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                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 16-11298
                          Non-Argument Calendar
                        ________________________

                   D.C. Docket No. 0:15-cr-60180-WPD-2



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                    versus

MIGUEL ABREAU-PENA,

                                                           Defendant-Appellant.

                        ________________________

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

                               (May 19, 2017)

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

PER CURIAM:

     Miguel Abreau-Pena was convicted by a jury of conspiring to distribute
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heroin, possessing with the intent to distribute heroin, and using or carrying a

firearm during or possessing a firearm in furtherance of a drug trafficking offense.

He contends that the district court erred by admitting certain evidence against him,

that the instructions given to the jury were erroneous, and that the evidence

submitted at trial was insufficient to support his convictions.

                                                 I.

       At trial Detective Frank Canales of the Broward County Sheriff’s Office

testified that he was involved as an undercover officer in the investigation and

arrest of Abreau-Pena. 1 Before the events leading to Abreau-Pena’s conviction,

operating undercover Detective Canales had participated in several drug

transactions with Abreau-Pena’s cousin, Antonio Rivera-Valencia. In particular,

he had bought five kilograms of methamphetamine from Rivera-Valencia as part of

an earlier controlled buy. Even though that buy led to three arrests, Detective

Canales was able to convince Rivera-Valencia that he had nothing to do with them.

       In July 2013 Rivera-Valencia contacted Detective Canales and informed him

that five kilograms of heroin was available for purchase in Atlanta and asked if he

wanted to buy it for $240,000. That price included the cost of transporting the

heroin to Detective Canales in South Florida. The drugs were to be delivered by a

       1
          “Because [Abreau-Pena was convicted by a jury and] the district court denied [his]
motion for a judgment of acquittal, we recount the facts of this case in the light most favorable to
the government and draw all reasonable inferences in favor of the jury’s verdict.” See United
States v. Martin, 803 F.3d 581, 585 (11th Cir. 2015).
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courier hired by the drug trafficking organization Rivera-Valencia was a part of.

Detective Canales agreed to the arrangement and price.

      On July 22, Rivera-Valencia called Detective Canales to inform him that the

drugs would be delivered the following day. Early the next morning, Detective

Canales met Rivera-Valencia at his hotel before driving to a Starbucks to

consummate the deal. But Rivera-Valencia’s couriers were delayed and the buy

had to be rescheduled for later that morning.

      While they waited on the couriers, Detective Canales told Rivera-Valencia

that, when the couriers arrived, they would all proceed to a warehouse. Detective

Canales told him it was a business, but it was really an undercover sting location.

Rivera-Valencia said that the driver of the couriers’ vehicle would be handling the

next drug transaction on his own. Detective Canales dropped Rivera-Valencia off

at his hotel to wait until the couriers arrived.

      The couriers finally made it to Lauderhill around ten that morning.

Detective Canales picked up Rivera-Valencia and they headed back to the

Starbucks. The couriers were waiting there in a Honda Accord. Detective

Canales, Rivera-Valencia, and the couriers then drove four miles down the road to

the warehouse. At some point during the trip from Rivera-Valencia’s hotel to the

warehouse, he commented on the violence of Mexican drug cartels, saying that if

you steal from them they would hurt or kill you and he referred to the fate of one


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thief in particular.

       When they arrived, the couriers pulled their vehicle into the warehouse and

Detective Canales closed the bay door behind them. There were four individuals

in the courier’s Honda: Abreau-Pena (who was the driver), Antonio Rodriguez-

Adame, Abreau-Pena’s brother-in-law, and a three-year old child. Once the Honda

was safely ensconced in the warehouse the couriers exited their vehicle.

       Detective Canales and Rivera-Valencia went into an office space and waited

for the three couriers to join them. According to the detective, they did so because

it would have been “disrespectful” to watch the couriers remove the heroin from

the secret compartment in the Honda where it was stashed.

       But the warehouse was monitored by audio and video recording equipment.

So Detective Canales later learned that the drugs had been stored in a secret

compartment in the rear seat of the Honda. According to Detective Kevin

Loughran, opening that compartment required someone in the front seat to operate

controls that would allow the secret compartment to open. Detective Canales

testified that, in this instance, Abreau-Pena operated the controls from the front

seat, and Rodriguez-Adame collected the heroin.

       Abreau-Pena checked a gun that he had stored in his waistband as if to make

sure it was readily accessible. Abreau-Pena and Rodriguez-Adame then walked

towards the office to join Detective Canales and Rivera-Valencia. Just before


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entering the office, Abreau-Pena checked his gun again.

      In the office, Rodriguez-Adame gave the heroin to Detective Canales in a

pillowcase. There were four packages in the pillocase, which the parties stipulated

contained a total of 4,022 grams of heroin. Detective Canales removed the heroin

from the pillowcase and placed it on the table. He inspected one of the packages

and confirmed it contained heroin. While he did so, Rodriguez-Adame told the

detective that he was the owner of the heroin, that he only came along this time to

“get comfortable” with Detective Canales, and that he would be sending Abreau-

Pena alone the next time.

      After he inspected the package, Detective Canales said that he needed get

the money to pay for the drugs and left the office. That was the signal to other

officers who were waiting nearby. Rivera-Valencia, Rodriguez-Adame, and

Abreau-Pena were arrested. A firearm was found in Abreau-Pena’s waistband at

the time of his arrest.

      Abreau-Pena was indicted for (1) conspiracy to possess with intent to

distribute one kilogram or more of heroin, (2) possession with intent to distribute

one kilogram or more of heroin, and (3) using or carrying a firearm during and in

relation to or possessing a firearm in furtherance of a drug trafficking offense. A

jury found him guilty on all three counts. This is his appeal.

                                         II.


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      Abreau-Pena contends that (1) the Federal Rules of Evidence required the

district court to exclude certain evidence, (2) the district court failed to properly

instruct the jury as to the weapons, and (3) the evidence presented at trial was

insufficient to support his convictions. We address each argument in turn.

                                           A.

      Abreau-Pena argues that the district court erred by admitting (1) Detective

Canales’ testimony concerning the initial phone call he had with Rivera-Valencia

setting up the drug deal, (2) Detective Canales’ testimony explaining how he knew

Rivera-Valencia, (3) a recording and transcript of Rivera-Valencia’s comments

about Mexican cartels hurting or killing those who stole from them, and

(4) Detective Canales’ testimony about Rivera-Valencia’s comments. He argues

that this evidence was inadmissible under Rule 404(b) of the Federal Rules of

Evidence.

      We review only for an abuse of discretion a district court’s evidentiary

rulings. United States v. Deverso, 518 F.3d 1250, 1254 (11th Cir. 2008). “A

district court abuses its discretion if it applies an incorrect legal standard, applies

the law in an unreasonable or incorrect manner, follows improper procedures in

making a determination, or makes findings of fact that are clearly erroneous.”

Hartford Cas. Ins. Co. v. Crum & Forster Specialty Ins. Co., 828 F.3d 1331, 1333

(11th Cir. 2016) (quotation marks omitted).


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      Rule 404(b) provides: “Evidence of a crime, wrong, or other act is not

admissible to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.” Fed. R. Evid.

404(b)(1). That said, “[e]vidence of criminal activity other than the charged

offense is admissible for purposes of Rule 404(b) if it [ ] pertain[s] to the chain of

events explaining the context, motive and set-up of the crime [and is] linked in

time and circumstances with the charged crime, or forms an integral and natural

part of the account of the crime, or is necessary to complete the story of the crime

for the jury.” United States v. Lehder-Rivas, 955 F.2d 1510, 1515–16 (11th Cir.

1992) (quoting United States v. Van Dorn, 925 F.2d 1331, 1338 (11th Cir. 1991))

(second and third alteration in original) (formatting adjusted).

      Detective Canales’ testimony describing his phone call with Rivera-Valencia

and explaining their prior relationship is clearly “linked in time and circumstances”

with Abreau-Pena’s offense. Id. A jury would naturally wonder how this deal was

arranged and how Rivera-Valencia came to call Detective Canales. Those details

are “necessary to complete the story of the crime for the jury.” Id. And we do not

think that any unfair prejudice resulted from their admission. The district court did

not abuse its discretion by allowing that testimony.

      As for Rivera-Valencia’s comments about the violent tendencies of Mexican

drug cartels and Detective Canales’ explanation about those comments, they too


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form part of the context of the conspiracy. And even if the district court did err by

admitting the comments, “[a]n erroneous evidentiary ruling will result in reversal

only if the resulting error was not harmless.” United States v. Azmat, 805 F.3d

1018, 1041 (11th Cir. 2015) (quotation marks omitted). “[A]n evidentiary error is

harmless if it had no substantial influence on the outcome and sufficient evidence

uninfected by error supports the verdict.” Knight v. Thompson, 797 F.3d 934, 942

(11th Cir. 2015) (quotation marks omitted).

       We are convinced that, to the extent the district court erred by admitting the

comments about the cartel, the error was harmless. There is nothing in the record

before us to indicate that the comments explicitly associated Abreau-Pena or any

of the other conspirators with cartel violence, except to the extent that the

conspirators were connected to the cartels. There is also no indication that the

comments described in detail any violence. And the testimony about them was

brief. In light of the overwhelming evidence of Abreau-Pena’s guilt in this case,

the brief mention of an earlier incident of cartel violence did not substantially

prejudice Abreau-Pena. 2

                                             B.

       Abreau-Pena next contends that that the district court erred in instructing the

jury as to the firearms charge. The district court told the jury:

       2
         Because we conclude that any error in admitting the cartel comments was harmless, we
need not address Abreau-Pena’s argument that they were more prejudicial than probative.
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      The defendant can be found guilty of [using or carrying a firearm
      during or possessing a firearm in furtherance of a drug trafficking
      crime] only if [the government] proved beyond a reasonable doubt
      [that] during and in relation to [the charged] drug trafficking crimes,
      the defendant knowingly used or carried a firearm . . . or that the
      defendant knowingly possessed a firearm in furtherance of either of
      those drug trafficking crimes . . . .
      To “use a firearm” means more than a mere possession and more than
      proximity and accessibility to the firearm. It requires active
      employment of the firearm as by brandishing or by displaying it in
      some fashion.
      To “carry a firearm” is to have the firearm on one’s person in order to
      transport the firearm, such as in a vehicle, from one place to another
      while committing the drug trafficking crime.
      To use or carry a firearm “in relation to a crime” means that the
      firearm had some purpose or effect with respect to the crime, and it
      was not there by accident or coincidence. The firearm must have
      facilitated or had the potential of facilitating the crime.
      To “possess a firearm” is to have direct physical control of the firearm
      or have knowledge of the firearm’s presence and the ability and intent
      to later exercise control over the firearm.
      “Possessing a firearm in furtherance of a crime” means that the
      firearm helped, promoted, or advanced the crime in some way.

      At trial, Abreau-Pena asked the district court to add the following language

to that charge to clarify the role the firearm had to play in the drug offense:

      In other words the firearm must serve some important function or
      purpose of criminal activity.
      The nexus between the gun and the drug operation can be established
      by the type of drug activity that is being conducted, accessibility of
      the firearm, the type of the weapon, whether the weapon is stolen, the
      status of the possession (legitimate or illegal), whether the gun is
      loaded, proximity to the drugs or drug profits, and the time and
      circumstances under which the gun is found.

(Quotation marks omitted.) The district court declined to give those additional
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instructions.

      We review for an abuse of discretion a district court’s decision not to give a

requested jury instruction. Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d

1299, 1309 (11th Cir. 2013). “In refusing to give a requested jury instruction, [a]n

abuse of discretion is committed only when (1) the requested instruction correctly

stated the law, (2) the instruction dealt with an issue properly before the jury, and

(3) the failure to give the instruction resulted in prejudicial harm to the requesting

party.” Pensacola Motor Sales Inc. v. E. Shore Toyota, LLC, 684 F.3d 1211, 1224

(11th Cir. 2012) (quotation marks omitted) (alteration in original).

      Abreau-Pena was not prejudiced by the district court’s failure to give his

requested instruction. The instructions the court did give conveyed the gist of what

Abreau-Pena’s instruction would have told the jury. The court instructed the jury

that “possession in furtherance of a crime” required that the firearm help, promote,

or advance the crime. And it told the jury that using or carrying a firearm “in

relation to a crime” required more than a showing that the firearm was there by

“accident or coincidence”: it required a showing that the firearm facilitated or had

the potential to facilitate the crime. All Abreau-Pena’s proposed instruction would

have added was a statement that the firearm’s function must have been “important”

and examples of the ways in which the nexus between the firearm and the crime

could be proved. In light of the fact that “[t]he district court has broad discretion in


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formulating a jury charge as long as the charge as a whole is a correct statement of

law,” we cannot say that it was an abuse of discretion for the district court to use

its wording instead of the wording Abreau-Pena suggested. United States v.

Schlei, 122 F.3d 944, 969 (11th Cir. 1997) (quotation marks omitted).

                                          C.

      Finally, Abreau-Pena contends that the government failed to present

sufficient evidence to support his convictions. We review de novo a challenge to

the sufficiency of the evidence. United States v. Gamory, 635 F.3d 480, 497 (11th

Cir. 2011). “In so doing, [we view] the evidence in the light most favorable to the

Government and resolve[ ] all reasonable inferences and credibility evaluations in

favor of the verdict.” United States v. Isnadin, 742 F.3d 1278, 1303 (11th Cir.

2014). “We must affirm [Abreau-Pena’s] convictions unless, under no reasonable

construction of the evidence, could the jury have found [him] guilty beyond a

reasonable doubt.” See United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir.

2005).

      “To sustain a conviction for conspiracy to possess [heroin] with intent to

distribute, the government must prove beyond a reasonable doubt (1) that a

conspiracy existed; (2) that the defendant knew of it; and (3) that the defendant,

with knowledge, voluntarily joined it.” See United States v. Lopez-Ramirez, 68

F.3d 438, 440 (11th Cir. 1995). A reasonable jury could find that the government


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met that burden in this case. Detective Canales’ testimony established that several

people were working together to deliver heroin from Atlanta to Florida. Abreau-

Pena arrived at the appointed time in the appointed place. He arrived armed. He

operated the controls to open the compartment where the cocaine was hidden. And

two of his co-conspirators told Detective Canales that Abreau-Pena would be

handling future drug transactions on his own. That evidence is sufficient to show

that a conspiracy existed, that Abreau-Pena knew it existed, and that he voluntarily

joined it.

       Likewise, the government submitted sufficient evidence for a reasonable

jury to conclude that Abreau-Pena possessed heroin with the intent to distribute it.

“To convict [Abreau-Pena] of possession with intent to distribute [heroin], the

government had to establish three elements: (1) knowledge; (2) possession; and

(3) intent to distribute.” See United States v. Mercer, 541 F.3d 1070, 1076 (11th

Cir. 2008). Here, a jury could infer from Abreau-Pena’s arrival at the drug

transaction, the fact that he was the driver of the Honda, the fact that he came

armed, the fact that he operated the controls to the compartment, and the fact that

he came into the office where the deal was consummated, that he knew the heroin

was in the vehicle and intended to participate in its distribution. The evidence that

he drove the vehicle and operated the compartment controls is sufficient to show

that he “possessed” the heroin. See United States v. Battle, 892 F.2d 992, 999


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(11th Cir. 1990) (“Possession may be either actual or constructive; if the accused

exercised some measure of dominion or control over the contraband, either

exclusively or in association with others, he constructively possessed it.”)

(quotation marks omitted).

      And there was sufficient evidence to sustain Abreau-Pena’s conviction for

using or carrying a firearm during and in relation to or possessing a firearm in

furtherance of a drug trafficking offense. He had a gun in his waistband during the

course of a drug transaction involving more than four thousand grams of heroin. It

is indisputable that Abreau-Pena was carrying a firearm during a drug trafficking

offense. The only question is whether he did so “in relation to” that offense. The

Supreme Court has explained that “the phrase ‘in relation to’ is expansive” and

requires only a showing that the “gun at least must facilitat[e], or ha[ve] the

potential of facilitating, the drug trafficking offense.” Smith v. United States, 508

U.S. 223, 237–38, 113 S. Ct. 2050, 2058–59 (1993) (alterations in original)

(quotation marks omitted). A jury could reasonably find that to be the case here.

Abreau-Pena brought the firearm with him to the office and checked it twice on his

way there from the car. The jury could infer that he had the firearm for protection,

facilitating the drug transaction by giving him a means of defending himself if the

deal went bad. That is enough to show that he carried the weapon “in relation to”

the drug trafficking offense. See Smith, 508 U.S. at 238, 113 S. Ct. at 2059


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(explaining that “[in] the ordinary case under § 924(c)(1) . . . the gun . . . facilitates

the offense by providing a means of protection or intimidation”) (alteration in

original) (quotation marks omitted).

                                           III.

      In sum, the district court did not abuse its discretion in admitting evidence of

Detective Canales’ prior contact with a co-defendant’s cousin. The admission of a

discussion of Mexican cartels hurting or “taking out” those who had stolen from

them was, at most, harmless error. Declining to give the precise jury instruction

that Abreau-Pena requested was not an abuse of discretion. And sufficient

evidence supported all of Abreau-Pena’s convictions.

      AFFIRMED.




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