           Case: 15-15401    Date Filed: 12/21/2016   Page: 1 of 9


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-15401
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 4:14-cr-00077-MW-CAS-1



UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                versus

FREDERICK BUSH,


                                                          Defendant-Appellant.

                      ________________________

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

                            (December 21, 2016)

Before JORDAN, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Frederick Bush appeals his conviction at trial for possession of a controlled

substance with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(C). On appeal, he first argues that the district court abused its discretion by

admitting testimony regarding his involvement in three earlier controlled drug

sales arranged by the Leon County Sheriff’s Office. Second, he contends that the

court abused its discretion by admitting a photograph seized from his cell phone,

allegedly depicting crack cocaine. For ease of reference, we will address each

point in turn.


                                  (1) The Controlled Buys


      Generally, we review a district court’s evidentiary rulings for abuse of

discretion. United States v. Troya, 733 F.3d 1125, 1131 (11th Cir. 2013).

However, a pre-trial objection does not preserve the issue for appeal; a party must

properly object at trial to preserve the issue. United States v. Brown, 665 F.3d

1239, 1248 (11th Cir. 2011). If the issue was not preserved by a proper objection

at trial, we only review for plain error. Id. Additionally, the harmless error

standard applies to erroneous evidentiary rulings. United States v. Henderson, 409

F.3d 1293, 1300 (11th Cir. 2005). An error is harmless unless it had a substantial

influence on the case’s outcome or leaves a grave doubt as to whether the error

affected the outcome. Id. When the erroneously admitted evidence was not


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integral to the government’s case, it was likely harmless. See id. Likewise, error

may be harmless when abundant evidence supports the government’s case. See

United States v. Sanders, 668 F.3d 1298, 1315 (11th Cir. 2012).

      Because the standard of review will not change our resolution of Bush’s

appeal, we will assume without deciding that he sufficiently preserved his

arguments in the district court, and we will review them for abuse of discretion.

      Rule 404(b) does not apply when evidence of a prior offense is intrinsic to

the charged offense. See United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir.

2007). Evidence of another crime is intrinsic when (1) the uncharged offense arose

out of the same transaction or series of transactions as the charged offense, (2) it

is necessary to complete the story of the crime, or (3) it is inextricably intertwined

with the evidence regarding the charged offense. See id. Evidence is inextricably

intertwined when it tends to corroborate, explain, or provide necessary context for

evidence regarding the charged offense. See United States v. Jiminez, 224 F.3d

1243, 1250 (11th Cir. 2000).

      Even if evidence of other crimes is extrinsic, it may be admissible for

another purpose, such as to demonstrate motive, intent, absence of mistake, or lack

of accident. Fed. R. Evid. 404(b)(2). To be admissible, Rule 404(b) evidence

must (1) be relevant to one of the enumerated issues other than the defendant’s

character, (2) be supported by sufficient evidence to allow a jury to determine that


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the defendant committed the act, and (3) not be unduly prejudicial under the

standard set forth in Rule 403. United States v. Chavez, 204 F.3d 1305, 1317

(11th Cir. 2000).

      Regarding the first prong of the Rule 404(b) test, a criminal defendant makes

his intent relevant by pleading not guilty. United States v. Zapata, 139 F.3d 1355,

1358 (11th Cir. 1998). Additionally, evidence that a defendant engaged in similar

behavior in the past makes it more likely that he did so knowingly, and not because

of accident or mistake, on the current occasion. See United States v. Jernigan, 341

F.3d 1273, 1281-82 (11th Cir. 2003). As to the second prong of the Rule 404(b)

test, there is sufficient proof of the other acts if a jury could find by a

preponderance of the evidence that the defendant committed the act. See Edouard,

485 F.3d at 1345. A single witness’s uncorroborated testimony can provide an

adequate basis for a jury to find that the prior act occurred. See United States v.

Barrington, 648 F.3d 1178, 1187 (11th Cir. 2011). Under the third prong, we

conduct a Rule 403 analysis to determine whether the probative value of the

evidence is substantially outweighed by the danger of unfair prejudice. See United

States v. Baron-Soto, 820 F.3d 409, 417 (11th Cir. 2016).

      All evidence, whether intrinsic or extrinsic, must satisfy the requirements of

Rule 403. Edouard, 485 F.3d at 1344. Under Rule 403, the district court may

exclude relevant evidence if its probative value is “substantially outweighed” by a


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danger of unfair prejudice. Fed. R. Evid. 403. A prior drug offense is highly

probative to counter a defendant’s “mere presence” defense and prove his intent.

United States v. Delgado, 56 F.3d 1357, 1366 (11th Cir. 1995). Temporal

remoteness is an important factor in determining probative value. United States v.

Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005). However, we have not adopted a

bright-line rule on the issue, and the appellant bears a heavy burden to establish

that the district court erred by admitting a temporally remote offense. Id. We have

also held that prior drug offenses are unlikely to be highly prejudicial, see

Delgado, 56 F.3d at 1366, and a district court’s limiting instruction can reduce the

risk of any unfair prejudice, Edouard, 485 F.3d at 1346.

      The district court did not err in admitting the evidence of the controlled

buys, because it constituted intrinsic evidence and, therefore, was not subject to

analysis under Rule 404(b). One witness’s testimony that Bush may have been

involved in crack distribution at the Mahan Drive residence just before October 3

strengthens the link between Bush and the seized drugs. If the jury accepted that

witness’s testimony and rejected Bush’s, it could reasonably infer that Bush was

still dealing crack from the Mahan Drive residence on October 3. Thus, Green’s

testimony regarding the three controlled buys was intrinsic, because it

corroborated, explained, and provided necessary context for the charged offense.




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See Jiminez, 224 F.3d at 1250. Because the evidence was intrinsic, it was not

subject to a Rule 404(b) analysis. See Edouard, 485 F.3d at 1344.

      Although the controlled buys were outside the scope of Rule 404(b), the

evidence was still subject to a Rule 403 analysis. See Edouard, 485 F.3d at 1344.

Evidence that Bush had repeatedly engaged in crack sales at the Mahan Drive

residence was highly probative to prove Bush’s intent in the charged offense and

counter his “mere presence” defense. See Delgado, 56 F.3d at 1366. The evidence

was also unlikely to be highly prejudicial, because the controlled buys were drug

offenses. See id. Thus, Bush failed to demonstrate that the prejudicial effect of the

evidence substantially outweighed its probative value.

      Also, even if the controlled buys constituted extrinsic evidence, the district

court did not err, because the evidence met the requirements of Rule 404(b).

Under the first prong of the analysis, Bush made his intent relevant by pleading not

guilty to the charges. See Zapata, 139 F.3d at 1358. Evidence that Bush engaged

in crack sales at the Mahan Drive residence in August and September made it more

likely that he knew crack was present at the residence on October 3, 2014 and

intended to sell it. See Jernigan, 341 F.3d at 1281-82. For the second prong, the

aforementioned witness testified that the cooperating source had money, but no

drugs, on his person before he made contact with Bush for the controlled buys.

The witness then testified that the source had crack on his person after making


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contact with Bush. Thus, the government presented sufficient evidence to allow a

jury to determine that Bush sold crack to the source on those dates. See

Barrington, 648 F.3d at 1187. The third prong also favors admission of the

evidence. As discussed above, Rule 403 did not require exclusion of the evidence,

because the probative value of the controlled buys was not outweighed by the

prejudicial effect. See Baron-Soto, 820 F.3d at 417.

      Finally, any error in admitting the evidence of the controlled buys was

harmless. The controlled buys established Bush’s past involvement in crack

distribution at the Mahan Drive residence. However, Bush freely admitted to

selling crack at the residence at the time the controlled buys occurred. Other

evidence showed that Bush was likely still living at the residence, was alone in the

room where much of the evidence was located, had prior convictions for cocaine

possession and distribution, had sent incriminating text messages, and confessed

the crime to two fellow inmates. Thus, the evidence was not integral to the

government’s case, and substantial other evidence supported the conviction. See

Henderson, 409 F.3d at 1300; see Sanders, 668 F.3d at 1315.



                                  (2) The Photograph


      Rule 404(b) applies to the admission of the “crack donut” photograph

because it constituted extrinsic evidence of a prior crime. It did not arise from the

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same transaction or series of transactions of the charged offense, was not necessary

to complete the story of the charged offense, and was not inextricably intertwined

with the evidence regarding the charged offense. See Edouard, 485 F.3d at 1344.

The “crack donut” photograph could still be admitted if it met the requirements of

Rule 404(b). See Fed. R. Evid. 404(b).

      Here, the photograph was properly admitted because it met the three

requirements of Rule 404(b). First, the photograph demonstrated Bush’s past

participation in crack manufacturing and, therefore, was relevant to his intent to

engage in the charged offense of possession with intent to distribute. See Jernigan,

341 F.3d at 1281-82. Second, an additional witness testified that Bush told the

story of making the crack donut and taking a picture of it. A third witness later

corroborated the second witness when he testified that a photo of a donut-shaped

portion of crack was found on Bush’s phone. Thus, the evidence was sufficient to

allow the jury to determine that Bush made the donut and took the picture. See

Barrington, 648 F.3d at 1187.     Third, the photograph, like the controlled buys,

was highly probative to establish Bush’s intent to distribute crack and counter his

“mere presence” defense. See Delgado, 56 F.3d at 1366. Also like the controlled

buys, the “crack donut” was evidence of a drug offense and, therefore, unlikely to

be highly prejudicial. See id. The court additionally gave limiting instructions in

conjunction with the second witness’s testimony, further limiting the potential for


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undue prejudice.       See Edouard, 485 F.3d at 1346.     Therefore, Bush has not

demonstrated that the prejudicial effect of the photograph substantially outweighed

its probative value.

      Moreover, even if the court erred in admitting the photograph, such error

was harmless. The photograph helped establish Bush’s knowledge of and past

involvement in crack manufacturing. However, Bush freely admitted to selling

crack prior to his arrest. Other evidence showed that Bush was likely still living at

the residence, was alone in the room where much of the evidence was located, had

prior convictions for cocaine possession and distribution, had sent incriminating

text messages, and confessed the crime to two fellow inmates.             Thus, the

photograph was not integral to the government’s case, and substantial other

evidence supported the conviction. See Henderson, 409 F.3d at 1300; see Sanders,

668 F.3d at 1315. Accordingly, we affirm Bush’s conviction.

      AFFIRMED.




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