                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________           FILED
                                                    U.S. COURT OF APPEALS
                                 No. 10-15138         ELEVENTH CIRCUIT
                                                           OCT 5, 2011
                             Non-Argument Calendar
                                                           JOHN LEY
                           ________________________          CLERK

                   D.C. Docket No. 5:09-cr-00260-KOB-HGD-1

UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                      versus

GEORGE WILLIAM WHEELER,
a.k.a. Chi Chi,

                                                           Defendant-Appellant.

                           ________________________

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

                                 (October 5, 2011)

Before WILSON, MARTIN and BLACK, Circuit Judges.

PER CURIAM:

      George Wheeler appeals his conviction for one count of conspiracy to

possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
846. He contends that the district court improperly admitted evidence under

Federal Rule of Evidence 404(b). Wheeler also challenges the district court’s

denial of his Federal Rule of Criminal Procedure 29 motion for judgment of

acquittal and the sufficiency of the evidence to support his conviction. After

review, we affirm.

                                         I.

      Wheeler contends that the district court improperly admitted evidence under

Federal Rule of Evidence 404(b), namely Will and Demetrius Hines’ testimony

concerning his participation in a prior marijuana transaction. The Hines brothers

testified that in 2008 Wheeler was fronted 300–350 pounds of marijuana from a

Mexican supplier, with the obligation to pay for it later. When Wheeler was

unable to pay for the marijuana, Will Hines paid the supplier $100,000 owed by

Wheeler. Wheeler asserts that the Hines brothers’ testimony was improperly

admitted because its prejudicial impact outweighed its probative value.

      We review a district court’s evidentiary rulings for abuse of discretion.

United States v. Bowe, 221 F.3d 1183, 1192 (11th Cir. 2000). Rule 404(b)

provides that 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). That evidence “may, however, be admissible for other purposes,

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such as proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.” Id.

      In order for extrinsic evidence of other crimes to be admissible, three

conditions must be met: (1) “the evidence must be relevant to an issue other than

the defendant’s character”; (2) “the evidence must be sufficient to support a

finding that the defendant actually committed the extrinsic act”; and (3) “the

probative value of the evidence must not be substantially outweighed by unfair

prejudice.” United States v. Calderon, 127 F.3d 1314, 1330 (11th Cir. 1997).

      The district court did not abuse its discretion by admitting the challenged

Rule 404(b) evidence. First, by pleading not guilty to the conspiracy charge,

Wheeler made his intent a material issue in the case. See United States v. McNair,

605 F.3d 1152, 1203 (11th Cir. 2010) (“In every conspiracy case, a not guilty plea

renders the defendant’s intent a material issue.” (alteration and quotation marks

omitted)). Second, the Hines brothers’ testimony concerning Wheeler’s

participation in a prior marijuana transaction provided a sufficient basis for the

jury to find that Wheeler actually committed the act in question. See Bowe, 221

F.3d at 1192 (“In this circuit, the uncorroborated word of an accomplice . . .

provides a sufficient basis for concluding that the defendant committed extrinsic

acts admissible under Rule 404(b).”).

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      Finally, the probative value of the evidence was not outweighed by unfair

prejudice. “[W]hether the probative value of Rule 404(b) evidence outweighs its

prejudicial effect depends upon the circumstances of the extrinsic offense.”

United States v. Edouard, 485 F.3d 1324, 1345 (11th Cir. 2007) (citation omitted).

Relevant circumstances include “overall similarity between the extrinsic act and

the charged offense, as well as temporal remoteness.” United States v. Jernigan,

341 F.3d 1273, 1282 (11th Cir. 2003) (quotation omitted). Although Wheeler’s

extrinsic act involved marijuana instead of cocaine, the circumstances of that act

and those of the charged offense exhibit numerous similarities. The similarities

include negotiation for the purchase of narcotics; a transaction involving a larger

amount of narcotics than would be customary for personal use; payment of

thousands of dollars in cash; and the presence of Wheeler’s young son in the car.

The evidence was also probative because the extrinsic act occurred less than two

years before the charged conspiracy and thus was not too remote for proper

consideration. See Edouard, 485 F.3d at 1345–46 (two year time span did not

render the extrinsic acts too remote for proper consideration). Moreover, any

unfair prejudice that may have existed was mitigated by the limiting instruction

that the district court gave to the jury. See United States v. Duran, 596 F.3d 1283,




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1298 (11th Cir. 2010). For these reasons, the district court did not abuse its

discretion in admitting the 404(b) evidence.1

                                               II.

       Wheeler also argues that the district court erred in denying his Fed. R. Crim.

P. 29 motion for judgment of acquittal. Wheeler made his Rule 29 motion after

the government rested its case, but failed to renew the motion after he presented

his case. Because Wheeler did not renew his motion at the close of the evidence,

we may reverse his conviction on the ground of insufficiency of the evidence

“only to prevent a manifest miscarriage of justice.” United States v. Burston, 159

F.3d 1328, 1332 n.5 (11th Cir. 1998) (quotation marks omitted). The “manifest

miscarriage of justice” standard requires “a finding that the evidence on a key

element of the offense is so tenuous that a conviction would be shocking.” United

States v. Hamblin, 911 F.2d 551, 557 n.2 (11th Cir. 1990) (quotation marks


       1
          Wheeler asserts that the district court improperly admitted Robert Treadwell’s
testimony under Rule 404(b). Treadwell testified that he overheard Wheeler discussing details of
the charged offense with Will Hines, while all three were incarcerated in the Morgan County jail.
Rule 404(b) only applies to evidence that is “extrinsic” to the charged offense. See Edouard, 485
F.3d at 1344. Because it related to the charged offense, Treadwell’s testimony fell outside the
scope of Rule 404(b). Further, as set forth below, there was overwhelming evidence of
Wheeler’s guilt. Thus, any error in admitting Treadwell’s testimony was harmless. See United
States v. Gamory, 635 F.3d 480, 492 (11th Cir. 2011) (explaining that “[w]here a District Court
abuses its discretion in admitting evidence, we may still find the error harmless”); United States
v. Belfast, 611 F.3d 783, 816 (11th Cir. 2010) (“[W]here an error had no substantial influence on
the outcome, and sufficient evidence uninfected by error supports the verdict, reversal is not
warranted.” (quotation marks omitted)).

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omitted). In making that determination, we view “the evidence in the light most

favorable to the Government, drawing all reasonable inferences and credibility

choices in the Government’s favor.” United States v. Friske, 640 F.3d 1288, 1291

(11th Cir. 2011) (quotation marks omitted).

      “To sustain a conviction for conspiracy to possess with intent to distribute,

the government must prove beyond a reasonable doubt that (1) an illegal

agreement existed; (2) the defendant knew of it; and (3) the defendant, with

knowledge, voluntarily joined it.” United States v. Hernandez, 433 F.3d 1328,

1333 (11th Cir. 2005) (quotation marks omitted). “[A] common purpose and plan

may be inferred from a development and collocation of circumstances.” United

States v. McDowell, 250 F.3d 1354, 1365 (11th Cir. 2001) (quotation marks

omitted). “Although mere presence at the scene of a crime is insufficient to

support a conspiracy conviction, presence nonetheless is a probative factor which

the jury may consider in determining whether a defendant was a knowing and

intentional participant in a criminal scheme.” Hernandez, 433 F.3d at 1333

(quotation marks omitted).

      Here, there was ample evidence that Wheeler knowingly and voluntarily

participated in the charged conspiracy. Wheeler met with a government informant

and an alleged co-conspirator on more than one occasion to arrange a sale of

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cocaine. During those meetings, Wheeler bargained over both the price and

quantity of the cocaine. On the agreed upon day of the transaction, Wheeler drove

to the delivery location, inspected the cocaine, and then left to obtain the purchase

money from his prospective buyers. Wheeler returned to the delivery location

several hours later with a portion of the money, explaining that his buyers wanted

to inspect the cocaine before paying the full amount.

      Although Wheeler testified that he did not intend to buy the cocaine, the

jury was free to discredit his testimony and consider it as substantive evidence of

his guilt. “We have recognized that a statement by a defendant, if disbelieved by

the jury, may be considered as substantive evidence of the defendant’s guilt.”

United States v. McDowell, 250 F.3d 1354, 1367 (11th Cir. 2001) (quotation

marks omitted); see also United States v. Allison, 908 F.2d 1531, 1535 (11th Cir.

1990) (“The jury may view [a] defendant’s false explanatory statement as

substantive evidence proving guilt.”). Viewing the evidence in the light most

favorable to the verdict, we conclude that there was sufficient evidence to support

Wheeler’s conviction.

      For these reasons, we affirm Wheeler’s conviction.

      AFFIRMED.



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