            Case: 12-16493    Date Filed: 05/21/2014   Page: 1 of 9


                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 12-16493
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 8:11-cr-00555-SCB-AEP-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                    versus

SAMUEL POSA,

                                                           Defendant-Appellant.

                         ________________________

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

                                (May 21, 2014)

Before PRYOR, MARTIN, and FAY, Circuit Judges.

PER CURIAM:

     Samuel Posa appeals his conviction for conspiring to dispense and distribute

oxycodone and possessing oxycodone. We affirm.
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                               I. BACKGROUND

      Dr. Blake Barton, a psychiatrist, practiced medicine in St. Petersburg,

Florida. Dr. Barton provided numerous oxycodone prescriptions to Posa. In

return, Posa gave Dr. Barton and his girlfriend, Lea Ann Locklear, a portion of the

pills from the prescriptions he had filled. Dr. Barton initially gave Posa

prescriptions for 180 pills and later increased the amount to 240 pills. Although

Dr. Barton gave Posa money to fill the initial prescriptions, under their

arrangement, Posa paid for subsequent prescriptions using the profits from selling

the previously prescribed oxycodone. Dr. Barton told Posa not to visit the same

pharmacy more than once per month and to go to smaller, non-franchise

pharmacies. Posa paid for all prescriptions with cash to avoid records of his

purchases. Additionally, Locklear saw Posa give oxycodone to his brother, and

she observed Posa receive several telephone calls, which she described as

“standard drug sales calls.” R7 at 382.

      Dr. Barton later included David “Manny” Faison in the arrangement. When

Faison was arrested on a firearms charge, he gave information about Dr. Barton,

Locklear, and Posa to law-enforcement agents. Special Agent Louis Ryckeley of

the Drug Enforcement Administration (“DEA”) was contacted. DEA agents

visited the pharmacies Faison identified and obtained records for Faison, Locklear,

and Posa. Subsequently, Posa was arrested and indicted with one count of


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conspiring to dispense oxycodone illegitimately, to possess oxycodone with intent

to distribute it, and to distribute oxycodone, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(C), and 846 (Count 1), and two counts of distributing and possessing

oxycodone with intent to distribute, on September 22, 2010, and October 23, 2010,

in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Counts 2-3).

      Based on records obtained from several pharmacies and carbon copies of Dr.

Barton’s prescriptions, Agent Ryckeley determined Dr. Barton had given Posa a

total of 248 prescriptions for a total of 57,855 thirty-milligram oxycodone pills

between May 2009 and October 2010. Additionally, Posa had filled at least 164 of

those prescriptions at 13 different pharmacies, which accounted for 38,655 pills

between May 2009 and October 2010. Based on his experience, Agent Ryckeley

testified the number of prescriptions Posa filled was not consistent with personal

use, but was a “clear indication of drug trafficking activity.” R8 at 507.

      At trial, Posa testified no agreement to distribute oxycodone existed.

Instead, he merely had filled Dr. Barton’s prescriptions, had kept some of the pills

for his own use, and had given the remainder to Dr. Barton. Posa also testified he

never sold oxycodone.

      As part of her instructions to the jury, over Posa’s objection, the district

judge included:

            When a defendant voluntarily and intentionally offers an
      explanation or makes some statement tending to show his innocence

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      and this explanation or statement is later shown to be false if the jury
      so finds, then the jury may consider whether the circumstantial
      evidence points to a consciousness of guilt.
            Ordinarily, it is reasonable to infer that an innocent person does
      not usually find it necessary to invent or fabricate an explanation or a
      statement tending to establish his innocence.
            Stated another way, a statement by the defendant if deemed not
      believable by you may be considered substantive evidence of the
      defendant’s guilt, but it cannot be used as the sole basis to support a
      conviction.

R9 at 971-72. The jury convicted Posa on all three counts of the indictment. The

district judge imposed concurrent sentences of 20 years of imprisonment on each

count, to be followed by 10 years of supervised release.

      On appeal, Posa argues the district judge improperly charged the jury that, if

disbelieved, his statements could be used as substantive evidence of his guilt. Posa

further argues the evidence was insufficient to support his Count 1 conspiracy

conviction and the evidence showed no more than a buyer-seller relationship

between Dr. Barton and him.

                                 II. DISCUSSION

A. Jury Instruction Regarding the Defendant’s Testimony

      We review jury instructions de novo to determine whether they misstated the

law or misled the jury to the prejudice of the party who objected to them. United

States v. Campa, 529 F.3d 980, 992 (11th Cir. 2008). When a criminal defendant

testifies, the jury is free to disbelieve him and consider his disbelieved statements

as substantive evidence of guilt. See United States v. Bacon, 598 F.3d 772, 776

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(11th Cir. 2010) (per curiam). At least where some corroborative evidence of guilt

exists for a charged offense, and the defendant testifies in his own defense, the

testimony denying guilt may help to establish elements of the crime. United States

v. Brown, 53 F.3d 312, 314-15 (11th Cir. 1995).

      The district judge instructed the jury that “a statement by the defendant if

deemed not believable . . . may be considered substantive evidence of the

defendant’s guilt.” R9 at 971-72. This instruction properly stated the law of this

circuit. See Brown, 53 F.3d at 314-15. Neither of the Supreme Court cases Posa

cites supports his argument this instruction contravened Supreme Court precedent.

See Bose Corp. v. Consumers Union, 466 U.S. 485, 512, 104 S. Ct. 1949, 1966

(1984) (concluding, in the context of a civil bench trial in a product-disparagement

action, a witness’s testimony disclaiming “actual malice,” even if discredited, was

insufficient to establish malice by clear and convincing evidence); Nishikawa v.

Dulles, 356 U.S. 129, 136-37, 78 S. Ct. 612, 617 (1958) (determining the district

judge’s disbelief of the plaintiff’s testimony that he was drafted in a foreign army,

was by itself insufficient to satisfy the government’s burden of proving the plaintiff

had voluntarily joined a foreign army and thus should lose his United States

citizenship). While Posa contends the instruction was improper, because it failed

to distinguish between his testimony and out-of-court statements or held him to a

different standard than other witnesses, he has failed to submit authority for his


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argument. Consequently, he has not shown the challenged instruction was

impermissible.

      Posa also argues the challenged instruction allowed the jury to use his

testimony to fill a gap in the government’s case, including the government’s failure

to produce any evidence that he gave pills to Dr. Barton on the dates charged in

Counts 2 and 3. This argument is unavailing. Locklear testified (1) Posa and Dr.

Barton had an arrangement in which Posa used profits from selling oxycodone to

buy more pills, (2) she saw Posa pay for prescriptions, (3) she saw Posa give

oxycodone to his brother, and (4) she observed Posa engaging in telephone calls

that appeared to relate to drug deals. Moreover, Agent Ryckeley testified from his

experience the number of pills Posa acquired indicated distribution and not

personal use. Because the jury heard testimony from other witnesses sufficient to

support a finding that Posa intended to distribute oxycodone on the two charged

occasions, the record does not support Posa’s claim of a gap in the government’s

case that required filling.

B. Sufficiency of Conspiracy Evidence

      We review de novo a district judge’s denial of a motion for a judgment of

acquittal on sufficiency-of-the-evidence grounds, consider the evidence in the light

most favorable to the government, and draw all reasonable inferences and

credibility choices in the government’s favor. United States v. Friske, 640 F.3d


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1288, 1290-91 (11th Cir. 2011). To sustain a conviction for a conspiracy, the

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

existed, (2) the defendant knew of the essential objects of the agreement, and

(3) the defendant, with knowledge, voluntarily joined it. See United States v.

Westry, 524 F.3d 1198, 1212 (11th Cir. 2008) (per curiam).

      Because a conspiracy is “predominantly mental in composition,”

circumstantial evidence may be used to prove its elements. Id. (citation and

internal quotation marks omitted). Intent to distribute may be inferred from the

amount of the drug involved. United States v. Hernandez, 433 F.3d 1328, 1333

(11th Cir. 2005). Similarly, an agreement may be inferred where the evidence

shows a continuing relationship that results in the repeated transfer of illegal drugs

from the seller to the buyer. United States v. Mercer, 165 F.3d 1331, 1335 (11th

Cir. 1999) (per curiam). A conspiracy conviction, however, may not solely be

based on a buyer-seller relationship. See United States v. Dekle, 165 F.3d 826,

828-29 (11th Cir. 1999). If the evidence shows only a buyer-seller relationship,

the fact that the sales are repeated, without more, does not support an inference that

the buyer and seller have the same joint criminal objective to distribute drugs. See

id. at 828-30 (determining evidence that a doctor issued at least 129 prescriptions

for controlled substances to 4 women in exchange for sexual acts or nude




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photographs was insufficient to establish a conspiracy to distribute controlled

substances).

      When a defendant testifies in his own defense, the jury may disbelieve his

testimony and consider it as substantive evidence of his guilt. Brown, 53 F.3d at

314. Therefore, when a defendant chooses to testify, he runs the risk that, if

disbelieved, the jury may conclude the opposite of his testimony is true. Id. The

proposition that the defendant’s testimony denying guilt may establish elements of

the crime applies with special force to subjective elements, such as intent or

knowledge. Id. at 315.

      The testimony of Locklear and Agent Ryckeley was corroborated by

(1) evidence that Posa and Dr. Barton were engaged in a continuing relationship

that had resulted in the repeated transfer of oxycodone, see Mercer, 165 F.3d at

1335 (recognizing an agreement may be inferred when there is evidence showing a

continuing relationship resulting in the repeated transfer of illegal drugs); (2) the

quantity of drugs involved, see Hernandez, 433 F.3d at 1333 (determining an intent

to distribute could be inferred from the amount of drugs involved); and (3) Posa’s

testimony, which the jury was entitled to disbelieve and consider as substantive

evidence of his guilt, see Brown, 53 F.3d at 314-15 (acknowledging a defendant’s

testimony denying guilt may establish elements of a crime such as intent).

Viewing this evidence in the light most favorable to the government, and drawing


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all reasonable inferences and credibility choices in the government’s favor, Friske,

640 F.3d at 1290-91, the evidence was sufficient for the jury to find Posa and Dr.

Barton had agreed to distribute and possess with intent to distribute oxycodone.

See Westry, 524 F.3d at 1212 (discussing the elements required to establish

conspiracy to distribute drugs).

      AFFIRMED.




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