                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                     FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                               May 30, 2008
                             No. 06-15963                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No. 05-14096-CR-DLG

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

SCOTT THOMAS FREEDMAN,

                                                         Defendant-Appellant.


                       ________________________

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

                              (May 30, 2008)

Before ANDERSON, HULL and FAY, Circuit Judges.

PER CURIAM:
       Scott Freedman appeals his convictions for conspiracy to import five

kilograms or more of cocaine and attempt to import five kilograms of more of

cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 952(a), 960(b)(1), and

963.1 Freedman argues that (1) the district court erred in refusing to strike the

entire jury panel after one prospective juror’s biased comments and (2) the

government failed to present sufficient evidence that he agreed with a non-

government agent or informant to import cocaine, made a substantial step toward

importing cocaine, or knew that five kilograms or more of cocaine were involved

in the deal. For the reasons discussed below, we affirm Freedman’s convictions

and sentences.

                             I. Motion to Strike Jury Panel

       At jury selection, the government and Freedman took turns questioning and

challenging prospective jurors until a jury of 14 was selected. During its first

round of questioning, the government asked the prospective jurors if any of them

would give extra weight to the testimony of a police officer. A prospective juror

named Raymond Thoennissen responded that, if “[t]he [Drug Enforcement Agency

(“DEA”)] brought this case, [Freedman was] probably guilty.” At the conclusion


       1
         Freedman also was indicted for importing five kilograms or more of cocaine, also in
violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 952(a), 960(b)(1), and 963, but the jury found him
not guilty of this charge. At sentencing, freedman was held responsible for 7 kilograms of
cocaine and sentenced to two concurrent 121-month terms of imprisonment.

                                               2
of the government’s first round of questioning, Freedman requested a sidebar and

moved to strike the jury panel, arguing that Thoennissen’s statement “may have

sent the message, the idea, across [the] entire panel in [the] room that this

defendant is guilty.” The district court denied the motion.

      During his first round of questioning, Freedman asked the prospective jurors

if any of them would have difficulty presuming that he was innocent until proven

guilty or holding the government to its burden of proving his guilt beyond a

reasonable doubt. None of the prospective jurors responded affirmatively. At the

conclusion of the first round of questioning, Thoennissen was dismissed from the

jury panel, along with other prospective jurors.

      During the next four rounds of questioning, the government and Freedman

asked many of the new prospective jurors if any of them would give extra weight

to the testimony of a police officer. None of the prospective jurors responded

affirmatively. Freedman also asked all of the new prospective jurors if any of them

would have difficulty presuming his innocence or applying the

beyond-a-reasonable-doubt standard. Only one prospective juror expressed

difficulty with these standards, and she was dismissed.

      After the jury was empaneled, the district court instructed the jury that its

job would be to decide a verdict based only on the evidence and law that it would



                                           3
hear in the courtroom during the trial.

      At the beginning of the trial, the district court reminded the jury that it must

base its verdict only on evidence presented from “the witness stand in the form of

testimony and documents and exhibits received.” The district court instructed the

jury that it must apply the appropriate law to this evidence, regardless of whether

“[the individual jurors] agree[d] with [the law] or not.” The district court also

reminded the jury that Freedman was presumed innocent until proven guilty and

that the burden of proving his guilt beyond a reasonable doubt rested entirely on

the government.

        At the end of the trial, before submitting the case to the jury for its

consideration, the district court again reminded the jury that it must make its

decision “only on the basis of the testimony and other evidence presented [in the

courtroom] during the trial.” The district court also reminded the jury that the

government had the burden of proving Freedman’s guilt beyond a reasonable doubt

and that the jury “must follow the law as [the district court] explain[ed] it to [the

jury] whether [it] agreed with that law or not.” The district court further

admonished the jury that the “testimony of police officers or federal agents [was]

to be given no more or less weight than the testimony of other witnesses.”

      We review the district court’s denial of a motion to strike the jury panel for



                                            4
abuse of discretion. See United States v. Tegzes, 715 F.2d 505, 507 (11th Cir.

1983). “The constitutional standard of fairness requires that the criminally accused

have a panel of impartial, indifferent jurors.” Id. In determining whether this

standard has been met, we generally presume that the jury was impartial. See id.

at 509. We also generally give deference to the decision of the district court judge

who presided over jury selection, as he was in the best position to observe the

demeanor of the jurors and determine whether they were impartial. See id. In

United States v. Khoury, 901 F.2d 948, 955 (11th Cir. 1990), we held that a party

challenging the presumption of impartiality and deferential treatment “must

demonstrate that the juror in question exhibited actual bias: That is, either an

express admission of bias, or proof of specific facts showing such a close

connection to the circumstances of the case that bias must be presumed.”

      The district court did not abuse its discretion by refusing to dismiss the

entire jury panel after Thoennissen stated that Freedman must be guilty because the

DEA had brought a case against him. See Tegzes, 715 F.2d at 507. Freedman has

not demonstrated that the jury members were biased, either expressly or because of

a close connection to the case. See id. Indeed, the evidence demonstrates the

exact opposite. No prospective juror, after Thoennissen, stated that he or she

would give extra weight to the testimony of a law enforcement officer. Also, the



                                           5
only prospective juror who expressed difficulty with the presumed-innocent and

beyond-a-reasonable-doubt standards was dismissed. Moreover, the district court

repeatedly instructed the jury that it could consider only the evidence offered at

trial, must follow the law whether its individual members agreed with the law or

not, must presume Freedman innocent and could not convict him unless the

government proved his guilt beyond a reasonable doubt, and could not give extra

weight to the testimony of a law enforcement officer. Thus, because Freedman has

not satisfied the burden set out for him in Khoury, the district court did not abuse

its discretion and we affirm Freedman’s convictions and sentences as to this issue.

See Tegzes, 715 F.2d at 507; Khoury, 901 F.2d at 955.

      We note that Freedman argues that Thoennissen’s statements constituted

grounds for dismissal because it had to do with Freedman’s guilt or innocence. In

making this argument, Freedman cites our language in Khoury that the statement

of a prospective juror in a drug-trafficking case that her son had overdosed before

he was 18 was not grounds for dismissing the entire panel in part because it did not

raise a “spectre of potential prejudice in other jurors” since it “did not constitute an

opinion concerning the guilt or innocence of the defendants, nor did it relate to

knowledge about the facts, parties, or witnesses involved in this case.” Id. at 956

(citing Tegzes, 715 F.2d at 506-09). We find, however, that Thoennissen’s



                                            6
statement was not the sort of statement we described in Khoury, in that it did not

illustrate Freedman’s actual guilt to the other prospective jurors. See Khoury, 901

F.2d at 955. Thoennissen did not state, for instance, that he knew Freedman to be

guilty of importing cocaine because he overheard Freedman talk of importing

cocaine, saw Freedman with cocaine, or knew one of the co-conspirators.

Statements of this sort certainly may have raised the “spectre of potential

prejudice” we mentioned in Khoury. See id. Such was not present here.

                          II. Sufficiency of the Evidence

      During the trial, Edwin Deveaux, one of Freedman’s codefendants, testified

that he lived in the Bahamas. He agreed to supply cocaine for Ray Taylor, another

of Freedman’s codefendants, to smuggle into the United States. Specifically, he

indicated that he could supply approximately 70 to 80 kilograms, which he

expected would sell for $17,000 to $17,500 per kilogram in the United States. On

the day that Taylor came to retrieve the cocaine, however, Deveaux only gave him

three kilograms of cocaine. He explained to Taylor that his supplier had decided to

use three kilograms of cocaine as a “test run,” but that he expected to provide

approximately 40 kilograms for later runs. On cross-examination, Deveaux

admitted that he always knew that he first would give Taylor three kilograms of

cocaine as a test. He also admitted that he only communicated with Taylor, and



                                          7
with Taylor’s brother, about the drug deal. On redirect examination, Deveaux

testified that, while he communicated directly with Taylor and his brother only, he

knew that others were involved because Taylor told him that Taylor would have

help offloading and stashing the cocaine in the United States.

       Taylor testified that he was an informant for the DEA. After setting up the

drug deal with Deveaux, he told Freedman that he was “run[ning] a load [of

cocaine]” and needed to use Freedman’s boat to do so. Taylor told Freedman that

he expected to earn approximately $200,000 to $250,000 from selling his portion

of the cocaine. Freedman insisted that he “wanted in on” the deal, and Taylor

agreed to let Freedman pick up and help stash the cocaine once it was in the United

States. At the DEA’s request, Taylor arranged a meeting with Freedman for

November 7, 2005, and recorded their conversation. During the meeting, Taylor

asked Freedman if he remained interested in the deal, and Freedman responded that

he was “in.” Freedman and Taylor then briefly discussed the amount of cocaine to

be imported. At one point, Freedman said, “Don’t worry[,] the last time they said

there were 7. . . .”

       On November 16, 2005, Taylor used Freedman’s boat to travel to the

Bahamas and retrieve the cocaine from Deveaux. On his return trip, DEA agents

stopped Taylor and confiscated the cocaine. When Taylor arrived back in the



                                          8
United States, he expected Freedman to meet him at the marina. Freedman did not

meet him but later called Taylor and explained that he had been watching Taylor

from behind the marina and had decided not to meet Taylor as planned because he

noticed law enforcement officers around the marina.

      Nicholas Kent, a DEA special agent, testified that he was assigned to work

undercover with Taylor, assuming the role of a friend of Taylor’s who would help

Freedman pick up and stash the cocaine. In the course of his undercover work, he

met with Freedman several times and recorded their conversations. During their

first conversation, on November 10, 2006, Kent and Freedman discussed how

Taylor’s trip to the Bahamas to retrieve the cocaine kept being delayed. When

Kent stated that Deveaux claimed the delays were Taylor’s fault, Freedman

responded, “Now listen[,] I was there. I heard the whole conversation right[,]

um[,] on their end. They’re unprepared. The numbers keep changing.” Freedman

went on to say, “He put them on speaker phone, cuz I even said, told them[,]

[‘]What’s going on? Every time you say everybody’s ready; you’re ready,

everybody’s ready. Then it changes. You screw everybody else. Then you do it

[a]gain.[’]”

      During their second conversation, on November 16, 2005, Kent and

Freedman discussed whose car they should use to transport the cocaine from the



                                         9
marina to the stash place. Kent concluded that it would be better to use his pickup

truck instead of Freedman’s sedan, reasoning that “if they send [the cocaine] in

bales[,] there’s no way I’m going to be able to get it in your car.” Kent and

Freedman then discussed what percentage of the cocaine Freedman should expect

to receive as payment for his help. Kent told Freedman to expect approximately

10%, and Freedman lamented that the person to whom he expected to sell the

cocaine was broke and that “[he’d have] to sell them in onesys and twoseys.”

      At the close of the government’s case in chief, Freedman moved for a

judgment of acquittal, pursuant to Fed.R.Crim.P. Rule 29, on all counts on the

grounds that there was insufficient evidence that he conspired with Deveaux to

import cocaine or attempted to import cocaine. The district court denied the

motion.

          Freedman testified that he owed Taylor $30,000 from a previous real estate

deal. When Taylor indicated that he needed his help and the use of the boat for a

drug deal, he refused and told Taylor that he had no familiarity with dealing drugs.

When Freedman refused to help, Taylor threatened to sue Freedman for repayment

of the $30,000. Freedman continued to refuse, but Taylor pressed the threat of

legal action. Not having $30,000 with which to repay Taylor and fearful of being

sued, Freedman agreed to help with the drug transaction. Accordingly, Taylor



                                          10
instructed Freedman to meet with Kent to discuss the procedure for stashing the

cocaine. Taylor told Freeman everything he needed to say to Kent and instructed

him to otherwise just “go along with whatever [Kent] says.” Thus, everything that

Taylor said in the ensuing meetings with Kent was said simply to keep Taylor

happy. Moreover, throughout his discussions with Taylor, Freedman did not

believe that Taylor intended to import drugs. Indeed, Freedman ran into Taylor’s

brother and relayed Taylor’s plan, and Taylor’s brother “assured [Freedman] that

[Taylor] was full of it.” Thus, Freedman went along with Taylor’s plan just to

appease him.

      At the close of Freedman’s case in chief, he renewed his Rule 29 motion.

The district court denied the motion.

      We review attacks on the sufficiency of the evidence presented de novo,

“viewing the evidence in the light most favorable to the government and drawing

all reasonable inferences from the evidence in favor and in support of the jury

verdict.” United States v. Smith, 231 F.3d 800, 806 (11th Cir. 2000). We will

uphold the jury’s verdict against a sufficiency-of-the-evidence attack “unless no

trier of fact could have found guilt beyond a reasonable doubt.” United States v.

Calderon, 127 F.3d 1314, 1324 (11th Cir. 1997). More specifically, we have

explained that



                                         11
      [i]t is not necessary that the evidence exclude every reasonable
      hypothesis of innocence or be wholly inconsistent with every
      conclusion except that of guilt, provided that a reasonable trier of fact
      could find that the evidence established guilt beyond a reasonable
      doubt. A jury is free to choose among the constructions of the
      evidence.

Id. We also have held that“[c]redibility determinations are the exclusive province

of the jury.” Id. at 1325.

      To prove a conspiracy to import cocaine under § 952, the government must

demonstrate that (1) an agreement existed between two or more people to commit a

crime, (2) the accused had knowledge of at least the essential objectives of that

agreement, and (3) the accused voluntarily joined or participated in the illegal

venture. United States v. Battle, 892 F.2d 992, 999 (11th Cir. 1990). The two

people who agree to commit the crime cannot be government agents or informers.

United States v. Elledge, 723 F.2d 864, 866 (11th Cir. 1984). “Inferences from the

conduct of the alleged participants or from other circumstantial evidence of a

scheme may provide the basis for establishing that a conspiratorial agreement

existed.” Battle, 892 F.2d at 999. Likewise, conversations between the defendant

and government agent or informer may constitute evidence of a conspiracy

between the defendant and another. Elledge, 723 F.2d at 866.

      To prove attempt to import cocaine under § 952, the government must

demonstrate that the defendant (1) had a specific intent to engage in criminal

                                          12
conduct and (2) took a substantial step toward commission of the offense. United

States v. Carrasco, 381 F.3d 1237, 1242 (11th Cir. 2004) (reviewing convictions of

attempt to possess with intent to distribute five kilograms or more of cocaine,

pursuant to 21 U.S.C. § 846).

      The government presented sufficient evidence to support Freedman’s

conspiracy and attempt convictions. See Smith, 231 F.3d at 806. It was not

unreasonable for the jury to conclude, based on the circumstantial evidence

presented, that an agreement existed between Freedman and Deveaux to commit a

crime. See Calderon, 127 F.3d at 1324; Battle, 892 F.2d at 999; Elledge, 723 F.2d

at 866. This evidence demonstrated that Deveaux and Freedman each were aware

of the other’s participation and role in the scheme. For instance, Taylor told

Deveaux that others would be involved in offloading and stashing the cocaine once

it arrived in the United States. Also, Freedman knew someone in the Bahamas was

supplying the cocaine for transportation to the United States. Likewise, Kent told

Freedman that Deveaux claimed that the delays were Taylor’s fault and warned

Freedman that the Bahamians were really slow. Furthermore, Freedman told Kent

that he had overheard conversations between Taylor and Deveaux and even spoke

with Deveaux on speaker phone about the delays and amount changes. From this

evidence, a reasonable juror could conclude that Deveaux and Freedman were



                                          13
parties to an agreement to import cocaine. See Calderon, 127 F.3d at 1324.

      It also was not unreasonable for the jury to conclude, based on the direct

evidence presented, that Freedman intended to import cocaine and took a

substantial step toward doing so. See Calderon, 127 F.3d at 1324; Carrasco, 381

F.3d at 1242. This evidence demonstrated that Deveaux wished to help import

cocaine, provided the tools to do so, and was involved in the transportation of the

cocaine to the United States. When Taylor told Freedman about the drug deal,

Freedman stated that he wanted in on the deal. Also, Freedman let Taylor use the

boat to travel to the Bahamas to retrieve the cocaine. Furthermore, Freedman came

to the marina on the day that Taylor was meant to retrieve the cocaine. From this

evidence, a reasonable juror could conclude that Freedman intended to import

cocaine and did whatever was in his power to ensure that the cocaine was

imported. See Calderon, 127 F.3d at 1324.

      Regarding Freedman’s argument that the government did not prove that he

conspired or attempted to import five kilograms or more of cocaine specifically, it

was not unreasonable for the jury to conclude, based on the circumstantial

evidence presented, that Freedman knew that this amount of cocaine was involved.

See Calderon, 127 F.3d at 1324. Taylor told Freedman that he expected to earn

$200,000 to $250,000 from the deal, and Deveaux expected that the cocaine would



                                         14
sell for $17,000 to $17,500 per kilogram in the United States. From this evidence,

the jury could have concluded that Freedman knew more than 5 kilograms of

cocaine were involved because, even if Taylor were to sell all of the cocaine rather

than a percentage, he would need to sell at least 11 kilograms at Deveaux’s

expected rate to earn this amount of money. Also, Freedman told Taylor that “the

last time they said there were 7. . . .” From this evidence, the jury could have

concluded that the Bahamians had indicated that they would send seven kilograms

of cocaine.

      Furthermore, Kent told Freedman that the cocaine would not fit in his sedan.

From this, the jury could have concluded that Freedman knew to expect more than

five kilograms of cocaine because anything less likely would have fit in his sedan.

Moreover, Kent told Freedman that he would likely receive 10% of the cocaine to

sell, and Freedman told Kent that he would have to sell his in “onesys and

twoseys.” From this, the jury could have concluded that Freedman knew that more

than five kilograms of cocaine were involved because, assuming that “onesys and

twoseys” referred to one- and two-kilogram lots, the total shipment would have

had to equal more than five kilograms in order for his 10% allotment to be

divisible into one-and two-kilogram lots. Finally, although Deveaux testified that

he never intended to ship more than three kilograms of cocaine, the jury reasonably



                                          15
could have rejected this testimony. See Calderon, 127 F.3d at 1325. Thus,

because the government offered sufficient evidence that Freedman agreed to

import five kilograms or more of cocaine and attempted to import five kilograms

or more of cocaine, we affirm his convictions and sentences. See Smith, 231 F.3d

at 806.

      AFFIRMED.




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