                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                     FILED
                          ________________________         U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 January 30, 2007
                                No. 06-11651                  THOMAS K. KAHN
                            Non-Argument Calendar                 CLERK
                          ________________________

                     D. C. Docket No. 05-00026-CR-4-SPM

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                     versus

DESMOND JACKSON,

                                                            Defendant-Appellant.
                          ________________________

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

                               (January 30, 2007)

Before TJOFLAT, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      Desmond Jackson appeals from his convictions for conspiracy to possess

with intent to distribute cocaine and attempt to possess with intent to distribute

cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), and 846. On
appeal, Jackson argues: (1) that the district court erred by denying his motion to

suppress evidence seized from a truck he drove to an apartment to pick up a

package of cocaine because there was no probable cause to support the search

warrant; and (2) that the prosecutor’s closing argument improperly referenced

Jackson’s failure to testify and impugned defense counsel’s character, and thereby

violated his Fifth Amendment rights and mandated a new trial.           After careful

review, we affirm.

      A district court’s ruling on a motion to suppress presents a mixed question

of law and fact. United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999).

We review the district court’s findings of fact for clear error and its application of

law to those facts de novo.      Id.   The district court’s factual findings include

credibility determinations, to which we accord “considerable deference.” United

States. v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (citation and internal

quotation marks omitted). Moreover, in our review, we construe all facts in the

light most favorable to the prevailing party below. United States v. Bervaldi, 226

F.3d 1256, 1262 (11th Cir. 2000).

      In evaluating whether a prosecutor’s argument constitutes an impermissible

comment on a defendant’s failure to testify, a court considers whether the

argument was manifestly intended, or was of such a character that a jury naturally



                                          2
and necessarily understand it, to be a comment on the defendant’s exercise of his

right to remain silent. United States v. Watson, 866 F.2d 381, 386 (11th Cir. 1989)

We normally would review a district court’s application of this standard for abuse

of discretion. Williams v. Wainwright, 673 F.2d 1182, 1185 (11th Cir. 1982).

Where no objection was made at trial, however, the standard of review is whether

the prosecutor’s remarks constituted plain error. Fed. R. Crim. P. 52(b); United

States v. Odom, 858 F.2d 664, 667 (11th Cir. 1988).1

       The relevant facts are straightforward.                On May 10, 2005, a criminal

complaint was filed against Jackson alleging that he knowingly conspired with

others to possess, and attempted to possess, with intent to distribute more than 500

grams of cocaine.           Special Agent Louis Andris of the Drug Enforcement

Administration filed an affidavit in support of the criminal complaint and attested

to the following. On May 10, 2005, while conducting drug interdiction inspections

at a FedEx facility, investigators with the Tallahassee Police Department (“TPD”)

identified a package with “Harret Potter” listed as the sender.                      The package’s

printed label indicated it originated from a FedEx outlet in Berkeley, California,


        1
         We note that the district court sustained an objection by Jackson after one remark, but he
did not seek a curative instruction or any other relief at that point. Although, it is debatable whether
Jackson preserved his objection as to all of the prosecutor’s remarks he now challenges, we need
not decide the preservation issue here because under either standard of review, any impropriety by
the prosecutor would not mandate reversal.


                                                   3
but the package’s processing codes indicated the package was shipped from a

different location.   The package was signed to permit delivery without the

signature of the recipient, but the sender’s signature did not match the sender’s

printed name. The package was sealed at each outside seam, which Special Agent

Andris noted would make it more difficult for a drug-detection dog to smell

controlled substances in the package.       The package was addressed to 2003

Bellevue Way, apartment 1313, Tallahassee, Florida, but a records check indicated

that no such address existed in the apartment complex. Ultimately, FedEx opened

the package and found approximately three kilograms of field-tested cocaine.

Special Andris attested that the drugs constituted a distribution quantity with a

value between $60,000 and $75,000.

      Agent Andris further stated that the TPD officers believed that the apartment

reference on the address label could have been “B13” and, based on this belief,

attempted to deliver the package using an officer dressed as a FedEx employee.

The undercover officer knocked on the apartment door of unit “B13” several times,

but no one came to the door, so he waited in his vehicle for several minutes, but

was not contacted by anyone. As the officer exited from the apartment parking lot,

a man ran up to him shouting “B13,” and when the officer asked “Potter?” the man




                                        4
replied “B13.” The man was taken into custody, and identified as Jackson, with a

Jacksonville, Florida address.

       According to Special Agent Andris, Jackson waived his Miranda2 rights, but

was reluctant to provide any address or contact information, and later said he lived

in Tallahassee. Jackson also said that a girlfriend lived in “B13,” but that he had

stayed with a different girlfriend. Jackson identified a vehicle (later found to be a

Dodge Durango truck) he was using, which had a stolen license plate. After being

arrested, Jackson denied having said “B13” to the undercover officer, and later said

that he was waiting for a package containing money from his mother, but he was

unable to say how much money he was expecting and he would not or could not

provide a telephone number for his mother.

       In his affidavit, Special Agent Andris also stated that the female resident of

apartment “B13” said that Jackson had told her not to answer the door when the

delivery person knocked.         She also said that when the delivery person walked

away, Jackson called someone on his cellular telephone and said, “Hey dog, they

just left,” and then he walked outside. Special Agent Andris concluded that there

was probable cause to believe that Jackson conspired to possess cocaine with the

intent to distribute.



       2
           Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

                                                5
      At a preliminary detention hearing, the government introduced Andris’s

affidavit and Jackson submitted a letter from his mother in which she said that he

was not capable of the alleged criminal conduct and that she regularly sent him

care packages, food, clothing, and money.        The district court entered an order

finding probable cause existed to believe that Jackson had committed an offense,

and the court ordered him detained. Jackson was later indicted on two counts of

drug trafficking, to which he pled not guilty.

      Prior to trial, Jackson moved to suppress evidence that was seized on May

10th from the Dodge Durango truck that was parked outside of unit B13 and

Jackson had identified as in his possession when he was arrested. Jackson sought

suppression of several money orders and a cell phone, arguing that the evidence

was seized pursuant to a warrant that was not supported by probable cause.

Jackson submitted a copy of the search warrant and the warrant’s supporting

affidavit from TPD Investigator Wilder.

      The search warrant stated that inside a 1999 Dodge Durango, displaying a

stolen license plate, police were authorized to search for “cocaine; letters;

telephone and address lists, photos, accounting ledgers and other documents and

records pertaining to controlled substance possession and transactions; United

States currency; and paraphernalia used in controlled substance possession, use, or



                                           6
transactions.” According to supporting affidavit, Jade Burrell, the female resident

of “B13,” told officers that Jackson was in her apartment waiting for a package to

be delivered. During a search of the apartment, the investigating officers recovered

a set of keys which Burrell said did not belong to her and probably belonged to

Jackson. The Dodge Durango truck was parked outside of Burrell’s apartment.

      According to Investigator Wilder, after being Mirandized, Jackson admitted

to having been the last person to drive the Dodge Durango truck, but he said he did

not know who the registered owner was.          One of Jackson’s friends, Shenica

Lockett, stated that she had last seen him driving the truck at 6:30 a.m. on May

10th, when he told her that he was on his way to Jacksonville with a cousin.

Investigator Wilder stated his belief that Jackson intended to obtain the cocaine

from the FedEx driver at Burrell’s apartment and then drive to Jacksonville.

      In his motion to suppress, Jackson argued that the affidavit in support of the

search warrant did not provide any reason to believe that any sort of controlled

substance or evidence would be found in the Dodge Durango truck, and instead

authorized only a “fishing expedition,” rather than a search based on a reasonable

probability of discovering evidence related to the offense.          The government

responded there was probable cause for issuance of the warrant, and, in the

alternative, that the officers had acted in good faith upon a facially valid warrant in



                                          7
conducting their search, which yielded the discovery of a shoe box, which matched

shoes Jackson left in Burrell’s apartment, Jackson’s cellular telephone, documents

pertaining to a package shipment to California, and records of financial

transactions, including a multi-thousand dollar transfer to California.

      After a hearing on the motion to suppress, at which the district court granted

Jackson’s motion to amend the suppression motion so as to include everything

found in the Dodge Durango truck, the district court denied the motion, finding a

substantial evidentiary basis existed from which to conclude that there was a fair

probability that contraband or evidence of a crime would be found in the truck.

The court noted that Jackson had admitted to driving the truck to the apartment

complex, where he expected to receive delivery of the package. The court found

that a reasonable inference could be made that Jackson planned to use the truck

that day to travel to Jacksonville after accepting delivery of the cocaine. The court

also found that the large quantity of cocaine involved gave rise to a likelihood that

Jackson would possess records for receipt, delivery, and payment or other items of

evidentiary value.

      The case proceeded a jury trial which resulted in a mistrial. At a second

trial, the government presented eight witnesses on the first day of trial, and then




                                          8
rested.3 Later that day, Jackson presented his mother, Veronica Solomon, as the

only defense witness. During closing arguments, the government’s counsel made

the following statement in rebuttal:

      Now, the defense has no responsibility to present evidence; but, as
      you have seen, they have the ability to present evidence. He got that
      car from somebody the cops can’t trace, because he wouldn’t or
      couldn’t tell him who the name of the vehicle [owner] was. If there is
      an innocent explanation for that Western Union, then the defense has
      the ability to bring those people in.

      If there is an innocent explanation for the UPS, defense has the ability
      to bring that in. And more clearly, if there’s an innocent explanation
      for that series of phone calls on the day the dope was being delivered,
      before the dope is being delivered, when the dope is being delivered,
      and after the dope is being delivered, then the defense has the ability
      to call the guy who was on the other end of that phone call.

      If there is some reason that any package . . . being sent to Mr. Jackson
      couldn’t be sent to his girlfriend, Shanika Lockett’s apartment, the
      defense has the ability to call Shanika Lockett to explain that to you.
      The defense would like to blow a lot of smoke and shine a lot of light-
      -

At this point, Jackson objected on the basis that the preceding argument was

“improper.”      The district court sustained the objection and did nothing further.

Notably, Jackson did not ask for a curative instruction or a mistrial, nor at any time

did he elaborate on his objection to the prosecutor’s argument.




      3
          The record does not contain transcripts from the jury trial.

                                                  9
      The jurors were instructed that the defendant was not required by law to

prove his innocence or to produce any evidence at all, and, if a defendant elected

not to testify, they could not consider that in any way during their deliberations.

The jurors were further instructed that the government had the burden of proving a

defendant guilty beyond a reasonable doubt, and that if it failed to do so, the jurors

must find that defendant not guilty.

      The jury found Jackson guilty on both counts.              The district court

subsequently sentenced him to concurrent 87-month terms of imprisonment,

followed by concurrent 4-year terms of supervised release. This appeal followed.

      First, Jackson argues the district court erred by denying his motion to

suppress the evidence seized from the Dodge Durango because there was not

probable cause to support the search warrant for the truck. Jackson contends that

because he never possessed the cocaine, nor did he regain possession of the truck

prior to being arrested, his act of driving the truck to pick up a package containing

narcotics does not, alone, establish probable cause to search the vehicle.        We

disagree.

      “Probable cause to support a search warrant exists when the totality of the

circumstances allow a conclusion that there is a fair probability of finding

contraband or evidence at a particular location.” United States v. Brundidge, 170



                                         10
F.3d 1350, 1352 (11th Cir. 1999) (citation omitted). Probable cause is “a fluid

concept[,]” which involves an “assessment of probabilities in particular factual

contexts[.]” Id. (quotation and citation omitted). We afford “great deference” to a

lower court’s determination of probable cause. Id.

      Here, probable cause existed to obtain a search warrant for Jackson’s

vehicle.   By the time law enforcement sought the warrant, they possessed the

following evidence suggesting that Jackson had committed a criminal act. First,

the officers knew that a package containing three kilograms of cocaine was mailed

from California to Tallahassee via FedEx to an apartment likely identified as

“B13.” They also knew that when a controlled delivery was attempted, Jackson

chased the departing delivery truck to recover a package. Moreover, Burrell, who

resided in apartment “B13,” told the officers that Jackson had been waiting for a

package that had been sent to him at Burrell’s address, although he did not reside

there, and had told her not to answer the door. Burrell also told the officers that

Jackson had left behind a set of keys to a truck, which he parked outside of her

apartment. The license tag on the truck was discovered to be stolen, and Jackson

could not say who the registered owner was. Finally, another of Jackson’s friends

told police that Jackson had left her apartment at 6:30 a.m. that day and said he was

on his way to Jacksonville. On this record, the totality of the circumstances tended



                                         11
to show that Jackson drove the Dodge Durango to apartment “B13” for the

purposes of receiving delivery of the large amount of cocaine and planned to

transport the cocaine in the truck later that day to Jacksonville for distribution.

Moreover, we readily conclude that there was a fair probability of finding evidence

of the large cocaine transaction in the Dodge Durango truck. See Brundidge, 170

F.3d at 1352 (“Probable cause to support a search warrant exists when the totality

of the circumstances allow a conclusion that there is a fair probability of finding

contraband or evidence at a particular location.”). Accordingly, the district court

did not reversibly err by denying the motion to suppress.

      We likewise find no reversible error based on the prosecutor’s rebuttal

closing argument. Prosecutorial misconduct will be the basis for reversal only if,

in light of the entire trial and any curative instructions, the misconduct

prejudicially affected the defendant’s substantial rights. United States v. Hasner,

340 F.3d 1261, 1275 (11th Cir. 2003).         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.      United States v.

Wilson, 149 F.3d 1298, 1301 (11th Cir. 1998).

      In United States v. Watson, 866 F.2d 381 (11th Cir. 1989), the defendant did

not testify and on appeal, we reviewed a closing argument in which the prosecutor



                                         12
advised the jury that the defendant had not called any witnesses and had not

offered any evidence of an alternative explanation to the government’s theory of

the case. Following the prosecutor’s comments, the defense objected and moved

for a mistrial. The objection was overruled and a motion for mistrial was denied.

We affirmed, holding that it was reasonable for the district court to construe the

comments made by the prosecutor as not manifestly intended to comment on the

defendant's right not to testify. Id. at 384. Rather, we observed that the “comments

appeared to concern the failure of the defense to counter the evidence presented by

the government, not the failure of the defendant to testify,” and that did not violate

the defendant’s Fifth amendment right not to testify. Id.

       The challenged argument in the instant case is analogous to the argument in

Watson in that it is more likely that the comments concerned the failure of the

defense to counter the evidence presented by the government, and were not

intended as a comment of Jackson’s failure to testify. Even assuming, arguendo,

that the prosecutor’s comments were of such a character that a jury would take

them to be a comment on the failure of the accused to testify, Jackson does not

argue that his substantial rights were prejudicially affected, nor does he explain

how, but for the remarks, the outcome of the trial would have been different.4


       4
         We also find no error with respect to the prosecutor’s comment that “the defense would
like to blow a lot of smoke and shine a lot of light . . . .” Even if this comment was improper, it was

                                                  13
Accordingly, he has not established reversible error based on improper argument

by the prosecutor.

       AFFIRMED.




an isolated instance and on this record, we could not conclude, as we must in order to reverse on this
basis, that “the misconduct [was] so pronounced and persistent that it permeate[d] the entire
atmosphere of the trial.” United States v. McLain, 823 F.2d 1457, 1462 (11th Cir. 1987) (internal
quotations and citations omitted), overruled on other grounds by Watson, 866 F.2d at 385 n. 3.

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