acquittal.

                                V. Jury Instruction

      Daniels also contends that it was error for the district court not to have

instructed the jury that without a showing of knowledge, a single, isolated act by a

defendant does not constitute participation in a conspiracy. In other words,

Daniels argues that the court should have sua sponte given the jury a buyer-seller



                                          9
relationship instruction. Because Daniels failed to raise this objection before the

district court, we review it now for plain error. United States v. Prieto, 232 F.3d

816, 819 (11th Cir. 2000). “We find plain error only where (1) there is an error;

(2) the error is plain; (3) the error affects the defendant's substantial rights in that it

was prejudicial and not harmless; and (4) the error seriously affects the fairness,

integrity or public reputation of a judicial proceeding.” Id. (citing United States v.

Olano, 507 U.S. 725, 730–32, 113 S.Ct. 1770, 1775–76 (1993)).

       Daniels has not met the first prong of plain error review because the district

court’s actual instruction was not in error. A district court’s decision to deny a jury

instruction requested by the defendant is not erroneous if the instruction the court

actually gave the jury “adequately covered” the defendant’s requested instruction.

United States v. Brazel, 102 F.3d 1120, 1139 (11th Cir. 1997). That is, if the

instruction the district court gave included or paraphrased the defendant’s

requested instruction, refusing to give the duplicate instruction is not error.

       In Brazel, the district court instructed the jury that “mere presence or

association did not necessarily prove a conspiracy, and that a person who has no

knowledge of a conspiracy, but who happens to act in a way which advances some

purposes of one, does not thereby become a conspirator.” Id. at 1139–40. This




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instruction, we held, adequately covered the buyer-seller relationship instruction

the defendant in that case requested. Id.

       Here, the district court gave a jury instruction materially similar to the one

the court gave in Brazel: “Of course, mere presence at the scene of a transaction or

event, or the mere fact that certain persons may have associated with each other,

and may have assembled together and discussed common aims and interests, does

not necessarily establish proof of a conspiracy. Also, a person who has no

knowledge of a conspiracy, but who happens to act in a way which advances some

purpose of one, does not thereby become a conspirator.” (R.1:40:9). We find, like

the Brazel Court, that this instruction adequately covered Daniels’s preferred

buyer-seller relationship instruction, the same one the defendant in Brazel

requested. Accordingly, the district court’s failure to give such an instruction to

the jury was not plainly erroneous.1


       1
          As a corollary to this contention, Daniels also argues that his counsel was ineffective for
failing to request a specific buyer-seller relationship instruction. However, we do not “generally
consider claims of ineffective assistance of counsel raised on direct appeal where the district
court did not entertain the claim nor develop the factual record.” United States v. Bender, 290
F.3d 1279, 1284 (11th Cir. 2002). Even if we did, though, Daniels’s contention would not meet
the Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), standard for ineffective
assistance of counsel. Daniels’s counsel was not deficient, id. at 687, 104 S. Ct. at 2064, because
the instructions he consented to, the “mere presence” and “no knowledge” instruction cited
above, were substantively identical to the buyer-seller relationship instruction, see Brazel, 102
F.3d at 1139–40. And, Daniels was not prejudiced by not having the buyer-seller relationship
instruction, see Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, because the substance of that
instruction was adequately covered by the instruction the district court actually gave and the
evidence of Daniels’s participation and furtherance of the conspiracy was overwhelming.

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                                  VI. Motion for New Trial

       Daniels’s fifth contention is that the district court erred in denying his

motion for a new trial because the indictment, which alleged that Daniels conspired

to sell drugs from March 1, 1998 to March 5, 2003, included time outside the five-

year statute of limitations, making it defective. Daniels filed his motion for a new

trial on April 19, 2004, almost six months after the jury verdict was entered.

       We have held that “the statute of limitations is a matter of defense that must

be asserted at trial by the defendant.” United States v. Najjar, 283 F.3d 1306, 1308

(11th Cir. 2002) (emphasis added) (citing Capone v. Aderhold, 65 F.2d 130, 131

(5th Cir. 1933)2). Where the defendant has not asserted his statute of limitations

defense at trial, he is deemed to have waived the defense and cannot later bring it

up on appeal. See Najjar, 283 F.3d at 1308–09; Capone, 65 F.2d at 131. Because

Daniels did not raise his statute of limitations objection at trial, he has waived the

issue here.3

       2
          In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.
       3
          Daniels also contends that his counsel was ineffective for not raising the statute of
limitations objection at trial. As we explained above, we generally do not consider ineffective
assistance of counsel claims on direct appeal. Bender, 290 F.3d at 1284. However, even if
Daniels had timely objected, he would not have prevailed. “The government satisfies the
requirements of the statute of limitations for a non-overt act conspiracy if it alleges and proves
that the conspiracy continued into the limitations period.” United States v. Arnold, 117 F.3d
1308, 1313 (11th Cir. 1997). That is, as long as part of the conspiracy took place within five
years of the indictment, the statute of limitation is satisfied. Here, as we detailed above, the

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                                     VII. Booker Error

       Finally, Daniels contends that his sentence violated Blakely v. Washington,

542 U.S. ___, 124 S. Ct. 2531 (2004), as applied to the federal sentencing

guidelines in United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005),

because the district court enhanced his sentence based on the fact, found by the

district court by a preponderance of the evidence, that he was involved in Dupont’s

murder. Because Daniels timely objected to the Booker issue at trial, see United

States v. Dowling, 403 F.3d 1242, 1245 (11th Cir. 2005) (Booker constitutional

error is preserved if defendant objects that an issue should go to the jury), we

review the constitutional error to determine “if the error was harmless,” United

States v. Paz, ___ F.3d ___, 2005 WL 757876, *2 (11th Cir. Apr. 5, 2005).

       “To find harmless error, we must determine that the error did not affect the

substantial rights of the parties. A constitutional error, such as a Booker error,

must be disregarded as not affecting substantial rights, if the error is harmless

beyond a reasonable doubt. This standard is only met where it is clear beyond a

reasonable doubt that the error complained of did not contribute to the sentence

obtained. The burden is on the government to show that the error did not affect the

defendant’s substantial rights.” Id. (citations, quotations, and alterations omitted).


evidence clearly demonstrates that Daniels participated in the conspiracy from 1998 until 2003,
when he was arrested.

                                               13
      Here, Daniels was convicted by the jury of conspiring to sell more than fifty

grams of cocaine, which, when combined with his two prior felony drug

convictions, required the district court to sentence him to a mandatory term of life

in prison. 21 U.S.C. § 841(b)(1)(A). The extra-verdict enhancements as a result of

the district court’s finding that Daniels was involved in Dupont’s murder by a

preponderance of the evidence did not affect Daniels’s substantial rights with

regard to this mandatory sentence.

      The enhancements did, however, affect Daniels’s substantial rights with

regard to his conviction for two counts of distributing crack cocaine. Using the

guidelines to calculate Daniels’s sentence, the district court assigned a base offense

level of thirty eight because, throughout the course of his conspiracy, Daniels

possessed and sold more than 1.5 kilograms of cocaine base. U.S.S.G. §

2D1.1(c)(1). The court then enhanced Daniels’s sentence four levels based on its

finding by a preponderance of the evidence that he was involved in Dupont’s

murder: two for using a gun in the death of Dupont, id. § 2D1.1(b)(1), and two for

obstructing justice by murdering a confidential informant, id. § 3C1.1.

      Given that Daniels’s sentence was “increased because of an enhancement

based on facts found by the judge that were neither admitted by the defendant nor

found by a jury” under a mandatory guidelines system, his Sixth Amendment right



                                          14
to a jury trial was violated. See United States v. Rodriguez, 398 F.3d 1291, 1297

(11th Cir. 2005). Because the record is unclear what the district court would have

done had the sentencing guidelines been advisory rather than mandatory, the

government has not demonstrated beyond a reasonable doubt that the district court

would have given Daniels the same 360-month sentence for the two distribution

counts under an advisory guidelines regime. We, therefore, vacate his sentence

and remand for resentencing in light of the Supreme Court’s decision in Booker.

                                 VIII. Conclusion

      For the foregoing reasons, we AFFIRM Daniels’s conviction for one count

of conspiring to possess and distribute cocaine and for two counts of distributing

cocaine. We also VACATE Daniels’s sentence insofar as it involves the two

distribution counts and REMAND for resentencing consistent with this opinion.




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