                                                      [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT             FILED
                                              U.S. COURT OF APPEALS
                    _________________________   ELEVENTH CIRCUIT
                                                    JUNE 21, 2012
                           No. 11-13077              JOHN LEY
                                                      CLERK
                       Non-Argument Calendar
                    _________________________

             D.C. Docket No. 8:09-cr-00572-JSM-TGW-1


UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
                                                  Cross Appellant,




                                versus


MARK ANTHONY MYRIE,
a.k.a. Buju Banton,

                                                  Defendant-Appellant
                                                  Cross-Appellee.


                    _________________________

             Appeals from the United States District Court
                  for the Middle District of Florida
                   _________________________
                           (June 21, 2012)
Before DUBINA, Chief Judge, MARCUS and BLACK, Circuit Judges.

PER CURIAM:

      Appellant Mark Anthony Myrie appeals his convictions for conspiracy to

distribute cocaine, in violation of 21 U.S.C. § 846, and aiding and abetting

another’s use of a phone to facilitate a drug crime, in violation of 21 U.S.C.

§ 843(b). The government cross-appeals the district court’s judgment of acquittal

of Myrie’s charge of gun possession in furtherance of a drug crime, in violation of

21 U.S.C. § 924(c).

      On appeal, Myrie argues that the government did not establish that he was

part of a drug conspiracy because there was never an agreement in place and mere

presence is insufficient to sustain his conviction. Further, he argues that he did

not aid and abet his codefendant, Ian Thomas, in using a phone to facilitate a drug

crime because his only involvement with a phone was directing Thomas to ask a

question with regard to a drug deal that never happened.

      Myrie also argues that his convictions should be overturned because

Alexander Johnson, a government confidential informant, pursued him to engage

in drug dealing over a six-month period, which constituted entrapment as a matter

of law. Myrie contends that, based on a Seventh Circuit opinion, the government

did not show his predisposition to commit a crime.


                                          2
      Additionally, Myrie argues that this case should be dismissed because the

district court violated the Speedy Trial Act, 18 U.S.C. § 3161, et seq., by holding

trial after the 70-day clock expired. Myrie argues that the district court did not

properly articulate its reason for issuing two continuances as required by 18

U.S.C. § 3161(h)(7), and the delay was unreasonable and prejudicial under 18

U.S.C. § 3161(h)(6).

      Finally, the government cross-appeals the district court’s judgment of

acquittal on Myrie’s 18 U.S.C. § 924(c) conviction on the basis that it was

reasonably foreseeable that a gun would be used in furtherance of his drug

conspiracy. The evidence established that one of Myrie’s codefendants, James

Mack, carried the gun in furtherance of the cocaine deal, and the jury’s conviction

should be upheld under a Pinkerton1 theory of liability.

      Myrie responds that the government violated the Double Jeopardy Clause

because it constructively amended the indictment by abandoning an aiding and

abetting theory in favor of a Pinkerton theory, and the charge should be dismissed.

Alternatively, he argues that if we overturn the judgment of acquittal, we should

remand the case or grant a new trial because the district court never conditionally

ruled on his motion for a new trial.

      1
       Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489
(1946).
                                          3
                                         I.

      We review de novo whether the evidence was sufficient to sustain a jury

verdict. United States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009). The

evidence is viewed in the light most favorable to the government, with all

reasonable inferences and credibility choices made in the government’s favor.

United States v. Frank, 599 F.3d 1221, 1233 (11th Cir. 2010), cert. denied, 131 S.

Ct. 186 (2010). “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. Chastain, 198 F.3d 1338, 1351 (11th Cir. 1999).

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

answered all of them in a manner that supports the jury’s verdict. See Jiminez, 564

F.3d at 1285. A defendant’s own testimony, if disbelieved by the jury, may be

considered as “substantive evidence of the defendant’s guilt.” Id. (internal

quotation marks omitted). We are “bound by the jury’s credibility determinations,

and by its rejection of the inferences raised by the defendant.” United States v.

Hernandez, 433 F.3d 1328, 1334 (11th Cir. 2005) (internal quotation marks

omitted).

      “To sustain a conviction for conspiring to distribute [cocaine] the

government must prove that 1) an agreement existed between two or more persons


                                          4
to distribute the drugs; 2) that the defendant at issue knew of the conspiratorial

goal; and 3) that he knowingly joined or participated in the illegal venture.”

United States v. Matthews 168 F.3d 1234, 1245 (11th Cir. 2009). The defendant is

considered to have participated in the conspiracy so long as the “defendant’s

actions facilitated the endeavors of other co-conspirators, or facilitated the venture

as a whole.” United States v. Chandler, 388 F.3d 796, 811 (11th Cir. 2004)

(internal quotation marks omitted). “It is irrelevant that particular conspirators

may not have known other conspirators or participated in every stage of the

conspiracy.” United States v. Alred, 144 F.3d 1405, 1415 (11th Cir. 1998).

      To prove a violation of 21 U.S.C. § 843(b), the government must show that

the defendant knowingly and intentionally used a communications facility to

facilitate the commission of a drug felony. United States v. Rivera, 775 F.2d 1559,

1562 (11th Cir. 1985). To prove facilitation, the government must show that the

phone call “comes within the common meaning of facilitate–‘to make easier’ or

less difficult, or to assist or aid.” Id. (internal quotation marks omitted).

      Viewed in the light most favorable to the government, we conclude that the

evidence on the record supports Myrie’s conviction. Here, Myrie demonstrated

familiarity with the drug trade, and his behavior during the instant offense was

consistent with his described role of an investor who stays on the outside.


                                           5
Further, Myrie introduced Thomas to Johnson, vouched for Thomas’s credibility,

told Johnson they had a done deal, thanked Johnson for the opportunity to do the

deal, and stood to gain five kilograms of cocaine from the agreement. Similarly,

the evidence establishes that a reasonable jury could have concluded that Myrie

knowingly and intentionally aided and abetted Thomas in using a phone to

facilitate the cocaine deal because Myrie directed Thomas to ask how much the

buyer wanted.

                                         II.

      “‘A successful entrapment defense requires two elements: 1) government

inducement of the crime, and 2) lack of predisposition on the part of the

defendant.’” United States v. Padron, 527 F.3d 1156, 1160 (11th Cir. 2008)

(internal quotation marks omitted). “When an entrapment defense is rejected by

the jury, our review is limited to deciding whether the evidence was sufficient for

a reasonable jury to conclude that the defendant was predisposed to [commit the

crime].” United States v. Brown, 43 F.3d 618, 622 (11th Cir. 1995). We may not

overturn a jury verdict “if any reasonable construction of the evidence would

allow the jury to find the defendant guilty beyond a reasonable doubt.” Id. We

review such a verdict de novo, but must view all facts and make all inferences in

favor of the government. Id.


                                         6
      The record demonstrates that the district court instructed the jury on Myrie’s

entrapment defense, and the jury rejected that defense. While Myrie relies on

factors used by the Seventh Circuit, in analyzing an entrapment defense the

evidence here, when viewed in the light most favorable to the government,

allowed the jury to find Myrie guilty beyond a reasonable doubt. See Brown, 43

F.3d at 622. Johnson only engaged Myrie on the topic of cocaine after Myrie

indicated his familiarity with drug dealing, and Myrie asked Johnson if he could

purchase cocaine for him while discussing extensive drug operations. Myrie never

told Johnson to stop asking him about a cocaine deal, and Myrie ultimately

introduced Thomas, a broker, to Johnson. Though Myrie testified that he was just

trying to outtalk Johnson and that he was not a drug dealer trying to conduct a

drug deal, we assume that, based on the jury verdict, the jury disbelieved Myrie

and Myrie’s testimony can thus be used as substantive evidence of his guilt. See

Jiminez, 564 F.3d at 1285.

                                        III.

      “We review a claim under the Speedy Trial Act de novo and review the

district court’s factual determinations on excludable time for clear error.” United

States v. Williams, 314 F.3d 552, 556 (11th Cir. 2002). Under the Speedy Trial

Act, the government must take a defendant to trial within 70 days of the


                                         7
defendant’s indictment or initial appearance, whichever occurred later. 18 U.S.C.

§ 3161(c)(1).

      In calculating this 70-day period, certain events, as specified in 18 U.S.C.

§ 3161(h), are excluded from the speedy trial clock. Of relevance, the 70-day

period excludes (1) any delay resulting from certain proceedings concerning the

defendant, such as the resolution of pretrial motions from filing through the

conclusion of the hearing, (2) a reasonable delay when the defendant is joined for

trial with a codefendant for whom the time for trial has not run, and no motion to

sever has been granted, and (3) any delay resulting form a continuance granted by

any judge if the ends of justice served by taking such action outweigh the best

interests of the public and the defendant in a speedy trial. 18 U.S.C.

§§ 3161(h)(1)(D), (h)(6), (h)(7)(A).

      The continuance exception in § 3161(h)(7)(A) requires that the judge set

forth in the record, either orally or in writing, its reasons for finding that the ends

of justice served by the continuance outweigh the interests of the public and the

defendant. 18 U.S.C. § 3161(h)(7)(A). The Supreme Court held in Zedner v.

United States, 547 U.S. 489, 126 S. Ct. 1976, 164 L. Ed. 2d 749 (2006), that a

court must put its findings regarding an ends-of-justice continuance on the record

at least by the time the court rules on a defendant’s motion to dismiss for a speedy


                                            8
trial violation, although the best practice is to state the reasons when granting the

continuance. Zedner, 547 U.S. at 506-07, 507 n.7, 126 S. Ct. at 1988-89, 1989

n.7.

        We previously held that § 3161(h)(6)2 attributes to a defendant any

reasonable delay caused by a codefendant. United States v. Davenport, 935 F.2d

1223, 1229 (11th Cir. 1991). “[W]hether the amount of delay attributed to

appellant under [§ 3161(h)(6)] was reasonable can be determined by reference to

the totality of the circumstances prior to trial, by the extent to which the

appellant’s defense was prejudiced, or by the sheer length of the delay.” Id. at

1236.

        Section 3161(h)(6) attributes to Myrie any reasonable delay caused by co-

defendant James Mack. See Davenport, 935 F.2d at 1229. However, we must first

determine whether the district court satisfied the requirements of the Speedy Trial

Act to exclude the delay to Mack caused by the continuances. See 18 U.S.C.

§ 3161(h)(7)(A). In addressing Myrie’s motion to dismiss the indictment for a

violation of the Speedy Trial Act, the district court satisfied § 3161(h)(7)(A) by

stating that Mack’s attorney’s potential conflict of interest supported a

continuance and amended the previously issued continuances to reflect that the

        2
        The opinion, interpreting an older version of the code, refers to this section as § 3161(h)(7).
This section was redesignated (h)(6) in a 2008 amendment. Pub. L. No. 110-406 § 13(3) (2008).

                                                  9
ends of justice served by granting the continuances outweighed the best interests

of the public and the defendants in a speedy trial. See Zedner, 547 U.S. at 508,

126 S. Ct. at 1989.

      Because the delay to Mack was properly excluded, we now determine

whether the delay to Myrie was reasonable under § 3161(h)(6). The totality of the

circumstances prior to trial weigh in favor of finding the three month delay to be

reasonable given Mack’s attorney’s conflict of interest and the need for

confidentiality in light of the ongoing criminal investigation. See Davenport, 935

F.2d at 1236. Likewise, there is no allegation or evidence to support an allegation

that the delay caused by the continuances prejudiced Myrie’s defense. See id. at

1236-37. Finally, as to the three month delay, we have held longer periods of

delay to be reasonable. See id.; United States v. Tobin, 840 F.2d 867, 869-70

(11th Cir. 1988) (delay of eight months and ten days). As a result, the delays to

trial caused by the continuances are excluded from the speedy trial calculation,

and we conclude that there was no violation of the Speedy Trial Act.

                                        IV.

      We review de novo the disposition of a defendant’s properly preserved

motion for judgment of acquittal. United States v. Perez-Tosta, 36 F.3d 1552,

1556 (11th Cir. 1994). We must determine whether a reasonable fact-finder could


                                         10
conclude that the evidence established the defendant’s guilt beyond a reasonable

doubt. United States v. Pistone, 177 F.3d 957, 958 (11th Cir. 1999). “In deciding

a motion for entry of judgment of acquittal under Fed.R.Crim.P. 29(c), district

courts should apply the same standard as that used for reviewing a conviction of

sufficiency of the evidence.” United States v. Sellers, 871 F.2d 1019, 1021 (11th

Cir. 1989) “If the court enters a judgment of acquittal after a guilty verdict, the

court must also conditionally determine whether any motion for a new trial should

be granted if the judgment of acquittal is later vacated or reversed. The court must

specify the reasons for that determination.” Fed.R.Crim.P. 29(d)(1).

      To convict a defendant under 18 U.S.C. § 924(c), the government must

show that, during and in relation to a drug-trafficking offense, the defendant used,

carried or possessed a firearm in furtherance of that crime. United States v. Gunn,

369 F.3d 1229, 1234 (11th Cir. 2004). A defendant may be liable under a

Pinkerton theory for a co-conspirator’s gun possession if the possession was

reasonably foreseeable. United States v. Bell, 137 F.3d 1274, 1274-75 (11th Cir.

1998). “[A]n absent conspirator may be found guilty of violating § 924(c) if the

carrying or using of a firearm by a coconspirator is a reasonably foreseeable action

of the conspiracy.” United States v. Diaz, 248 F.3d 1065, 1100 (11th Cir. 2001).

We have previously stated that guns and drugs go together hand-in-hand. See


                                          11
United States v. Lopez, 649 F.3d 1222, 1242 (11th Cir. 2011).

       In United States v. Diaz, the original indictment charged a violation of

§ 924(c) on an aiding and abetting theory. Diaz, 248 F.3d at 1099. At the close of

evidence, the government amended the indictment, over defendant’s objection, to

remove the aiding and abetting language and proceed under a Pinkerton theory of

liability. Id.

       We conclude from the record that the evidence, when viewed in the light

most favorable to the government, supports the jury’s conclusion that it was

reasonably foreseeable that a co-conspirator would possess a gun in furtherance of

the conspiracy. See Frank, 599 F.3d at 1233. Myrie, Thomas, and Johnson had

discussed a deal where Thomas would bring in another party to purchase a large

quantity of cocaine, and Special Agent McAffrey and Sergeant Hasley both

testified that guns are common in drug deals, especially for deals comparable in

size to the amount of drugs involved in this case. Given Myrie’s familiarity with

the drug trade, the jury could have reasonably concluded that the carrying or using

of a gun by a co-conspirator was a reasonably foreseeable action of the conspiracy.

See Diaz, 248 F.3d at 1100. Additionally, the jury could reasonably conclude that

the gun was carried in furtherance of the drug deal given the storage of the gun in

the same trap compartment as the money. See United States v. Range, 94 F.3d


                                         12
614, 617 (11th Cir. 1996) (upholding conviction where defendant stored the gun

under the floor mat while delivering money for the cocaine).

      Myrie contends that the government impermissibly constructively amended

the indictment by dropping the aiding and abetting theory and proceeding on a

Pinkerton theory of liability. However, we have previously upheld the dismissal

of an aiding and abetting theory, and subsequent advancement of a Pinkerton

theory of liability after the close of evidence. See Diaz, 248 F.3d at 1099-1100.

      After the jury found Myrie guilty on Counts One, Two, and Three, Myrie

filed a motion for judgment of acquittal or for a new trial, and the district court

granted Myrie a judgment of acquittal on Count Three, but did not rule on his

motion for a new trial. Because the district court did not comply with the demands

of Rule 29(d)(1), we remand for the district court to make a determination on

Myrie’s motion for a new trial. United States v. Ward, 274 F.3d 1320, 1323-24

(11th Cir. 2001).

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED IN

PART.




                                          13
