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                                                                       [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                               No. 18-13091
                         ________________________

                  D.C. Docket No. 9:17-cr-80203-WPD-1



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

versus

JOHNNY CLYDE BENJAMIN, JR.,

                                               Defendant - Appellant.

                         ________________________

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

                               (May 8, 2020)

Before ED CARNES, Chief Judge, LUCK and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:
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      Dr. Johnny Clyde Benjamin, Jr. appeals his convictions for distributing

furanyl fentanyl, a controlled substance analogue, in counterfeit oxycodone pills

that caused the death of a 34-year-old woman. He challenges his convictions

because, he claims, the government failed to prove that he produced and

distributed the drugs that caused the death of the victim; the distribution of furanyl

fentanyl was not criminalized by Congress until after he distributed it; the trial

court failed to properly instruct the jury as to the requirement of scienter; it erred in

denying his motion to suppress evidence obtained from a search of his bags at an

airport; and the district court abused its discretion in declining to investigate juror

misconduct. Finding no merit in any of Benjamin’s claims, we affirm.

                                           I.

                                           A.

      On March 6, 2018, a grand jury returned a superseding indictment against

Benjamin and two co-conspirators, Zachary Stewart and Kevan Slater. The

superseding indictment charged the three defendants with (1) one count of

conspiring to possess with intent to distribute furanyl fentanyl, a controlled

substance analogue, which resulted in death, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(C), 846 (Count One); (2) one count of distributing furanyl

fentanyl, a controlled substance analogue, which resulted in death, in violation of

21 U.S.C. § 841(a)(1), (b)(1)(C) (Count Two); and (3) one count of conspiring to


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possess with intent to distribute hydrocodone and oxycodone, both controlled

substances, in violation of 21 U.S.C. §§ 841(a)(1), 846 (Count Seven). The

superseding indictment also charged Benjamin alone with (1) one count of

attempting to possess with intent to distribute acetyl fentanyl, a controlled

substance, in violation of 21 U.S.C. §§ 841(a)(1), 846 (Count Three); (2) two

counts of possessing firearms in furtherance of drug trafficking crimes, in violation

of 18 U.S.C. § 924(c)(1)(A) (Counts Four and Six); and (3) one count of

possessing with intent to distribute oxycodone, a controlled substance, in violation

of 21 U.S.C. § 841(a)(1) (Count Five).

      Stewart and Slater testified against Benjamin at trial and each pled guilty to

one count of conspiring to possess with intent to distribute furanyl fentanyl, a

controlled substance analogue, which resulted in death, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(C), 846; and one count of conspiring to possess with intent to

distribute hydrocodone and oxycodone, both controlled substances, in violation of

21 U.S.C. §§ 841(a)(1), 846. On July 27, 2018, the district court sentenced Stewart

to 58 months in prison and Slater to 72 months in prison.

                                          B.

      These are the essential facts adduced at Benjamin’s seven-day trial. On

September 1, 2016, two Palm Beach County Sheriff’s Office (“PBSO”) deputies

responded to a 911 call at an apartment complex in Wellington, Florida. The


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deputies found an adult woman, later identified as M.C., unconscious; they

performed CPR until fire rescue arrived. Tragically, those efforts were

unsuccessful and M.C. was pronounced dead. M.C.’s husband told the responding

officers that his wife had overdosed on drugs. The officers recovered prescription

pill bottles from M.C.’s bedroom. One of the bottles had what appeared to be, at

first blush, oxycodone -- small blue pills with the letter “M” printed on one side,

and the number “30” printed on the other. Laboratory testing, though, later

revealed that those pills contained furanyl fentanyl.

       A toxicology report confirmed that M.C.’s blood contained caffeine, furanyl

fentanyl, and a compound called 4-ANPP.1 The report also found that M.C. had a

blood alcohol concentration of .033 -- not much more than one drink’s worth of

alcohol. Dr. George Behonick, an expert toxicologist, testified for the government

that there is no known safe level of furanyl fentanyl in the blood, nor has the drug

been approved for any medical use in the United States. Dr. Gertrude Juste, an

expert forensic pathologist and the medical examiner who performed M.C.’s



1
  As described at trial, 4-ANPP “is a compound which is thought to be a precursor or
intermediate in the clandestine or illicit manufacture of fentanyl and several other fentanyl
analogues,” including furanyl fentanyl.

 Mass spectrometry testing of M.C.’s blood also indicated the presence of tramadol, but more
specific quantitative analysis found no tramadol at a reporting limit of 0.044 milligrams per liter.
The report also indicated there was benzodiazepine in her urine, which suggested M.C. may have
taken Xanax at some point before her death.

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autopsy, opined that the ingestion of furanyl fentanyl caused M.C.’s death; that

M.C.’s blood alcohol level was “insignificant” and “could not explain her death”;

and that M.C. suffered from no other, underlying medical condition that could have

caused her death.

      M.C.’s husband told law enforcement officers that Kevan Slater, a friend of

M.C.’s, had given her pills in the past. He also gave them M.C.’s cell phone. The

agents found text messages between M.C. and Slater discussing the pills. The

agents were also able to place the phone at Slater’s residence the night before M.C.

died, and thus identified Slater as having given her the fatal pills. Slater admitted

giving the counterfeit oxycodone pills to M.C. and agreed to cooperate in the

investigation. He told law enforcement that he had been given the pills by Zachary

Stewart, and that Stewart told him that Dr. Johnny Benjamin was the source of the

pills. Stewart likewise cooperated and confirmed that Benjamin, a spinal surgeon

in Vero Beach, Florida, was the source of the pills.

      Stewart testified that Dr. Benjamin had planned to manufacture counterfeit

oxycodone pills. Benjamin asked Stewart to help him purchase a pill press and

explained to Stewart that it would be cheaper to import fentanyl from China than it

would be to purchase pharmaceutically manufactured pills in the United States. In

April or May 2016, Benjamin gave Stewart an initial batch of counterfeit

oxycodone pills. Stewart was supposed to find someone to test the pills because


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Benjamin wanted to confirm their potency. But Stewart was unable to do so. The

pills in the first batch were white, and they looked nothing like real oxycodone

pills, which are light blue. Within a week, though, Benjamin gave Stewart a

second batch of twenty pills. Stewart gave these pills to Slater for testing. Slater

consumed all twenty himself. Slater testified that the pills were “very similar to a

pain killer,” but their potency was “slightly under what a typical [oxycodone] pill

would normally be.”

      Then, in late August, Benjamin gave Stewart a third batch. Stewart thought

these pills looked better than the first two batches -- more like real oxycodone --

and Benjamin told him they were more potent. Once more, Stewart gave the pills

to Slater. But this time, Slater didn’t keep the pills for himself. Instead, he sold

some to M.C. After M.C. died, Slater flushed the remaining pills down a garbage

disposal. He then called Stewart to tell him about M.C.’s death. Stewart testified

that the news “terrified” him and made him “feel horrible.” He said he was fearful

he “would be going to jail” and that “other people may be dying, getting hurt from

these pills.” Stewart immediately relayed the news of M.C.’s death to Benjamin.

Benjamin told him not to worry. M.C., Benjamin explained, “was just a piece of

paper on a large stack on the desk.”

      After M.C.’s death, Stewart distanced himself from Benjamin, but,

thereafter, as part of his cooperation with law enforcement, Stewart got back in


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touch with Benjamin and began recording their conversations. Eventually, Stewart

-- at the DEA’s direction -- told Benjamin he would be traveling to Atlanta to

speak with a drug supplier and to pick up marijuana and prescription pills.

Benjamin replied that he was interested in distributing the drugs; he was, as

Stewart testified, “eager to find out if the numbers would make sense.”

      Once Stewart and Benjamin ironed out the details of their arrangement, the

DEA contacted Mallinckrodt, a company that manufactures oxycodone pills, and

asked it to produce a batch of placebo pills. The agents gave these pills to Stewart

to give to Benjamin, and he did so on October 5, 2017. Stewart told Benjamin that

the pills contained acetyl fentanyl mixed with mannitol and Benadryl, and that they

were “the closest thing to” heroin.

      The next day, Benjamin traveled with the pills to the Orlando Melbourne

International Airport, planning to bring them in his carry-on luggage to

Philadelphia. Before Benjamin arrived, DEA officers reached out for the

Melbourne Airport Police Department (“MAPD”) to see if its officers could get

Benjamin to consent to a search of his bags. As Benjamin went to pick up his bags

from a conveyor belt after passing through TSA screening, Sergeant Patrick

Naughton asked Benjamin whether those were his bags and if Naughton could

search them. Benjamin replied, “Yes, sir, you may.” Sergeant Naughton brought

Benjamin’s bags to a table “ten to 15 feet over to the side” from the security


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checkpoint. Naughton told Benjamin that perhaps the TSA had found “prohibited

items in [his] bags, and it could be a bullet or something.” Throughout the

encounter, Benjamin remained “calm” and “very cooperative.” The DEA was

onsite at the airport in case he declined to consent to the search of his bags.

      Sergeant Naughton and Officer Austin Moyer searched Benjamin’s bags and

found the DEA’s counterfeit oxycodone pills. Benjamin claimed some of the pills

were his chemotherapy medication and some were anti-inflammatory medication.

But because Benjamin didn’t have a prescription for his “medicine,” and because

of the vast number of pills -- Naughton estimated there were over 2,000 pills in

Benjamin’s luggage -- the law enforcement officers confiscated the pills.

      On October 12, 2017, Benjamin was arrested, and the DEA executed search

warrants on his home, office, and storage unit. In his home, investigators found

five pill bottles, none of which indicated they had been prescribed to Benjamin; a

money counter; money bands in $2,000 and $20,000 denominations; and a scale.

Subsequent DEA testing confirmed the presence of furanyl fentanyl residue on the

scale. At Benjamin’s office, investigators discovered an extensive search history

related to fentanyl on his computer. Benjamin’s Google searches included “How

much fentanyl in a fake oxy,” “fentanyl to oxycodone,” and “fentanyl pill.” At

Benjamin’s storage unit, investigators found Ziploc bags, plastic goggles, a dust

mask, rubber gloves, and various parts of a pill press. Several of those items tested


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positive for furanyl fentanyl. Finally, the DEA confirmed through Benjamin’s

financial records that he had purchased a pill press, pill mold, and tablet binder.

      The jury returned guilty verdicts as to the drug-trafficking charges but

acquitted Benjamin of the gun charges. The district court then sentenced Benjamin

to a total term of life in prison. This timely appeal followed.

                                          II.

                                          A.

      For starters, we are satisfied that the government introduced sufficient

evidence to permit a reasonable jury to find beyond a reasonable doubt that the

furanyl fentanyl Benjamin distributed caused M.C.’s death.

      We review de novo challenges to the sufficiency of the evidence to support a

conviction, taking the evidence and drawing all reasonable inferences in a light

most favorable to the government. United States v. Ochoa, 941 F.3d 1074, 1102

n.18 (11th Cir. 2019). The Controlled Substances Act (“CSA”) makes it illegal for

any person to knowingly or intentionally “manufacture, distribute, or dispense, or

possess with intent to manufacture, distribute, or dispense, a controlled substance.”

21 U.S.C. § 841(a)(1). Section 846 makes an attempt or a conspiracy to commit

those acts a federal crime. Today, furanyl fentanyl is a controlled substance, but at

all times relevant to this case, furanyl fentanyl was a controlled substance




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analogue. 2 Section 813(a) requires us to treat controlled substance analogues, “to

the extent intended for human consumption,” like Schedule I controlled substances

“for the purposes of any Federal law.” 3 Section 841 includes this penalty

enhancement provision: if a person distributes a Schedule I or II controlled

substance, and “death or serious bodily injury results from the use of such

substance,” then that person “shall be sentenced to a term of imprisonment of not

less than twenty years or more than life.” Id. § 841(b)(1)(C).

       The Supreme Court has interpreted the penalty enhancement provision’s

“results from” language to require a showing of but-for causation. See Burrage v.

United States, 571 U.S. 204, 218–19 (2014) (holding that “a defendant cannot be



2
 The Controlled Substance Analogue Enforcement Act of 1986 defines a “controlled substance
analogue” to mean a substance

               (i) the chemical structure of which is substantially similar to the chemical
               structure of a controlled substance in schedule I or II;

               (ii) which has a stimulant, depressant, or hallucinogenic effect on the
               central nervous system that is substantially similar to or greater than the
               stimulant, depressant, or hallucinogenic effect on the central nervous
               system of a controlled substance in schedule I or II; or

               (iii) with respect to a particular person, which such person represents or
               intends to have a stimulant, depressant, or hallucinogenic effect on the
               central nervous system that is substantially similar to or greater than the
               stimulant, depressant, or hallucinogenic effect on the central nervous
               system of a controlled substance in schedule I or II.

21 U.S.C. § 802(32)(A).
3
 At trial, Benjamin stipulated that furanyl fentanyl was, “at all times material to this case,” a
controlled substance analogue intended for human consumption.
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liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless

such use is a but-for cause of the death or injury”). But-for cause “requires proof

‘that the harm would not have occurred in the absence of -- that is, but for -- the

defendant’s conduct.’” Id. at 211 (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar,

570 U.S. 338, 346–47 (2013)). We have explained that “but-for causality does not

require that a single factor alone produce the particular result.” United States v.

Feldman, 936 F.3d 1288, 1311 (11th Cir. 2019). Instead, a jury may find but-for

causation “if the predicate act combines with other factors to produce the result, so

long as the other factors alone would not have done so -- if, so to speak, it was the

straw that broke the camel’s back.” Id. (emphasis omitted) (quoting Burrage, 571

U.S. at 211).

      The government introduced more than enough evidence to allow the jury to

find, beyond a reasonable doubt, that the furanyl fentanyl distributed by Benjamin

was the but-for cause of M.C.’s death. As we’ve already noted, the government’s

expert toxicologist, Dr. Behonick, testified at trial that M.C.’s blood tested positive

for furanyl fentanyl, caffeine, and not much more than one drink’s worth of alcohol

following her death. Dr. Behonick opined that there is no known safe amount of

furanyl fentanyl in the blood. Dr. Juste confirmed that there is no known safe level

of furanyl fentanyl in the blood; indeed, she said, furanyl fentanyl is so potent it

can cause fatal harm to people who so much as touch the drug without wearing


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gloves. Dr. Juste unambiguously testified that the ingestion of furanyl fentanyl

caused M.C.’s death; that M.C. had no underlying medical conditions that could

have caused her death; and that M.C. would not have died had she not consumed

furanyl fentanyl.

      The government also introduced sufficient evidence at trial to link the

furanyl fentanyl M.C. consumed to Benjamin. Direct evidence -- including text

messages on M.C.’s phone, and the location of M.C.’s phone the evening before

her death -- linked M.C.’s counterfeit oxycodone pills to Slater. Slater, in turn,

explained that he sold those pills to M.C., that he received them from Stewart, and

that Benjamin was the pills’ ultimate source. Stewart testified to the same effect at

trial. The government supported this with compelling circumstantial evidence,

including the pill-manufacturing paraphernalia with traces of furanyl fentanyl

found in Benjamin’s home and in his storage unit, and the extensive fentanyl-

related search history discovered on his office computer. Finally, Benjamin

testified on his own behalf and made a series of denials that the jury was entitled

to, and obviously did, disbelieve. United States v. Bennett, 848 F.2d 1134, 1139

(11th Cir. 1988).




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       In short, the evidence was more than sufficient to allow a reasonable jury to

conclude that the furanyl fentanyl Benjamin distributed caused M.C.’s death.4

                                                B.

       Next, Benjamin argues that the district court lacked subject matter

jurisdiction over the first two counts of the indictment because the government

failed to charge criminal offenses in those counts. He says the DEA criminalized

furanyl fentanyl when it first issued a notice branding the drug a Schedule I

narcotic on November 29, 2016. See Schedules of Controlled Substances:

Temporary Placement of Furanyl Fentanyl Into Schedule I, 81 Fed. Reg. 85873

(Nov. 29, 2016) (codified at 21 C.F.R. pt. 1308). Until that date, the argument

goes, the possession and distribution of furanyl fentanyl were not subject to any

criminal penalties.

       We review de novo the subject matter jurisdiction of the district court.

United States v. Moore, 443 F.3d 790, 793 (11th Cir. 2006). Counts One and Two

of the superseding indictment charged Benjamin with violating the Controlled

Substance Analogue Enforcement Act of 1986, 21 U.S.C. §§ 802 and 813 (the


4
  Benjamin also briefly claims (for the first time on appeal) that the district court failed to
properly instruct the jury that, to convict him, it must find he distributed a controlled substance
that was a but-for cause of M.C.’s death. We review this claim only for plain error and find it
too to be without merit. The district court correctly told the jury that, to convict Benjamin on
Count One, it “must find that the controlled substance distributed by the defendant was a but-for
cause of M.C.’s death.” And again, as to Count Two, the district court charged the jury that to
find Benjamin guilty, it must find “that the controlled substance distributed by the defendant was
a but-for cause of M.C.’s death.”
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“Analogue Act”). While Benjamin now claims that the district court lacked

subject matter jurisdiction because furanyl fentanyl was not properly characterized

as a controlled substance analogue, Benjamin stipulated at trial to the opposite:

“that at all times material to this case, furanyl fentanyl was a controlled substance

analogue.” Benjamin has dressed this claim on appeal in the garb of subject matter

jurisdiction, and if he were right, we would be obliged to consider his argument,

notwithstanding any stipulation to the contrary. See Belleri v. United States, 712

F.3d 543, 547 (11th Cir. 2013). But the problem for Benjamin is that his claim is

not a jurisdictional argument at all. Rather, Benjamin’s argument is no more than

the claim that he was not guilty of the offenses charged -- that he did not violate

the Analogue Act because he did not distribute, nor did he conspire to possess with

intent to distribute, a controlled substance analogue. This is “a non-jurisdictional

challenge to the sufficiency of the evidence as to” the first two counts of the

indictment that “has no bearing on the district court’s power to adjudicate

[Benjamin’s] case or subject matter jurisdiction.” United States v. Grimon, 923

F.3d 1302, 1307 (11th Cir. 2019). The district court had subject matter jurisdiction

over these drug charges.

                                          C.

      Next, Benjamin claims, for the first time on appeal, that the district court

erred by failing to instruct the jury as to the requirement of scienter. According to


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Benjamin, Counts One and Two of the indictment required the government to

prove beyond a reasonable doubt that Benjamin knew furanyl fentanyl was a

controlled substance analogue. And the district court’s failure to instruct the jury

on this point was a non-harmless error that compels reversal. Though we typically

review de novo the legal correctness of a jury instruction, United States v. Isnadin,

742 F.3d 1278, 1296 (11th Cir. 2014), Benjamin failed to object to the instructions

before the district court, and so our review is only for plain error. “We may correct

a plain error only when (1) an error has occurred, (2) the error was plain, and

(3) the error affected substantial rights.” United States v. DiFalco, 837 F.3d 1207,

1220 (11th Cir. 2016). “An error is plain where it is ‘clear’ or ‘obvious.’”

Id. at 1221 (quoting United States v. Olano, 507 U.S. 725, 734 (1993)). “If all

three conditions are met, an appellate court may then exercise its discretion to

notice a forfeited error, but only if (4) the error seriously affected the fairness,

integrity, or public reputation of judicial proceedings.” Id. (alteration adopted)

(quoting United States v. Cotton, 535 U.S. 625, 631–32 (2002)). “Under plain-

error review, the silent defendant has the burden to show the error plain,

prejudicial, and disreputable to the judicial system.” Id. (quoting United States v.

Monroe, 353 F.3d 1346, 1349–50 (11th Cir. 2003)).

      Benjamin cannot meet this exacting standard. The district court instructed

the jury that Count One charged Benjamin with “knowingly and willfully”


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conspiring to possess with intent to distribute furanyl fentanyl. The court told the

jury that § 841(a)(1) “makes it a crime for anyone to knowingly possess furanyl

fentanyl with intent to distribute it.” Likewise, the court explained that Count Two

charged that Benjamin “knowingly and intentionally” distributed furanyl fentanyl.

The court instructed the jury that, to convict Benjamin on Count Two, it must find

that he “knowingly distributed a controlled substance.” The court explained to the

jury that the “word ‘knowingly’ means that an act was done voluntarily and

intentionally and not because of a mistake or by accident.” The court also

instructed the jury that to act “willfully” means to act “voluntarily and purposely,

with the intent to do something the law forbids; that is, with the bad purpose to

disobey or disregard the law.” The district court made no error in these

instructions.

      Benjamin argues that the district court was required to instruct the jury that,

to convict Benjamin, it must find that he knew furanyl fentanyl was a controlled

substance analogue. But this argument rests on a misreading of McFadden v.

United States, 135 S. Ct. 2298 (2015), and of course, the district court need not

have accommodated an instruction that would have been contrary to law. See

United States v. Vereen, 920 F.3d 1300, 1306 (11th Cir. 2019) (explaining that,

“for the denial of a requested instruction to constitute reversible error, a defendant

must establish,” inter alia, “that the request correctly stated the law”). As


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McFadden makes clear, there are two ways the government can prove scienter.

One is by showing the defendant knew he was dealing with a controlled substance

or controlled substance analogue. McFadden, 135 S. Ct. at 2305. But the second

way is “by showing that the defendant knew the identity of the substance he

possessed.” Id. at 2304. This means the government can prove scienter with

“evidence that the defendant knew the specific [controlled substance] analogue he

was dealing with, even if he did not know its legal status as an analogue.”

Id. at 2305. Benjamin points us to no error at all, much less a plain one.

                                          D.

      Next, Benjamin claims the district court erred in denying his motion to

suppress evidence obtained from the search of his bags at the Orlando Melbourne

International Airport. Benjamin disputes the voluntariness of his consent -- he says

that, because the search took place at an airport security checkpoint, immediately

after the TSA had completed its screening, he did not feel free to refuse the search.

He also complains that the MAPD officers used a ruse -- Sergeant Naughton

mentioned to him that perhaps the TSA had found ammunition in his luggage --

and that the officers didn’t tell Benjamin he could refuse their search.

      We use a mixed standard when evaluating a district court’s denial of a

motion to suppress, reviewing the court’s factual findings for clear error and its

application of the law to those facts de novo. United States v. Plasencia, 886 F.3d


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1336, 1342 (11th Cir. 2018) (per curiam). As we have explained, a warrantless

search “does not violate the Fourth Amendment where there is voluntary consent

given by a person with authority.” Bates v. Harvey, 518 F.3d 1233, 1243 (11th

Cir. 2008). Consent is voluntary “if it is the product of an ‘essentially free and

unconstrained choice.’” United States v. Purcell, 236 F.3d 1274, 1281 (11th Cir.

2001) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973)). Where

consent was the basis for a search, the government bears the burden of proving

consent was freely given. See Florida v. Royer, 460 U.S. 491, 497 (1983).

Because voluntariness is “factual and depends on the totality of the

circumstances,” a district court’s assessment that consent was voluntary “will not

be disturbed on appeal absent clear error.” Purcell, 236 F.3d at 1281. When

reviewing the totality of the circumstances, we consider “the presence of coercive

police procedures, the extent of the defendant’s cooperation with the officer, the

defendant’s awareness of his right to refuse consent, the defendant’s education and

intelligence, and the defendant’s belief that no incriminating evidence will be

found.” Id.

      These factors all point in the same direction -- that Benjamin voluntarily

consented to the search. The MAPD officers did not coerce Benjamin into

providing his consent. The officers did no more than ask Benjamin whether they

could search his bags, and Benjamin cooperated with the MAPD throughout the


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search. He was neither in custody nor restrained. Moreover, the government

introduced testimony at a suppression hearing that Benjamin had refused a consent

search in the past and was, therefore, familiar with his right to refuse. And last, the

evidence showed that Benjamin believed no incriminating evidence would be

found. Benjamin wore his medical scrubs to the airport, and what could be more

innocuous than a doctor traveling with medicine? Though Benjamin must have

known the MAPD would find his pills, he had an excuse at the ready -- the pills

were his cancer medication. See United States v. Spivey, 861 F.3d 1207, 1216

(11th Cir. 2017) (“And ‘significantly,’ [the defendant] believed that no

incriminating evidence would be found -- or at least, nothing she . . . had not

prepared to explain away.” (quoting United States v. Chemaly, 741 F.2d 1346,

1352 (11th Cir. 1984))).

      That the MAPD made limited use of a ruse does nothing to change our

conclusion. “Deceit,” it is true, can “be relevant to voluntariness.” Id. at 1213.

“Because we require ‘that the consent was not a function of acquiescence to a

claim of lawful authority,’ deception invalidates consent when police claim

authority they lack.” Id. (quoting United States v. Blake, 888 F.2d 795, 798 (11th

Cir. 1989)). “The Fourth Amendment,” though, “allows some police deception so

long [as] the suspect’s ‘will was not overborne.’” Id. at 1214 (alteration adopted)

(quoting Schneckloth, 412 U.S. at 226). Here, Sergeant Naughton told Benjamin


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that perhaps the TSA had found ammunition in his luggage. This ruse “was a

relatively minor deception that created little, if any, coercion.” Id. at 1215.

Indeed, Naughton made this comment only after Benjamin had already consented

to the search of his bags.

      The district court found that Benjamin voluntarily consented to the search of

his bags at the airport. There is no clear error in that finding. Nor did the district

court err in denying the motion to suppress.

                                           E.

      Next, Benjamin claims that the district court abused its discretion by

declining to investigate juror misconduct. The jury returned its verdict on April

27, 2018. Later that day, the deputy clerk discovered a list of “30 Do’s and Don’ts

of Jury Deliberations” while cleaning the deliberation room. The district court

notified both parties of the list; Benjamin then moved the court to voir dire the

jury. Although Benjamin conceded the list was not “inherently prejudicial,” he

said that its “mere presence in the jury room” showed “at least one juror ignored

the Court’s instructions and conducted at least some outside research regarding a

juror’s duties.” The district court denied the motion. Here are the list’s

commandments, in their entirety:

             1.   Do encourage everyone to share their thoughts.
             2.   Don’t be afraid of silences.
             3.   Do remind people that all opinions are valid.
             4.   Don’t let people talk over each other.

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             5. Do consult the exhibits in evaluation of the state’s case.
             6. Don’t damage the exhibits.
             7. Do re-read the instructions periodically throughout
                deliberations.
             8. Don’t ignore the law.
             9. Do consult your notes.
             10. Don’t let another juror be your memory.
             11. Do ask questions of the judge.
             12. Don’t try to fill in the blanks with conjecture.
             13. Do judge whether the state proved their case.
             14. Don’t judge innocence.
             15. Do take into account how you feel about the testimony the
                 witnesses gave.
             16. Don’t let your personal opinions about the judge or the
                 lawyers in the case influence your judgment.
             17. Do remember that a defendant is innocent until proven
                 guilty by the state.
             18. Don’t let the way a defendant looks or how they are
                 dressed affect your verdict.
             19. Do fault a states attorney for not putting up a strong case.
             20. Don’t fault a defendant for not putting up a defense.
             21. Do change your vote if you change your mind.
             22. Don’t change your vote just to be done with deliberations.
             23. Do convict someone if the state provided credible evidence
                 proving they did it.
             24. Don’t convict someone because you think they probably
                 did it.
             25. Do remember that reasonable doubt is based on your sense
                 of reason and not someone else’s.
             26. Don’t choose a verdict that you do not feel confident
                 about.
             27. Do focus completely on your present case.
             28. Don’t try to right past wrongs.
             29. Do give justice.
             30. Don’t give up.

      The district court did not abuse its considerable discretion by declining to

investigate further. “Any challenge to the district court’s investigation of juror


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misconduct must be viewed in the context of the broad discretion afforded a trial

judge confronted with such an allegation” -- discretion that “extends even to the

initial decision of whether to interrogate the jurors.” United States v. Augustin,

661 F.3d 1105, 1129 (11th Cir. 2011) (per curiam) (alteration adopted) (quoting

United States v. Yonn, 702 F.2d 1341, 1344–45 (11th Cir. 1983)). “[W]here a

party alleges that the jury was subject to extrinsic influence, we have held that a

district court has a duty to investigate ‘only when the party alleging misconduct

makes an adequate showing of extrinsic influence to overcome the presumption of

jury impartiality.’” United States v. Brown, 934 F.3d 1278, 1303 (11th Cir. 2019)

(quoting United States v. Cuthel, 903 F.2d 1381, 1383 (11th Cir. 1990)). We

require that the defendant “do more than speculate; he must show ‘clear, strong,

substantial and incontrovertible evidence . . . that a specific, nonspeculative

impropriety has occurred.’” Cuthel, 903 F.2d at 1383 (quoting United States v.

Ianniello, 866 F.2d 540, 543 (2d Cir. 1989)); see also United States v. Venske, 296

F.3d 1284, 1290 (11th Cir. 2002) (explaining that a district court does not err in

declining to investigate juror misconduct when the defendant cannot show that the

jurors were influenced by external sources).

      Benjamin has not made the requisite showing. Benjamin only speculates

that the jury improperly viewed prejudicial information. But the list is not, as

Benjamin conceded to the district court, “inherently prejudicial.” The list makes


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no mention of any of the particulars of Benjamin’s case or the evidence presented

at trial. Nor is there any indication that a jury reading this list of do’s and don’ts

would be more likely to vote to convict. Because Benjamin cannot point to “clear,

strong, substantial and incontrovertible evidence,” Cuthel, 903 F.2d at 1383

(quoting Ianniello, 866 F.2d at 543), that the jury considered extraneous,

prejudicial information, “the district court did not abuse its discretion in failing to

investigate it further.” Brown, 934 F.3d at 1304.

                                         F.

      Finally, Benjamin argues cumulative error. “The cumulative error doctrine

provides that an aggregation of non-reversible errors (i.e., plain errors failing to

necessitate reversal and harmless error) can yield a denial of the constitutional

right to a fair trial, which calls for reversal.” United States v. Margarita Garcia,

906 F.3d 1255, 1280 (11th Cir. 2018) (quoting United States v. Baker, 432 F.3d

1189, 1223 (11th Cir. 2005), abrogated in part on other grounds by Davis v.

Washington, 547 U.S. 813, 821 (2006)). “We address claims of cumulative error

by first considering the validity of each claim individually, and then examining any

errors that we find in the aggregate and in light of the trial as a whole to determine

whether the appellant was afforded a fundamentally fair trial.” Id. (quoting Morris

v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012)).




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      Because Benjamin has not pointed us to any error in his trial, his argument

that all of his claimed errors, when taken together, compel reversal necessarily

fails. See Morris, 677 F.3d at 1132 (“[W]here there is no error in any of the trial

court’s rulings, the argument that cumulative trial error requires that this Court

reverse the defendant’s convictions is without merit.” (alterations adopted and

quotation omitted)).

      AFFIRMED.




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