             Case: 17-12378   Date Filed: 07/25/2018   Page: 1 of 13


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 17-12378
                           Non-Argument Calendar
                         ________________________

                    D.C. Docket No. 1:16-cr-20771-MGC-2

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

STEVEN LEE ANTHONY,

                                                            Defendant-Appellant.

                         ________________________

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

                                (July 25, 2018)

Before MARCUS, MARTIN and HULL, Circuit Judges.

PER CURIAM:

      Steven Anthony appeals his conviction and sentence for conspiracy to

possess with intent to distribute heroin within 1000 feet of a public housing

facility, in violation of 21 U.S.C. §§ 846 and 860(a). On appeal, Anthony argues
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that: (1) a mistrial was warranted because the government committed prosecutorial

misconduct in its opening statement by referencing a “show-up” identification that

had not been disclosed during discovery, and the court erred by allowing the

introduction of photos taken immediately after the show-up identification; (2) the

trial evidence was insufficient to support his conviction; and (3) he was improperly

sentenced as a career offender. After careful review, we affirm.

      We typically review a prosecutorial misconduct claim de novo because it is

a mixed question of law and fact. United States v. Eckhardt, 466 F.3d 938, 947

(11th Cir. 2006). But if a defendant fails to object to prosecutorial misconduct by

the government based upon comments made during opening or closing statements,

we review the claim for plain error. United States v. Frank, 599 F.3d 1221, 1237-

38 (11th Cir. 2010). To establish plain error, the defendant must show (1) an error,

(2) that is plain, and (3) that affected his substantial rights. United States v.

Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). If the defendant satisfies these

conditions, we may exercise our discretion to recognize the error only if it

seriously affects the fairness, integrity, or public reputation of judicial proceedings.

Id. Unless the explicit language of a statute or rule resolves an issue, there can be

no plain error where there is no precedent from the Supreme Court or this Court

directly resolving it. United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th

Cir. 2003). The doctrine of invited error is implicated when a party induces or


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invites the district court into making an error. United States v. Harris, 443 F.3d

822, 823 (11th Cir. 2006). Where a party invites error, we are precluded from

reviewing that error on appeal. Id. at 823-24.

      Similarly, we normally review challenges to the sufficiency of the evidence

de novo. See United States v. Zitron, 810 F.3d 1253, 1260 (11th Cir. 2016).

However, unpreserved objections to the sufficiency of the evidence are reviewed

for plain error. Id. Even where a defendant moves for judgment of acquittal based

on sufficiency of the evidence, we review specific arguments as to insufficiency

that are raised for the first time on appeal for plain error if the defendant did not

clearly object on that specific basis. See id.

      Finally, we review de novo whether a defendant’s prior conviction qualifies

as a crime of violence under the Sentencing Guidelines. United States v. Palomino

Garcia, 606 F.3d 1317, 1326 (11th Cir. 2010).

      First, we are unpersuaded by Anthony’s claims that the government

committed prosecutorial misconduct in its opening statement and that the district

court erred by admitting photos of Anthony. Reversal on the basis of prosecutorial

misconduct requires that the misconduct be “so pronounced and persistent that it

permeates the entire atmosphere of the trial.” United States v. Weinstein, 762 F.2d

1522, 1542 (11th Cir. 1985) (quotation omitted). Thus, to establish prosecutorial

misconduct, the remarks (1) must be improper, and (2) must prejudicially affect the


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substantial rights of the defendant. Eckhardt, 466 F.3d at 947. A defendant’s

substantial rights are prejudicially affected when a reasonable probability arises

that, but for the remarks, the outcome of the trial would have been different. Id.

      The relevant background is this.        In a pre-trial discovery filing, the

government advised Anthony that it had “[n]o lineup, show up, photo spread, or

similar identification proceeding[]” to disclose. A “show-up” is an identification

procedure where an officer presents a witness with a suspect and asks him whether

that suspect is the perpetrator of the crime at issue. As it turns out, a show-up

identification had occurred in the case when Detective Stanley Paul-Noel had taken

Detective Walter Singer, who had conducted an undercover drug deal with

Anthony and his codefendant Willie Hundley, back to the scene of the drug deal to

identify the men who had sold him heroin. Photographs were taken of Anthony

immediately after the show-up identification, and he was arrested at a later time.

      During the government’s opening statement in Anthony’s trial, the

prosecutor told the jury that Detective Singer had identified Anthony and Hundley

as the people who had sold him drugs. Anthony objected that the government’s

reference to this “show-up” identification revealed that the government had made a

discovery violation, and, after equivocating as to his preferred remedy, he

ultimately requested that the court exclude evidence of the show-up identification.

The court excluded the evidence.          Additionally, Anthony objected to the


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introduction -- during Detective Singer’s testimony -- of photos of him at the time

of the show-up that were taken by Detective Paul-Noel, but he suggested that the

photos could be introduced during Detective Paul-Noel’s testimony, which is

ultimately what occurred. In its instructions to the jury, the court told the jury to

consider only the evidence that was admitted at trial, and that the lawyer’s

statements were not evidence and were not binding on them.

      For starters, because Anthony explicitly objected to the government’s

comments regarding the show-up as a discovery violation rather than as

prosecutorial misconduct, we review his prosecutorial misconduct claim for plain

error, and we can find none. See Frank, 599 F.3d at 1237-38. As the record

reveals, Detective Singer testified at length about conducting a drug deal with

Anthony and his codefendant Hundley, and Singer identified Anthony in the

courtroom as the person with whom he transacted.           Also, the district court

instructed the jury that statements by the lawyers were not evidence. On this

record, Anthony has not demonstrated that the outcome of his trial would have

been different but for the prosecutor’s remarks, and, therefore, has failed to show

plain error from any prosecutorial misconduct. See Eckhardt, 466 F.3d at 947.

      Further, Anthony invited any potential error created by the district court’s

decision to exclude the show-up evidence. See Harris, 443 F.3d at 823. After a

prolonged discussion with the court, during which Anthony vacillated between


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requesting a mistrial and exclusion of the evidence, Anthony ultimately indicated

that exclusion was the “short answer.” Anthony continued, “That’s the easiest. I

just don’t know . . . .” On this record, it was reasonable for the court to interpret

Anthony’s requested remedy to be exclusion of the evidence rather than a mistrial.

Because Anthony induced the district court into deciding in favor of exclusion and

against a mistrial, we are precluded from reviewing any potential error created by

that decision on appeal. See Harris, 443 F.3d at 823-24.

      Anthony also invited any error that occurred through the introduction of the

photos taken by Detective Paul-Noel after the show-up identification. As the

record reveals, Anthony expressly told the court that if the government wished to

introduce those photos, it could do so through the testimony of the detective who

took the photos, Detective Paul-Noel. Later, when the government sought to

introduce the photos during Detective Paul-Noel’s testimony -- as Anthony

recommended -- he objected to their introduction on the basis that the photos also

included printed information.     But once the government explained that the

information only related to the time, date, and location of the photos, Anthony

withdrew his objection to the photos and indicated that he was satisfied. Then,

when Anthony objected to the introduction of the photos during Detective Singer’s

testimony or any identification by him of the photos, the court sustained his

objection at that time. This record makes clear that Anthony invited the court to


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allow the photos to be introduced into evidence during Detective Paul-Noel’s

testimony, and, therefore, Anthony is precluded from arguing on appeal that the

court erred by doing just that. See Harris, 443 F.3d at 823-24.

      Next, we are unconvinced by Anthony’s claim that the trial evidence was

insufficient to support his conviction. In reviewing the sufficiency of the evidence,

we view the record in the light most favorable to the government, resolving all

reasonable inferences in favor of the verdict. United States v. Farley, 607 F.3d

1294, 1333 (11th Cir. 2010). A defendant’s conviction will be sustained as long as

there is a reasonable basis in the record for it. Id. Whether the evidence is direct

or circumstantial, we accept all reasonable inferences that tend to support the

government’s case. United States v. Williams, 390 F.3d 1319, 1324 (11th Cir.

2004). The evidence need not exclude every reasonable hypothesis of innocence in

order for a reasonable jury to find guilt beyond a reasonable doubt. United States

v. Cruz-Valdez, 773 F.2d 1541, 1545 (11th Cir. 1985) (en banc). Thus, the jury is

free to choose among alternative, reasonable interpretations of the evidence. Id.

      To sustain a conviction for conspiracy to possess with intent to distribute a

controlled substance under § 846, the government must prove that: (1) an

agreement existed between two or more people to possess with intent to distribute

the drugs; (2) that the defendant at issue knew of the conspiratorial goal; and (3)

that he knowingly joined or participated in the illegal venture. See United States v.


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Brown, 587 F.3d 1082, 1089 (11th Cir. 2009). Close association with a co-

conspirator or mere presence at the illegal sale of drugs is, by itself, insufficient

evidence to support a conviction for conspiracy to possess and distribute drugs.

See United States v. Lyons, 53 F.3d 1198, 1201 (11th Cir. 1995). Nonetheless, the

inference of participation from presence and association with conspirators is “a

material and probative factor that the jury may consider in reaching its verdict.”

Id. Further, culpable participation need not be great, since guilt may exist even

when the defendant plays only a minor role. Id.

      It is unlawful to possess, with the intent to distribute, a controlled substance

within 1000 feet of a housing facility owned by a public housing authority. 21

U.S.C. § 860(a). Direct or circumstantial evidence can prove intent, knowledge,

and possession. United States v. Poole, 878 F.2d 1389, 1391-92 (11th Cir. 1989).

      As an initial matter, Anthony’s motion for judgment of acquittal as to Count

1 only raised the specific objections that there was insufficient evidence as to an

“agreement between Mr. Anthony and anybody else involved in this case, any

other witnesses involved in this case, and that no trier of fact could find Mr.

Anthony guilty.” Thus, we review de novo his claim that there was insufficient

evidence of an agreement, but review for plain error his claim that there was

insufficient evidence that the drug deal took place within 1000 feet of public

housing or that he knowingly agreed to the deal. See Zitron, 810 F.3d at 1260.


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      Viewed in the light most favorable to the government, the trial evidence was

sufficient to support the finding of a knowing agreement between Anthony and

Hundley to possess with intent to distribute heroin. See Farley, 607 F.3d at 1333.

Detective Singer testified that Anthony asked him what he wanted and needed, to

which Detective Singer replied, “boy” -- slang for heroin. Detective Singer then

handed 40 dollars to Anthony before Anthony handed Hundley the money and told

him to “go get him the boy.” As Hundley retrieved the heroin, Anthony told

Detective Singer to wait down the street, and Hundley later gave four plastic

baggies with suspected heroin to Detective Singer.      Further, Detective Singer

identified Anthony in the courtroom as the person with whom he had transacted.

      Based on this testimony, there is a reasonable basis for the jury to conclude

that Anthony knowingly entered into an agreement to possess with intent to

distribute heroin.   See Farley, 607 F.3d at 1333. Even if the evidence did not

exclude every reasonable hypothesis of Anthony’s innocence, the jury was free to

choose among reasonable interpretations of the evidence. See Cruz-Valdez, 773

F.2d at 1545. One reasonable interpretation was that Anthony knew about the goal

of the conspiracy -- to possess with intent to distribute heroin -- and knowingly

participated in the venture by asking Detective Singer what he wanted, telling

Hundley to retrieve the heroin, and telling Detective Singer where to await

Hundley’s delivery. See Brown, 587 F.3d at 1089. Thus, the evidence supported


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an inference that Anthony’s role in the drug transaction went beyond his mere

presence or association, and that, even if he did not know every detail of how

Hundley would distribute the heroin, he played at least a minor role in advancing

the conspiracy. See Lyons, 53 F.3d at 1201.

       Moreover, Anthony has not shown that the sufficiency of the evidence about

whether the drug transaction occurred within 1000 feet of a public housing facility

amounted to plain error. See Zitron, 810 F.3d at 1260. Detective Freddy Quintero

testified that he measured the distance between the part of the intersection of Fifth

Avenue and Eighth Street where the drug transaction occurred and Culmer Place, a

nearby housing project on the northwest corner of the intersection. Detective

Quintero said that the beginning of the Culmer Place property was 196 feet from

where the drug deal occurred. The front entrance of Culmer Place was 411 feet

from where the drug deal occurred. Detective Quintero added that he observed

signs in Culmer Place stating “Miami-Dade Housing Authority” and “HUD.”

       On this record, there is a reasonable basis for the jury to conclude that the

drug transaction occurred within 1000 feet of Culmer Place, a public housing

facility.   See Farley, 607 F.3d at 1333.       As for Anthony’s claim that the

government did not prove that he knew or intended that the drug deal would take

place within 1000 feet of a public housing facility, he does not point to any binding

statute, rule, or precedent indicating that the government is required to prove


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knowledge or intent as to the 1000-foot boundary.             Without any definitive

authority as to this issue, there can be no plain error. See Lejarde-Rada, 319 F.3d

at 1291. As for Anthony’s citation to pattern jury instructions, those instructions

are not binding authority that directly resolve the question. Accordingly, Anthony

has not shown that the court erred in denying his motions for judgment of acquittal.

      Finally, we find no merit to Anthony’s claim that he was improperly

sentenced as a career offender because his prior Florida conviction for felony

battery under Fla. Stat. § 784.041(1) does not qualify as a crime of violence under

the elements clause in U.S.S.G. § 4B1.2. Anthony concedes that we ruled to the

contrary in United States v. Vail-Bailon, 868 F.3d 1293 (11th Cir. 2017) (en banc),

cert. denied, No. 17-7151 (U.S. June 11, 2018), and he says that he only raises the

issue on appeal in order to preserve it for further review.

      Under U.S.S.G. § 4B1.1, a defendant’s offense level may be increased if he

is a deemed to be a career offender. A defendant is a career offender if:

      (1) the defendant was at least eighteen years old at the time the
      defendant committed the instant offense of conviction; (2) the instant
      offense of conviction is a felony that is either a crime of violence or a
      controlled substance offense; and (3) the defendant has at least two
      prior felony convictions of either a crime of violence or a controlled
      substance offense.

Id. § 4B1.1(a). The term “crime of violence” is defined in the elements clause of §

4B1.2 to include an offense that has as an element the use, attempted use, or

threatened use of physical force against the person of another. Id. § 4B1.2(a).
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      Under Florida law, a person commits felony battery if he: (a) actually and

intentionally touches or strikes another person against the will of the other; and (b)

causes great bodily harm, permanent disability, or permanent disfigurement. Fla.

Stat. § 784.041(1). In Vail-Bailon, we applied the categorical approach and held

that felony battery under Fla. Stat. § 784.041(1) categorically qualifies as a crime

of violence under the elements clause of the operative version of U.S.S.G. § 2L1.2,

which provided for a 16-level enhancement if a defendant convicted of illegal re-

entry was previously deported following a conviction for a crime of violence. See

Vail-Bailon, 868 F.3d at 1296-98, 1308. We reasoned that § 784.041(1) has as an

element the use, attempted use, or threatened use of physical force against the

person of another. Id. We also noted that the elements clause of § 2L1.2 mirrors

the elements clause of § 4B1.2(a). See id. at 1297 & n.5.

      Here, as Anthony concedes, his argument as to Fla. Stat. § 784.041(1) is

foreclosed by our binding precedent. We held in Vail-Bailon that felony battery

under Fla. Stat. § 784.041(1) categorically qualifies as a crime of violence under

the elements clause of the operative version of § 2L1.2, which mirrors the elements

clause of § 4B1.2(a). See id. at 1296-98, 1297 n.5, 1308; see also Palomino

Garcia, 606 F.3d at 1328-29 (noting that we’ve employed the same analytical

framework in determining whether an offense was a crime of violence under both §

4B1.2 and § 2L1.2). Thus, based on our binding precedent, we reject Anthony’s


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claim that Florida felony battery does not qualify as a crime of violence under the

elements clause of § 4B1.2(a).

      AFFIRMED.




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