                                                                 [DO NOT PUBLISH]

                       IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT
                               ________________________                  FILED
                                                                U.S. COURT OF APPEALS
                                      No. 10-12674                ELEVENTH CIRCUIT
                                  Non-Argument Calendar              MARCH 29, 2011
                                ________________________               JOHN LEY
                                                                        CLERK
                         D.C. Docket No. 4:09-cr-00065-RH-WCS-2

UNITED STATES OF AMERICA,

llllllllllllllllllll                                          lPlaintiff-Appellee,

                                           versus

BRANDON WARE,

llllllllllllllllllll                                          lDefendant-Appellant.

                               ________________________

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

                                      (March 29, 2011)

Before HULL, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

         Brandon Ware appeals his convictions for conspiracy to manufacture,

distribute, and possess with intent to distribute more than five grams of cocaine
base, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B)(iii), and possession

with intent to distribute more than five grams of cocaine base, in violation of 21

U.S.C. §§ 841(a), (b)(1)(B)(iii). First, Ware argues that the evidence is

insufficient to support his convictions. Ware next argues that the cumulative

effect of six alleged evidentiary errors prejudiced his trial. We affirm both

convictions.

                             I. Sufficiency of the Evidence

      Ware contends the district court erred in denying his motion for a judgment

of acquittal because the evidence against him proves nothing more than aiding and

abetting, not a conspiratorial agreement. He argues there was no evidence he had

any knowledge of an agreement or willfully participated in the conspiracy.

      “We review the sufficiency of the evidence de novo, viewing the evidence

in the light most favorable to the verdict.” United States v. Thompson, 473 F.3d

1137, 1142 (11th Cir. 2006).

               The jury gets to make any credibility choices, and we will
               assume that they made them all in the way that supports the
               verdict. It is not enough for a defendant to put forth a
               reasonable hypothesis of innocence, because the issue is
               not whether a jury reasonably could have acquitted but
               whether it reasonably could have found guilt beyond a
               reasonable doubt.

Id. (citations omitted).

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      We are bound by the jury’s credibility determinations unless the testimony

is “‘incredible as a matter of law.’” United States v. Calderon, 127 F.3d 1314,

1325 (11th Cir. 1997) (quoting United States v. Hewitt, 663 F.2d 1381, 1385–86

(11th Cir. 1985)), modified on other grounds by United States v. Toler, 144 F.3d

1423, 1427 (11th Cir. 1998). Testimony is incredible only if it relates to “‘facts

that [the witness] physically could not have possibly observed or events that could

not have occurred under the laws of nature.’” Id. (alteration in original) (quoting

United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir. 1985)). “[W]hen a

defendant chooses to testify, he runs the risk that if disbelieved the jury might

conclude the opposite of his testimony is true.” United States v. Brown, 53 F.3d

312, 314 (11th Cir. 1995) (internal quotation marks omitted).

      To convict Ware of conspiracy, the government had to prove (1) that a

conspiracy existed; (2) that Ware knew about the conspiracy; and (3) that Ware

knowingly joined the conspiracy. See United States v. Molina, 443 F.3d 824, 828

(11th Cir. 2006). The defendant’s knowing participation may be proven by direct

or circumstantial evidence. United States v. Miranda, 425 F.3d 953, 959 (11th

Cir. 2005). And the existence of an agreement is often “‘proved by inferences

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

scheme.’” Molina, 443 F.3d at 828 (quoting United States v. Ayala, 643 F.2d 244,

                                          3
248 (5th Cir. 1981)). In a conspiracy case, “presence and association are material

and probative factors that a jury may consider in reaching its verdict.” United

States v. Lluesma, 45 F.3d 408, 410 (11th Cir. 1995). We will uphold a

conspiracy conviction “‘when the circumstances surrounding a person’s presence

at the scene of conspiratorial activity are so obvious that knowledge of its

character can fairly be attributed to him.’” Molina, 443 F.3d at 828 (quoting

United States v. Figueroa, 720 F.2d 1239, 1246 (11th Cir. 1983)).

      To convict Ware of possession “the government must have proved beyond a

reasonable doubt that he knowingly possessed the drugs with intent to distribute

them.” See Thompson, 473 F.3d at 1142. “Possession can be actual or

constructive and can be shown through direct or circumstantial evidence.” Id.

Constructive possession “‘can be proven by a showing of ownership or dominion

and control over the drugs or over the premises on which the drugs are

concealed.’” United States v. Woodard, 531 F.3d 1352, 1360 (11th Cir. 2008)

(quoting United States v. Clay, 355 F.3d 1281, 1284 (11th Cir. 2004)).

      In the instant case, sufficient evidence supported Ware’s convictions.

Although “[m]ere presence at the scene of a crime is insufficient to support a

conspiracy conviction,” Miranda, 425 F.3d at 959 (internal quotation marks

omitted), this appeal is not about mere presence. Ware leased a small apartment

                                          4
and was in control of who lived there. Ware associated with drug dealers, and he

allowed a known major drug dealer—his co-defendant—to live with him. Ware

was arrested just outside his apartment, coming from the direction of his

apartment. Just after Ware’s arrest, in his kitchen, in plain view, were two recently

prepared crack cocaine cookies and various items used to produce and distribute

crack cocaine—a triple-beam scale, a measuring cup, mixing bowls, a digital

scale, a razor blade, and a fork.

      Officers found .4 grams of crack cocaine and drug paraphernalia in Ware’s

bedroom. Ware testified his only income was unemployment, which did not cover

the monthly costs of his apartment, yet Ware had over $600 in his pocket when he

was arrested. He said he was coming from his uncle’s house, not from his

apartment, when he was arrested. Ware offered explanations for the cash in his

pocket and for the cocaine and drug paraphernalia in bedroom. He denied any

involvement in the conspiracy and testified he never used or sold cocaine. The

jury heard Ware’s testimony, observed his demeanor, evaluated his truthfulness,

and were free to discredit any and all of his statements. Indeed, “a statement by a

defendant, if disbelieved by the jury, may be considered as substantive evidence of

the defendant’s guilt.” Brown, 53 F.3d at 314.

      The leasing agent for Ware’s apartment testified that she had previously

                                         5
seen a scale, little plastic baggies, and a white substance that “could have been

drugs” in Ware’s apartment. As discussed in more detail below, the apartment

manager’s testimony was permissible, and the jury was free to accept or reject the

inferences raised by her testimony.

      Another witness, who was in county jail on unrelated charges at the time of

Ware’s trial, testified that she never bought drugs from Ware, but that he

sometimes sold crack. She testified that she saw Ware sell drugs more than one

time. On cross-examination, she admitted that before trial, she told defense

counsel that she had never seen Ware sell drugs. The jury heard about these

inconsistencies and knew that this witness believed that if she cooperated with law

enforcement, then she might receive favorable treatment in her own case. This

testimony was not “incredible as a matter of law.” This witness was subject to

cross-examination, and the jury was entitled to credit this testimony as it saw fit.

      The evidence—Ware’s association with known drug dealers, and other drug

dealers; the cocaine cookies and drug equipment in plain view in his apartment;

the $602 in his pocket—reasonably indicates more than “mere presence” in the

midst of an overt drug manufacture and distribution operation. The evidence

could reasonably “give rise to a permissible inference” that Ware knowingly

participated in an agreement with his co-defendant to manufacture and distribute

                                          6
cocaine. See United States v. Westry, 524 F.3d 1198, 1213–14 (11th Cir. 2008)

(per curiam) (concluding that evidence of the defendant’s associations, residence,

and involvement could support a reasonable inference of participation in the

conspiracy). Ware also constructively possessed the cocaine in his apartment.

Together with the blatant drug operation conducted therein, the jury also could

reasonably infer from this evidence the elements to support the possession charge.

      Because all of the evidence, including the inferences the jury could draw

from Ware’s testimony, was sufficient to convict him on the conspiracy and

possession counts, the district court did not err in denying his motion for judgment

of acquittal.

                II. Cumulative Effect of Alleged Evidentiary Errors

      We next address whether the cumulative effect of the allegedly inadmissible

evidence constitutes plain error. Evidentiary errors raised for the first time on

appeal are reviewed for plain error. United States v. Baker, 432 F.3d 1189, 1202

(11th Cir. 2005). To establish plain error, a defendant must show that there was an

“(1) error, (2) that is plain, and (3) that affects substantial rights. Once these three

requirements are satisfied, we have the discretion to provide relief if (4) the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Henderson, 409 F.3d 1293, 1307 (11th Cir. 2005)

                                           7
(citation omitted). An error is “plain” if it is obvious or clear under current law.

Baker, 432 F.3d at 1207. “An error that affects substantial rights is one that

affected the outcome of the district court proceedings.” Henderson, 409 F.3d at

1308 (internal quotation marks omitted). Even where individual errors do not rise

to the level of prejudicial error, the cumulative effect of several non-reversible

errors can so prejudice the right to a fair trial that reversal is necessary. Baker,

432 F.3d at 1223.

      Ware did not contemporaneously object to any of the alleged evidentiary

errors, except for his third claim. Therefore, all his evidentiary claims except his

third are reviewed for plain error. Ware argues the district court erroneously

admitted the following inadmissible and prejudicial evidence: “(1) prejudicial

hearsay evidence of his co-defendant’s involvement in a shooting; (2) statements

obtained during custodial interrogation without a valid waiver of Miranda rights;

(3) post-arrest silence; (4) evidence of Ware’s arrest on an unrelated warrant; (5)

improper lay witness identification of alleged drugs; and (6) patently incredible

testimony of a plea bargaining addict-informant.”

                         A. Ware’s First and Fourth Claims

      In his first claim, Ware argues a leasing agent’s testimony about a shooting

at Ware’s co-defendant’s former residence was inadmissible hearsay, irrelevant to

                                           8
the prosecution of Ware, and prejudicial as showing the bad character of Ware. In

his fourth claim, Ware contends that a police officer’s testimony regarding Ware’s

arrest on unrelated outstanding warrants was inadmissible because it served only

to show his bad character, which is inadmissible pursuant to Federal Rule of

Evidence 404(b).

      Under Rule 403, relevant evidence “may be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice . . . .” Fed. R. Evid.

403. However, “Rule 403 is an extraordinary remedy, which should be used only

sparingly, and the balance should be struck in favor of admissibility. Thus, in

reviewing issues under Rule 403, we look at the evidence in a light most favorable

to its admission, maximizing its probative value and minimizing its undue

prejudicial impact.” United States v. Edouard, 485 F.3d 1324, 1344 n.8 (11th Cir.

2007) (alterations, citations, and quotation marks omitted).

      First, the leasing agent’s testimony was not hearsay because it was not

offered to prove the truth of the matter asserted—it was offered to explain the

sequence of events that led to Ware and his co-defendant living together. See Fed.

R. Evid. 801(c); United States v. Jiminez, 564 F.3d 1280, 1288 (11th Cir. 2009).

And the testimony was not irrelevant to the prosecution of Ware—it was relevant

to explain why Ware’s co-defendant left his previous apartment and how Ware

                                          9
ended up living with him. And any possible prejudice from this testimony was

minimized by the government’s repeated explanation at trial that Ware had

nothing to do with the shooting. While we may have excluded this testimony if

we were in the trial judge’s position, we cannot say, on plain error review, that the

district court plainly erred by admitting this evidence.

      It was also not error under Rule 404(b) for the district court to admit the

officer’s testimony. Extrinsic evidence of other crimes, wrongs, or acts is not

admissible to prove a defendant’s character in order to show action in conformity

therewith. Fed. R. Evid. 404(b). But the officer’s testimony was not admitted to

show that Ware had a criminal disposition and would act in conformity therewith.

Instead, it was relevant to explain why the officer arrested Ware. See United

States v. US Infrastructure, Inc., 576 F.3d 1195, 1210 (11th Cir. 2009); cert.

denied, 130 S. Ct. 1918 (2010) (“Rule 404(b) does not apply when the other act

evidence is linked in time and circumstances with the charged crime and concerns

the context, motive or setup of the crime; or forms an integral part of the crime; or

is necessary to complete the story of the crime.”). Without this testimony, the jury

would be left wondering why Ware was arrested as he was walking from the

direction of his apartment. And it is clear the probative value of this evidence was

not substantially outweighed by the danger of unfair prejudice because the

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government explained that the warrants were for unpaid traffic tickets.

      Consequently, no error, much less plain error occurred, and Ware fails on

his first and his fourth evidentiary claims.

                              B. Ware’s Second Claim

      Statements made in violation of Miranda v. Arizona, are not admissible at

trial. 384 U.S. 436, 444, 86 S. Ct. 1602 (1966). Ware asserts that his post-arrest

statements to two police officers were inadmissible because the government made

no showing that he was informed of his Miranda rights prior to talking to each of

the officers. But even assuming that Ware was not given the Miranda warnings,

he has not shown that, in the context of the trial, any alleged Miranda error

affected his substantial rights. Henderson, 409 F.3d at 1307. Ware’s statements

were one piece of evidence in a trial which produced other strong evidence of

guilt. Further, Ware chose to testify, he had the opportunity to explain and defend

any statements made to the officers, and the jury was free to believe or disbelieve

him. See United States v. Turner, 474 F.3d 1265, 1279–80 (11th Cir. 2007). Ware

has not shown that any possible Miranda error affected the outcome of the district

court proceedings, and therefore Ware did not meet the third prong of the difficult




                                          11
plain error test.1

                                 C. Ware’s Third Claim

       During trial, Ware testified that another individual was using his bedroom

as an overnight guest, and that Ware was sleeping on the couch. In rebuttal, the

government re-called the arresting officer, who testified that Ware told him that

the individual did not live there, but was visiting to get a power cord for a video

game, and had nothing to do with anything inside the apartment. The government

then asked the officer, “[a]nd did Mr. Ware say anything like, I have been sleeping

on the sofa; I don’t know what’s in my bedroom?” To which the officer replied,

“No, sir. He didn’t volunteer any kind of information like that.” Ware argues the

district court erroneously admitted this evidence of his post-arrest silence in

violation of Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240 (1976). Ware

contemporaneously objected to this alleged evidentiary error, so review this claim

for abuse of discretion. Turner, 474 F.3d at 1275.

       Doyle “held that the Due Process Clause of the Fourteenth Amendment

prohibits impeachment on the basis of a defendant’s silence following Miranda



       1
          Moreover, the majority of the officers’ testimony regarding Ware’s statements were
given in rebuttal to impeach Ware’s testimony, so the officers’ testimony would have been
admissible even absent Miranda warnings. Harris v. New York, 401 U.S. 222, 225–26, 91 S. Ct.
643 (1971).

                                             12
warnings.” Anderson v. Charles, 447 U.S. 404, 407, 100 S. Ct. 2180 (1980) (per

curiam). But Doyle is inapplicable,

              to cross-examination that merely inquires into prior
              inconsistent statements. Such questioning makes no unfair
              use of silence because a defendant who voluntarily speaks
              after receiving Miranda warnings has not been induced to
              remain silent. As to the subject matter of his statements,
              the defendant has not remained silent at all.

Id. at 408.

       The court did not abuse its discretion in admitting the officer’s testimony.

Assuming that the arresting officer administered the Miranda warnings to Ware,2

the record reveals that the officer’s rebuttal testimony addressed the inconsistency

between Ware’s post-arrest statement to the officer and his exculpatory testimony

at trial, and not Ware’s failure to offer exculpatory information on arrest. “The

questions were not designed to draw meaning from silence, but to elicit an

explanation for a prior inconsistent statement.” Charles, 447 U.S. at 409.

Because the question did not address Ware’s “failure to offer exculpatory evidence

upon arrest,” but rather “simply addressed the context of [Ware’s] statement on

arrest,” United States v. Dodd, 111 F.3d 867, 869 (11th Cir. 1997) (per curiam),


       2
          Alternatively, if Ware was not given the Miranda warnings, the Doyle prohibition is not
implicated. See United States v. O’Keefe, 461 F.3d 1338, 1346 (11th Cir. 2006) (“[D]ue process
is not violated by the use for impeachment purposes of a defendant’s silence prior to arrest, or
after arrest if no Miranda warnings are given.”).

                                               13
the district court did not abuse its discretion in allowing the officer’s testimony.

                               D. Ware’s Fifth Claim

      During trial the leasing agent testified that she saw baggies and a white

substance in Ware’s kitchen during a visit to his apartment. The government

elicited that this “could have been drugs,” and that baggies were something the

agent “associated with drugs.” The government subsequently argued to the jury

that the leasing agent “recognized these immediately to be drugs and drug

paraphernalia.” Ware argues that the leasing agent’s identification of drugs in his

apartment was inadmissible as a lay witness’s opinion. He argues it prejudiced his

defense because it was the only evidence that placed Ware in the apartment in

close proximity to drugs.

      Pursuant to Federal Rule of Evidence 701, lay witnesses can testify to

opinions and inferences “which are (a) rationally based on the perception of the

witness, (b) helpful to a clear understanding of the witness’ testimony or the

determination of a fact in issue, and (c) not based on scientific, technical, or other

specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701. A lay

witness’s opinion is admissible “only if it is based on first-hand knowledge or

observation . . . .” United States v. Marshall, 173 F.3d 1312, 1315 (11th Cir.

1999).

                                          14
      The court did not plainly err by admitting this testimony. The leasing agent

testified that she observed a white substance, baggies, and a scale in Ware’s

kitchen. Her testimony that the substance “could have been drugs” was made in

context of not only the appearance of the substance, but its proximity to baggies

and a scale. This testimony was based on her first-hand observation of the kitchen

counter top, and was a rationally based perception. She explained that she

associated the baggies with drugs because they were tiny and because she

observed them “all over the place” where persons distributed drugs. This was

helpful to understand her testimony. Her identifications were not based on expert

knowledge, but were permissible under Rule 701.

                              E. Ware’s Sixth Claim

      Ware contends that the testimony of a government witness, who was a drug

user under arrest, was incredible as a matter of law and that the admission of her

testimony violated due process. But in federal criminal cases, everyone is

competent to testify except (1) a person who refuses to declare that he or she will

testify truthfully, (2) the presiding judge, and (3) any member of the jury hearing

the case. See generally Fed. R. Evid. 601–615. As we previously stated, witness

credibility determinations are the exclusive province of the jury and may not be

disturbed unless the witness’s testimony was incredible as a matter of law.

                                         15
Calderon, 127 F.3d at 1325. Here, the witness was competent to testify, and her

testimony was not “incredible as a matter of law.” Accordingly, the district court

did not plainly err in admitting her testimony.

Conclusion

      In conclusion, of all Ware’s evidentiary claims, only one—the second

claim—may present an evidentiary error, although not a plain error. The

remainder of his claims do not present error at all, and therefore, his claim of

cumulative error fails.

      AFFIRMED.




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