                                                              [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                      FILED
                          ________________________           U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                                                   March 17, 2006
                                 No. 05-12832                   THOMAS K. KAHN
                             Non-Argument Calendar                  CLERK
                           ________________________

                        D. C. Docket No. 04-10027-CR-SH

UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                      versus

JOHN STICKEL,
ONELIO RODRIGUEZ,

                                                            Defendants-Appellants.
                           ________________________

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

                                 (March 17, 2006)

Before DUBINA, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

      Appellants John Stickel and Onelio Rodriguez appeal their convictions for

(1) conspiring with one another to possess with intent to distribute 5 grams or more
of cocaine base (“crack cocaine”), in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(B) and 846; and (2) possessing with intent to distribute 5 grams or more of

crack cocaine, in violation of § 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2. On

appeal, they argue that (1) the district court abused its discretion by admitting

evidence of their prior bad acts; (2) the government’s evidence presented at trial

was insufficient to support their convictions; and (3) the district court abused its

discretion refusing to instruct the jury that a defendant cannot conspire with

government agents and as to lesser-included offenses.

                              I. Prior bad acts evidence

      Appellants argue that, because there was direct evidence that Rodriguez

retrieved crack from a drug supplier, his conduct was not open to an innocent

explanation, and, thus, the admissions of: (1) Detective Lance Franklin Cohens’s

testimony that he knew that an individual named “Flacco,” who later was identified

as Rodriguez, had been named as a narcotics supplier; and (2) Rodriguez’s prior

convictions for simple possession and Stickel’s prior conviction for attempting to

purchase cocaine were unnecessary to show their intent. They point out that they

had no notice, prior to trial, of the government’s intent to introduce Cohens’s

testimony about Flacco.

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



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United States v. Fortenberry, 971 F.2d 717, 721 (11th Cir. 1992). Federal Rule of

Evidence 402 provides that “[a]ll relevant evidence is admissible, except as

otherwise provided” by law. Fed. R. Evid. 402. Evidence is intrinsic if it is “(1) an

uncharged offense which arose out of the same transaction or series of transactions

as the charged offense, (2) necessary to complete the story of the crime, or

(3) inextricably intertwined with the evidence regarding the charged offense.”

United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998). We have also

stated that

          [e]vidence, not part of the crime charged but pertaining to the
          chain of events explaining the context, motive and set-up of the
          crime, is properly admitted if [it is] linked in time and
          circumstances with the charged crime, or forms an integral and
          natural part of an account of the crime, or is necessary to
          complete the story of the crime for the jury.

Id. (quoting United States v. Wilford, 764 F.2d 1493, 1499 (11th Cir. 1985)).

       Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts, is not

admissible to prove the character of a person in order to show action in conformity

therewith. It may, however, be admissible for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.” Fed. R. Evid. 404(b). Even then, “[t]o be admissible, 404(b)

evidence must (1) be relevant to one of the enumerated issues and not to the

defendant’s character; (2) the prior act must be proved sufficiently to permit a jury

                                          3
determination that the defendant committed the act; and (3) the evidence’s

probative value cannot be substantially outweighed by its undue prejudice, and the

evidence must satisfy Rule 403.” United States v. Chavez, 204 F.3d 1305, 1317

(11th Cir. 2000).

      “Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.” Fed. R. Evid. 403. “‘Rule 403 is

an extraordinary remedy which the district court should use sparingly’ and ‘[t]he

balance . . . should be struck in favor of admissibility.’” United States v. Tinoco,

304 F.3d 1088, 1120 (11th Cir. 2002) (quoting United States v. Elkins, 885 F.2d

775, 784 (11th Cir. 1989)).

      Because the record demonstrates that (1) testimony that Rodriguez

previously had been named as a source of supply was intrinsic evidence relating to

the story of the investigation of Rodriguez and was not unfairly prejudicial; and

(2) extrinsic evidence of appellants’ prior drug-related convictions were relevant to

their intent, which was at issue in the case, and any prejudice was alleviated by a

limiting instruction, we conclude that the district court did not abuse its discretion

by admitting the evidence.



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                           II. Sufficiency of the evidence

      Appellants argue that insufficient evidence supported their conspiracy

convictions, as there was no evidence that Stickel, who was merely present at the

scene and lent Rodriguez his car for a short period of time, had any

communications with Rodriguez demonstrating an agreement between them.

Stickel argues that, although there was evidence that he vouched for the reliability

of Rodriguez as a drug dealer and was familiar with controlled substances, such

evidence only proved that he associated with Rodriguez and knew about the illegal

nature of the activity. He contends that, furthermore, there was no evidence of a

single, unified conspiracy, pointing out that the evidence, instead, showed that

Stickel attempted to make a drug sale of his own.

      Rodriguez also contends that, because the evidence showed that he was a

homeless person who was running an errand with the intent only to procure a small

amount of crack to smoke himself, insufficient evidence supported his conviction

for possession with intent to distribute crack. Regarding his substantive

conviction, Stickel argues that the evidence that he was familiar with controlled

substances, had knowledge of the illegal transaction that was occurring, lent

Rodriguez his car, and waited for Rodriguez to return, without additional evidence

that he communicated with Rodriguez, was insufficient to convict him of



                                          5
possession with intent to distribute cocaine, even under an aiding and abetting

theory. Furthermore, he argues that, because the drugs were in his car only for a

short period of time while they were being transported by another person in

connection with someone else’s drug deal, he never had dominion or control over

the drugs such that he was in constructive possession of them.

      We review the district court’s denial of a motion for a judgment of acquittal

de novo, viewing the facts and drawing all inferences in the light most favorable to

the government. United States v. Descent, 292 F.3d 703, 706 (11th Cir. 2002). To

affirm the denial of a Rule 29 motion, we “need only determine that a reasonable

fact-finder could conclude that the evidence established the defendant’s guilt

beyond a reasonable doubt.” Id. (internal citation omitted). “The evidence may be

sufficient though it does not ‘exclude every reasonable hypothesis of innocence or

[is not] wholly inconsistent with every conclusion except that of guilt. . . . A jury

is free to choose among reasonable constructions of the evidence.’” United States

v. Montes-Cardenas, 746 F.2d 771, 778 (11th Cir. 1984) (quoting United States v.

Bell, 678 F.2d 547, 549 (5th Cir. 1982) (en banc)).

A. Conspiracy Count

      To sustain a conviction for conspiracy to possess cocaine base with intent to

distribute, the government must prove that (1) an agreement existed between at



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least two people, (2) the defendant knew of the conspiracy, and (3) the defendant

knowingly and voluntarily became a part of the conspiracy. United States v.

Andrews, 953 F.2d 1312, 1318 (11th Cir. 1992) (citation omitted). The

government does not need to prove the existence of a formal agreement, but rather

may rely on circumstantial evidence to show “a meeting of the minds to commit an

illegal act.” United States v. Toler, 144 F.3d 1423, 1426 (11th Cir. 1998) (internal

quotations and citations omitted). “A defendant’s knowing participation in a

conspiracy may be established through proof of surrounding circumstances such as

acts committed by the defendant which furthered the purpose of the conspiracy.”

United States v. Bain, 736 F.2d 1480, 1485 (11th Cir. 1984) (citation omitted).

      Mere association with individuals involved with drugs is insufficient to

prove that a conspiracy to distribute drugs exists. United States v. Hardy, 895 F.2d

1331, 1334-35 (11th Cir. 1990). Additionally, although presence is a permissible

factor to be considered in determining whether a defendant conspired with another,

“it is well settled that mere presence will not support a conviction.” United States

v. Charles, 313 F.3d 1278, 1284 (11th Cir. 2002). “Mere presence, guilty

knowledge, even sympathetic observation” and close association with a co-

conspirator are insufficient, without more, to support a conviction for conspiracy to

distribute drugs. United States v. Lyons, 53 F.3d 1198, 1201 (11th Cir. 1995). Yet,



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such factors may raise a permissible inference of participation in a conspiracy,

which the jury may consider as a “material and probative factor . . . in reaching its

decision.” United States v. Hernandez, 896 F.2d 513, 518 (11th Cir. 1990),

holding modified on other grounds by, Toler, 144 F.3d at 1426 n.3. Finally, a

defendant may be culpable even if he played only a minor role in the conspiracy,

since a conspirator need not know the details of each act making up the conspiracy.

United States v. Parrado, 911 F.2d 1567, 1571 (11th Cir. 1990).

      Because the record evidence established that Stickel and Rodriguez agreed

to work together to sell cocaine base, and that Stickel voluntarily took actions to

ensure the drug deal’s success, we conclude that sufficient evidence supported their

conspiracy convictions.

B. Substantive Count

      “In order to obtain a conviction under 21 U.S.C. § 841(a)(1), the

[g]overnment must establish the existence of three elements: (1) knowledge (of

one’s possession); (2) possession of a controlled substance; and (3) intent to

distribute that substance.” United States v. Wilson, 183 F.3d 1291, 1299 n.13 (11th

Cir. 1999). We have noted that “[a]ll three elements can be proven by either direct

or circumstantial evidence.” United States v. Poole, 878 F.2d 1389, 1391-92 (11th

Cir. 1989). “Evidence of surrounding circumstances can prove knowledge.”



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United States v. Alvarez, 837 F.2d 1024, 1027 (11th Cir. 1988). “Possession may

be actual or constructive, and the latter can be established by evidence showing

ownership, dominion, or control over the contraband itself or the premises on

which it is concealed.” Montes-Cardenas, 746 F.2d at 778. “[M]ere ownership of

a vehicle containing contraband is insufficient to constitute constructive

possession.” United States v. Barrera, 547 F.2d 1250, 1256 (5th Cir. 1977).

“Constructive possession may be shared with others, and can be established by

circumstantial or direct evidence.” Montes-Cardenas, 746 F.2d at 778.

      Appellants were also charged with violating 18 U.S.C. § 2, which provides

that “[w]hoever commits an offense against the United States or aids, abets,

counsels, commands, induces or procures its commission, is punishable as a

principal.” See 18 U.S.C. § 2(a). In order to convict a defendant on an aiding and

abetting theory, the government must prove that “the defendant (1) associated

himself with the crime, (2) intended to bring it about, and (3) sought by his actions

to make it succeed.” United States v. Kelly, 888 F.2d 732, 742 (11th Cir. 1989).

“To prove a charge of aiding and abetting possession of drugs with intent to

distribute, the [g]overnment must connect the defendant to both aspects of the

crime: possession and intent to distribute.” Id. Because 18 U.S.C. § 2 does not

“establish a separate crime, . . . [but] merely permits one who aids and abets the



                                          9
commission of a crime to be punished as a principal, . . . [a]n individual . . . may be

indicted as a principal for the commission of a substantive crime and convicted

upon evidence that he or she aided and abetted only.” United States v. Walser, 3

F.3d 380, 388 (11th Cir. 1993) (internal quotations and citations omitted).

      Because the evidence showed that Rodriguez purposefully drove to Stock

Island to procure crack cocaine and then sold the entire amount to a confidential

informant, we conclude that the evidence was sufficient to prove his knowing

possession of the drugs with the intent to distribute. In addition, because the

evidence established that Stickel lent Rodriguez his car, knowing that he was going

to use it to procure drugs, and took actions to make sure that the drug deal was

completed, we conclude that substantial evidence supported his conviction for

aiding and abetting Rodriguez’s possession with intent to distribute crack cocaine.

                                 III. Jury Instructions

      Finally, Rodriguez argues that, because there was a factual basis in the

record to support each of his requested instructions, the district court’s failure to

give the instructions was reversible error. Stickel argues that, because there was

evidence raising some doubt as to whether Stickel participated in the conspiracy,

the district court’s refusal to instruct the jury that a person cannot conspire with a

government informant was reversible error. He argues that the instruction went to



                                           10
the heart of his theory that he did not enter into the conspiracy and that the general

conspiracy instruction given by the district court did not cover his theory.

      We “review a district court’s refusal to give a requested jury instruction for

abuse of discretion.” United States v. Fulford, 267 F.3d 1241, 1245 (11th Cir.

2001). We will only find reversible error if “(1) the requested instruction correctly

stated the law; (2) the actual charge to the jury did not substantially cover the

proposed instruction; and (3) the failure to give the instruction substantially

impaired the defendant’s ability to prepare an effective defense.” Id. Moreover, a

district court is “vested with broad discretion in formulating his charge to the jury

so long as it accurately reflects the law and the facts.” United States v. Silverman,

745 F.2d 1386, 1395 (11th Cir. 1984). A “defendant is entitled to have presented

instructions relating to a theory of defense for which there is any foundation in the

evidence, even though the evidence may be weak, insufficient, inconsistent, or of

doubtful credibility.” United States v. Lively, 803 F.2d 1124, 1126 (11th Cir.

1986) (emphasis in original).

A. Instruction regarding conspiring with a government agent

      “[A]s it takes two to conspire, there can be no indictable conspiracy with a

government informer who secretly intends to frustrate the conspiracy.” Sears v.

United States, 343 F.2d 139, 142 (5th Cir. 1965). When the defendant requests a



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Sears instruction, and there is a proper foundation, failure to give a Sears

instruction constitutes reversible error. See Lively, 803 F.2d at 1126-28. In Lively,

where the indictment charged that the defendant had conspired with a named co-

conspirator, who later became a government informant, and also with “one or more

other persons unknown to the grand jury,” we determined that, since, without the

instruction, it was possible that the jury concluded that the defendant and the

named co-conspirator “conspired” during a time when he was a government

informant, the failure to give the instruction impaired the defense. 803 F.2d at

1126-1127.

      Because the indictment charged that Rodriguez and Stickel conspired with

each other, the jury necessarily had to determine either that Stickel and Rodriguez

conspired together, or they did not, any instruction about conspiring with

government agents would have been superfluous, and the district court did not

abuse its discretion by declining to give the instruction.

B. Instruction regarding lesser included offenses

      The Supreme Court has held that a defendant is “entitled to an instruction on

a lesser included offense if the evidence would permit a rational jury to find him

guilty of the lesser offense and acquit him of the greater.” Keeble v. United States,

412 U.S. 205, 208, 93 S. Ct. 1993, 1995, 36 L. Ed. 2d 844 (1973). “In the specific



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context of possession and distribution of drugs, this [Court] has held that where the

factual issues are the same for both the lesser offense of possession and the greater

offense of distribution, the instruction on possession is not required.” United

States v. Catchings, 922 F.2d 777, 780-81 (11th Cir. 1991).

      Because we conclude from the record that a rational jury could not have

found that Rodriguez possessed the drugs, but did not distribute them, or that

Stickel aided and abetted only the possession of the drugs, it was not an abuse of

discretion for the district court to refuse to give an instruction on the lesser-

included offense of simple possession.

      For the foregoing reasons, we affirm Stickel and Rodriguez’s convictions.

      AFFIRMED.




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