           Case: 16-10442   Date Filed: 10/21/2016   Page: 1 of 8


                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-10442
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 0:15-cr-60198-JIC-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

JAZZY DEVANTE JOHNSON,

                                                         Defendant-Appellant.

                      ________________________

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

                            (October 21, 2016)

Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Jazzy Johnson appeals his convictions for possession with intent to distribute

cocaine and flakka, 21 U.S.C. § 841(a)(1) (Count 1); possession of a firearm and

ammunition by a convicted felon, 18 U.S.C. § 922(g)(1) (Count 2); and possession

of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i)

(Count 3). Johnson argues that the evidence was insufficient to convict him on

Count 1 because the district court erred in admitting into evidence two pieces of

evidence that contributed to his conviction: extrinsic evidence concerning a prior

arrest for possession of crack cocaine with the intent to distribute, and the expert

opinion of a law enforcement officer concerning Johnson’s intention to distribute

the drugs in his possession. Johnson argues that the evidence was insufficient to

convict him on Count 2 because the firearm’s out-of-state origins do not constitute

an interstate nexus sufficient to support federal jurisdiction. He challenges the

evidence to convict on Count 3 on the ground that the conviction on Count 1, the

drug trafficking crime involved, cannot stand.

      Johnson acknowledges that our precedent---though in his view misguided---

forecloses his Count 2 argument. Appellant’s Br. at 25. We therefore do not

consider it.

      Because Johnson moved for a judgment of acquittal on all counts pursuant to

Fed. R. Crim. P. 29 at the close of the government’s case-in-chief and at the close

of all evidence, these claims are preserved. As such, we review de novo whether


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the evidence was sufficient to sustain Johnson’s convictions, viewing the evidence

in the light most favorable to the government, and drawing all reasonable factual

inferences in favor of the jury’s verdict. United States v. Jiminez, 564 F.3d 1280,

1284 (11th Cir. 2009). Accordingly, evidence is sufficient to support a conviction

if “a reasonable trier of fact could find that the evidence established guilt beyond a

reasonable doubt.” Id. at 284-85. Whether the evidence is direct or circumstantial,

we will accept all reasonable inferences that tend to support the government’s case.

United States v. Williams, 390 F.3d 1319, 1324 (11th Cir. 2004). A conviction

must be upheld unless the jury could not have found the defendant guilty under any

reasonable construction of the evidence. United States v. Frank, 599 F.3d 1221,

1233 (11th Cir. 2010).

      Credibility questions are for the jury, and we will assume that the jury

answered them all in a manner that supports the jury’s verdicts. Jiminez, 564 F.3d

at 1285; United States v. Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006).

Testimony will not be considered incredible as a matter of law unless it is

testimony that on its face cannot be believed, such as testimony as to facts that the

witness could not have observed or events that could not have occurred under the

laws of nature. United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir. 1985). A

jury is free to choose among alternative, reasonable interpretations of the evidence,

Frank, 599 F.3d at 1233, so the government’s proof need not exclude every


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reasonable hypothesis of innocence. Jiminez, 564 F.3d at 1285; United States v.

Cruz-Valdez, 773 F.2d 1541, 1544-45 (1985) (en banc).

      Regarding Johnson’s argument that the district court erred in admitting

extrinsic evidence of his prior arrest, evidence of other crimes may be admissible

for purposes such as proof of “motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.” Fed. R. Evid. 404(b). We

have held that in order for evidence of other crimes to be admissible under Federal

Rule of Evidence 404(b), (1) it must be relevant to an issue other than the

defendant’s character; (2) there must be sufficient proof to enable a jury to find by

a preponderance of the evidence that the defendant committed the act in question;

and (3) the probative value of the evidence cannot be substantially outweighed by

undue prejudice, and the evidence must satisfy Rule 403. United States v.

Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007).

      Regarding Johnson’s argument that the district court erred in admitting the

expert testimony of a law enforcement officer, we review the district court’s

decision to admit expert testimony for an abuse of discretion. United States v.

Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (en banc). We also review a district

court’s rejection of a Rule 403 challenge for an abuse of discretion. United States

v. Jernigan, 341 F.3d 1273, 1284 (11th Cir. 2003). Under this standard of review,




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we will affirm unless the district court made a clear error of judgment or applied

the wrong legal standard. Frazier, 387 F.3d at 1259.

      Federal Rule of Evidence 702 permits expert testimony if “specialized

knowledge” will help the jury “to understand the evidence or to determine a fact in

issue.” Fed. R. Evid. 702. A witness may be “qualified as an expert by

knowledge, skill, experience, training, or education.” Id. The Federal Rules

compel the district court to perform a critical “gatekeeping” function with respect

to the admission of expert scientific or technical evidence by conducting an

“exacting analysis” of the foundation of the opinions to ensure they meet the

admissibility requirements. Frazier, 387 F.3d at 1259 (quotations omitted).

      Before admitting expert testimony, the district court must consider whether:

         the expert is qualified to testify competently regarding the
         matters he intends to address; (2) the methodology by which the
         expert reaches his conclusions is sufficiently reliable as
         determined by the sort of inquiry mandated in Daubert; and (3)
         the testimony assists the trier of fact, through the application of
         scientific, technical, or specialized expertise, to understand the
         evidence or to determine a fact in issue.

Id. at 1260. The proponent of expert testimony, in this case the government, bears

the burden to demonstrate that these requirements have been met. Id.

      An expert may be qualified by experience in a field alone. Fed. R. Evid.

702; Frazier, 387 F.3d at 1260-61. Such a witness should explain how his

experience leads to his opinion, why his experience is a sufficient basis for his


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opinion, and how he reliably applied his experience to the facts. Frazier, 387 F.3d

at 1261. The test of reliability is flexible, however, and a district court has broad

latitude in deciding how to determine reliability. Kumho Tire Co., Ltd. v.

Carmichael, 526 U.S. 137, 141-42, 119 S. Ct. 1167, 1171, 143 L. Ed. 2d 238

(1999).

      With the foregoing principles in mind, we consider Johnson’s challenges to

Counts 1 and 3, respectively.

                                           I.

      Johnson argues that the evidence was insufficient to convict on Count 1. He

does not dispute that he possessed a controlled substance; rather, he contends that

the evidence failed to demonstrate that he had the intent to distribute it. The jury

found him guilty, he argues, because the district court abused its discretion in

admitting two pieces of evidence. One piece, which was admitted under Rule

404(b), was a prior conviction for crack cocaine possession. The other was a

detective’s opinion that Johnson’s possession of the drugs with which he was

caught, cocaine and flakka, was consistent with distribution and not personal use.

      The prior conviction was introduced to prove motive, intent and knowledge,

elements of the Count 1 offense which Johnson placed in issue with his plea of not

guilty. Johnson does not dispute that the crack cocaine conviction was relevant to

those elements; his point is that the probative value of the evidence was


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substantially outweighed by its undue prejudicial effect. We are not persuaded that

the court abused its discretion in weighing the matters of relevance and prejudice

in accordance with Rule 404(b), and accordingly reject Johnson’s point.

       As for the detective’s testimony, the district court held a pretrial hearing at

which the parties presented argument regarding the detective’s expertise. It was

not a formal Daubert hearing in which the court considers the proffer of the

expert’s qualifications and the reliability of the expert’s opinion; Johnson didn’t

request one. After considering the parties’ arguments, the court denied Johnson’s

motion to exclude the detective’s testimony. At trial, the government thoroughly

questioned the detective concerning his qualifications and experience before

tendering him as a witness for examination by defense counsel. Given these

circumstances, we conclude that the court adequately performed its gate keeping

requirements; it fully considered the detective’s qualifications and the reliability of

his testimony. In short, the court did not abuse its discretion in allowing the

detective to testify.

                                           II.

       The government’s burden on Count 3 was to establish that Johnson “(1)

knowingly (2) possessed a firearm (3) in furtherance of [a] drug trafficking crime

for which he could be prosecuted in a court of the United States.” United States v.

Woodard, 531 F.3d 1352, 1362 (11th Cir. 2008). The government’s position is that


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Johnson does not dispute that he knowingly possessed a firearm while committing

the Count 1 offense. Rather, all Johnson questions is whether he committed the

offense. Since we have concluded that he did so, his Count 3 challenge fails.

      Johnson’s convictions on all three counts are affirmed for the reasons stated

above.

      AFFIRMED.




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